EXPOSED VET RADIO SHOW–CHRISTMAS EVE SPECIAL

I’m deeply honored to present a Christmas Eve show with John and Jerrell over at Exposed Vets. It’s such a special time of the year and even more so in the current situation we are- I guess- enduring, for lack of a better descriptive noun. It’s been an interesting year for Vietnam’s Blue Water Veterans. Sadly, it’s another year of Orphan Annie status for my fellow Air Force and Army Vets who were corralled in on bases in Thailand surrounded by AO. Of all the Indochinese peninsula Vets, service there almost guaranteed you were presumptively exposed. After sixty years, I guess there’s still some mystery about how this Roundup™ shit gets on you…or in you.   

Beth Spangenberg

On Thursday evening’s show, I’d like to introduce you to a woman who really has Veterans’ backs. Bethanie Spangenberger P.A.-C is a fellow NOVA member and a VA Agent like myself. She started Valor4Vet.com and provides a valuable service in helping Vets obtain Independent Medical Opinions. Visit the website and give her a call if you have questions. She has a special new twist on doing claims.  NOVA, the National Organization of Veterans Advocates, is an organization made up almost exclusively of attorneys and agents who truly help get Vets service connected. No BS promises or dog and pony show games. It’s $500 a year to join and the conferences are not cheap but where else can you learn how to whip these VA turkeys at their own game?

I’ve been throwing rocks at VA’s window for 31 years now- if you don’t count my first foray back in 1975 that went nowhere. 1989 was my debut and I lost all my claims using DAV. I  tried again in 1994 with AmVets with no better luck. MOPH was the last hurrah in 2007 before I discovered the secret knock and the password. Once inside the wire, it was smooth sailing all the way to SMC S. VA might have changed the rules about 100 times since then but what the hey? That’s what NOVA’s for. They teach us how to build a better mousetrap.

On Thursday’s show, I’d like to share with you some of the latest tricks VA has come up with and the repair order to fix them. In a nutshell, the new AMA process is an end run attempt to void the benefit of the doubt enshrined in 38 CFR §3.102 and 38 USC §5107b. It’s subtle, I’ll grant you that, but it’s as obvious as Rudolph’s nose if you know what you’re looking for. I’m encountering it now almost on a weekly basis.

Pop the top of an adult beverage and join us for an informative last show of 2020.  There are two methods to tune in. Here’s the computer link if you want to join us.

https://www.blogtalkradio.com/jbasser/11867643/connect/898a85ee233520a00952c22a3b5197adf61d3d5e

And for all of you with the basics, the telephone number is still

(515) 605-9764

 

Dial one (1) to enter the conversation. Otherwise squelch it- do not dial one and create feedback by sharing your dogs’ barking.

 

In memory of my fallen Veteran clients this year, I list them here.

Sam Bailey 2/04/2020– U.S. Army; PH, ARCOM w/ V, CIB, Eleven Bravo

Ray Parker 4/09/2020-USAF; AM, VSM, VCM, CG w/ palm, Forward Air Controller

Chase  Haddock 4/10/2020- USMC, US Army; KDSM, UNKSM, Radioman

John Oldham 5/26/2020- USMC, VSM, VCM, CG w/ palm, Infantryman

Posted in Exposed Veteran Radio Show, NOVA Attorneys, Tips and Tricks, VA Agents, VBMS, VBMS Tricks | Tagged , , , , , , , , , , | 3 Comments

VBA CLAIMS WARNING–VA FORM 21-4142 & 4142A

First, accolades to Beth Spangenberger, PA-C of Valor4Vet for her 12/10 excellent clinical/informational presentation on how VA c&p exams work and VA Examiner bias. We need all the ‘inside’ information we can get to obtain justice for Veterans. Beth was the VA’s medical examiner  at the Dayton, Ohio VARO from 2012-2015. She reviewed the incoming clinician c&p exams for completeness and made her thoughts known as to whether the claim should be approved or denied. Much like a Detroit auto assembly line, you never get to see a completed car if you worked on the engine install line. So too, Beth. She did this for three years before she had to escape the madness. Fortuitously, she ran into a former claimant who still had not prevailed three years after she “approved” him and was later able to help him attain the proper rating. Following that, Beth parted company with VA, crossed over and became an accredited Agent for Veterans.

Without detracting from anything in her presentation, I wish to add to her list of things to look out for when dealing with VA prestidigitationists. The VCAA came out in 2001 forcing VA to be more up front with what we need to win. I’ve read a lot of c files and one thing jumps out at me. Veterans filed claims and dutifully filled out the VA Form 21-4142 and companion 21-4142a. This gave HIPPA permission to the VA to obtain your private medical records from your doctor. If you use VA medical and go to Death Valley VAMCs across our frozen plains for treatment, you only need to indicate this on your VA Form 21-526EZ. If you indicate there are private records, this triggers the VA mailing you the 4142s.

You fill out and return the documents to VA or to your VSO for submittal to VA. You believe VA will get your records. Shit, I did. Since the beginning of time, any request for medical records from a private provider requires a fee be charged to pull the records and copy them. In addition, this requires postage to mail them to VA. VA knows this. Since the VA refuses to pay for your records, they know this is a Mobius Loop; a zero-sum game.  Reasonable minds would agree that in a nonadversarial ex parte system of justice, VA should call you and say Group Health shined them on and you need to fix it pronto if you want to win.

Here’s a decision I just excavated out of a client’s VBMS  c file (now referred to as the efolder) last week while preparing to refile for him. Please note in the decision that the Vet is only informed at denial that VA never got the records back from the private doctor and that’s what caused the denial.

redact 2006 decision 4142

I will grant that with the VCAA threat now real, the Examiner did admonish Johnny Vet to go get the records from Group Health. But how many of you knew to do this or even understood the process of getting records and submitting them to VA? Wasn’t that the whole point of the VSOs and VA form 21-4142s? Sort of like one-stop shopping at WalMarket™, right? Booze? Check. Food? Check. New tennyrunners, ammo and deer tag? Check. Proceed to checkout, soldier. Nevertheless, it would seem the duty to assist should include a warning kind of like a trip flare before a denial rather than a belated one afterwards. Worse, even if the VA had received the medical records gratis, those records alone would not supply a medical nexus for his claim. Current records would only have informed the VA examiner of the current condition of the Veteran’s disabilities. 

 

VA’s failure to obtain the records causes additional downstream problems for Veterans. If you don’t supply any current evidence of a medical disability or injury, VA will never offer  you a c&p exam to find out if it might be service connected. Remember the Caluza/Hickson/Shedden triangle. Injury in service. Injury now. Medical nexus between the two. All the evidence in your service treatment records (STRs) is useless if you cannot prove you have a current disability. Never depend on VA to “build” your claim for you. Just like a three-card Monte game, you can’t win at this using VA’s rulebook.

Most Veterans arrive at the VA claims desk with two of the three Caluza elements- the injury/disease or risk factor in service and the current injury now. We expect VA to provide an independent medical opinion to solve the lack of the third requirement. Most Veterans don’t have $2-10K lying around to throw at this project. VA knows this. As Stalin was fond of saying- “It’s not how many votes you get but who counts the votes.”

Think of this as a recipe for baking cookies. You need a few things besides your good looks to make it happen. You need a doctor who writes nexus letters-not your own doctor who only has 15 minutes to see you, order and look at x rays, review your service records and write up an Independent Medical Opinion that it happened during service with accompanying cites to peer reviewed articles from JAMA. VA pays QTC, LHI and VES about $900 a pop for c&ps. That’s $900 for each DBQ they crank out and a medical opinion saying it did or didn’t happen in service. They don’t send out for c&ps with only one Caluza element.

Always remember there is nothing simple about this VA claims business. You keep your wallet in your front pocket and sit in a corner with your back to the wall. These fellers are slipperier than a pig dipped in Yellow 77.   They’ve been doing this since the War of 1812 so don’t think you’re going to pull the wool over their eyes. Worse, since the introduction of the AMA in 2019, VA is screwing things up at a record pace and making more work in the process. As if that wasn’t a bummer, the Coronabug has made it even worse by forcing VA idiots to telecommute and harder to consult their supervisor on procedure. This creates a lot of VA Star Wreck® stories-Boldly going Nowhere.

The teaching moment is never trust VA to accomplish anything they offer to do for you. Obtain your own evidence and submit it-even if you’re using a VSO. I don’t know how many claims I’ve read that died for lack of a timely appeal because the VSO didn’t file a NOD or VA 9 in time to save it. You can’t sue free help. Many have tried it, too. In the end, if you lose, it’s because you depended on another or false knowledge. If you are unsure of how to win, don’t give up until you find a good VA practitioner.

Merry Christmas to all. Thank you Gary Larson for coming back to work. Gary’s my neighbor. He lives over on Fox Island.

 

Posted in C&P exams, C-Files and RBAs, Corona virus, Humor, Independent Medical Opinions, Medical News, Nexus Information, Tips and Tricks, VA Agents, VBMS | Tagged , , , , , , , , | 3 Comments

VA Covid-19 vaccine distribution list

From 12/10/20 VA Press Release

Who–Health care workers and long-term care patients will be the first to get vaccinated. 🛌 🚑

Where–37 medical centers were “...chosen for their ability to vaccinate large numbers of people and store the vaccines at extremely cold temperatures.” 🌬️

However, Community Care MAY be available later, “…When more vaccines are available, we’ll determine if we can provide vaccines through our community provider network.” (Link) 🤷

When–soon? very soon? 😊

Birmingham (AL) VA Health Care System

Phoenix (AZ) VA Health Care System

Greater Los Angeles (CA) VA Health Care System

Palo Alto (CA) VA Health Care System

Eastern Colorado (CO) VA Health Care System

Connecticut (West Haven Campus) VA Health Care System

Washington DC VA Health Care System

Orlando (FL) VA Health Care System

Augusta (GA) VA Health Care System

Edward J. Hines Jr. VA Hospital (IL)

Lexington (KY) VA Health Care System

Southeast Louisiana (New Orleans) VA Health Care System

Maryland (Baltimore) VA Health Care System

Bedford (MA) VA Health Care System

Ann Arbor (MI) VA Health Care System

Minneapolis (MN) VA Health Care System

Harry S Truman Memorial Veterans Hospital (Columbia MO)

St. Louis (MO) VA Health Care System

Omaha (NE) VA Health Care System

Southern Nevada (North Las Vegas) VA Health Care System

Raymond G. Murphy (NM) VA Health Care System

New York Harbor (Brooklyn) VA Health Care System

Western New York (Buffalo) VA Health Care System

Durham (NC) VA Health Care System

Cleveland (OH) VA Health Care System

Oklahoma City (OK) VA Health Care System

Portland (OR) VA Health Care System

Corporal Michael J. Crescenz VA Medical Center (Philadelphia PA)

Pittsburgh (PA) VA Health Care System

Caribbean (Puerto Rico) VA Health Care System

Memphis (TN) VA Health Care System

Dallas (TX) VA Medical Center

Michael E. DeBakey VA Health Care System (Houston TX)

Audie L. Murphy VA Hospital (San Antonio TX)

Richmond (VA) VA Health Care System

Puget Sound (WA) VA Health Care System

Milwaukee (WI) VA Health Care System

🎉 💻 🖱️📞 📱Please share this list with anyone who might benefit from this information.

If you are planning to get in line pronto, let us know how it went. Planning to delay or skip it, why? (Because I have been severely allergic from early childhood, I will skip the 2-dose vaccines in favor of 1-dose. And made in America only. No multi-dose vials either.)

See: https://www.cdc.gov/injectionsafety/one-and-only.html

Remember VA: “Safe injection practices are part of Standard Precautions. A good rule to remember is One Needle, One Syringe, Only One Time.”

Laura (Guest Author)

Posted in All about Veterans, Community Care Network, Corona pandemic, Corona virus, Food for thought, Guest authors, medical injections, non-va care, Uncategorized, VA Health Care | 11 Comments

Senate passes veto-proof defense bill with three new Agent Orange presumptives

I’m glad this has finally passed the Senate (Link). If you want Pres. Trump to sign it right away, tweet him @realDonaldTrump. Too many vets have died waiting for this.

“WASHINGTON — A measure was included in the final version of the defense bill to grant Department of Veterans Affairs benefits to tens of thousands of Vietnam War veterans believed to be suffering the effects of Agent Orange.

A group of lawmakers Wednesday finalized the 2021 National Defense Authorization Act, a policy and spending bill for the Defense Department that passes through Congress every year. It’s a compromise between separate versions of the bill passed earlier this year by the Republican-led Senate and Democratic-led House.

The final version includes a measure that would approve benefits for Vietnam War veterans suffering from bladder cancer, hypothyroidism and Parkinson’s-like symptoms — conditions thought to be caused by exposure to the chemical herbicide Agent Orange. The provision would add the diseases to the VA presumptive list, which lowers the amount of proof veterans must provide in order to receive VA benefits.”

Source:

https://www.stripes.com/news/veterans/ndaa-would-add-three-conditions-to-va-list-of-illnesses-caused-by-agent-orange-1.654051

Laura (Guest author)

Posted in Agent Orange, All about Veterans, AO, Food for thought, General Messages, Guest authors, Uncategorized, VA Agents, VA Health Care, vA news, Vietnam Disease Issues, VSOs | Tagged , , , | 8 Comments

THE DAY AFTER THE DAY THAT WILL LIVE IN INFAMY

December 8th is an easy day to remember. For all of you, it’s merely a follow-on to the first horrific sneak attack on America. Oddly, in some respects, that’s identical to how a lot of spouses feel about having their wedding anniversaries sneak up on them and attack in the form of angry recriminations from the significant other for their memory lapse(s). I solved the problem by picking an immutable day-one that should always be easy to remember rather than suffering that ignominy year after year.

Just so none of you make a mistake using this trick, using dates like the day after Easter, Labor Day and Fat Tuesday are right out. Federal holidays are poor choices, too. Obviously, you’re going to have to get the better half involved in any choice of that “Big” day but you can always bluff them on using July 5th or December 26th with “Well, I checked with my astrologist and that’s the day when  Lung Cancer is on the cusp of Electron and its ninth moon is in eclipse-a very propitious day it is. Yessssss. ” Hey, it worked for me. What can I say? Just make sure the better half doesn’t read her Horoscope religiously.

Fortunately, Coronalife is hardly boring at LZ Grambo. We feed or interact with the horses thrice daily whether we ride or not. Ambush, our feral cat who truthfully moved in back on Labor Day Weekend in 2011 (see how that works?), is perpetually lazing about seeking Love in the Time of Corona. Cupcake  hums old Paul Simon  ditties like Me and Julio Down By the Schoolyard while she’s feeding them. Everything’s turning into Corona this and Corona that-even Rosie, Queen of Corona.

This is our 33rd anniversary. I’ve tested several phrases over the last several decades such as “Wow, it almost feels like a lifetime.” or “I don’t know how I- I mean we- made it.” I meant them in earnest.  I think the idea finally sank in after about 10 years of marital bliss that saying shit when nothing needs to be said can be hazardous to your health- or your wallet. That important date theme even extends to Cupcake’s birthday which I assure you I could never have influenced. While never exact, like December 8th, hers often hits on Opening Day of Buck season (or thereabouts)-the second Saturday in October. Apparently, it, too, is on the cusp of something. I made that fatal error one year when Princess asked how I was going to solve the paradox of being in two places simultaneously. Inveigled into opining, I ventured a neutral “Well shucks, Babycakes,  I’m really going to miss you.” Apparently that was the incorrect response. I think it was a set up. She invited her best friend to stay at the Seattle Westin Penthouse for the weekend. I needed  24-inch Barbecue tongs to handle the American Express bill a month later. I almost had to refi the house. I had no idea a bottle of 1945 Chateau Laffite went for $1450 dollars US. The kids rifled through the mini-bar in the room three days running. Using the bill as a guide, it appeared they were selling Doritos by the chip. Ditto the M&Ms.

Well I’m Movin’ on, Movin’ on from town to town

This is the primary reason I bought five acres and put in apple trees. Now I can be with Cupcake on her speshull day and still bag a nice spike or 2-point from the back deck before the November rut-or hell- even in August. Now if I could figure out how to call in a bull Elk…

Speaking of deer, some of my friends over the years have made jokes about my vehicular propensity for hitting deer that jump out in front of me. No one in their right mind would aim for a 200-pound animal at 40mph. My best friend began telling folks I always checked off Modern Vehicle instead of Modern Rifle on my Hunting License versus black powder or archery. That’s a lie. There is no such selection on the application. Once, on April Fool’s day back in the 90’s, I discovered some butt head “friend” had put those deer whistles on my front bumper that are supposed to scare them off the highway far in advance. He purposefully put them on backwards and posted it on social media. So just to set the record straight, I don’t hunt with a 20.06 Dodge Magnum. That’s pure horsepucky. It was a 2001 one-ton B3500 extended van and I only hit two total with it. Statistically speaking, hitting 12 deer in a lifetime with your vehicle is well within the average for most of us unless I’m mistaken.

After 33 years, I’m in uncharted territory and have been for decades. My first marriage only lasted 4 years. I’m just guessing it was incompatibility but her birthday was on December 26th so I had that going for me for a while. That wasn’t why I chose her as wife number one and it dang sure wasn’t because of her cooking. Martha Stewart she wasn’t and she hated venison, too. We had a geographical difference of opinion. She was born and raised in California. I wasn’t. With the advent of global warming, it turns out now, in retrospect, that my choice of the Pacific Northwest after coming home from RVN was a blessing in disguise-especially for hunting.

I’m sure by now most of you folks are about fed up with this social isolation crap. I can’t even imagine what I’d do cooped up in a 1,000 square foot apartment. It’s a testimonial to love to me that Cupcake and I are still speaking. I also credit that to being able to actually escape and wander about outside and never see another human being-let alone get within 6 feet of one. Unbeknownst to me, my outing down to Fresno and back February 4th-7th this spring to see my good friend Sam before he passed was the beginning of the lockdown. With both Cupcake’s and my immune systems compromised by illness/cancer, we have been lying low ever since.

As most of you with VA claims also know, this has really gummed up the VA. They have begun doing c&p exams again- but now only by the gomers at LHI/VES/QTC. No more VA doctors if VA has their say. Congress doesn’t seem to share their enthusiasm. They (VA) have taken to hiring out more complicated c&ps via the “ACE” process. To the uninitiated, that means some chucklehead neuro doc can legally state (for his 30 pieces of silver) that everything you have is not at least as likely as not related to anything you are claiming without ever setting eyes on you in person. ACE stands for “Acceptable Clinical Evidence”. That also means the dickhead will dig up every negative phrase you (or any other c&p doctor) ever uttered about your illness/injury  and use it as proof positive that even you believe you’re bluffing. I represent a Korean Vet now who survived the Chosin Reservoir massacre state that he got headaches and defective memory problems (to mention just a few of his residuals) after he woke up from a one-month coma from encephalitis. For aeons, if we tried to diagnose ourselves, VA would pull our choke collar and clothesline us with it by saying we were not Ben Casey M.D. and could not diagnose diddlysquat.  So how come, now that we’re in the grip of this Coronacrap, can these same idiots claim that we are knowledgeable enough to do so?

The neurodoc I mention above also began talking like a law dog and saying Jandreau v Nicholson was on point. WTF, over?  The Courts have long held, all the way back to the Benito Layno circus in ’94, that we can discuss anything we can smell, see, hear, taste and feel about our “condition”.  We just have to keep our  story straight and leave out the chemtrail articles and that alien abduction where they implanted the sensor in the back of your brain. You lose your  presumption of credibility when you discuss these things. Thus, my Korean Vet can freely discuss all his residuals of encephalitis such as his face going numb when he gets a headache and loses his sense of smell. Or explaining why, since 1951, he goes NASDAQ mentally if someone pisses him off. His competence to testify is now being hamstrung by his lack of credibility to cogently explain it in layman’s terms. Shoot, if I had 3-4 headaches a day and was eating Ibuprofen like Tic-Tacs since 1951, I’d say that was credible lay testimony-especially from a Vet with a CIB. Well, yes. Everywhere but at a VA c&p or an ACE c&p.

I’m beginning to discover that getting an IMO for my Vets at the Regional level is no longer the panacea it was pre-Corona. How can that be? Hickson, Shedden and Caluza are Holy Writ. If you cannot win with one, does that mean the Benefit of the Doubt died from the Kung Flu? Fortunately, that doesn’t hold true at the BVA. At least their common sense and notion of fair play still prevails pour le moment. The downside is that Vets have to wait two years to get what is their due. Seems I recall all them fellers telling us that was why we needed to pass  the AMA in the first place- to “streamline the system” and promote quicker decisions.

Hopefully, we won’t be subjected to too many more months of this insanity. Don’t take this as a rant about wearing masks or an aversion to doing the 6-foot version of the Macarena. If wearing a mask will keep me alive, I’ll do it. If my governor keeps moving the “All Clear” signal too much further into 2021, he risks creating a bow wave of resistance absent any supportive rationale. Gee. That sounds like the new AMA. But I digress. This was supposed to be about a day of infamy and how to use it as a teaching moment for marital survival.

And that’s all I’m going to say about that. Merry Christmas to you all. Be patient. This is a bit like being constipated. All things must pass.

Posted in Humor, VA Agents | Tagged , , , , , , , , , , | 2 Comments

REINVENTING THE LEGACY APPEALS PROCESS–THE ROSETTA $TONE

Happy Thanksgiving to all you morose, unhappy campers. I’ll let it go at that. This reminds me of Hunker in the Bunker in 1970 when Capt. Charles decided to drop a few B40s and some 60s on us at 0200 to see if we were on our toes. FNGs cried for their mothers. FYGMOs did too. Those of us in between lit another Marb and wondered what else could go wrong…while hunkering in said bunkers. Add masks and a nasty virus and it isn’t much different. It’s just not as loud. 

The reason I called you all here is, as the title above suggests, I’ve discerned a new pattern in the M 21 Cliff Notes book. It’s interesting to note that anytime someone in government says they’re going to improve something, take your protein pill and put your helmet on. VA is fond of rearranging the judicial furniture without explaining it. You simply wake up one morning and discover they’re doing it differently and you just got denied. What’s more, you never get denied doing it this way.  After you get whacked about three times, (five if you’re a man) the light bulb goes on over the head. Mmmmmm. Pattern there is. Yessss.

You feel like you’ve just deciphered the Rosetta Stone… again. Back in about 2007 when I was sicker than anything this ‘ronavirus can throw at you short of death, I read every BVA hepatitis c decision from 1992 to 2007  trying to find out why, for the one Vet who won, there were more than 85 who lost. Even I, in my fevered state  figured this one out. They mentioned Caluza, Shedden and Hickson over and over. So who was this Mario Caluza? What in Sam Hill was his claim to fame? How ’bout this Jerry Shedden dude and Arthur Hickson? How come they all lost? Pretty soon, I decided to read every COVA decision from 1989 to about 1995 and asknod was born a few weeks after I won in ’08. Nineteen years to get it sorted.

So, to my immense grief, I was flummoxed this fall to see a hep c piece of cake supplemental get the thumbs down. Okay it was Fort Fumble in Jackson Mississippi. They deny everything anyway but the VA spirit of fairness dictates when you know the Vet and his Sherpa have figured out the secret handshake, you just let them pass. There’s plenty more suckers lined up with their VSO pals waiting for the slaughter. And then I lost another piece of cake supplemental for MST. And a third one -blindness due to Malaria prophylaxis (Primaquine) for two weeks in Cam Ranh Bay AB hosptial. What’s going on here?

There is nothing more deceptive than an obvious fact. If your mind is not programmed to “see” it in the correct light, you cannot employ it.

THE OLD LEGACY PATH

Think back to the olden days. You filed a claim. VA denied it and, if you were smart enough to know how to play VA poker, you got an IMO to fix it. The story usually ended there. If you dawdled or didn’t get the email, sometimes you hired a Sherpa at the BVA and got it fixed there. The worst cases ended up at the CAVC (if you were smart enough) to get another chance to fix it on remand where you could salvage it. Otherwise it was back to  the salt mine and begin anew. This generally meant ten years worth of litigation down the drain.

The unique thing was in the last 20 years it had become easier to win. The secret  was getting out. VA determined it was time for a new M 21 Cliff Notes book on how to deny. Enter the AMA, or more properly, the AMIA-the Appeals Management Improvement Act. I’m sure Congress had the best of intentions. It’s just that something always gets lost in the translation from intent to 38 USC and suffers even further when translated into 38 CFR.

Here’s the difference in a nutshell. In Legacy, you filed and they denied. Your “repair order” (an IMO) rebutted their denial logic. But, because we enjoy the Benefit of the Doubt, our Doctor IMO is as equal to justice as their gomer denial written by a Certified Nursing Assistant. The important fact was that there was an opinion in your favor instead of your useless lay testimony like a TV doctor with a stethoscope around your neck. Suddenly, all that changed… but not all at once-and not everywhere. Just here and there like Little Rock, Jackson or Wichita. The DROCs like St. Pete’s and Seattle began attempting it. It’s more difficult when it’s a grant coming back from the BVA. They just do the Zeros for Heroes technique and make you appeal all over again.

What the hey? Each RD (rating decision) was horribly flawed in the denial logic as only the VA can do that. They will be easy to beat at the BVA but something more basic is afoot. Who, or what, gives them the right to go out  and get a new opinion to defeat your IMO? Welcome to the AMA rodeo. You file. They deny. You file a supplemental with your IMO and they send you to a C&P. That used to mean a rubber stamp and a shiny new rating. Now, with the advent of the new AMA, suddenly they are denying you at that c&p. Aruuuu??? as Tim Allen was fond of opining.

The new rodeo works like this. Think of each filing as a “package”. A new filing, with a 526, is used to get in the door. If it has legs, you win and go to door number 1 for a low ball rating. If it needs to be “worked” like a Vietnam boots on the ground determination, you go sit on the Group W (Wait) bench. If it can be pole-axed, it is. That denial is now the end of the “package” and it is consigned to the done pile. But… Yes, you can keep it alive forever if you file a new supplemental claim with N&RE within a year. The AMA bar for ‘new and relevant evidence’ is low. You can dang near file a picture of yourself in Basic to get it reopened. But here’s the reason they’re letting us all in the front door with no ID. You’re going to get denied again anyway. Your new supplemental claim with a shiny new IMO from Dr. _______ is reviewed and set aside. VA sends you out for a c&p and their “clinician” denies as less likely than not. Ignore the M 21 thing where it says only a VA examiner can make the legal determination. The c&p sucks but it rebuts your IMO. They are not allowed to do this. It’s called Mission Creep in military parlance.

Here’s the difference. Each package can be denied this way. Of course it flies in the face of Mariano v Principi but the mistake won’t be cured for a year or two and only up at the BVA. I’m sending them up for direct review. The VA will eventually  accuse me of “appeal harvesting ” if I keep bringing them up there in bundles as I am right now.  My IMOs are bulletproof. The decision is a travesty of justice but the AMA doesn’t provide for a simple NOD and IMO to “fix” it at the AOJ like the old days. Your only local resource is a Higher Level of Review(HLR) which is usually a brusque ten-minute affair where a wannabe GS 11 gets to pretend he’s Queen for a Day. Your supplemental gets a 20,000 ASL flyover with no new evidence permitted. Hmm. Explain that §3.156(b) thingie to me again?

THE NEW (OLD) REPAIR ORDER

There is nothing more deceptive than an obvious fact. I should have recognized this. When we all were being herded towards the RAMP corral, I resisted. I kept all my Vets in Legacy. It paid off. We can still switch over at any time if we wish to AMA or we can stay put. Could be that VA’s impatience with weeding out all the old Legacy stuff at BVA  grows thin. With RAMP dead, we are left with the AMA anyway. The BVA wants them done and put paid to. As with the old Legacy program, the winning ticket should henceforth be to proceed  to the BVA with your new IMO pronto and get in line. There, it will be entered into evidence and will rebut the original denial you filed in the same original “package” back at the RO 17 months ago. Simply put, you’re back to 1) file claim; 2) get denied and; 3) file NOD (at BVA now) with new IMO and get a decision that pits your new IMO against the original denial by the QTC bedpan changer/MD.

The sad part about all this is I had suspected all along the AMA was going to have a “Well…not exactly” escape clause in it somewhere. We all had that confirmed at the Fall Virtual NOVA conferences. BVA Head Cheryl Mason dragged out all her fancy charts and mansplained how they were all way off base in assuming everyone would just keep on circling the drain down below at the Regional level with Supplemental claims. Who woulda thunk it? The Stupid Vets were choosing the BVA appeal path instead… in droves. Well that means they have to hire a shit ton more VA VLJs and their minions to catch up. They predict they’re going to do 50,000 (fifty thousand) videoconferences this coming year. I’m not sure if this was announced before they discovered the new preference stampede to the BVA, the Kung Flu shutdown or another in a long line of optimistic predictions . So much for any appeals improvement act.

The short story is simple. Continue as you were, gentlemen. Proceed to BVA post haste after obtaining the VARO dental rearrangement of your front teeth. Obtain IMO and get your ticket punched at the BVA Docket Booth. Just like in them olden days, after an interminable delay of years, the grant will be remanded back to the Fort Fumbles across our wintry plains where they can lowball you and begin the process all over again. In the military we shortened this story to SOSDD. It’s like rearranging the deck furniture higher on the fantail on the Titanic to keep it dry. The Regionals know they are going to lose these appeals but they can delay them until another day. To what end I’m not sure.

The new AMA is adroit at confusing Veterans. When they lose, they don’t see the repair order. They can play this poker game until they die without figuring out the scam. Mariano is still good law. It just has to be employed like a parachute at the right time. You don’t pull the IMO ripcord while you’re still in the VA’s airplane. Timing is everything (once again).

 

Posted in Appeals Modernization Act, Humor, IMOs/IMEs, M-21 info, Nexus Information, RAMP Appeals (AMA), Thanksgiving and war, Tips and Tricks, VA Agents, VA Conspiracies, VBMS, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 18 Comments

CAVC-ROMERO V WILKIE–THAT PRESUMPTION DOG WON’T HUNT

My esteemed friend Gene Groves, one of the legendary Vets who have actually won an Extraordinary Writ (pro se to boot), a fellow Vietnam Veteran and author of his own website  https://veteranclaims.net/, just sent me a notification to read Romero v. Wilkie. I see Zach Stolz was in first chair for Robert Chisholm of CCK (Chisholm, Chisholm & Kilpatrick). If he’s still wearing the same polyester blue suit he wears day in and day out to NOVA conferences when he does his oral briefs up at the Court, we’re going to have to pass the hat and find him some new top-drawer threads. This is worse than the Emperor parading around naked in Grimm’s Faery Tales. His trousers have magic memory fabric creases. He probably props them up in the corner at bedtime. But boy howdy can that young man litigate. 

The blue suit…

Judge Michael Allen (2/2018)

Judge Allen writes in an interesting style. He swore me in to the Court so I think a lot of him. I hold no grudge that he denied my LZ Cork appeal. It wasn’t ripe for the CAVC. Chalk that up to my relative inexperience in §3.156(c) law. I began Butch’s quest in 2013. Phase 1 ended this spring when I lost. Fortunately, with the new AMA, that’s nothing more than flipping on the turn signal after the CAVC and making a U-turn back to Seattle. Well, that and previously forgetting to hand over about 31 pages of relevant service department records that have never before been associated with the claims file the last time when I swore I’d handed all of them over. VA was so slack, they went back and asked for the same ones. Too bad they didn’t specify “inpatient records” in their 3101 PIES (Personal Identification Exchange System) computer hookup with NPRS.

Judge Allen wrote this decision. He had a couple of gomer judges (Meredith and Falvey) who tagged along this time but are decidedly anti-Vet. The last thing on earth you want on the Court is an ex-JAG puke. All their careers were spent Article 15ing and court martialing enlisted folk for AWOL, busting them for being drunk on duty, possession of drugs, UCMJ violations ad nauseum. Ne’er-do-wells best expresses their eternal contempt for us irredeemable untermenschen. Putting them on as Judges is asinine and adversarial. They should crawl off and retire somewhere even if they 20’d-and-out at 50. Trump didn’t do any Vets a favor when he packed the Court with them.  An  appropriate  metaphor  is  “Military  Justice  is  to  justice  like  Military  Music  is  to  music.”

The Romero decision is a welcome bookend to presumption law. We are accorded many presumptions even if it feels otherwise. We get the first one the moment they induct us or we enlist(presumption of soundness). These pile up as we proceed through our military careers such as the combat presumption in 38 USC §1154b. In military law, we’re presumed guilty until we can prove our innocence. When we file our VA claims, there is a presumption we are credible witnesses until we go off the reservation and start talking about our Secret Squirrel  1st SOG job where we were awarded five Congressional Medals of Honor simultaneously (in private) by President Eisenhower (in 1985).

There is a presumption that we are competent to testify as to what comes to us via our five senses. If we file NODs, we are entitled to receive a SOC to better help us understand what part of ‘No!’ we didn’t quite get. Here, Patricia Romero timely filed her NOD. She was in the old Legacy appeals process that ended 2/14/2019. As such, §19.30 applied. I’ve seen this one before. VA forgets to send the SOC out. Or, they send it to the wrong address. Or, they send it to your client but not you. I’ve even had them forget to date the cover letter which allowed me to argue that my client’s tardy VA 9 had to be timely. The BVA agreed with me, too.

The Holy Grail is the presumption of the Benefit of the doubt (BOTD). Most Vets think this is some blanket presumption that covers a litany of errors in their case. Negatory folks. To get the BOTD, your claim has to at least be as well grounded as the VA’s  contentions are flakey. Hence my shotgun use of Independent Medical Opinions (IMOs) even if my appeal seems ironclad. To me, time is of the essence for most all of my Veterans. I don’t view them as clients. They are Veterans with a capital V. Most all have been handed a rotten legal experience that has persisted for years. The last thing I want to do is take a chance on a BVA VLJ deciding to remand an appeal and adding 4 more miles to the litigation tunnel. An IMO virtually guarantees a win at the Board and all that remains is the dolts at the AOJ level trying to figure out how to get even with you for proving unequivocally that they are dolts.

Presumptions are examined here in Romero in the context of the presumption of regularity of the government to mail out SOCs-or anything for that matter. CCK produced extensive evidence that VA wasn’t always perfect and there was a problem with the mailing of a lot of  litigatory documents with suspense dates over the years. It’s happened to me. I discovered it exactly the same way Mr. Chisholm did (in VBMS) and called out the VA Puzzle Palace over in Seattle on it. Fortunately, they are familiar with my Win or Die mentality after about 12 years of this stupidity and surrendered.

Rebutting presumptions is almost as difficult as winning a CUE. Each presumption comes with a short list of what can overwhelm it and rebut the presumption. If your entry SF 88 says your index finger has some ankylosis but can still pull the trigger on a 16, then the presumption of soundness protects you. If you claim it became noticeably worse in service when they operated on it 3 times and you experienced complete loss of use (LOU) of the hand, then you get the shekels. They can’t come back and say 10% should be deducted for preexisting fingerbooboo unless the entry SF 88 said that.  Likewise, if VA denies you for PTSD, and you go out and get a private IMO saying you do have it, that is equipoise. Your positive IMO cancels VA’s negative IMO and you get the magic benefit of the doubt. Or at least that’s the way it’s supposed to work.

Here, CCK’s win was partial but all that was needed to prevail. Yes, the VA should be granted the presumption of regularity that they normally send out a SOC. In this case, the VLJ, E. I. Velez,  made a finding of fact that sometimes the 56 Fort Fumbles across our Fruited Plains step on their necktie. A finding of fact is  powerful JuJu. The Court said as much. Thus, Secretary Wilkie Wonka’s little people (Velez)  provided the very lever needed to rebut the VA’s presumption of regularity and call VA’s actions “irregular”. Bingo. Game. Set. Match. Set it aside and remand that puppy back to VLJ Velez for a do over.

While there is no guarantee we won’t see Patricia Romero back here after another Texas Necktie Party at the BVA, my guess is they thoroughly shot themselves in the foot by letting the camel’s nose in under the tent. Wilkie’s wunderkind lawdogs had numerous opportunities to argue differently but they plumb stepped in it at the Oral arguments. And the Appellee’s reply brief. Of course, if you screw  up, you oughta man up. This seems to be the Achilles heel of AOJ adjudications. Might it not have something to do with the VAROs’ bathroom reading material (M21)?

P.S. Happy Thanksgiving from Cupcake, Pickles, Buddy, Ambush, Kona, Cooper and Big Shot as well. On behalf of myself and the rest of the Troupe, I hope we passed the audition.

Posted in CAVC Knowledge, CAVC ruling, Equitable tolling, Extraordinary Writs of Mandamus, Lawyering Up, Presumption of Regularity, Presumption of Soundness, SOCs and SSOCs, VA Attorneys, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 6 Comments

Best Resources for Combat Veterans Making the Transition to Civilian Life

According to a survey conducted by Pew Research Center, nearly half of all veterans who served since the terrorist attacks on September 11, 2001 said that it was a challenge to transition to civilian life. To help make the process easier for combat veterans, we put together a list of helpful resources that offer tips on finding jobs, purchasing insurance, exploring housing options, and other important considerations.

Best Car Insurance for Veterans and Military Personnel

What Veterans Need to Know About Going Back to School

What Benefits and Services Are Available for Veterans with PTSD?

Developing a Plan to Stay Healthy After the Military

Home Improvement Projects You Can Start to Pass the Time During Quarantine

Spruce Up Your Backyard with a DIY Firepit

12 Great Hobbies for Military Veterans

The Ultimate Guide to Finding a Job as a Veteran

Where to Search and Apply for Jobs Online

5 Programs to Help Veterans Buy a Home

8 Ways to Find Apartments for Rent

Explore Your Health Insurance Options When Leaving the Military

The 5 Best Life Insurance Companies for Veterans in 2020

Combat veterans who transition into civilian life face many challenges, from finding a job to finding a place to live. We hope these resources may help you along the way. You should also look into organizations that can help you make the transition so you won’t have to do it alone.

Do you have any more resources you think should be listed here? Let us know and we’ll consider adding them!

Posted in Future Veterans, Guest authors, Gulf War Issues, VA Health Care, vA news, Veterans Law | Tagged , , , , , , , , , , | Leave a comment

The VA Community Care Network for Urgent Care/Retail Clinics

This is a valuable benefit.

“Urgent Care is Not a Replacement for Preventive or Emergency Care

Due to COVID-19, VA has cancelled millions of face-to-face appointments. This post is about using the new VA Urgent Care (UC) benefit. If eligible, bring a valid government ID card and go to a VA-Community Care Network UC/retail Clinic (CCN)–without an appointment – but call to confirm CCN status first. You don’t need to pay. *

Tell UC staff you want to use your VA UC benefit; they may not know anything about it so print out cards or access on your mobile.

Information is scattered all over VA and Third Party Administrators (TPA) websites.

Veterans must be enrolled in the VA health care system and have received care from a VA or in-network community provider in the past 24 months to use UC benefits.

# 1. Read the VA’s webpage on this benefit first; take some notes. # 2. Or read/print a clear copy of this fuzzy screenshot from the pdf.>>> (Link) # 3. Locate a VA-network provider (CNN) and call them before going.

#4. 🖥️ DIYers–Register with your TPA the via Self-service portals–Optum (Regions 1-3); TriWest (Regions 4-6) Takes just a few minutes. This enables you to see your eligibility for UC, status of your referrals, and care already received in the community. I would do this step NOW, before you need UC. Get familiar with these non-VA websites.

See also: CCN Pharmacy Search via Caremark Search (Link) or VA location search.  UCs can prescribe a limited number of medications; no cost at a CCN pharmacy. Others, you can be reimbursed later.

* Co-payments-– Three UC visits a year are free unless a vet is in a high priority group; then VA may BILL you $30. You don’t have to pay upfront!

If you aren’t sure how ill you are, opt for a CCN hospital urgent care. If you have a bad tooth ache, UC can see if you need an antibiotic before you see a dentist.  Need a flu shot? Will be free if they have it in stock.  

If you have a private provider, email this YT link -5 min..  The TPA pays the provider directly–not the VA.  The payment is based on Medicare rates. VA-CCN is a big ❤improvement over the earlier ragtag, as the crow flies, “Choice” programs.

If you use this UC benefit, please let us know how it goes. In our area of NW VT, we have two hospital-based UCs, and three small UCs. The hospitals joined VA-CCN after the smaller UCs. With weekend hours available, this give us some piece of mind. 🙂

Laura (Guest Author)

Update: 8/20/20 VA UC Quick Guide pdf.

😇 Be an angel. If the information in this post or comment section might help someone, please share it via social media or email. 👇

Posted in Community Care Network, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, Uncategorized, Urgent Care Benefit, VA Health Care, vA news, Veterans Choice card | Leave a comment

Fact or Rumor: Will most C and P exams be contracted out in the near future?

Rep. Elaine Luria, Chair of the Subcommittee on Disability Assistance and Memorial Affairs (DAMA), Committee on Veterans’ Affairs, is not happy with Sec. Wilke.
And she wants a response to her letter of 10/20/20 by Nov. 16th. Why? It seems as if C & P exams by VHA employees are going away. She writes (Link to letter):

“During last year’s Subcommittee hearing on contract C&P examinations, VA testified that contract exams were intended to supplement the existing VHA C&P program, providing local examinations to rural veterans and prompt
appointments when VHA facilities had long wait times. Now, VA says full migration of C&P examinations to contractors was always the plan.

Luria is worried about a number of issues if VA retires the VHA C&P program. About 60% of C & P exams are outsourced now. She mentions the Covid backlog, the GAO report which noted that oversight of contractors was lacking, and potential lay-offs of VHA employees.

Luria writes, “For many veterans, thorough and accurate C&P examinations are crucial to securing service-connected benefits.” That is true but is she unaware that both VHA and contracted C & P exam results fail to be in the best interest of the majority of ill veterans? After twenty years of active service in the Navy, she retired at the rank of Commander (Link). It’s hard to say how much contact she had with VA during her career. But after her election in 2018, she is in the thick of VA shenanigans. As Stars and Stripes puts it, “

During a hearing she led last year, the VA said it would contract with more outside medical providers to perform C&P exams. Lawmakers were led to believe the contracted examiners merely supplemented the existing program, primarily to help rural veterans and those veterans facing long wait times, Luria said.

Recently, however, VA staff told Luria’s office about the department’s plan to shutter the C&P program at the VA and contract with the private sector for 100% of the exams.

What would be a fairer system? I think a veteran or representative should receive an allowance towards the cost of an IMO, equal to that which they pay to a contractor. The veteran could be issued a “kit.” If VA finds it doesn’t meet standards, they could buy a contracted C & P exam. The format and information in the kits should be exactly the same for the IMO and contracted providers. VA can and does still ignore favorable evidence and information in exams to deny claims.

At this moment, I’m not sure if new C & P contractors will have access to a veteran’s medical and/or military records. I remember reading about many veterans’ concerns about former Sec. Shulkin’s belief that eye exams should be outsourced because there “was a LensCrafters on every corner.” There were fears of privatization. And of course, LensCrafters are not situated on every corner. It may be that providers who join the VA Community Care Network, will also be conducting C & P exams–so wait and watch.

Laura (Guest author)

2nd District of Virginia. (Love this region.)

Update: Link to 2017 article about LHI Court Case mentioned in reply to Lem’s 3rd comment–scroll.

https://www.businesswire.com/news/home/20170615006298/en/Federal-Court-Upholds-Contract-Awards-LHI-Provide/?feedref=JjAwJuNHiystnCoBq_hl-RLXHJgazfQJNuOVHefdHP-D8R-QU5o2AvY8bhI9uvWSD8DYIYv4TIC1g1u0AKcacnnViVjtb72bOP4-4nHK5ieT3WxPE8m_kWI77F87CseT

Posted in All about Veterans, C&P exams, Congressional Influence, Food for thought, Future Veterans, General Messages, Guest authors, IMOs/IMEs, Nexus Information, Uncategorized, VA BACKLOG, VA Health Care, vA news | 11 Comments