CAVC–WHAZZUP, DOC? HE’S BAAAAAAAAAACK.

What could be more fun than spending $50 on one of these? Quo Vadis greenhouse? How about that earlier effective date that screwed you- then eluded you?

Read on folks. This one’s going out tomorrow with Priority Mail.

2017 CAVC Greenhouse filing in pdf

We’ll also talk in a few minutes with the Ozark Mountain daredevils- John and Jerrel (the Terrible Twosome from back east). Hadit,com Radio show starts at 1600 Local (Left Coast) fifteen minutes from now.

347-237-4819

Call in and ask questions. Dial one (#1) to speak to us.

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BVA- ILP SERVICES ARE COMING BACK IN VOGUE (FINALLY)

Check out some of the new far thinkers at the BVA. Imagine back to that 1981 era when the Eagles just came out with that new album. Long hair was still in… and so was the ILP. We’ve taken it in the shorts for several decades and when you read the regulations, there simply is nothing in there that dictates who writes a nexus letter on medical impairment. VR&E knows law like my goat knows Calculus.

LP gas pool heater…

https://www.va.gov/vetapp16/files6/1647516.txt 

Reimbursement for private funds spent on  promised HISA bath remodel…

https://www.va.gov/vetapp16/files5/1640022.txt

 

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VBA–WORLD-CLASS SERVICE?

Yesterday morning, I dressed up in my “I’m mad as hell and I’m not going to take it anymore” suit. I dialed up the director’s office at the Phoenix Regional Office and was preparing to launch a diatribe on why there is no intelligent life at the Regional level anymore. Before I could even get into my spiel, a polite Veteran who had answered the phone, a Mr. J.R. Rodriquez, quickly assuaged my ruffled feathers and we together tried to find the problem of where and how a POA can be lost or unacknowledged for six months. Further, Mr. Rodriquez delved deeply into the VBMS Gutenberg Bible and tried to extract why my client, and now I, can’t seem to get my client’s c-file for the last 10 months. 

Mr. Rodriquez was unable to find the immediate reason but promised to find out and call me back as soon as possible with the answer, and more importantly, the solution to the problem. He claims, and I certainly have no reason to doubt, that he is an accomplished RVSR and DRO of over six years. He went on to explain that one of the primary reasons he was in the Director’s office answering the incoming was his new avocation-Phoenix’ designated problem solver from Hell. Seems VA has finally created a job description to cover fixing problems promptly and all you have to do is call them up and bring it to their attention. Mr. Rodriquez is not a blame shifter or an apologist. He’s the genuine article- or so it would appear.

Two things come to mind immediately. Has VA suddenly become “customer friendly” and  is this just a ploy to pacify callers whereupon they (VA receptionists) revert back to form when they hang up and have a good chuckle with their buddies over how easy we rubes can get rolled? The answer was evident yesterday afternoon about 1640 hrs when I received my promised call back from J.R. I had no idea VA employees are still at work after 1630 hrs.

Seems Mr. Rodriquez is faster than a speeding bullet and more powerful that a thundering locomotive. As for leaping tall buildings at a single bound, the jury is still out. One thing was apparent right off. VA seems to have turned over a new leaf. Mr. Rodriquez apologized for not having an answer because the contractor in charge of converting my client’s c-file was back east and had gone home for the day. However, in the next breath he explained that he, on the other hand, hadn’t gone home yet. What’s more,  he’d have an answer today (the 9th of May) before I commenced work.

To test his thesis, I got up at the screech of dawn and did my barn chores with the horses. I was back here in the asknod  TOC by 0640 (L) and writing this blog in hopes of catching him out. It’s o745 now and I’m poised to go both ways. One thing is apparent though. The soon-to-be world-class service he explained as being the “new VA” has already arrived. He crowed about his new assets and a rolodex full of ‘go-to’ personnel to ferret out problems. He tells me there are new pathways to discover quickly (in eight hours or less) why the snafu began and the repair order. His contact point at 810 Yellow Brick Lane NW Wash. DC  20420 dutifully got back to him yesterday afternoon after a long chat with folks at the Records Management Center in St. Louis but he was unable to talk directly with the contractors assigned to crank out  that CD for my client.

Imagine that? In less time than it takes to file an Extraordinary Writ, he’s cut the Gordian knot and ostensibly proposes to have an answer for me this AM before the opening bell. That’s a mighty tall promise in VA country. Five years ago he’d have been fighting entrenched ennui and the standard administrative I don’t give a shitism endemic to the old system.

If all this proves to be reality and not some chimera, I’m going to have to learn to curb my tongue and begin telling Vets that Wavy Gravy Woodstock altruism has finally arrived -We must be in Heaven, man. Perhaps the defining difference here is more basic. Mr. Rodriquez is a Veteran with a capital V. He says he feels more invested in the process because he’s served his country and working for the VA gives him great satisfaction in helping other Veterans who somehow missed the bus or fell through the large cracks in the VA system. Boy howdy does that ring a bell with me. I began to come down with that bug in 2008 when I finally figured this poker game out.

Whatever the reason, that VA would create a new job for a VACO employee with extensive rating experience and give him free rein to spend his working hours doing nothing but right our wrongs bodes well for VA advocates as well as Veterans. The fact it is happening in Phoenix, of all Regional Offices, is also heartening. Let us pray it is not a flash in the pan but a harbinger of a new dawn for Veterans and the prompt adjudication of their claims.

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

P.S. Unless, of course, he doesn’t call back. It’s 1420 Hrs. L and the frequency is clear…

P.S.S. Standing by on frequency. 1650 Hrs. Comm Check, over?…. You-all don’t reckon he was funning me, do you? Stupid is as stupid does.

PPSS. Mr. Rodriguez and I finally connected today (May 12th in the AM) as well as last evening. He’s a gentleman and a scholar and apparently there are 56 more just like him deployed across our Fruited  RO plains. One more tool in the Veterans Claims toolchest.

Posted in C-Files and RBAs, Tips and Tricks, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , | 12 Comments

CAVC- CULBRETH V SHULKIN–THE 45-DAY SOLUTION

When things have dragged on for more than three years and the Regional Office really can’t remember who you are (nor could they care less), it sometimes helps to throw a Ulysses  Grant coupon at it and watch the 027 OGC Gang start jumping through the hoops all the while explaining why you should not be granted a Writ because they’ve already fixed your problem. Funny, after ignoring you for over three years, it just so happened that at the exact same time you were filing the Writ, they were busy at work on this selfsame claim. Imagine the coincidence. In fact, within the last 55 days since you filed on March 20th, they de novo’d the sucker, called you up, sent you out to QTC RFN and everything was uploaded to VBMS the night before last. Fact is, the whole shiteree will be done before you can say Bat Masterson. What refusal to act?

In reality, Mr. Ralph Bratch, Esq. has been cooling his heels outside the Atlanta Regional Office for the last three years patiently sending in reminders and queries  while being steadfastly ignored. Some Judge who will remain nameless and I’m too lazy to look up           (okay, it was Farley) said, in writing the Jean Erspamer decision:

“While there is no absolute definition of what is [a] reasonable [amount of] time, we know that it may encompass months, occasionally a year or two, but not several years or a decade.” Erspamer v. Derwinski, 1 Vet.App. 3, 10 (1990).

To this day, VA has taken that to mean that, at a minimum, they can blow you off for three years and dodge the Writ bullet. Mr. Bratch wisely didn’t waste his time or Mr.  Dan Clifton Culbreth, Jr.’s before that as it would never give him the minimal three-year standing to justify pitching a bitch. Realize, too, there will never be an equitable settlement that qualifies as “substantially prevailing” before the Court which is the minimum predicate for at least EAJA fees. The OGC is adamant they will “fix” this inequity such that they defeat the “refusal to act” codicil. I’m pretty sure we can count the number of wins in the Ex. Writ arena and the sum of the EAJA fees in all cases to date wouldn’t top $10,000.00 yet- even assuming NYC as a lodestar. There is rarely an ‘e’ in expedite until a Writ is filed. In sum, Mr. Bratch and his leagle beagles are out some postage and preparation time on the Writ Filing and will never see any money for doing it. The only reason to do it was provoke momentum on Mr. Culbreth’s claim. What’s better, it didn’t even cost Culbreth $50. He filed as an indigent.

Personally, I get antsy having to wait three years. VA claims they have created the Rube Goldberg Eternal VBMS behemoth that can swallow whole VARO caseloads into a single gagabyte and render 98% correct OCR decisions within 125 days. Ask them to do it to a NOD and they seize up like “Hold the pickle. Ho-ho-hold the lettuce. Special orders really upset us. We’ll get back to you in a decade or so.” As Judge Farley clearly enunciated though, a reasonable amount of time might consist of ‘a month or a year’ (or two)- far less than that magic three-year minimum to begin complaining. If VA can now do a claim in four months or so, shouldn’t four months be the benchmark time in which to consider a NOD, review any new and material evidence  and discern error? Or the obverse… who, in their right minds at the Atlanta Puzzle Palace thinks three years just to begin ruminations to accomplish anything is par for the course? Hell, yeah. In this new VBMS wonderland, we expect world-class  customer service.

VA’s standard mea culpa invariably sounds remarkably similar to this screed:

With respect to the handling of this matter, the AVSCM [Asst. Veterans Service Center Manager] indicated that “VA acknowledges that the handling of this appellant’s appeal has certainly not been as timely as the Agency should deliver and that this Veteran deserves. Unfortunately, the volume of the appeals workload has impacted VA’s ability to provide decisions in a more expedited fashion.” (Exhibit 1, Point IV). Further, the AVSCM indicated “that while VA certainly regrets not being able to adequately handle this situation, the Agency is committed to improving its processes in an effort to provide better and world-class customer service.” Id.

World class customer service? Is this some new Ganga  OGC is smoking even I haven’t heard of that puts Maui Wowie or Mantanuska Thunderf__k to shame? Granted, all enlisted men were born at night but this smells reeks of  bs.

I think VBA is plagiarizing or perhaps they enlisted the writer from OIG. You know. The one who writes that drivel line ” We were unable to substantiate someone purposefully stole the 1,300 stored computers in spite of the fact that it remains unclear at this time as to their present location. We will reinventory the matter in the near future to ascertain the actual location and disposition of the missing computers and confirm substantial compliance. The VA Assistant Veterans Service Center Manager thanked us for bringing this to her attention so she won’t get busted for the same stupidity when we show up next spring.”

So, the teaching moment is… multiple. Extraordinary Writs of Mandamus work. The trick is to develop a documented written record of being ignored multiple times and measure the delay in the number of Christmas trees you’ve bought. Personally, with VBMS, the three-tree minimum, by rights, should be reduced to a maximum of two. VA should have to prove by the RBA that they are not suddenly trying to play catch-up in three weeks when they suddenly get a Writ query from VACO. After two years, most substantive appeals should have a SOC, be on the verge of printing or already be awaiting a VA 8 certification to the Board. Firing up the printing presses a week after receipt of the Writ should be grounds unto itself of misfeasance and constitute a de facto refusal to act. Three years is right out. It’s tantamount to a bitchslap followed by “Alright, already. I’m doooooooing it. Keep your shirt on.”

Here’s a primer in how to

culbrath request for Writ

Culbrath Sec. response

Culbreth v. Shulkin Ex Writ denial .

Sunrise– March 20th, 2017

Sunset –May 5th, 2017

Game set match.

For shits and grins, try this Ex Writ gig on getting your c-file. If you’re waiting and need it for your NOD or VA 9, what could be a better excuse? “Yer Kindness, I kin nay compose me disagreement ’til the blokes let me see the ‘ticulars.” If the CAVC gets inundated with enough Writs just for FOIAs, two things might happen. Judge Davis may skin me alive for putting the idea in your heads or it may speed up refilling the vacancies on the Court. My hope would be it would teach VA to be prompt and aspire to that elusive world-class service they seem so bent on achieving. Remember, no eye-rolling or sarcastic head shakes. On another note, don’t you wonder just how many red bow ties there are in existence? Does he wear one to bed? All these queshuns.

Unfortunately, as officers of the Court, we agents and attorneys are not allowed to file Ex Writs until those magic three years have expired. We are prevented by the “frivolous” clause. But that doesn’t prevent you who do have legal counsel from wandering off the reservation unattended and ignorantly filing Ex Writs pro se. Your rep. can feign ignorance and be blameless while still exerting immense pressure on VA to FOIA up the documents. Hey. What can I say? It works.

Posted in C-Files and RBAs, Extraordinary Writs of Mandamus, Obtaining a C-file, Tips and Tricks, VA Agents, VA Attorneys, vA news, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 1 Comment

JACK THE CAT–PERMANENT AND TOTAL

This story is our first day of the drive to San Antonio, TX for the Spring NOVA conference. We overnighted at the Fairfield Inn in Redding,  California. I’m not advertising Marriott Rewards™ but they have the cat’s pajamas on their staff. Meet Harry the Cat. This is a hoot. He even has his own Facebook page. He has quite a story and as you can see by his left ear, he’s no stranger to getting in a tussle. He met us in the parking lot as I parked and showed us where the front door was. He likes to ride the baggage cart, too.

 

100% P&T  Fairfield Inn–Redding CA

https://www.facebook.com/Jack-The-Hotel-Cat-261253967260089/

This is on the front desk:

Every business needs a gimmick. Jack is the neatest thing since sliced bread at that hotel. They have a nice staff and the addition of Harry is like peas and carrots. We purposefully planned our gas stop on the way home to get off the freeway and go visit Jack. Unfortunately, he was in back taking a nap so we missed him on this pass. He’s worth the visit if only for a get-on, get-0ff of Interstate 5. He’s that neat. It’s eerie that he knows his boundaries and plays his part to the hilt.

TDIU in Oatman, Arizona

Another gotta stop if you love animals. These are the wild burros that live in the upper desert and come down for breakfast daily in high season when the tourists are present. They’re darling and also seem to know the boundaries of good taste. They’re about 30 miles east of Bullhead City/Laughlin. Try the Oatman Cafe. They have real fresh-squeezed Orange Juice at no extra charge versus regular store-bought OJ for breakfast. Killer chicken fried steaks and hash browns from hell. Get there early.

Burros awaiting compensation payments Monday, 23 April 2017

Unemployed…with children

 

Posted in 2017 NOVA Conference, All about Veterans, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , , , | 1 Comment

CAVC– THE GUY IN THE RED BOW TIE AT SPRING NOVA ’17

Perhaps you have been touched by CAVC Chief Judge Robert N. Davis in your dealings with the VA. Boy howdy have I. Up until the 22nd of April, I didn’t realize it was he who had such a profound effect on Katrina Eagle a few years back. She never went into particulars when I asked. Which is what prompts this column and website… sort off. At the Spring NOVA in San Antonio, I was enervated to see Judge Davis was to be in attendance. Being a cheapskate and never having big dough to go places like Studio 54 to get big name Actors’ autographs or photos, belonging to the National Organization for Veterans Advocates is a natural for getting yourself snapped with the CAVC Judge du jour at the Friday evening après conference cocktail party/meet and greet. 

Chief Judge Robert Davis

I had a good spiel lined out, too. I’ve been to the CAVC four times now on various enterprises-mostly Extraordinary Writs of Mandamus to enunciate the meaning of the “e” in ‘expedite’ for the Veterans Administration. Number one went horribly awry (CAVC 10-300) when I was stuck in  the Seattle VAMC and unable to timely respond.  Dilaudid sort of does that to you. I had yet to get the email on equitable tolling of time based on emergent circumstances. When I came to, Judge Davis’ clerk told me it was dead in the water and returned my plea. Ah. For lack of a legal term, the Writ was amort.  I began to read more CAVC decisions and became earnest in winning my 1994 date. The dye was cast now.

Bob Squarepants Walsh

Number two adventure (CAVC 12-1980) was under the valuable tutelage of Robert “Squarepants” Walsh, Esquire. It was the best money move I ever invested. I learned everything there was to learn on a lot of CAVC procedure. It was assigned out to a Joint Remand  when VA finally gave up and surrendered on the 1994 date for my Effective date for Hep C. Sadly, we didn’t put enough bricks in the JMPR and the BVA Judge got his temporary revenge on being overturned. Which spawned …

Number three expedition to 625 Native Americana Ave. NW Suite 900. I launched CAVC 15-112 as a pro se and then had SquareBob jump in to guide it. The requirements are far fewer in paperwork and you can feign ignorance because you’re -yep- pro se! CAVC judges treat us like obstreperous schoolchildren with poor upbringing but they do have to put on the white gloves and pretend to be deferential. You can guess who I drew. This Writ was to evict my  future greenhouse from its permanent residence at the Seattle VR&E Officer’s bottom right drawer and get the VA 8 certifying it to the BVA.  I’d been fighting now for eight years to also get my Porphyria rating  from 10% to 100%. VA, like Judge Davis, had ignored my VAMC equitable tolling argument and declared the claim dead for lack of a timely VA 9 due to aforementioned  Dilaudid intoxication. The good VR&E officer had somehow disremembered he ever got a timely VA 9 filed within the allotted 60 days and pronounced the greenhouse dead. The USPS certified mail, return receipt requested (green card) told a tale on him. Suddenly, the heretofore errant VA 9 was “found”in the mail room a year later. They still refer to it as the Miracle on 2nd Avenue to this day.

Guess who?

The Writ was authored by- yep- no other than Judge “Red” Davis. By now, I was beginning to think there was a mathematical formula that automatically assigned all Vets with last names between A and H to Judge Davis. I had been hoping all these years to get St. Mary Schoelen or one of her sister judges.  My lot did seem to be  cast with Judge Davis for life. I really have no complaint but he refused me my EAJA fees because I hadn’t “substantially prevailed.” I ‘m from Washington state and folks around here call  a check for $72,000.00 “substantially prevailing” in any argument. There’s no accounting for how Judge Davis defines it. He must be reallllllllly rich.

Bob Chisholm

So, naturally, I wanted to meet this Judge Davis and shake his hand. Perhaps a picture, too. How often is Joe Average Vet screwed over by VA and sufficiently motivated to a) learn the VA blame game; b) become moderately good at winning at it personally; and lastly c) decide to pursue a career in it at 66? I think Judge Davis was personally inadvertently involved in creating me. What idiot would do that to VA? Yep. If this were the Bible, I’d be the Edith that looked back and turned to a pillar of salt. Helping Vets is a Holy task. I can’t turn away now. and am inexorably drawn to it. No offense, but they need a lot more advocates. The legal field is wide open. Looking at the  OGC 021’s accreditation list, you’ll find only 350 independent nonattorney practitioners listed-actually 347. Many attorneys, in the thousands, are listed but they didn’t have to make their bones on a test. Just having a Juris Doctorate is the entrance fee.  They are there legitimately though. Make no mistake thinking VA law is a cakewalk. It changes faster than a chameleon and you have to keep abreast of it almost  daily. Look no further than today’s latest Memorandum Offering by St. Mary  Schoelen. This is going to give VA ulcers.- Leon Evans versus the Good Doctor Shulkin and his Merry Band ( CAVC 15-3178). Bob Chisholm’s patience paid off handsomely here. VA keeps getting their backside spanked over § 4.16a and those pesky references to “sheltered employment”. Bob and CCK had to wait for Cantrell (2017 WL 1382283) to be decided and VA took it on the chops yet again over this.  VA doesn’t want to define “sheltered employment” because then we’d all be able to point and say “Yep. See there, Mr. Board? That there’s sheltered employment so my Vet gets TDIU back to 1996. Hell, the next thing you know the TDIU population will be off the map and out of their hands. The way the VA looks at this is to allow the Board to make that decision on a case by case basis or better yet- let the Director of C&P make the decision -er – denial. VA would have us believe a non-defined regulation, ambiguous on its face, is actually perfectly clear to VA so let them figure it out. Move along, folks. Nothing to see here.

St. Meg Bartley

Adventure number 4 was filed with foreboding. I had to sit on my hands to keep from checking the CAVC ECF docket search about every hour. I was positive it would be Davis. And then the angels sang- CAVC 16-2098  and  Saint Meg Bartley. I won the lottery. What’s more, I broke the Judge Davis curse.  Saint Meg ordered them to be quick about this greenhouse endeavour. Sadly, the VR&E boys are still playing keepaway with the greenhouse so it’s time for foray # 5 this month. I’m just guessing it’ll be my old ( and new) friend with the red bow tie. I gave him my card when he asked for it and he took a good long gander at my name tag. He demurred a moment and then said “Asknod? Now why does that sound familiar?”

Hey, I sure don’t have any bad water with him yet. I’ll have to be careful not to roll my eyes on an oral presentation or shake my head in disgust. Granted, we have Katrina to thank for walking point for us on that one. The NOVA “ethics” gig we did Saturday morning with Ralph Bratch was a hoot. If you can get CLE for that, then we’re really getting an education. Katrina got to finally tell us what really happened and SquareBob even got to contribute his sage observations. Fortunately for both, Judge Davis was absent so what happens in San Antonio stays in San Antonio.  You VA attorney folks will rue the day you passed on this NOVA conference.

Photo courtesy of Cupcake™

Now where have I heard that asknod name?

And that’s all I have to say about that.

Posted in 2017 NOVA Conference, CAVC Knowledge, Humor, NOVA Attorneys, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , , , , , | 4 Comments

BACK IN THE SADDLE AGAIN-HADIT RADIO SHOW

I arrived home with a rip-snorting killer cold but avoided doing the Typhoid Mary syndrome in San Antonio at the conference. We’ll talk all about that Thursday afternoon at 1600 Hrs Left Coast Liberal Local time or 1900 for those unfortunate souls condemned to live in the east.

However, I feel obligated to say that I was devastated to find out Vermonters carry such a huge burden of guilt that they feel obligated to drag everyone else down with them. We give old Bernie Sanders a pass because he’s an avowed “Independent”, but what of Vermont Senator Mary Ann Carlson (D)? Vermont, you may remember, is one of the states where you are not required to have a concealed weapons permit-ergo, you may go out in public armed with no prior supervision. Wonder of wonders, this has not resulted in widespread bloodshed over the last 250 years of the state’s existence.  I always respected Vermont for that consideration that we are all born without original sin. Turns out that’s all a façade for the media, apparently.

(Rebutted by a Snopes link.)

Being apolitical, I won’t go into a diatribe other than to say I am a Patron Member of the NRA. My father signed me up for a life membership when I was born. A farthinker he was, yesssssssssssssssss. Besides, regardless of Sen. Carlson’s contentions otherwise, I expect she said something a might similar. Hell, we may even find out she’s part Native American in the coming years.

Thursday’s show will touch on all the new techniques we agents and attorneys learned this spring on how to win claims quickly, how to navigate around all the new ploys to make us wait and especially how to speed up receipt of claims files.

The call in number is the same

347-237-4819

To speak or join in the discussion, dial the number #1. Be there or be square. As usual, your Hadit greeter will be that lusty-sounding British gal with the throaty voice…

ss-call-me

P.S. I received this from Jerrel so it may be a better method to connect to the show. The below snip is a .pdf. The Hi-Fi link below labeled  ‘click here’ is https://secure.blogtalkradio.com/haditcom/9996917/connect/dfbb023e641070e9746b193b1b571e1d03aec73d

Capture.JPG

Remind me to introduce you to some of  Cupcake’s new friends I met  in Roswell.

 

Posted in 2017 NOVA Conference, All about Veterans, KP Veterans, SVR Radio on hadit.com, VA Agents, VA Attorneys | Tagged , , , , , , , , | 2 Comments