PAWS for Veterans Therapy Act, H.R.1448 – Puppies Assisting Wounded Servicemembers for Veterans Therapy Act

Arooo! President Biden signed this bill on 8/25/21 and it had 312 co-sponsors.

Summary (Link):

This bill implements a program and a policy related to service dog therapy for veterans. Specifically, the bill requires the Department of Veterans Affairs (VA) to implement a five-year pilot program to provide canine training to eligible veterans diagnosed with post-traumatic stress disorder as an element of a complementary and integrative health program. Eligible veterans are those who are enrolled in the VA health care system and have been recommended for participation by a qualified mental health care provider or clinical team.

The VA must seek to enter agreements containing specified elements with accredited nongovernmental entities that have demonstrated ability to provide canine training.

The Government Accountability Office must brief Congress and submit a report on the program.

The bill also authorizes the VA to provide service dogs to veterans with mental illnesses, regardless of whether they have a mobility impairment.

Two Stars and Stripes stories (Link & Link)

K9s for Warriors is one service provider. I love the fact that they rescue and train former shelter dogs or owner-surrendered pets:

“The caliber of K9s For Warriors Service Dogs is extremely high, and the procurement team spends a majority of their time communicating and traveling to shelters scouring for suitable program candidates.

The Florida-based procurement team currently travels between Florida, Georgia, and South Carolina, and the Texas team at the Petco Love K9 Center pulls dogs from local San Antonio shelters.”

Image source: K9s for Warriors. Note: They have K9 Job Apprentice opening in San Antonio.

The VA was not eager for this bill to pass; they have about 6 months to begin the five-year pilot.

Because it takes time to pair a veteran with a trained service dog, do share this positive news with anyone in your VISN that might have an interest–providers, veterans, their families and local media. Many lives will be saved if this pilot is successful.

Laura (Guest author)

Posted in Food for the soul, Food for thought, General Messages, Guest authors, Inspirational Veterans, Legislation, Medical News, PTSD, Service dogs, Uncategorized, VA Health Care, vA news | Tagged , , | 2 Comments

Covid-19 vaccines come in multi-dose vials

Veterans and civilians remember seeing the multi-dose vials that sat on top of the jet injectors that delivered mass vaccinations into their arms. Or that were used with unclean syringes or needles.

Were there early indications that jet injectors could spread pathogens? Sure. One example: JAMA published a 1988 account of a nasty bacteria transmission, by jet injector, in a podiatry practice.

The CDC author wrote,

” A jet injector used to administer lidocaine was held between procedures in a mixture of the distilled water and a disinfectant as recommended by the manufacturer. Inoculation of patients with mycobacteria by the jet injector may have only occurred early in the day due to slow killing of the bacteria by the disinfectant. The outbreak emphasizes the pathogenicity of this water-associated organism and the need for high-level disinfection of jet injectors.

Outbreak of Mycobacterium chelonae infection associated with use of jet injectors, https://pubmed.ncbi.nlm.nih.gov/2362334/

Believe the science, brothers and sisters! Amen, amen?

Sure. Okay, then don’t suppress the results of experiments and studies whose results/conclusions the funders don’t like.

One can only resist reality for so long and Covid-19 is reviving safe injection issues. CDC knows that even with single-use disposable syringes, infection accidents are likely to occur during the Covid-era. The CDC is stepping up instructions of multi-dose vial hazards for providers who missed the class when they were in school.

https://www.cdc.gov/infectioncontrol/projectfirstline/resources/videos.html

The following excerpts are from recent CDC teaching materials: Click to access PFL-T6-SessionPlans-508.pdf

Sample Script
“One of the other key messages that we heard from Dr. Carlson is that
contaminated vaccines cannot be used. If a needle or syringe is reused or dirty
and goes into the vial, anything that’s on the needle or syringe will get into the
vial and contaminate the rest of the vaccine inside. If the vaccine is contaminated,
it can’t be used anymore, and it has to be thrown away. Why does this matter?”
(Pause for responses.)
“That’s right. If a multi-dose vial is contaminated by a used needle or syringe,
every patient who gets an injection from that vial after the contamination occurs
could get a disease like hepatitis or HIV. Some patients have even died from
hepatitis after getting a contaminated injection. If a contaminated vial is used,
public health authorities need to be notified right away. That’s because everyone
who got a dose from that vial has to be contacted and followed so that they
get the information about what happened and so they can be tested to find out
whether they got infected.

“Let’s review some of these actions. First, where should multi-dose vials be
prepared?” (Pause for responses. Trigger animation.) “That’s right. Always prepare
a multi-dose vial in a space that is clean and away from patients where you can
safely draw up the doses and prepare the vaccine. Never bring multi-dose vaccine
vials into patient care spaces, like a vaccination station where the patient is getting the shot or into a patient room.

“Remember that, before you touch any vials, clean your hands with alcohol-based
hand into the vial, especially the top area where or soap and water. This keeps the germs on your hands from getting into the vial you’re going to stick the needle in.”

Today, the CDC or VA has not, to my knowledge, done any tracking and testing for HIV, HCV or HBV based on the total lack of infection control for recruits who received dirty vaccinations in the past. The ability exists but political pressure around compensation, and other influences are much stronger than public health providers who have families to support.

by Laura (Guest author)

Posted in All about Veterans, Congressional HCV info, Corona pandemic, Food for thought, Future Veterans, General Messages, Guest authors, HBV, HCV Epidemiology, HCV Risks (documented), hepatitis, Jetgun BvA Decisions, Jetgun Claims evidence, Jetgun Manual, Legislation, medical injections, Medical News, research, Uncategorized, Vietnam Disease Issues | Tagged | 6 Comments

LZ GRAMBO-THE DOG DAYS OF SUMMER

I reckon everyone knows nothing gives me greater pleasure than massaging Mother Earth and coaxing Her to grow fruits and vegetables for us. Well, there’s also torturing the VA on behalf of my Veterans to obtain that which is their due. I also get a big bang out of all the “Hints from Heloise”s across the fruited plains which pop up in my Google News Feed every day. Some suggestions are spot on like the 5-gallon bucket mouse trap with the roly-poly stick and the come-and-get-it cheese out over the “moat”. Ahh. Mouse waterboarding. Only in America. So, without further ado, let’s talk about the dog days of Summer. Sure, the shit is hitting the fan in Afstan but you can read about that somewhere else. 

First off, any good dog day story around here will invariably involve Pickles who is two. This summer, as she’s become more familiar with the pool, she’s taken to sitting half-submerged to stay cool in between ball throws. I’ve even seen her lie down completely on the tanning ledge until needed for retrieval duties. Such is my Labradog’s love of water. Our neighbor dog Jackson comes over the moment he hears the pool cover being retracted. That’s good. Dogs need play friends, too. Of course, any thoughts of camaraderie fly out the window when the ball comes out.

 

PickleWorld

Touch it and you die….

On the subject of fruit, Gaea has been berry berry good to us this summer. I’d attribute it to chemtrails  if I believed in them. They’ve been painting up the sky pretty regularly every day. That would be some kind of powerful fertilizer they’re spraying if it were true. It would also be landing in Montana given the prevailing winds if they spray it directly overhead. But then I have to ask myself- “When has the government ever given me anything besides a pain in the ass?” So my faith in aerial fertilizing is now shot. Besides, just for argument, if they were spraying mind control shit, seems everyone would be walking around in a Zombie-like state and chanting the same doxology like “Praise Trump Biden from whom all blessing flow.” I sure don’t hear anything like that. Fact is, all I hear is dissention on where America is heading-both pro and con. But let’s get back to real fruit-not the fruits (and nuts) currently indigenous to DC.

I had to cross-tie my peach trees to themselves to prevent the branches from calving off like icebergs this year. We averaged about 250 peaches per tree. Cupcake finally got involved in the production and read up on when to harvest. In the past she complained the fruit was stringy, granular and not overly sweet. I was accused of planting bogus trees with inferior fruit. Mea culpas are in order here. It was my fault. I was waiting too long to harvest. There’s absolutely nothing wrong with the peach varieties we grow-just the short circuit between the grower’s ears. This year was the to-die-for harvest. Below is one morning’s pickings. Multiply that every day times two weeks. Our neighbors began locking their doors and shuttering the blinds when we pulled up. They do that a lot when I show up with baseball bat-sized Zucchini, too.

One day’s harvest

 

Our Gravenstein apple tree is at one end of the orchard closest to the sun. It got toasted during heat week when we were hit with the 112º Sunocalypse-or “heat dome” as the weather service named it. It cooked one side of any apples directly exposed that afternoon. We lost quite a few. Fortunately for us, our horses are real troopers and volunteered to eat them despite the burns. Nevertheless, the tree still produced 9 five-gallon buckets of record monsters. We still have over 3 more buckets growing that are not quite ripe. We’ve never grown any this big. I’m not kidding you when I say many were as large as a softball.

Here’s a funny one. We saw a lot of these abnormalities in our fruit back in 2013  coincidentally the summer after the Fukushima Daiichi Nuclear disaster. Just for shits and grins, I wrote blogs about my strawberries and corn back in 2013 –

CHILDREN OF THE FUKUSHIMA CORN

https://asknod.org/2013/06/24/strawberries-with-downs-syndrome/

 

Sure, it was bullshit but I love a good joke. I’m an April Fool. What I was not aware of was the power of the Internet. Google Search and every other information engine dialed in on that reference to Fukushima and radioactive strawberries/corn and it caused a lot of consternation. Folks emailed me to ascertain they weren’t also in the path of the prevailing winds that led to my being bombarded by the radiation. Others wanted to know if I’d considered co-contamination with the chemtrails as well. The problem with that is our government want to keep us alive so we can keep paying taxes to buy their Perrier Jouet Champagne and caviar with Morel mushrooms on toast points. You never poison the well from which you drink. That’s Government 101 regardless of whether it’s Capitalism or Socialism.

The best part about this blog is those Internet Search Engines are going to glom on to this article and prove conclusively that lo, all these years Fukushima radiation is still roaming loose downwind and has now infiltrated Washington’s corn crops. Well, that or chemtrails. Take your pick. How about 5-10-10 and five-year-old composted horse manure? How about Cupcake planted the corn late and you always get some retards, err, physically-challenged ears in every crop. For the most part, they were exceptional.

Here’s another anomaly I think was the product of the Sunocalypse- a blood birthmark on a Gravenstein. Of course Fukushima could be the culprit if you’re into Mel Gibson conspiracy shit. Hell- how about Global Warming?  I’ve never seen anything like it. It ran from the stem all the way to the base. We ate it anyway.

Speaking of hints from Heloise, I saw a Google article about the proper way to prepare an ear of corn for consumption. The picture showed an ear exactly like the below. I took my trusty box cutter/knife and carefully sliced the lengths down one of my ears and across the base perfectly replicating the gal’s presentation.

Okay. I give up. If this is indeed how it’s going to be presented at the table for consumption, it must be a New Age vegetarian thing. If so, it’s going to need to be served with a side of about 6 feet of dental floss. We cook our corn naked Kansas style. Bring the water to a rolling boil. Insert corn for 3 minutes. Remove and eat. After 4 minutes the corn sugar begins to convert to cornstarch anyway. I don’t reckon there’s any sugar left after 10 minutes. Do yourself a favor and take a page from Monty Python’s Holy Grail– the counting of the Holy Corn shall be three minutes. Neither shall thou count two nor shalt thou count four. Three is the number of the counting and the number of the counting shall be three. Five is right out.

Now here’s a kicker. Who knew there were different colors of cauliflower? Well, not me pilgrim. Cupcake started growing weird shit this year due to my being so busy. Is this a hoot or what?

Purple Heart cauliflower

Cupcake with “Ol’ Yeller”

That pretty much wraps up the summer report. Fall will bring the plums, the artichokes, the Brussel sprouts and the Johnny-come-lately Liberty and Fuji apples. And, hopefully a return to the health of the Nation and the end of this infernal disease.  Be safe. Be fruitful and multiply. B. Good.

Posted in Corona pandemic, Corona virus, Food for the soul, Humor, Independent Living Program, KP Veterans, Pickles, VA Agents | Tagged , , , , , , , , , , , | 3 Comments

LRRP HUMOR–ON THE SUBJECT OF COLONOSCOPIES

You may have read this one before by Dave Barry. It’s a newer update that breaks untrodden ground on the subject. Nevertheless, I can concur with his findings. Having lost about 95 centimeters of my small bowel over the course of five operations, I don’t think they need as long a scope for me-nor as much MoviPrep. I got away with not getting one for almost a decade by using the excuse that I’d been completely replumbed and I doubted cancer shows up that quickly. My LRRP client Ed, with a Silver Star sent me this. I discarded all his political observations on who might need one in Washington DC this morning because that isn’t germane to the discussion. Enjoy. 

Colonoscopy Journal:

I called my friend Andy Sable, a gastroenterologist, to make an appointment for a colonoscopy.

A few days later, in his office, Andy showed me a color diagram of the colon, a lengthy organ that appears to go all over the place, at one point passing briefly through Minneapolis.

Then Andy explained the colonoscopy procedure to me in a thorough, reassuring and patient manner.

I nodded thoughtfully, but I didn’t really hear anything he said, because my brain was shrieking, ‘HE’S GOING TO STICK A TUBE 17,000 FEET UP YOUR BEHIND!’

I left Andy’s office with some written instructions, and a prescription for a product called ‘MoviPrep,’ which comes in a box large enough to hold a microwave oven. I will discuss MoviPrep in detail later; for now suffice it to say that we must never allow it to fall into the hands of America’s enemies.

I spent the next several days productively sitting around being nervous.

Then, on the day before my colonoscopy, I began my preparation. In accordance with my instructions, I didn’t eat any solid food that day; all I had was chicken broth, which is basically water, only with less flavor.

Then, in the evening, I took the MoviPrep. You mix two packets of powder together in a one-litre plastic jug, then you fill it with lukewarm water. (For those unfamiliar with the metric system, a litre is about 32 gallons). Then you have to drink the whole jug. This takes about an hour, because MoviPrep tastes – and here I am being kind – like a mixture of goat spit and urinal cleanser, with just a hint of lemon.

The instructions for MoviPrep, clearly written by somebody with a great sense of humor, state that after you drink it, ‘a loose, watery bowel movement may result.’

This is kind of like saying that after you jump off your roof, you may experience contact with the ground.

MoviPrep is a nuclear laxative. I don’t want to be too graphic, here, but, have you ever seen a space-shuttle launch? This is pretty much the MoviPrep experience, with you as the shuttle. There are times when you wish the commode had a seat belt. You spend several hours pretty much confined to the bathroom, spurting violently.  You eliminate everything. And then, when you figure you must be totally empty, you have to drink another litre of MoviPrep, at which point, as far as I can tell, your bowels travel into the future and start eliminating food that you have not even eaten yet.

After an action-packed evening, I finally got to sleep.

The next morning my wife drove me to the clinic. I was very nervous. Not only was I worried about the procedure, but I had been experiencing occasional return bouts of MoviPrep spurtage. I was thinking, ‘What if I spurt on Andy?’ How do you apologize to a friend for something like that? Flowers would not be enough.

At the clinic I had to sign many forms acknowledging that I understood and totally agreed with whatever the heck the forms said. Then they led me to a room full of other colonoscopy people, where I went inside a little curtained space and took off my clothes and put on one of those hospital garments designed by sadist perverts, the kind that, when you put it on, makes you feel even more naked than when you are actually naked.

Then a nurse named Eddie put a little needle in a vein in my left hand. Ordinarily I would have fainted, but Eddie was very good, and I was already lying down. Eddie also told me that some people put vodka in their MoviPrep.

At first I was ticked off that I hadn’t thought of this, but then I pondered what would happen if you got yourself too tipsy to make it to the bathroom, so you were staggering around in full Fire Hose Mode. You would have no choice but to burn your house.

When everything was ready, Eddie wheeled me into the procedure room, where Andy was waiting with a nurse and an anesthesiologist. I did not see the 17,000-foot tube, but I knew Andy had it hidden around there somewhere. I was seriously nervous at this point.

Andy had me roll over on my left side, and the anesthesiologist began hooking something up to the needle in my hand.

There was music playing in the room, and I realized that the song was ‘Dancing Queen’ by ABBA. I remarked to Andy that, of all the songs that could be playing during this particular procedure, ‘Dancing Queen’ had to be the least appropriate.

‘You want me to turn it up?’ said Andy, from somewhere behind me…

‘Ha ha,’ I said. And then it was time, the moment I had been dreading for more than a decade. If you are squeamish, prepare yourself, because I am going to tell you, in explicit detail, exactly what it was like.

I have no idea. Really. I slept through it. One moment, ABBA was yelling ‘Dancing Queen, feel the beat of the tambourine,’ and the next moment, I was back in the other room, waking up in a very mellow mood.

Andy was looking down at me and asking me how I felt. I felt excellent. I felt even more excellent when Andy told me that It was all over, and that my colon had passed with flying colors. I have never been prouder of an internal organ.

On the subject of Colonoscopies…

Colonoscopies are no joke, but these comments during the exam were quite humorous. A physician claimed that the following are actual comments made by his patients (predominately male) while he was performing their colonoscopies:

Take it easy Doc. You’re boldly going where no man has gone before.

‘Find Amelia Earhart yet?’

‘Can you hear me NOW?’

‘Are we there yet? Are we there yet? Are we there yet?’

 ‘You know, in Arkansas, we’re now legally married.’

‘Any sign of the trapped miners, Chief?’

‘You put your left hand in, you take your left hand out…’

‘Hey! Now I know how a Muppet feels!’

‘If your hand doesn’t fit, you must quit!’

‘Hey Doc, let me know if you find my dignity.’

‘You used to be an executive at Enron, didn’t you?’

And the best one of all:

‘Could you write a note for my wife saying that my head is not up there?’

Posted in FACE HUMOR, Humor | Tagged , , , , , , , , , | 3 Comments

THE LIFE LOTTO–WHO WANTS TO BE IN WIKIPEDIA?

History has an interesting habit of repeating itself. No matter how bizarre the event, be it the beginning or the end of a war, there will always be one-or in the instant case- two macabre facts that nobody wants to own. That may change in the ensuing days although we pray it doesn’t. I don’t have a morbid imagination but I remember trying to make sure I wasn’t ‘it’ during my two tours in sunny Southeast Asia.

Here, history and its inevitable finality reign supreme. The image that was seared into my brain back then was the immortal scene of an Air Am Huey grossly overloaded trying to pull pitch off the roof of the Air America Hostel several blocks down from the U.S. Embassy. Very few of you will remember the souls clinging to the skids who fell back on the roof. On that very same April 29, 1975, a mere 8 days before we would officially call in the dogs and piss on the fire of RVN, two Marines were struck and killed by a B 40 out at Tan Son Nhut. They will always be known as the the last servicemen to die for their country in Vietnam. Meet Corporal Charles McMahon Jr. and Lance Corporal Darwin Lee Judge. They share the unenviable perch in history of being tied for first place as the last to die-but at that point- for what, really? Another country’s Civil War?

Air Am Hostel 22 Gia Long Street 4/29/1975

Corporal William McMahon, Jr.

Lance Corporal Darwin L. Judge

It’s thus disturbing to me to see the same history being replayed out in Kabul yesterday. I was taught to pronounce it Ka-bool. Trust someone important to change it to Cobble. Sound like the same folks who came out with the recent revisions of the English language of ‘birth person’ and ‘chestfeeding’ to replace perfectly good existing terms. Of course, if  this will save even one gender-disphoriated person lacking lactatable mammary glands from suffering PTSD henceforth, then it was well worth it. Right?

Fast forward 44 years. Same Batshit war mentality. Different Bat Country full of Batshit-crazy prehistoric Stone Age Sand Ranchers. As it stands now, the last two to die, again, on the same day -February 8th, 2020 in this latest shitshow-were Sergeants 1st Class Javier J. Gutierrez and Antonio R. Rodriguez…

Sgt. 1st Class Javier J. Gutierrez

Sgt. 1C Antonio R. Rodriguez

As for the déjà vu moment of Chinooks landing on the roof of the U.S. Embassy, it  could not have been more a propos had it been a contrived photo op for the occasion. I’m sure this isn’t lost on any of my Vietnam brethren. It merely affirms the ages-old observation of George Santayana about being condemned to repeat history every 50 or so years in order to remember how stupid we are. In the instant case, it recurred in only 46 years. That still beats the 21-year difference between World War One and Two or the five years from WW II until Korea so we have that going for us.

As we don’t do politics here, I leave it to my readership to try to comprehend the enormity of how inept we appear to the rest of the world. Our English cousins across the pond showed far more aplomb at Dunkirk. We left the Montagnards behind. We left the Hmong behind. Now we leave the Pashtun interpreters and their families to the wrath of the taliban. It makes no difference in the end how we arrived at today. It makes no difference who is responsible or who will (or should) shoulder the blame. The tragedy is we have all been here before. We know better than to try to convert other countries into mirror images of ourselves and our politics. Everyone marches to the beat of a different drummer. This should have been a Grenada/Panama Canal Zone dry cleaners caper-in by ten and out by three.

Considering the likes of no less than Alexander the Great, the British (twice), the Russians and finally America that have broken our spears against these goat herders, it stands to reason we probably should have stood off at Angels 35 and carpet bombed them with CBUs, Willie Peter and Nape. Here, a mere 2,371 brave Americans were sacrificed on the altar of  political correctness. I suppose that’s a vast improvement over the 58,220 who bought the farm in ‘Nam. Gold Star mothers don’t see it that way. They no more wanted  their sons and daughters to be Wikipedia statistics in 1975 than they do now-and most certainly not the last ones this time around.

The downstream effect after the bad press, as we all know, will be the ungodly number of brand new disabled American Veterans we will have to take care of in the aftermath. I severely doubt the VA will be spending anywhere close to a trillion dollars on their needs. How many times must a cannon ball fly before they’re forever banned?

And that’s all I’m gonna say about that.

 

It is with great sorrow I write, on August 26, that more US servicemen were killed while guarding the Kabul airport. The actual number is uncertain but that is irrelevant.

Posted in All about Veterans, Future Veterans, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , | 5 Comments

LZ CORK– HLR-GIMME THREE STEPS TOWARDS THE DOOR

I always wonder who the unlucky sucker is that draws the short straw on these claims. VA raters- even the old fossils- do not have a clue how to deal with §3.156(c) claims. To tell you the truth, my comprehension of the regulation evolved by leaps and bounds with the passage of succeeding precedential decisions at the Court. VA has attempted since 1945 to bury this regulation  just as it also enjoyed the “splendid isolation” evoked by Senator Alan Cranston when they discussed the whole idea of the 1988 VJRA and revamping justice, as we know it today, for Veterans. To plagiarize an old cigarette commercial, we’ve come a long way, baby. But not far enough…

And, much like the relative ignorance of VA Examiners, the relative splendid isolation of §3.156(c) has lain fallow at the bottom of §3.156. Few ever scroll that far down as its application is so unheard of. Or is it? I’ve found numerous examples in a lot of my clients’ files. Well, numerous as in 5 times. Not all are so egregious as to warrant a 50-year lookback but some just jump out and bite you on the eyeballs. Because I triage my Vets and many are knocking on Heaven’s door, I don’t necessarily get all wigged out at 5-8 year errors. I mention them to the client and ask if she or he would rather concentrate on their incurable b-cell hairy leukemia and the R 1 decision I’m fighting for. Sometimes you have to prioritize and stay focused. If there is time to pursue them, and the claim is viable, then I fight with gusto. The “youngest”  §3.156(c) claim that’s viable I’ve run across to date is 1989. The Puzzle Palace in Sioux Falls, S.D. failed to retrieve the Yokosuka Naval Hospital records for twenty four years. When they did-voila- service connection for C8 nerve impingement and TDIU. But we’ll brook no argument about an earlier effective date, thank you.

As for its application to Butch Long, his 52-year holding pattern is getting tiresome. VA has burned up over a million dollars and seven years and this is still the original reopening of the 1970 claim kept alive by the miracle of the new AMA. In fact, Butch is my oldest surviving client- one of two I represent who were there at LZ Cork on January 18, 1969.

Seems every time when I get a win for someone like Butch or my LRRP Ed, they always invite a slew more of their buddies who were there getting blown up too. I can’t turn them down. It took me 18 years to get in under the wire and another 8 to make a clean sweep. They’ve been screwed for many of those same  years and all deserve justice. I wish I could clone myself to do more.

So, in order to “build back better” Butch’s  §3.156(c) claim, we’ve elected to do a HLR (Higher Level of Review) to check off one more box on the way up the ladder of VA justice. Make no mistake about it. VA isn’t about to roll over and grant this no matter how wrong it was or is now. The cost will be prohibitive even to a large agency with a 260 billion dollar budget.  I’ve read hundreds of old 1966-1975 Vietnam claims for diseases and SFWs.  They share one thing in common. The max rating in virtually all of them was no more than 10%- occasionally 20%. Most were the “Zeroes for Heroes” ratings. We all know the moment you cross over 30% the VA has to pay for the oke-san and the rug rats. VA was not about to grant that kind of money back then. Vietnam was a meat grinder. Vets were piling up at VAROs across the US and holding out their hands. If you were seriously messed up, you might get to 60% over 15 years but rarely TDIU for a few decades. VA was renowned for granting you IU about the time you hit 65.

So, I scheduled a HLR just for shits and grins. The VA gal, Wendy, is a DRO at the only Catholic VARO in the US (St. Pete’s). At the outset before we began this dog and pony show, I vetted her as to her grasp or comprehension of the ramifications of §3.156(c). She was like a deer in the headlights. She wouldn’t admit to not having ever set eyes on one-let alone doing a  supplemental or HLR. I could tell by her voice she was hoping for the Lynyrd Skynyrd exit and three steps toward the door. Thus, I concentrated on the latter subsections of §3.156(c)(3) and (4). As some know, there is where the power lies in rating these claims. I pointed out to her that for some reason, VA seems to think it was pure coincidence Butch filed to reopen dang near everything he filed in 1970… and won it all on the first throw of the dice along with TDIU. And then, again a year later, they granted for all the TBI shit they should have inferred in 1970. I asked her to be considerate of the fact this man had more SFWs with retained metal fragments than a guy who eats hand grenades for a living. The only thing VA objected to was the earlier effective date under §3.156(c)(3)(4). Essentially, what transpired was a §3.156(a) adjudication based on the submission of the proof of all the old injuries-not any new medical records showing an increase. And yes, there was absolutely no mention of a de novo review and new reconsideration of the 1970 claim as promised in the regulation. Zilch. The DRO in 2017 assured me that just because they didn’t say in haec verba that the reconsideration took place and was found wanting, that it never occurred. I expected her to say the M 21 Adobe 2 Pro didn’t have a cut-and-paste for that reg… or an M 21 cite.

The beauty of shrapnel wounds is they contain retained metal fragments. In addition, dirt and small pebbles end up in there. They all show up on the x rays so it’s pretty hard to cheat. In Butch’s case, it looks like somebody spilled salt all over his x rays. This explains why they always strip Butch down to his birthday suit looking for a bomb when he flies. Butch carries his proof of his claims everywhere he goes. And, when you’re wearing that much metal, it follows you were pretty darn close to where the explosive detonated. In Butch’s case it left what we call pepper spot tattooing from head to toe. The explosive powder has charcoal in it and it stains the skin when you’re mere feet from the detonation.

So, take a gander at the new HLR form. I hope this shines some light on what you can expect if you do an HLR. First, you should have a list of any and all bitches or complaints. What did they do wrong by law? What’s missing? What was declared as fact which isn’t fact? In this one, Wendy forgot to note that a Coach stated I had not submitted any new and material evidence. Ooops. Wrong legal standard of review, Coach. It’s now new an relevant evidence. I submitted 31 pages of service department records VA was (and still is) too lazy to go get. In fact, they still haven’t retrieved them. I guess they just trust us. Somehow, I forgot to submit them back in 2015 or 2017. I guess it’s a good thing I’m so stupid and forgetful because if I’d submitted them back then, I wouldn’t be able to file a supplemental claim now to reopen this, huh?             Redact IC HLR

Back in the “old days” when I could just sashay in to the VARO on the tenth floor of the old Smith Towers to chat with my rater, they were virtually all Veterans themselves. It was almost a prerequisite for employment there in the 70s like getting a job at the US Postal service. Nowadays, you won’t find Veterans in the hierarchy of the VBA because the Grand Poohbahs don’t trust them to be objective. Shucks. I’d sure give some ol’ boy the benefit of the doubt if he got whacked in service but you see the problem? If you haven’t been brainwashed into believing all Vets are trailer trash and liars, then they’re not going put you in the driver’s seat of the claim boat. As a Vet, you can’t be trusted to be an independent arbiter regardless of how many equity classes they pound down your throat.

I would think §3.156(c) claims would be a frequent occurrence at VA. We hear frequently of VA horror stories where they were shredding files in Dayton or stacking them in the janitor’s closet in Oakland for years. VA ain’t no daisy and their history of misdeeds precedes them. I love the predicted rejoinder with the mea culpa- “Well, this is actually fortuitous for Veterans. We certainly learned from this mistake in canceling VA medical appointments without notifying Vets at 67 VAMCs across the country for years to eliminate our backlogs and we’re going to build in safeguards to prevent it from ever happening again in the future. Nothing to see here. Move along.”

With the advent of VBMS, you cannot hide old STRs behind the VR&E files in the right flap of them old c files. They’re sticking out like sore thumbs and all labeled as such. VA pukes didn’t enter all these old records. They’re done by subcontractors who are truly independent. Their mission is to copy everything-not sort through it to discover if the evidence is damning and adverse to VA’s interests. Better yet, there’s a date assigned to all these documents showing when they were received. Thus, if you submit these new/old STRs in 2015, it’s pretty difficult to backdate them to 1970 and say you (VA) already have copies.

 

I strongly feel Butch will prevail on this. I doubt it will occur locally because true justice cannot be had at the Agency level. Nobody wants to go down to the lunchroom and suffer the embarrassment of  all the employees pointing at him and saying “Bummer. See that dude? He’s the bozo who granted an EED back to 1970. Boy is he ever going to lose out on his Christmas bonus like totally forever, dude. ”

VA made the error of granting all Butch’s claims without any fight. Every time they said he didn’t have retained metal in an appendage, I’d go out and get x rays proving he did. Pretty soon, I was on the DRO’s speed dial. They even tried CUEing themselves for 10% and giving him a dog bone back to 1970. But, as I pointed out above, they refused to go over the magic 30% because Butch had a spouse and 4 children. That alone would have been a chunk of dinero all by itself. Likewise, they finally dragged out §3.114 and gave him an extra year of tinnitus. The biggest mistake was caving in and granting 10% for “loss of field of vision” and TBI headaches for 50%. That was a concession that he was damaged by an explosive concussive event with grave acoustical/visual damage. Once you grant that in the §3.156(c) arena, you’ve shown your cards. You’ll never get Pandora back in the box. A filed of vision injury never heals. It’s not like it got worse in 2009.

I hate HLRs. They are nothing more than an imperfect rehash of the old informal DRO Reviews where nothing was recorded. It was all  hearsay and you couldn’t prove what they said were lies. At least this new AMA version of justice can be recorded privately and preserved for posterity to demonstrate misfeasance/malfeasance later.

Onward through the fog. Win or Die.

P.S. This just in.

Nobody forced you to keep reading….

Posted in Higher Level of Review (HLR), Tips and Tricks, VA Agents, VA AMA appeals knowledge, VBMS Tricks, Vietnam War history | Tagged , , , , , , , , , , | 2 Comments

EXPOSED VET RADIO SHOW THURSDAY

John just shined the Bat signal in the sky and alerted me to the need for a guest slot on the show. We’ll be there at 1600 Hrs on the Left Coast and 1900 Hrs at the infected end of the country. Be there or be square. I hope to talk about some of the recent Federal Circuit decisions that will affect our claims in the future. We’ll also talk about Barbie’s recent 85th birthday…

The call in number is the same:

(515) 605-9764

The computer link to the show is:

https://www.blogtalkradio.com/jbasser/11981279/connect/ed3422aa35bf7366d7ad02b5bfda7fd91733a1c7

We hope to see you there. If you wish  to ask a question hit the number 1 on your phone or computer keyboard to energize your microphone. Over.

P.S. We checked with Dr. Fauchi and  he assured us you do not need to be vaccinated to listen to the show. Please observe, however, the six foot rule from your microphones if you would.

Posted in CAFC Rulings, Exposed Veteran Radio Show, Exposed Vets Radio Show, Humor, Tips and Tricks, VA Agents, vA news | Tagged , , , , , , , , , , | Leave a comment

Charles F. Gardenhire–Korean War Veteran

Charles F. Gardenhire
9/6/19933- 7/26/2021

I lost another of my Veterans a few days back. Charles was my one and only Korean War Veteran. He survived the Chosin Reservoir massacre by staying awake and fighting for days. His company was overrun by the enemy. Sixteen of the sixty four men in his platoon survived by the sheer grace of God. Each was awarded a Combat Infantryman’s Badge which was no small feat for a Negro in a segregated unit in 1950. It would be four more years before the true integration of the Army was substantially enforced. 

Charles came down with a nasty case of pneumonia in late March 1951 from the experience that metamorphosed into suppurative encephalitis -also called the Japanese Sleeping Sickness. They refused to let him go on sick call until he collapsed into a coma on April 12. He was unconscious for almost a month with 103+ temperatures regularly. He was evacuated to Tokyo, Japan where he recovered over the next three months. They jacked him with 35 million units of Penicillin over that time and managed to save his life.

Instead of sending him back to the U.S. upon his recovery, they shipped him back into combat on July 15th. He returned to the U.S. under his normal rotation that Fall but never completely recovered from the disease. Dizziness, painful headaches and memory issues would plague him to his dying day.

His loving wife Petra will now pick up his battle flag and carry it forward against the VA for him. VA threw his original claims in the trash can in 1953 as they did all Blacks back then. Unfortunately for VA, they forgot to throw the rest of the claims file in with it and left a paper trail Charles was able to resurrect in 2008. He was eventually awarded 100% for his residuals but VA fought long and hard to deprive him of his just compensation all the way back to 1953. I aim to fix that.

We were right on the cusp of finally putting paid to all this at the BVA when he became ill and succumbed to numerous ills. I hope I have the stamina to make it to 87 and continue to help Veterans avoid these pitfalls too. Farewell my friend. I am honored that I was chosen by you to fight this battle and I won’t rest until you are vindicated. He would do no less for me were the shoe on the other foot.

You can view his obituary here.

https://www.serenityseattle.com/obituary/Charles-Gardenhire

Rest in peace, sir. No finer or braver Eleven Bravo ever wore the blue fourraggere.

Posted in All about Veterans, Duty to Assist, Food for the soul, Milestones, VA Agents, Veterans Law | Tagged , , , , , , , , | 3 Comments

MVA v. SECRETARY OF VETERANS AFFAIRS–ADVENTURES IN ADVOCACY

Boy howdy there’s nothing like waking up in the morning (on the left coast) and discovering an email from Chris Attig banging a gong and sounding the alarm. It’s not often we get to take the VASEC out behind the woodshed and administer some wall-to-wall counseling. We VA advocates have always contended the new AMA doesn’t dovetail quite as smoothly into the prior Legacy method as advertised and leaves many unanswered questions. Military Veterans of America (MVA) et al clears the air on a few of these inconsistencies and will force Denis the Menace to revamp not how he wrote the regs but force him to formulate them correctly going forward. 

So without any further ado, by the the numbers. Here’s the decision if you wish to read it.

19-1600.OPINION.7-30-2021_1811957

§5104C(b)/§5904(c)(i)/§14.636(c)(1)(i)

As the appeal was filed by numerous different entities (MVA/NOVA/PVA/ Carpenter Chartered/NVLSP), each signed on to different objections and some presented their own pet peeves. Of all the appealed contentions, only three of thirteen were sustained. Some might feel these errors of interpretation are inconsequential and some may not. Certainly, the biggest one affects us as litigators. 38 CFR §14.636(c)(1)(i), without boring you to death, was written as a fill-in modifier for AMA claims. Considering VA bitched about how FUBAR Legacy was, any improvements they sought should have made the system better. The Fed Circus decided to examine the whole recorded history of remuneration for VA attorneys which had been stuck at $10 per claim since 1864. Inflation kinda pissed in that well over the intervening 157 years. So, in 2007, eighteen years after the passage of the VJRA and the creation of the Court of Veterans Appeals (COVA), Congress graciously let attorneys and Agents like myself in and allowed us to charge 20% for our services… if we prevailed… but only if the Veteran had already been denied previously within the last 12 months by filing a disagreement with the VA’s regional wash and wax job. If the Veteran (or his representative) dawdled for more than 12 months, he had to start over. A win would merely result in a grant to the Vet and all the hard work to get there would be, by operation of law, gratis or pro bono. All the VSOs were in an uproar and fought our admission into paid litigation tooth and nail.

The Secretary’s take (on pg. 43) is “We always did it this way and we aren’t gonna change. Screw you and your interpretations.”

The government does not attempt to argue that
§ 5904(c)(1)’s text directly supports differential treatment
of § 5104C(a) and § 5104C(b) supplemental claims as to
paid representation. Instead, it argues that the VA’s regulation
deserves deference because the VA has an established
practice of treating motions to reopen “finally decided
claims based on new evidence” as a “separate
case[]” for the purposes of attorneys’ fees, which it purports
are analogous to § 5104C(b) supplemental claims under the
AMA, and nothing in the AMA or its statutory history indicates
that Congress intended for the VA to deviate from
this practice.

Let’s be frank here. Ostensibly, the new AMA was inaugurated (in VA’s eyes) to allow more Veterans a faster path to their denials and rid the VA of their pesky backlog. It succeeded after a fashion. The backlog just matriculated further through the VA python’s bowels and piled up at the BVA’s front door. Shit. Who would have thunk all them stupid Veterans would choose to appeal to the BVA? What part of ‘No!’ didn’t they get? VA had, for the most part, made it very difficult to understand how to appeal in the Legacy venue. The AMA was designed to make it easier by creating six new paths to resolution instead of one. VSOs were conflusticated and then along came Typhoid Covid Mary. Shoot, even the VSRs and RVSRs were flummoxed on how to read the new regs. I don’t blame any particular party for this confusion. Anything of or having to do with VA jurisprudence should help rather than hinder. Simplicity should be the guiding principle. You don’t know the government. Considering the Jokers at the Puzzle Palaces across our fruited plains can’t even agree on which form to use (526 or 995), it’s a miracle anything gets adjudicated-right or wrong. You have a 50-50 shot at using the right form to file so why is it always the wrong one? Well, wrong until someone figures it out and “corrects” the record to erase their stupidity.

So why in Heaven’s name would anyone in the hierarchy of VA (think OGC) decide that the proper interpretation of §14.636(c)(1)(i) forbids the award of fees after a win in a post-12 month supplemental AMA claim? The theoretical idea in this new AMA scheme was to make it more attractive to attorneys and agents to represent Veterans-not less. AMA embraces the idea of keeping your claim alive forever. This has to encompass the concept of eternal reopenings that might eventually result in a win. Not all Vets, or VSOs for that matter, seem to grasp the concept of  a 12-month suspense date. Considering this is a carryover from Legacy, it shouldn’t be so alien to understand. And, when viewed in the context of improving the system as  the VA and Congress mutually seem to concede, why the attempt on VA’s part to make it even more adversarial? Whazzup?

So here’s one example of VA’s adversarial methods. Johnny Vet applies for Bent Brain Syndrome after he comes home from ‘Nam in 1968. Of course he loses. VA didn’t have bent brain on the menu until 1982. Perhaps Johnny tried a few more times over the decades and kept on losing. Fast forward to 2019. Johnny contacts an attorney and says he wants to revisit his lost PTSD claim(s). Most attorneys, until last Friday, would have told him to sashay on down to the VFW or VVA and get a brand new denial so s/he (the attorney) could at least make his bones for doing the work after the inevitable denial.  So Johnny Vet trots down to the VFW, files, loses and beats feet back a year or so later. The attorney gets an IMO saying it’s at least as likely as not Johnny is mega-bugfucky in the head and he wins 70%. The attorney gets his 20% and Johnny is ticked pink until death do him part. But by now, he’s burned up five years to get there from the day he motored over to VFW to refile. So how in Sam Hill did the new AMA help him? How was this a vast improvement to speed it all up and 86 the VA’s backlog? VA would have us believe we should be glad it didn’t take ten years.

The correct reading of §14.636(c)(1)(i), by operation of law, has to follow the statute it’s predicated on. That says any time after you’ve been denied-be it an old 1968 legacy claim or a post-2019 AMA claim- and you finally prevail with your shiny new supplemental claim, that the attorney or agent is eligible to pass Go!® and collect his 20%. This is to induce more attorneys (and agents) to become involved, participate in, and give Veterans quality legal representation. The stated ideal of AMA was to repair the convoluted Legacy nonsense from 1989. Yeah. Right. When has VA ever been proactive or inferred simple entitlements without a 30,000 volt CAVC/CAFC cattle prod?

The proper interpretation of §14.636(c)(1)(i) is  a good thing. Granted, VA employees look down on VA practitioners like VA claims vultures or ambulance chasers as it is now. This will probably make us look even more greedy in their estimation. It shouldn’t. It should make them dread the idea an attorney or agent will be more prevalent in their future and recognize more Vets will be protected from their ludicrous VA bullshit. One thing I foresee instantly is a lot of practitioners becoming far more interested in that 1968 denial scenario described above that cries for justice. Mind you, we won’t get paid back to 1968-just to the day you filed the supplemental claim; so actually you get more money if we prevail earlier. You also get to hire the attorney/agent at the outset instead of having go through a VSO to get “pre-denied”. It’s a win/win situation that only the VA pukes could find offensive or unfair.

 

§ 5104C(a)(2)(A)/§3.2500(b)

Denis’ second misreading of what Congress created is §3.2500(b). § 3.2500(b) bars claimants from filing a supplemental claim based on new and relevant evidence while judicial review of one of their claim(s) is/are pending on appeal in federal court. Federal court refers not to the CAVC but to the Fed. Circus or the Supreme Court venues. Obviously, this is a gross violation of due process. You don’t have to be a leagle beagle to figure that one out. Granted, in the broader AMA context, §3.2500(d) and (e) make perfect sense. If you choose to file a 10182 NOD and go up to the BVA, it would sow discord into the process if you decided to jump ship from one venue to another -i.e., switch from direct review to evidence submission or decide to file a new 995 below at your local Fort Fumble (for the same thing) while your direct review NOD is still docketed at the BVA awaiting a decision.

But what if…? What if you’d been fighting a §3.156(c) claim for 6 years for an earlier effective date and finally reached the Fed Circus and were awaiting a decision there? Under the current interpretation of §3.2500(b), you would be precluded from filing a supplemental claim for, say, your Parkinson’s or b cell hairy leukemia until the §3.156(c) decision came down from the Feds. Shut the front door, GI. That’s an insane interpretation which could only be dreamed up by an adversarial Agency interpretation of what Congress intended. This somewhat mirrors what Bruce Taylor just ran into last month when a Fed Circus panel, sua sponte, decided he had been deprived of justice because he was restrained from filing based on a nondisclosure agreement of secrecy of 50 years duration. When obtaining justice  devolves down to whether or not you were born on a Tuesday before noon to qualify, there’s something wrong. Waaaaaaaaaaay wrong. VA’s take is “Piss off. We disagree with you. Besides, we’re in the process of making changes to this to fix it and we’ll get back to you when we get it fixed.” Check it out on Page 54…

The government responds that, as a threshold matter, the primary harm PVA complains of—loss of effective date—will soon be irrelevant because the “VA plans to propose a regulatory change [to § 3.2500(c), (g)] to protect the effective dates of supplemental claims” filed within one year of a decision by this court or the Supreme Court. But more to the point, the government argues, §3.2500(b)’s requirement that claimants pursue administrative review sequentially (rather than concurrently) with judicial review in the federal courts is consistent with the AMA and should be sustained because it “reasonably promotes systemic efficiency without prejudicing claimants.”

The Fed Circus notes that VA has a history of being all hat and no cowboy…

We note that it has been over a year since the government filed its brief, and we have yet to see a notice of proposed rulemaking for the regulatory changes mentioned. Instead, on March 19, 2020, the VA issued a policy letter stating that “[e]ffective immediately, claims adjudicators must consider supplemental claims . . . filed within one year of a Federal Circuit or Supreme Court decision as continuously pursued and apply the provisions of 38 C.F.R. §3.2500(h)(1) when adjudicating the claim.” See VA Policy Letter 20–01 (Mar. 19, 2020).

See? Problem fixed.  We put out an All Points Bulletin. We’ll rewrite the regulation when we see fit. Okay? Well, not exactly as they say down at Avis™ Rent-a-car…

It is unclear what effect, if any, the VA’s unfulfilled promise of forthcoming regulatory amendments and subsequent policy letter has on our analysis of § 3.2500(b)’s validity. But we ultimately need not resolve that question here. For even if the VA had amended its regulations through notice-and-comment rulemaking to extend effective date protections for supplemental claims filed within a year of a Federal Circuit or Supreme Court decision,17 we would nonetheless conclude that § 3.2500(b)’s bar on filing a supplemental claim during the pendency of a federal court appeal is invalid for contradicting the plain and ordinary meaning of § 5104C.

This is why we now enjoy judicial review above the BVA level. The VA, for over a century, enjoyed litigating adversarially in their own secluded bailiwick with no supervision. When called out, their response was, and still is, a condescending attitude and the old “yeah but that doesn’t apply to us.” Newsflash. The Fed. Circus is getting a bit miffed and is beginning to call them out.

 

§ 5110(a)(1),(3)/§3.155(b)(1)(i)–(iii)

The donnybrook over this regulation is simple. Johnny Vet submits a intent-to-file (ITF) on his brand new claim for bent brain in, say, 2016. Within the requisite 365 sunrises and sunsets, he dutifully files his VAF 21-526EZ to complete the process. He gets the ITF date of his filing. Nothing adversarial about that. Everything’s hunky dory and he goes on to a denial as happens 88% of the time. Let’s say he finally gets his shit together after about 2 years in 2021. He files an ITF for his supplemental claim and begins the process of getting an Independent Medical Opinion to rebut the 2016 denial. VA says Hold the phone Ramone. We don’t do ITFs on supplemental claims-just your initial claim. Okay. I’ll buy in. Where did Congress sign off on that one? Here’s the gist of the reg in footnote 15 on page 58…

The “intent-to-file” framework was implemented in September 2014 to replace the previous “informal claims” framework. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014); see also § 3.155(a) (2014). Under the “intent-to-file” framework, a claimant may signal a preliminary intent to apply for benefits by (1) saving an electronic application within a VA web-based claims application system; (2) submitting a VA standard form in either paper or electronic form; or (3) oral communication
with designated VA personnel regarding the claimant’s intent to file a claim. See § 3.155(b)(1)(i)–(iii).

VA decided to go off the reservation and write into this what Congress never spoke. VA’s repair order now that they’ve been busted? ? Why, don’t worry your pretty little Federal judiciary heads over this contradiction. We’ll fix it some day and it’ll be moot. Or, better yet, just remand it back to us so we can take another stab at it. Not so fast, Denis…

The government, for its part, does not defend the validity of §3.155’s preamble. Rather than litigate the regulation on the merits, the government asks that we dismiss and remand this challenge back to the agency. Specifically, “without conceding that [PVA’s] challenge is meritorious,” it avers that the “VA plans to propose a regulation to amend [§] 3.155 to apply the intent[-]to[-]file rule to[§] 5104C(b) supplemental claims” such that “[PVA’s] challenge will become moot.”  But if the proposed amendments to § 3.155 have not materialized by the time we render judgment in this matter, the government requests a voluntary remand for the VA to complete its rulemaking process.”

Once again, the Feds aren’t buying this line of post hoc rationalization of how to fix it. Action talks. Bullshit walks…

We decline, as a threshold matter, to grant the government’s request for voluntary remand. Much as was the case for the promised regulatory changes to § 3.2500(b), we have yet to see any indication that the VA will amend § 3.155’s preamble to include supplemental claims within the intent-to-file framework. While courts have discretion to grant a request for voluntary remand so that the agency can reconsider its previous position, see SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001), the VA has already had quite some time to revise a plainly invalid regulation but failed to do so. Although the VA assured this court that it would make certain amendments to two of its regulations, several months have now passed since oral argument, and not one of these regulatory amendments has materialized. Nor has the VA provided any updates or a timeline for when such changes might occur. Under these circumstances, we are unpersuaded that a remand to the VA would be of any benefit, and we see no reason to avoid resolving the ultimate question of validity.

Seems like VA’s credibility is beginning to fray around the edges in the Fed Circus’ view. This new attitude represents a decidedly new approach to VA stupidity. Five years ago, they probably would have remanded on the expectation that VA would honor its word. I guess it’s safe to say VA’s credibility is somewhat suspect. This will be filed under the Fool us once, shame on us. Fool us twice, shame on you, Denis.

It took 63 pages to accomplish this decision. I apologize for being long-winded here but 63 pages is a lot of verbiage to dissect and disseminate. More than half of it was devoted to establishing who had a right to sit in on this poker game and make a bet. That only three regulations were ultimately sustained as being defective is actually three more than I expected to read about. Perhaps we are entering a new period where the judicial thumb will indeed be placed on the Veterans’ side of the scales of justice as we were promised aeons ago. The Feds are preparing to relitigate Mr. Bruce Taylor’s decision on equitable estoppel en banc. I can’t wait to see if this new judicial approach continues in a positive direction. We’ve been screwed for centuries; it’s difficult to remember when we had a truly independent judiciary rule with such forcefulness and call the VASEC out for his bullshit. The CAVC (or certain new members of it) seems to be in lockstep with VA on a lot of their interpretations of governing statute. A careful analysis of who is “pro-VA’ reveals most of them have a background in the Judge Advocate General (JAG) Corps. From personal experience, I have discovered military justice is to justice what military music is to music.

And that’s all I’m gonna say about that.

 

Posted in Appeals Modernization Act, CAFC Rulings, Fed. Cir. & Supreme Ct., NOVA Attorneys, Tips and Tricks | Tagged , , , , , , , , , , , | 3 Comments

VETERAN SERVICE ORGANIZATIONS-A USEFUL ENTRY TOOL TO THE VA ADJUDICATIONS ARENA

Many of my readership bring horror stories to me about their representation by Veteran Service Organizations (VSOs). I get it. It’s one of the prime reasons I decided to become a representative myself-albeit as a private rep.  In the past, I have been known to disparage VSO reps as slightly higher than whaleshit and for that I apologize. It’s not that these folks purposefully set out to destroy your claims. It’s because they are not briefed in on the proper techniques to win. If you were never taught your Veteran needed a medical nexus to win his claim on a direct basis, it follows you probably wouldn’t bother mentioning it to him. This, then, is the perennial problem. It’s not ignorance (for the most part) so much as lack of training. Hence my apology for this belated revelation.

From what VSOs I interact with tell me, they get a crash course indoctrination on VA forms and the most rudimentary principles of VA law. We’re talking about a compressed 30-hour how-to and a few weeks of supervision before they are issued their wings.  Granted, only a National Service Officer who has passed the accreditation exam and is in good standing can legally sign your 526 or 995/996/10 182. The rest of the time, letters and correspondence are conducted unsupervised by the VSO’s hierarchy. This is how/why you end up on appeal to the BVA with your VSO asking for 10% for tinnitus for each ear. Vet reps don’t read Part IV of the VASRD. They aren’t required to. DC 6260 isn’t in their vocabulary. From what I gather, if there’s an error in the pleading, it’s presumed the NSO will catch it and send it back for correction(s). But what if…?

Well, Pilgrims. Here’s a few of the what ifs I’ve seen over the last decade or so. How about your Georgia Dept. of Vet Affairs representative is arguing on your behalf at a Travel Board hearing before  Veterans Law Judge Ursula “the Unmerciful” Powell and he allows as the Veteran “was f–king sick as a dog” to her… all the while sitting beside the Veteran’s surviving spouse. Boy howdy that’s not the position I’d want to be litigating from.

As mentioned above, I was searching BVA decisions for the perfect cite to precedence and ran across a DAV-repped denial by a VLJ that spent two full pages explaining (with a straight face) that the Secretary’s regulation specified DC 6260 (Tinnitus) was awarded at 10% for one ear or bilaterally. There simply was no path to an individual rating of 10% for each ear. There was no mention of the fact that this was a horrible squandering of scarce judicial resources or a legal boondoggle. Crickets. Perfect aplomb.

During my search for knowledge on Tinnitus, I ran across a BVA decision where the VSO’s representative had argued at the Travel Board Legacy Hearing that his client was not entitled to a compensable rating for his SC Tinnitus. Aru? Trying to talk the VLJ out of awarding the client the highest and best award that can be supported in law? Hold the phone. What’s wrong with this ex parte picture? Fortunately, in spite of the VSO rep’s argument against, the VLJ awarded the 10%.

The VSO representation model is a Congressionally chartered process. Each prospective Veterans Service Organization must promise to assist the Department of Veterans Affairs in adjudicating the Veterans’ claim(s). Time out…. Now, read that again. The VSO is promising to assist the VA-not the Veteran. This is why we have  NOVA, VA attorneys and agents. We represent your interests-not the VA’s. That is a very important distinction. I doubt any of you currently doing battle with VA over a claim realize you might be equally well-served by doing it yourself to a certain extent.

From 1989 to 2008 I trusted VSOs as the vehicle to ensure my evidence and 4138 statements were associated with my claims file. I used them as glorified mailmen. Imagine my surprise after finding out I needed a nexus letter. When I provided my representative that very item from my doctor, it never arrived at the VA. I began to suspect something wasn’t kosher so I mailed in a copy myself. Mr. VSO rep came unglued and told me if I ever did that again, he’d fire me. Aruuuu? I saved him the trouble and went pro se. Cupcake’s immortal words as we walked out of his office were “We have a better chance of winning the Publisher’s Clearinghouse Sweepstakes than we do winning with that bozo.” Sure enough we won. Well, not the Publisher’s Clearinghouse gig but the claims. I’m still working on the PCH angle. And here we are.

I used the DAV to begin with and did get 0% across the board. No mention of going for the gold. I was told I’d look greedy if we appealed it. We certainly wouldn’t want that. VSOs have repeated this old wives’ tale since the War of 1812. I wish they’d cease. The whole purpose of the appeals system is to right a wrong. VA argues they have a 98% success rate in their decisions. We know that 74% of all BVA decisions are set aside, vacated, or reversed due to legal error. If that is any benchmark, then the 98% claim is fool’s gold. In fact, why even have a Federal Court process if VA is always right? That’s kinda how it worked until 1989.

Some say “I used the PVA/DAV/VFW/VVA etc. to do my claim. They have a far higher success rate than any other VSO outfit.” There are two sides to that coin. You are assigned a representative. S/he might be new, motivated and extremely gung ho. S/he may also be older, burnt out and depressed with his/her workload and the futility of losing claim after claim. It’s like Forest Gump’s box of chocolates analogy. A given VSO doesn’t translate into an effective advocate. Your advocate has to be willing to go off the reservation and actually advocate for you proactively. Sadly, most representatives who exhibit this mustang behavior frequently get canned. Conformity to a set of rules forbids actually helping a Vet win all but the most obvious claims like GSWs or missing appendages. X rays don’t lie. VA examiners do-but that’s another subject for another day.

In the VA claims arena before the AMA, if you were pro se you could pretty much do anything you wanted and they’d straighten it out eventually. If you had a VSO, they might show leniency for your stupidity. There weren’t any fuddy-duddy lawyer rules that said you have to file this or that just so. VSOs have always been granted vast leeway in their dealings with the VA. Well, duh. They work for VA, pilgrim.

Ignorance of the VA’s regulations probably aids VSO reps and VA employees too. I don’t mean that as an insult. The new AMA regulations seem to confuse most Veterans nowadays. I’m sure it confuses VSOs equally so. VA does expect them to use the right form to file or appeal now. I watched this one unfold back in March of 2015 when the new VA Form 21-0958 Notice of Disagreement came out. VSO reps continued to use the old 21-4138 to file the NODS for several years after that. Old habits die hard. Oddly, VA continued to accept them from the VSOs. Now just imagine if an attorney or an agent had done this. Their 4138 NOD filing would end up in the circular file lickety spit and never be seen again. They’d discover it in the next tranche of records when (or if) they got a new copy of the Vet’s claims file.

 

In sum, the rank and file VSO representative is a valuable tool as your mailbox to the VA. You should be prepared to examine their filings  before they launch. Do not, I repeat, do not let them file for everything including the kitchen sink. If you do not have Tinnitus, don’t let them say “Shoot, buddy. Everyone got that when they were in. We always file the Vet for it.” File your claims for that which you actually suffer from…that began in the service. If you watched them bend atoms down at Bikini Atoll in the Pacific, then file for  glow-in-the-darkitis. If you served in Vietnam or inside the 12-mile territorial waterways, then file for the AO presumptives.  If you’re “Vietnam-era Veteran who only served in Germany, VSOs are famous for filing you for Parkinson’s and your Diabetes Mellitus Type II. When you file a claim, you file it for a disease or an injury. It has to be recognized as such. Itchy skin, absent a diagnosis of shingles- or whatever- is not a disease.  20/80 vision 25 years after service is not going to be a winner unless you served in Vietnam and have diagnosed diabetic retinopathy. Unfortunately, VSOs will try their dangedest to put it in the 526.

I’m glad VSO folks exist to be the first line of attack for a Veteran. Considering how few there are of us agents and attorneys, VSOs provide a valuable service as an intake vehicle to get Veterans aimed in the right direction. Hadit.com and some of the other sites for Veterans claims can also be an invaluable asset for newbies. Helping Veterans is fighting the good fight. Giving them good advice is the hard part. Every claim I open and investigate is unique and different from any other. Each Veteran has walked a different path to get here. Each claim for any given benefit has facets that can help or hinder you. There simply is no one-size-fits-all so don’t buy it. The 12 gauge approach, also known as the spaghetti offense to see what sticks to the wall, can backfire on you later. Due to the immense volume of claims each VSO rep is forced to shoulder necessarily means you are not going to get top drawer service. Nevertheless, it’s the best way to begin your battle. In almost all cases, it’s going to be the only way.

As attorneys or agents, we are swamped with Veterans seeking help. The pandemic only increased the queries because all the VSO offices were shut down. I spend hours on the phone handing out free advice to avoid having to take a claim. Most of us will not take a claim on from the beginning. By law, we cannot charge for helping you file your claims. We enter into the litigation arena only after you are denied. This isn’t meant to be greedy as some VSOs would have you think. Most of the folks in this game who practice VA law have wives, children, a mortgage and a humongous student loan debt by the time they begin their practice. Agents do not. We aren’t lawyers but get to dress up and pretend we are. We may have wives, children and a mortgage but we don’t have that insurmountable debt.

Speaking of money, it’s somewhat facetious for VSOs to say agents or attorneys are only in it for the money. Keep in mind every VA Form 21-22 that DAV, VFW or American Legion (or the 143 other VSOs registered) turns in results in a $200 “contribution” from VA into their National coffers. It pays to file with a VSO. Now, that $200 dollars I mention was way back in 2008 when I queried the Washington Dept. of Vet Affairs about it. The gal confided that it wasn’t common knowledge. Inflation suggests it has probably gone up.

Several years ago, A VSO National Service Officer from DAV called me a VA ambulance chaser. I’m not sure if that was an insult or a compliment. I’m sure I don’t know haw many claims I helped influence or win (or lose). Statistics show we have a far higher win ratio than VSOs. Who cares? The Veteran is our guiding North Star. One thing is for sure. If I hadn’t started chasing VA ambulances five years ago, there’d be a shit ton less Vets getting a compensation check. VA demands we be accredited- period. No one can engage in this without being credentialed. Thus, anyone who helps Vets legally is someone who cares enough to do it. I don’t look gift horses in the mouth. If a VSO can get you there, we all win. Reality shows that after you exhaust the VSOs’ limits, you’ll need to get professional help unless you have figured out how to do it yourself.

My abiding hope is that one day VSOs will engage in far more rigorous training to increase their representatives’ knowledge of this process. The AMA has created a minefield of new problems for the average Vet-not to mention his representative. The more knowledge of the processes of VA adjudication you learn, the more able you will be as a representative to help your Veteran. Punishing a representative for being successful is the antithesis of  logic.  In a perfect world, a VSO would be the equal to his private counterpart. But then, if six was nine we’d all have three more dollars in our savings accounts. Since it isn’t, and since VSOs, while they mean well, are not yet the equal to some who have learned the process, attorneys and agents will always find work until they do.

Again, my abject apologies go out to all of you who toil away at Veterans Service Organizations helping America’s Veterans for demeaning you. I don’t think of myself as a VA ambulance chaser. I prefer to think of myself as a Rain Man. It doesn’t grate on the ears as much.

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