BVA BACKLOG–WE JUST BOUGHT THE BROOKLYN BRIDGE

Over most of the last 44 years of my alter persona as a Veteran (yes, I capitalize it proudly now), I remained aloof. I was refused admission to the VFW in 1973 and accordingly shut up and moved to the back of the bus. Apparently, it wasn’t a war but a “boundary disagreement”. There must be a magic number of how many have to die before the asshats officially ratchet it up and accord it the sobriquet of an official war. It seems 58,000 ± a few hundred was a wee bit skinny to qualify back then.  

Afterwards, I relished being a spectator on the sidelines. I got to hear a lot of different views from a lot of different Veterans who served in the same theatre of RVN/Indochina. I talked to repatriated “Canadians” who voted with their feet  to be all they could be up there for a spell. I listened. I kept my peace- and my distance from all things Veteran- until I became very ill and realized what all the small print on that Contract I signed guaranteed me. My now 28-year marriage between the cabinet level agency promulgated to help all Veterans-not just myself- is a case study in how to not run a railroad. What transpired in Reno last weekend is one of the better-orchestrated Dog and Pony shows the VA has pulled off in many decades following the VJRA.

John Basser, Jerrel Cook and I did a radio show for Hadit.com Thursday evening last regarding the latest VA version of the panacea for the BVA backlog.  I apologize but my feed lot owner Andy (20-year Marine) showed up with a load of hay and I had to bail out early.  I would like to explain, as I did on the show in DickandJanespeak, what Congress just pawned off on us as a repair order for the 470,000 + queue of appeals and the chokepoint of only 120 Veterans Law Judges accomplishing 1.5 claims per day/per five-day work week times 180 working days a year (assuming no vacation time).  Excuse me. Do the math, all ye VA beancounters. With 40-50,000 new appeals arriving annually, I don’t see it ever getting better. If anyone detects an anomaly in my math, please enlighten me.

Now to the problem. Let’s follow Johnny B. Veteran’s typical claim path in 2017. He files (in round figures) January 1. He now does all the old VA work of obtaining and filing (duty to assist) his intercurrent medical records, providing a privately-obtained nexus letter tying his disease/injury in service with his present one, and sits back to wait. 125 days later, he gets his denial (as do 85% of you). He goes to a DRO review a year  or two later and submits nothing new because he’s getting free representation at the _________ (insert VSO here). Nobody told him about the nexus letter so he loses a second time. He appeals and arrives at the BVA and loses again. At some point, Johnny Vet figures this poker game out and gets the letter and wins. It may take 20 years before he figures it out. After he wins, he’ll spend another eight years getting the correct rating after even more appeals.

THE NEW AND IMPROVED SYSTEM

And boy howdy here comes the new VA three-card Monte system. Three new pathways are now open to you soon (eighteen months to rollout) with the misnomer of the Fully Developed Appeal. I wrote about this jokingly several years ago and wish I’d never given VA the idea. They even stole my moniker for it.

The first new pathway described is “you can take your appeal directly to the BVA” as the article puts it. Yes and no. You can take your claim to the BVA with no new evidence -as is- and ask them to reverse the local yokels at your Fort Fumble. No hearings, no discussion. No DRO review. No more evidence-essentially a drive-thru window the VSO can use to expedite your appeal to DC. If you’re missing the main ingredient (the nexus letter), all the VLJ’s men and all the VLJ’s horses at the BVA can only return one verdict-denied. Duh? Basically, this is nothing new. Take a minute and read a few BVA decisions here and you’ll get that deja vu feeling that this is a repackaged, sped up version of what we have now- with fewer protections. Read the following. The Vet is not a doctor and he doesn’t have a nexus letter…

https://www.va.gov/vetapp17/files4/1724557.txt

The second pathway is “request a higher-level VA adjudicator” to hear the case. Deja vu strikes again. We have this function already. It’s nomenclature is more commonly known as a “Decision Review Officer (DRO) review”. We opt for this when we check the box for DRO Review at the time we file a NOD. Maybe Congress didn’t know this and VA pawned it off as a brand new way to do things. Shit, bubba. We’re talking VA here. They make this up as they go along or until the BVA or the CAVC clothesline them and make them obey their own regulations. It also appears here that they are intimating that you are asking for nothing more than a DRO review based on the same evidence you lost with. Repackaging it in a new review will simply result in a new denial. Again, no viable path to a ‘fair’ adjudication.

Lastly, a third new pathway is offered. An appeal or request with new evidence to the same rater who denied you from the get-go is the new pathway. Can you imagine losing a Hep C claim for jetguns and dental and “repackaging it” with a new nexus letter? I don’t think so. To date, I have yet to guide a single Vet to a jetgun win at their local Puzzle Palace. We win fairly regularly at the BVA where the backlog is but that is a 3-4 year path as it stands now and growing by the minute.

WHAT IS WRONG WITH THE SYSTEM?

What appears to me is no one will look at the current defect to identify where the prologue to the backlog begins. Remember the big pileup in claims in 2009-2014? The Local ROs were storing c-files in boxes on the floors under their desks. They were up to their asses in paper alligators. Under Secretary Hickey employed Secretary Shinseki’s new ‘paperless claims’ mandate and began the massive overhaul of the system culminating in DBQs and the VBMS. It wiped out the backlog at Fort Fumble but merely swept it downstream to the next logjam at the BVA. Does anyone think the CAVC will be immune from this incipient tsunami?

It’s not a f-up until you can’t fix it was one of my daddy’s observations on life. So let’s analyze this. If 74% of claims at the CAVC are vacated, set aside and remanded back to the BVA or AOJ to be “repaired” doesn’t that point to the guilty party? I submit that from statistics, it appears 64% of returned claims are approved or denied with an automatic appeal back to the BVA once the mistakes have been rectified. Imagine what would happen if  this litany of errors had been avoided in the first place? The backlog of remands from the BVA would subside and they could get to work on claims properly ready for appeal rather than spending endless hours reviewing and remanding them for legal sufficiency.

VA touts a turnaround of 125 days for new claims with a 94% rate of accuracy but there is nothing there to support this bald contention. If 74% of your work is returned as defective, how is it that  94% can be correct? I”ll tell you how. If you deny 85% of claims and 94% of  that 85% contingent of Veterans denied fail to appeal, then you can legitimately claim that your decisions were correct. The 6% who appeal and win are the remainder of the statistic.

The VA managed to eliminate the backlog at the AOJs by developing a Fully Developed Claim (FDC). You did all the work assembling the evidence. All VA had to do was get out the denial stamp. Oddly, the 85% denial rate remained static as could be predicted. With an extraordinarily efficient RO operating at peak efficiency, the large backlog was absorbed assimilated, adjudicated and the problem shoveled downstream to the BVA. VA can play Musical Chairs all day within their system but when they begin shipping them out and piling them up on the ninth floor of 625 Native Americana St. NW, there will be a new brouhaha afoot. I can’t wait.

If they ever begin doing it right the first time, I’m out of a job.

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

 

 

Posted in All about Veterans, KP Veterans, Lawyering Up, Nexus Information, SVR Radio on hadit.com, VA Agents, VA Attorneys, VA Conspiracies, vA news, VA statistics, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 18 Comments

HADIT.COM RADIO SHOW TODAY

As is customary, I wait until the last moment to inform you of an event. Such is the disease of putitoffuntillaterism. I hate that when that happens. This afternoon I’d like to discuss several subjects to include herbicide exposure in Thailand, the new rules on the VA Appeals system and whether unicorns fart.

 

We all have numerous burning questions about claims and Jerrel gives me great leeway in digressing to answer these as they arise. What the hey? That’s what Veterans claims are all about. Every one of you has a most unique story that differs in marked respect to others. No single instance of advice offered will ever be tailored exclusively for all of you which really makes this line of work extraordinarily interesting.

Same time, same channel. Thursdays at 1600 Local on the Left Coast and 1900 on the (L)east Coast. I hope to teach some of you about why you lose and what you can do to win.

To call in and listen:

347-237-4819  

To speak, press 1

Seen in Oregon recently. Jez, there’s some of us left out there.

unnamedFarting unicorns, anyone? How about Six-figure salaried Asshats paid by you Veterans clapping for your loss of legal rights?  Drive-thru windows at BVA now? Remember, I predicted this in an April Fool’s spoof in 2015…

https://asknod.org/2015/04/22/bva-announces-fda-fully-developed-appeals/

Clowns to the left of me   Jokers to the right

Here I am          Back in the middle with you

I hate to even think the improbable but when Veterans see how they have been bamboozled again, the suicide numbers will go up. It’s like changing the Lotto game from 44 to 59 numbers… and now adding a Powerball requirement on top. BVA Claims-In by ten- out by thlee, like Chinese Dry Cleaners. They even call them Fully Developed Appeals at one point in the Senate Bill.


Posted in Agent Orange, All about Veterans, AO, Medical News, SVR Radio on hadit.com | Tagged , , , , , , , , , , , , , | 2 Comments

The Vietnam War by Ken Burns and Lynn Novick PBS Premier: Sun. 9/17

 Difficult to know if this 18-hour, 10-part documentary will please or anger. The byline “No Single Truth” may not go over well in 2017 since a fair slice of the population prefers to see things in tunnel vision.  I’ll be surprised if the doc. spends more than a few minutes on post-war injuries in any depth.  

The soundtrack CDs (Link) looks fantastic.  The series, a ten-year project, is free to watch on TV or online.  

Links:

The Vietnam War website:  (LINK)

#VietnamWarPBS Twitter   (LINK)

Facebook (LINK)

Reviews  (Link)

Vietnam War PBS  Instagram  (Link)

Image by David Burnett from Vanity Fair article. Ken Burns and Lynn Novak

The National Park Service manages the memorial (LINK).

The memorial includes the names of over 58,000 servicemen and women who gave their lives in service in the Vietnam Conflict. The memorial also includes “The Three Servicemen” statue and the Vietnam Women’s Memorial.

Posted in Food for thought, History, Military Madness, Vietnam War history | Tagged , , | 5 Comments

BEFORE AND AFTER

Cupcake spotted this and I feel it is more than à propos in this day and age of nonstop warfare with only more on the horizon.

 

 

 

 

Posted in Humor | Tagged , , , , , , , , , | 5 Comments

MALCOLM IN THE MIDDLE–PART IV-KARMAGEDDON

Once upon a time in the Land of nod (September 27th, 2011), on the second day of my new website, I published a CAVC decision about one Malcolm H. Melancon. It was the beginning of a long story much like my five-year odyssey with Butch Long.

 https://asknod.org/2011/09/27/cavc-melancon-v-shinseki-2011-dude-they-dissed-me-in-91/ 

Along about my birthday on April Fools in 2013, who should show up? Why none other than Malcolm in the Middle. He even introduced himself as the same. By September, we were like peas and carrots. It’s amazing to me, frankly, seeing who shows up here sometimes following my ramblings. Cupcake  isn’t a major fan of asknod after that little têt-à-têt with Wounded Wallet Project a piece back. She now just shakes her head and mumbles Tourette’s but I’d like to think I’m part idiot savant, too. And besides, being politically incorrect is such a nebulous concept these days. Who’s to say? Look at the White House.

Malcolm and I tried, via appeals with a very good attorney but it was ineffectual. I’ve always held, for the last six years, that the error in 1991 had to be resolved via a CUE claim (or a Motion to Revise in VAspeak) first before trying to unravel this fustercluck. No one wanted to take it on and quite frankly, even though Malcolm had stumbled all the way to the Fed. Circus pro se, this needed a keen legal mind to dissect the claims file looking for that smoking gun of error. I never thought it would land on my desk.

Melancon 13-1534

It didn’t pan out with St. Mary as you can see.

In VA law , and probably US law in general, as far as I know- which isn’t much- we have what is called the standard of review. In DickandJanespeak, it translates into if A=B, then C happens. In anal legal terms, it means a statute and its counterpart at Agency (VA) level requires X conditions exist as evidence of record, and, if met, all resultant entitlements that can be awarded legally, will be. However, if the pertinent statute or regulation  was ignored and some arbitrary new set of metrics were used to adjudge it which were unsupported by statute and regulation, that would be the wrong standard of review. Here, it occurred in a medical conclusion back in 1991. Mr. M-in-the-M failed to object within a year. Undoubtedly his DAV rep. encouraged him to take the two 0% ratings and beat feet. I had one do it to me in 1992.

Here’s the document that began this whole shenanigan. Malcolm has given me permission, in writing, to do this so as to not endanger my VA accreditation. Before achieving Agent status, I could discuss these things at length. With accreditation, absent that written permission, I would be endangering his privacy and God only knows what other sins. Most of what I draw on is in the public domain at the CAVC or the BVA. Some documents, as I illustrate here, are from Malcolm’s claims files and are suitably redacted to protect his  private info. This is a contemporaneous 1991 standard Combined Rating Decision from which his award was promulgated. Highlighted in yellow is the hepatitis decision and the reason. Herein lies an incorrect standard of review.

The  rater was partially right. The Hepatitis B was acute and was gradually resolving-but it would take several years. Unfortunately, the Hepatitis C was not acute and severely disabled Mr. Melancon over the next decade. And here is the glaring standard of review error staring us right in the face. Diagnostic code (DC) 7345 (1991) clearly and unequivocally grants service connection for infectious hepatitis at the 0% compensation rate  for Healed; nonsymptomatic. Page 2 above boldly declares DC 7345 Hepatitis (cured) aka resolved, aka nonsymptomatic. I feel like donating my Roget’s Thesaurus to the Houston raters.

The standard of review is not that it was “acute and resolved”, but that it occurred in the line of duty, on active duty while in the service of his country, no willful misconduct was involved and that he had a discharge under honorable conditions. 

After you have arrived at this juncture, the next standard of review is to refer to the pertinent regulation in 38  CFR §4.114 Diagnistic Code 7345 and discern which rating he would be entitled to… and lo, there is one that fits him to a ‘T’. His symptoms are healed and non symptomatic (aka acute and resolved) ergo the obvious choice is 0%.

38 CFRs §§ 3.1(l), 3.4(b)(1) and 3.303(a) are the proper standard of review. If the disease was acute and resolved, that would be the second step of review in determining what ratings percentage was due. Obviously the hepatitis B is service connected because the preponderance of the evidence says so. That is not in dispute. His DD 214 shows an honorable discharge. He filed within a year of separation. Bingo. Service connected. Healed and asymptomatic? Cha-ching! $0.00 dollars per month but you get free gastrointestinal medical visits for life at the VAMC nearest you.

As a side note here, Malcolm also was granted two other 0% ratings which were identical which requires a 10% rating under §3.324! Gee, two CUEs for the price of one.

What is a screaming hoot is what has transpired in the interim since 1991. Remember, old Malcolm was not Clarence Darrow and was not expected to be. What he is, however,  is doggedly determined and undeterred by “What part of ‘No!’ don’t you understand?” VA has conceded over the last two decades or so that:

a) Yessssssssssssssss, indeedy.  Mr.Malcolm had Hep B in 1991 (acute and resolved, mind you) but he failed to appeal. Too late. No one at the Houston VARO or the DAV said “Pssst. File a CUE claim, young man”.

b) Well, not exactly. Actually, he never had Hepatitis B and all those tests were false positives over the years. He actually had Hepatitis C from tattoos and unprotected sex and thus was service connected but -yep- at 0%. Funny this one isn’t acute and resolved as well.

c) Well, we’d allow as maybe he had both but there’s no proof of that because the Hepatitis C test in 1991 said negative. (Unfortunately, there was no Hepatitis C test available at Balboa in 1991 and probably wouldn’t be for several years to come). Hell, even the Red Cross didn’t have  the test available for protection of the blood supply nationally until 1992-and they were the first to get it.

d) a VA RN opined in 2004 that as time moves on, we lose those little Hepatitis B dumoflotchies in our blood and it makes it look like we’ve never had it-ever- so it really isn’t remarkable. Malcolm used to show HBV markers but now he doesn’t. Move along, folks. Nothing to see here. Amazing the medical manure that emanates from the mouths of VA Examiners who let their mouths overload their asses.

Just for shits and grins, I had him tested for HB Surface Ab and HC Core Ab in 2015. Both came back positive showing exposure or resolved Hep. B. Maybe those VA blood testing components on 2004 were expired. Watch Carmen Mascarenhas, MD moonwalk right over this HBV enigma.

Well, actually Carmen, you never lose the surface antibody. You have that one confused with the surface antigen. Time to fly back down to the University of Grenada for an MD refresher course in gastroenterology.

Or- this is where you earn your money doing this forensic research- you notice a lab test that says  henceforth after 5/19/2004, all Hep B testing will include the antibodies test and not just the testing for ACTIVE Hep b (HB Sag HB SAB). The problem is that the specimen was collected on 02/02/2004– three months plus before the new test came on line. Et Voilà!  No hep. B!  Malcolm got lucky on this one. He got a copy of his c-file way back when with this “work copy only” in it. The recent 2013 one is MIA. But I get it. It was just a work copy and not a permanent, incriminating record. I guess that means VA isn’t required to “keep it”.

So, we have the hepatitis B that wasn’t service connected in 1991 still isn’t. However, the evidence has gradually evaporated into thin air anyway and there really is no proof now one way or the other. But there is proof of Hep C and he had tattoos so it’s SC but it’s only SC for 0%.  But the HCV test in 91 was negative. But the Hep B in 1991 during active service aboard the USS Reasoner out on the Bounding Main of the Pacific Ocean wasn’t SC because -and I get lost here-why? Two different hepatitis viruses (virae?) with two different Diagnostic Codes, both of which provide for healed, asymptomatic disease at 0%, and he is now SC for HCV in 2004 but not to HBV in 1991 but freely acknowledged in 2004 as being contracted in service. Is it just me or is this a speshul kind of VA stupid? Do these people even read the file or make it up as they go?

Here we are in 2005

But wait. We’re not going to see your Hep B and raise you to 0% for Hep C and call.

So, what’s a poor ex-squid in the middle supposed to do? Why, wait four years for his friend to get his accreditation and ask for representation. What else? Herewith, we dropped this conundrum on Houston. I think they have a problem.

All these years it was denied based on the wrong standard of review. The error continued all the way up to the CAVC and even Saint Mary Schoelen’s staff attorneys missed it. Veterans Law Judge Keith Allen missed it. Everyone missed it until I thought to myself last week “Shit. Look at all the guys who got (and still get) the double ought of 0% for hearing loss and 0% for tinnitus ( or hemorrhoids, or flat feet or hammertoe or…). I looked through our current VA Schedule of Rating Disabilities (2017) and found 156 instances of 0% ratings from head to toe inside and out. If that isn’t enough. 38 CFR §4.31 allows you to fashion one out of whole cloth for any Diagnostic Code.

Here is Mr. Melancon’s new pièce de résistance  through counsel. I have lived, breathed and slept Malcolm’s claims file for five years and it never bit me on the ass about the “acute and resolved” being the wrong standard of review. I’m pretty dense, huh?

Melancon CUE redacted

The NOVA lawdogs agree. It’s going to go off at 6-1 odds at the VBAHOUS 362, 2-1 at the BVA  and 5/9 at the CAVC. I’d hate to see it go to the Court but as I said, this one is a speshul kind of stupid even I have rarely seen. I guess I’ll be having to apply for privileges at the CAVC if it goes up there. I can recite this in my sleep now but you just know it would sound sweet with Ken Carpenter doing the oral presentation or the Rule 33 meeting.

And after all these years, Cupcake and I finally had the most excellent pleasure of meeting Malcolm in San Antonio this April at Spring NOVA. Welcome Home, Malcolm.

Malcolm and me April 23, 2017 San Antonio, TX Hyatt Riverwalk.

 

Posted in 2017 NOVA Conference, All about Veterans, BvA HCV decisions, CAvC HCV Ruling, CAVC Knowledge, CUE, Earlier Effective dates, HBV, HCV Epidemiology, HCV Risks (documented), Lawyering Up, NOVA Attorneys, Tips and Tricks, VA Agents, VA Attorneys, VA Medical Mysteries Explained, vARO Decisions, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , | 1 Comment

NEW MILITARY MOVIE FOR THE AGES

Our Southeastern Coast Office checked in today with this latest Hollywood release of high-interest to military movie afficianados. While not quite John Wayne calibre, it certainly will resonate with many -both pro and anti-military. We live in troubled times and a small dose of reality set in a fictional but persuasive medical context will enthrall many a cinema fan. Very moving tale. Bring a hankie.  Coming soon to an IMAX near you. We give it a solid  ΘΘΘ ¼.

asknod is like a box of chocolates. It’s my Tourette’s acting up. Happy August to all.

Posted in All about Veterans, Humor, KP Veterans, VA Medical Mysteries Explained | Tagged , , , , , , , , | 3 Comments

Cases when inactive HBV might wake up

HBV:  “The virus has four genes (or open reading frames), designated S for the surface antigen protein, C for the protein that covers the inner core and encloses the DNA, P for polymerase enzyme responsible for replication…, and X for the X protein involved in transcription and possibly, the carcinogenic properties of HBV. “

(Blumberg, B. S., Hepatitis B. The Hunt for a Killer Virus, Princeton University Press, 2002, 2004).

 

Hepatitis B was discovered in 1965 by Baruch Blumberg et al..(LINK).  Alex has written some posts on “B” topics and claims– I like this one from 2013:  Malcolm in the Middle-What did they know and when did they know it ? (LINK). 

There is a HBV vaccine, but no cure.

“…if a person has never gotten Hepatitis B, then the vaccine will protect them against the disease. However, if a person has been infected and recovered, they are immune to Hepatitis B and do not need the vaccine.” CDC flyer, p.2 (LINK)

Those not so lucky to achieve natural immunity become chronic carriers;  the current antiviral medications only suppress HBV; they are given long term.  This can lead to drug resistance and a manifestation called Virological Breakthrough (Link).

Hepatitis  C–formerly the mysterious “non-A, non-B” viral hepatitis (NANBH)–was discovered in 1989 by Choo, et al.  There currently exists no HCV vaccine but a cure was found in 2013.  An acute case of resolved HBV can lead to immunity or the chronic state. An acute case of HCV can also be resolved by the immune system but the person is susceptible to reinfection.  If not cured, they can become a chronic carrier of one or more HCV genotypes.

Of course, a person can also be infected with different combinations of HBV, HCV, and even HIV at the same time.  Now if a person can achieve an inactive carrier state, when the virus is not harming the liver, that’s a good thing.  But if the patient is also infected with HCV, his HBV could become reactivated by the new DAA medications with awful results.

When patients are unaware that they have HBV, nor are tested for it, are treated with DAAs to cure their HCV, wham-o, HBV attack their livers with gusto.  Therefore the press and world governments have issued warnings:  check HBV status before proceeding with HCV DAA treatments.

Frank has found some articles about this horror for us:

https://www.hhs.gov/hepatitis/blog/2017/1/17/hbv-reactivation-during-hcv-treatment.html

https://www.ncbi.nlm.nih.gov/pubmed/28230928

http://hepatitisc.hcvadvocate.org/category/hbv-re-activactivation

http://www.journal-of-hepatology.eu/article/S0168-8278(17)30249-0/fulltext

That a “thing,” with only four genes, can do so much damage to humans is astonishing.  As we can see in this recent WHO map, HBV remains a serious infectious disease in Vietnam and other Asian countries.  It’s not surprising that our servicemen, who were not chaste goody-two shoes, picked up this STD.  And no, you don’t have to prove you had unsafe sex in-service by also picking up a different STD like gonorrhea that required immediate attention by medics!

Click image to see map larger.

Posted in Food for thought, Guest authors, HBV, Medical News, Uncategorized | Tagged , , , | Leave a comment