Comp & Pen Exams: What You Need to Know

Throughout the course of your initial claim or appeal, the VA may order you to go to a Compensation & Pension (Comp & Pen) exam. The VA orders these exams to obtain an opinion about the cause and severity of your condition. These exams can be conducted either at the VA or by a contract examiner (a private company like LHI, VES, or QTC), and last anywhere between 10 minutes to multiple hours.

Getting a favorable opinion from a Comp & Pen exam is the key to your case! A favorable opinion (often called a positive “nexus”) can provide you with the medical evidence you need to service connect most claims.

Unsurprisingly, the VA usually falls short in providing an adequate exam. A lot of examiners fail to review your file, spend enough time with you to properly evaluate your symptoms, or make unfair assumptions about your medical history.

Here’s some things you need to know to maximize your chances of getting a positive nexus from any examiner:

Generally,
• The examiner will be observing you very closely, including your body language and tone of voice.
• Do not assume that the examiner has fully reviewed your claims file. It is your job to educate them on the cause and severity of your disabilities.
• Remember that “a closed mouth never gets fed,” or “the squeaky wheel gets the grease.” Be honest and detailed about what happened to you in service as well as your symptoms.

For mental health exams,
• When the examiner asks you “how are you doing,” that is a question about your current mental state! Do not say “fine” or “good” if that’s not the case.
• Be detailed about the in-service stressor that caused your mental health condition. Give dates, locations, people involved (if you remember the names), and the circumstances of the stressor.
• If applicable, be sure to emphasize that you were in good health prior to service, and that you’ve consistently had mental health symptoms since your in-service stressor.

For physical exams,
• Most physical exams involve the measurement of your joints’ range of motion. Make sure:
o You STOP immediately when the movement becomes painful. The point that you begin to feel pain is where the examiner should document the end of your range of motion.
• Be detailed about the specific in-service injury that caused your physical condition, or how your MOS caused your disability over time. Give dates, locations, and the circumstances of the injury.
• If applicable, be sure to emphasize that you were in good health prior to service, and that you’ve consistently had physical symptoms since your in-service injury.

After the exam, the examiner will draft a report that will be uploaded to your claims file. Be sure to get a copy of that report! Call the VA benefits hotline (800-827-1000) to request a mailed copy. Stay tuned for tips on attacking inadequate Comp & Pen exams – coming soon!

P.S. I would like to introduce my audience of Veterans to the author of the above article. Kelsey Craveiro Esq. will be one of our new contributing authors.  Ms. Craveiro is the Managing Veterans Disability Attorney at Rob Levine & Associates in Providence, New Jersey. Welcome aboard, Ms. Craveiro. 

Posted in C&P exams, Duty to Assist, Nexus Information, Tips and Tricks | Tagged , , , | 7 Comments

Les souvenirs de Viet-nam (1)

Sunday musings 

Sometimes things I order from Amazon, perhaps a T-shirt or a kitchen towel, are tagged “Made in Vietnam.”  Here we are, decades later, and only God knows how many humans were killed during the Vietnam War, and afterward.  All that pain, suffering and death, but hey, we can now buy cheap goods from Vietnam.

“What in the world should I buy as a souvenir?”

Travel magazines feature banal articles about the “best” cheap Made-in-Vietnam souvenirs tourists can buy.   Popular suggestions include conical “leaf” hats, hand fans, silk anything, ‘ao dai’ tunics, embroidery art, guoc moc wooden clogs, coffee, woven mats, lacquerware, tinware and ceramics.

My old Marine came home with a chess set, and a bunch of–at the time–mainly intangible illnesses and injuries.  The latter are the souvenirs he can’t throw way no matter how much we wish he could be rid of them.  When I read BVA claim decisions wherein a judge comments that, say, an older veteran wants to “blame” all of his/her ailments on their war experiences, I think “well–the vet could be correct.”  On the other hand, presenting a long list of ailments, even if correctly identified as service-connected, is not likely to be looked upon as reasonable by VA employees.  I suspect that only holistically, well-trained and smart military researchers, are capable of connecting all the dots.

How did some servicefolk spend their Sundays in Vietnam?

Shopping for deals? This artful photograph shows the important role chaplains play in the military.  What can explain this desolate landscape?  What happened here? 

I see sadness in the postures of the sitting men, a few not listening and one bold fellow staring straight at the camera.  I see symbols of civilization here among the debris: the chaplain’s stole, his bible verses, and even in his reading glasses.  In this setting, the mostly uncovered heads are probably as a sign of respect.

Entitled “Sermon on the Mount,” the image represents a yearning for peace amid war and a wish to go home alive.   A brilliant and touching spiritual image to appreciate on a fall Sunday afternoon.

by Laura (Kiedove-guest author)

“Sermon on the Mount” “Navy Lieutenant Commander, Frederick E. Whitaker, chaplain for the Third Battalion, Fourth Marine Regiment, holds religious services for leathernecks of “M” Co., on a mountainous ridgeline north of the Rockpile. The Leathernecks were participating in a battalion-size search and clear operation near the Demilitarized Zone.” In the collection of: The New York State Military Museum and Veterans Research Center, Saratoga, NY https://dmna.ny.gov/historic/about.htm

vietnam sermon back

Posted in All about Veterans, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, History, Uncategorized, Vietnam War history | Tagged , , | 3 Comments

LZ CORK–THE DeLOREAN CFR BACK TO 1970

§3.156(c) filing vehicle

38 CFR §3.156(c) is an oft-misconstrued aberration in the adjudication of Veterans claims. I freely admit I read it very broadly to benefit us munificently in the beginning when I first ran across it. The more precedence I read, the more it appeared to shrink in its judicial reach. In Butch’s case here, I’ll show you why he falls into the Perfect Storm of §3.156(c). But first, let’s examine what it is, what it isn’t and why it may, or may not, benefit you-Johnny Vet.

§3.156(c)

First, let’s take a gander at what the Secretary attempted to “give” us. The meat of §3.156(c) was originally found in §3.400(q)(2) safely hidden from view. With the advent of the Internet, all you lynx-eyed, wannabe VA detectives started theorizing on just exactly what this offered and how to get a can opener into it. I’m going to bold the most important parts-i.e. the ones VA strives to disregard. I’ll discuss them below.

(c)Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding  paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2)Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a))

§3.156(c)2) was added on Sept. 6, 2006 84 FR 169; with the change to the AMA, §3.156(d) was added:

(d)New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.

Get out the notepad and a pen. Starting with (c)(1):

This is how your claims posture had to present if you think you’re going to reopen your claim filed when you got out in 1968-72. It can be a shit ton of money but you have to have the perfect confluence of events. Using Butch as the example, let’s investigate how Butch is going to win this at the Court. He filed for four items when he got out:

  1. Perforated ear drums
  2. Perforation right cornea
  3. SFW Rt. hand and right arm & side
  4. SFW Rt. side of head

Long filing 6-14-70

Below the list of injuries, Butch clearly identified where the records could be located (Chu Lai Army Field Hospital; Da Nang Air Evac. Hospital and Camp Zama, Japan. This is important as VA will surely use it to try to deny you. Had they been in the c file, §3.156(c) would not be for application. In Butch’s case, the absence of these records laid the foundation for his filing 46 years later. They weren’t at the NPRC or they would have magically burned up. My guess is they sat at Camp Zama for about 20 years and finally were archived at NARA in St. Louis at the NPRC.

Knowing full well that you can use Moody and its progeny (Roberson) for a sympathetic reading of your plea-irrespective of whether you had legal counsel, it would seem logical to drag out the old “inferred or informal claim” microscope and see what else Butch was up to with these four specific claims. At his c&p, old Butch was far slicker than most of us. He actually sidestepped that VSO idiot and vocalized further on his four problems that day. VA put it down in quotation marks so there can be no doubt he was talking about his current claim. Hell, he even signed it.

Long 1970 C&P pg 1 REDAC

We contend he either complained further on the symptoms of his “conditions” or else filed an informal claim much like a VAF 21-526b. Please note Page One of the VA Form 21-2545 Comp. and Pen. examination of 8/10/1970 above. All the “symptoms” mentioned  in Box 17 PRESENT COMPLAINT relate directly back to one of his four claims contended in the 26-page VA Form 21-526-i.e. “residuals” and in Box 15 above it.  This is why they named it the 526, incidentally. To wit, his claim for SFW rt. hand and right arm & side (4) relates to  his thumb and right arm complaints. The reference to the “no problem with the right side” was in reference to the vast quantity of retained metal fragments that were gradually beginning to come to the surface (on the right side of his body). “I have been having headaches” related back to the enormous chunk (3mmX3mm) of retained metal embedded in his skull in the temporal area where he was having the headaches. “My right eye is blurry” referred to the SFW through the right cornea and the remaining 9 retained fragments. The complained-of earaches, recurrent infections and “I have ringing in my right ear” referred to the claim for perforated eardrums. In short, what we have here is a classic case of TBI referred to in 1970 as an organic brain injury-except Butch didn’t have it.  To accept the VA version, he had bad 0% hearing is all.

Butch never considered these to be informal claims but what if they were? He’d already filed a 526-the only one you are ever required to file at the time of your original claim. Any subsequent claims back then could be filed on a paper towel or a McDonald’s hamburger wrapper. To be sure, they could also be filed on a VA Form 21-4138 which, at the bottom states you are telling the truth so help you Johnny Vet and signing it with your John Hancock. But what of the VAF 21-2545? It’s an official VA VBA form (note the 21 predesignator) and it contains the proviso for swearing you are telling the truth about your health along with you wet-ink signature just like a 4138. So, I ask, what’s the difference? The BVA VLJ insists it is not a claim, formal or informal or anything of or having to do with the 1970 claim. Seems old Butch just had diarrhea of the mouth that day and was talking smack about something-but not about his claim. More about this later.

The JSRRC

VA, for a while now, has used the Joint Services Records Research Center (JSRRC) to retrieve military reports of battles and skirmishes in order to identify Vietnam Veterans’ PTSD stressors. If you disremember when you were at An Loi  during the convoy ambush and can’t remember within 60 days one way or the other of the April 21st, 1969 ambush, VA will claim they cannot employ the JSRRC panacea due to your forgetfulness or dismal memory. The Court has officially frowned on this and thinks they should survey a broader time frame. I’m sure VA will eventually get the email but until then, sharpen your wits and try to be aaaaaanally specific if you can about when it happened. One trick I use to remember what happened to me was “Was it Dry season or Monsoon?”

VA will often disremember the prequel to (c)(1) “at any time” or try to segue into a reopening under §3.156(a) instead of a de novo reconsideration of the old decision. Keep your eyes peeled for that hat trick. They’ll also try to adjudicate it as a CUE which is infinitely harder to win-and the wrong legal standard of review.

As the Secretary and Congress were slackers when they wrote this one, there came to be a belief that you had to have been denied in the old decision before you could “reach back” for the reconsideration. In fact, they tried to game both ends and say if you filed again in 2017, three years after you found new §3.156(c) records, you could not go back and  ask for reconsideration. Bullshit, my friends. See Emerson v. McDonald (2016) 

The Secretary argues that the issue of the applicability of § 3.156(c) is not properly before this Court because Mr. Emerson, despite being represented by counsel at the time, failed to raise the issue below. Secretary’s Br. at 12-14. The Court disagrees.

Emerson picks up where Blubaugh left off. Blubaugh picked up where Vigil v. Peake (2008) left off.  It was long overdue because §3.156(c) law has never been adequately fleshed out at the Court. Each case is horribly unique with the majority of the precedential decisions to date centered on JSRRC records. Rarely, if ever, do Vets or their representatives have access to the VBMS or the old claims file and have time to spot these errors. VA doesn’t send you a Western Union telegram announcing they are going back to 1970 because they just found  your Chu Lai/Da Nang/ 248th Camp Zama records that vindicate your new claims filing…in 1969.

However, subsection (c) establishes an exception to these rules, the purpose of which is “to place a veteran in the position he [or she] would have been had . . . VA considered the relevant service department record before the disposition of [the] earlier claim.” Blubaugh, v McDonald, 773 F.3d 1312, (2014); New and Material Evidence, 70 Fed. Reg. 35, 388, 35, 389 (June 20, 2005) (proposed rule) (stating that revised § 3.156(c) will “allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government”); see also Pacheco v. Gibson, 27 Vet.App. 21, 32-33 (2014) (en banc) (Pietsch, J., concurring) (noting that subsection (c) “is an exception to finality”). Emerson supra

§1154b

§1154b states:

(b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

Just think about that legal standard of review-

“may be rebutted by clear and convincing evidence to the contrary.”

Clear and convincing evidence is the same standard required for a CUE claim-e.g. clear and unmistakable error. The old reasonable minds can agree standard of review. That’s a pretty tough nut to crack. Unless or until VA can prove Butch was funning them and wasn’t really filing an informal claim, then they can’t prevail with their incredible contention. Occam’s razor (and a nonadversarial interpretation) would argue he was just giving them more information of the residuals of his four claims (as in “present complaint”) in reference to the stated claims in Box 15 (Narrative History) .

To cement the Secretary’s error in interpretation and to prove the combat presumption was not granted in 1970 is simple. All you need is a DRO with a room temperature IQ. Her rationale for why Butch didn’t get SC or a rating for his tinnitus is because it wasn’t caused by a head injury or concussion. But, But, but…§1154b?

Butch SOC 5182018

Ever been to a live Hollywood set? They have a crew called continuity. VA needs a buttload of continuity but it’s too late. You can’t submit more evidence when you get to the Court. I packed this c file to the brim. The 2018 DRO says the 1970 rater didn’t grant SC  for ear ring because he didn’t have a combat injury. The VLJ argues differently saying he didn’t get SC for it -or anything- because there was no claim. Well, there goes Clemons v. Shinseki out the window. Butch told me he’d never heard of the term Tinnitus in 1970. Or ’80, or ’90 or until about 2015. Or… we have a case of Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (explaining that “litigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for prior agency action”). In DickandJanespeak, that means if you keep changing your story about how this fustercluck went down, the Court can feel free not to believe a word you say.

The Matter of First Impression

Where Emerson falls short, and what makes Butch’s appeal a matter of first impression, is the addition of a wild hare. Two facets of §3.156(c) are present here. Remember, I fought long and hard to get Butch’s Purple Heart and CIB awarded before he filed his reopening in 3/31/2015. Since he had no medals showing combat in 1970, he could never have been accorded the combat presumption. In fact, all VA had were records showing he’d been in Letterman hospital. Nary a record existed from Vietnam. That was simply “combat history” supplied by Butch himself. Now, in retrospect, not only is the VA required to reconsider all the evidence, including the missing 105 pages of service hospital records from the 312th Air Evac, the 95th Air Evac and Camp Zama, but they must also view it de novo through the lens of the combat presumption. Everything Butch said regarding his headaches, his ears and his eyes et cetera has to be accepted at face value like the Oracle at Delphi unless the VA can rebut the new §3.156(c) evidence as not being probative or instrumental in granting a compensable headache rating, a compensable tinnitus rating and a compensable rating for the eye. We’ve already nicked them for one CUE on his right arm for 10% back to 1970. Here’s why…

I might have been born at night but I know who I’m dealing with. Being a busy little adjudicator, when I hit the wall on the residuals of the 1970 filings in 2017, I set to work on those additional contentions implied in 1970. We filed for (and won) TBI, headaches and a compensable rating for the right eye due to restricted field of view-but all were awarded with 2017 effective dates. Now, with the new service department records and Emerson exquisitely on point, we fight for the §3.156(c) using the additional §1154b cudgel. Going up to the CAVC with this dynamite is akin to attending a knife fight with two Uzis and a bandoleer of M26s. It’s rocks, paper, scissors, gun.

What amazes me is how a VLJ can logically say with a straight face that Butch went to a c&p exam for his four contentions where he (allegedly) complained about nine “other contentions” and those were immaterial/unrelated to the original four. Nevertheless, according to a Law Judge, they definitely were not claims as defined in §3.155 (1970). Let’s see, they would have to be in writing, refer to specific injuries or symptoms and evince a desire for entitlement to same… at a c&p exam for all of it… naw. No claims here. Move along Butch. Nothing to see. Must have been a fig newton of your imagination. I can almost hear Foghorn Leghorn addressing Butch the chickenhawk… Claims? Claims? Who told you you had a claim? Who put in them claims? I don’t see no claims. What you been smokin’, Butch?

How about this (below). Four days after he mentioned he had (continuous) ringing in his right ear, VA conceded he had tinnitus at his EENT c&p but failed to rate him for it. This is CUE but it can be resolved via the §3.156(c) and §1154b. I find it interesting VA says he didn’t claim tinnitus when it is the hallmark of a traumatic, explosive audiological event. So, VA doesn’t rate him for perforated eardrums but instead the residuals of the injury-i.e. neurosensory bilateral deafness-but only at 0% mind you. How, pray tell, do you step over the compensable diagnosed tinnitus to get to another residual? Only at the VA folks.

Long C- File Prime 161 C&P Hearing and R Eye

As for granting the combat presumption, I ask if reasonable minds can concur that the combat presumption was not considered in his 1970 rating. I don’t see any mention of it. Butch said he has headaches. Ergo, by operation of §1154b, he has headaches. Ditto tinnitus and blurry right eye problems.

Long Rating sheet 1970 pg 1

Long Rating sheet 1970 pg 2

Here’s the BVA decision. I see no mention of the definition of an informal claim- nor any discussion of same, §1154b or any sympathetic reading of the evidence. I see no proper application of §3.156(c) to the evidence of record. The 105 pages of service department records are replete with all manner of discussion of SFW injuries to the right side.  Nevertheless, Judge Crawford insists there was never a claim for SFWs of the right side. Aruuuuuuu? My take is Butch was sold down the river because the VA is adamant they are not going to cough up a shit ton of shekels. I forgot to add-a spouse and 4 dependents in the intercurrent period from 1970 to 2015 would be for application here too.

Butch BVA decision redacted

What a wonderful case to break my maiden on at the CAVC. To be sure, I’ve had the honor of winning two there with Bob Walsh. This will be my first solo outing as First chair (GIB). I actually look forward to an oral presentation before a panel. This is so cut and dried as to demand reversal. Arbitrary and capricious is a masterpiece of understatement. This was egregious hit-and-run justice. The DRO even conceded tinnitus in 1970 but said  “In 1970, tinnitus had to be severe and continuous, and a symptom of a head injury or concussion before service connection could be granted.”  I guess 60 mm mortars or satchel charges landing on top of your bunker giving you TBI aren’t included in the “combat/head injury or concussion” column.  The SOC  also used the wrong legal standard of review. The DRO chose the CUE standard rather than the more lenient §3.156(c) path. In fact, there simply is no mention of §3.156(c) or §1154b for that matter. If “at any time” hasn’t happened yet, when will it? We’re praying somebody at the Court will finally make that call.

Posted in All about Veterans, CAVC Knowledge, CUE, Duty to Assist, Inferred claims, Informal Claims, Inspirational Veterans, KP Veterans, LZ Cork, Tips and Tricks, VA Agents, VA Attorneys, VA Medical Mysteries Explained, Veterans Law | Tagged , , , , , , , , , , , , | 4 Comments

CLEAR PROP! PULL CHOCKS! GUNS ARE HOT, GENTLEMEN.

11Bravo10 Sam

I do so love flying. Not the crashing part but the actual flying. I have rules. I plan on one more rotary wing foray and then will forswear them for good. A good friend of our Hepatitis C survivors club- Sam- got some bad news on his surgery last week trying to eradicate his liver cancer. It’s said they didn’t get it all. Cancer sucks. Sam is probably not going to opt in to the 6 months of radiation/ puking to gain a year more pseudo-quality life. Ditto any chemotherapy, I suspect.

One temporary cure for these doldrums and certainly one for the bucket list is chopper hog hunting with a M-16 chopper-i.e. full auto.  My son was slated to do this with his buds for a bachelor party but it never materialized. Wild horses couldn’t drag me away from this project. Costs be damned. I’m bringing tracers for this gig if they don’t have any.

Texas Helicopter Hog Hunting

ca. 1969, near Xuan Loc, Vietnam

I  represent four door gunners from different eras of Vietnam before the VA. The oldest at 83, was flying in C-21s in 1963-64. The youngest is my age and from the more recent Huey era. One was a Marine in the old H 34s up in the north in a country that rhymes with “Mouse”. It’s pretty enervating flying at treetop level with a M 60 in a target-rich environment.  I remember one door gunner in 1970 who will remain nameless saying it rather coarsely like discussing fishing- “Either sex and no size restrictions, Bubba!”.

Well, now you can relive that era and stop trying to remember what it felt like. The best part is you’re doing a favor for plenty of disgruntled Texas farmers and helping the economy to boot by buying oodles of 5.56mm X 45mm ammo. It’s a win-win gig and no guilt. And shoot (no pun intended), if you like bacon, well boy howdy did you ever come to the right party. They ought to give their companies catchier names like  Will Fly For Bacon or Bacon R Us.

You sure can’t have much guilt doing this unless you’re just a dyed-in-the-wool mugwump who dislikes guns and prefer being a vegan. The downside is you’re going to need to rent an industrial freezer for all them pork chops, pork loin, pork shoulder, ribs and pork belly-especially if you’re a good deflection shooter and know/remember how to lead your target.

We’ll call it the Hogfest or the Hog Hugfest for Sam. Either way, I’m going to do this. Brad seems to be all in, too. There’s something timelessly enervating about having your feet planted back on a skid and more than a d-ring to hold on to again.

Incidentally, to all my Hugfesters who are still alive- we- Brad and I- had an impromptu Hugfest here this fall when we squeezed our apples. I didn’t advertise it and should have. Brad now lives in mid-Oregon and comes through fairly frequently so it was not a big, preplanned deal. This is the good picture. The rest were Brad pretending to try to kiss me. We’re like peas and carrots, me and Brad.

I’ll leave you with this lovely vignette. Image training the FNG how to fly and he’s a wee bit deaf.

 

Posted in 2015 Hugfest Gig Harbor Wash, From the footlocker, HCV Health, Humor, KP Veterans, Vietnam Disease Issues, Vietnam War history | 1 Comment

PICKLES DOB 2/05/2019–2.0

3 weeks

Jez. Pickles gets more mail than I do. She has asked me to make sure you know her personal pronouns are she, her, Hey you, and whatzerbutt. She states she does not identify as transgendered even though she has had a hysterectomy. I  had to take her down to meet Butch and Barb of LZ Cork fame yesterday. More about him in a new post. Yep. We struck out at the BVA. They don’t understand the correct application of §3.156(c) nor how §1154b might be for application in 2015 when it wasn’t in 1970. Onward to the CAVC. One of my clients and his wife insisted on coming over to discuss their claim with the proviso they’d get to meet Princess and take their picture with her. Where does it end? To prevent a lot of oil stains on my driveway, I’ll publish the pictures. I don’t get no respect.

Pickles 1.0 (eight weeks)

We picked her up right after we got back from Spring NOVA in Nashville. That blanket is now three blankets.

Pickles 1.01- chameleon hair at 8 weeks

 

Here’s a great shot of her at 10 weeks. Every shoe or boot you see in this picture has been reduced to small, digested pieces by now. To say she has frequent, colorful feces is a gross masterpiece of understatement.

People laugh when they come into my mudroom. Above the boots and shoes in this photo is my cubby. Yep. I framed it in when we built the hacienda in 2005-a carbon copy of my old one in Northside Elementary School in Albany Georgia from 1955. I used formica instead of white oak for the seat but other than than, it’s a dead ringer. You laugh. It’s a great place to throw the Honey do’s and put on your boots whether you’re 5 or 65. I hear they’re becoming all the rage in retirement homes, too. It’s a regression thing. Women wouldn’t get it.

We began to worry about Princess’ IQ shortly after the coming home adoption ceremonies. She never looked where she was running nor understood the dynamics of immovable objects

She still had her baby blue eyes at 12 weeks. And yes, that shoe on my left foot is now history.

Studying in the law library

waiting to chew on 38CFR

Here’s Princess at three months old:

And four months…

Pickles is slow-witted. Cupcake and I have come to realize not every dog marches to the beat of the official dog drummer. She enjoys smelling things-sometimes for ten minutes to the exclusion of all other sensory inputs. If you tell her to sit and give her a treat, she does. The problem is if you walk away. Several minutes later, you realize she’s missing. This is nerve-wracking. I’m afraid someone may try to kidnap her and hold her for ransom. I run back to where I saw her last and she’s still sitting there. You have to beg her to get up and follow you. Conversely, you have to scream at her to keep her from rushing to greet our mail person… or any person or vehicle other than us.

We gradually began to find more imperfections one by one; here’s the tail discoloration. Now there are white splotches at the color transition.

Princess on spay day in her new surgical suit which survived almost 3 hours. We went out to eat Mexican and came home to find the undigested parts on the floor. I should have read that look. It bespeaks pure disgust and several ounces of future revenge.

Pickles 2.0 is now spayed, 55 lbs. …  and counting. She was the runt of the litter and chosen specifically for that reason.  Being the runt doesn’t seem to equate with a ladylike figure or appetite. What she lacks is altitude. She’s the epitome of the Randy Newman song. But we decided to keep her.

She was a bit bummed when we closed the pool  several weeks ago. The muzzle was to protect the pool for reuse next spring. And my new tennis shoes and work boots and Cupcake’s high heels (the three new pairs I bought to replace the chewed ones).

Never have I owned a new puppy that has caused more financial damage in such a short time. Nevertheless, I wouldn’t trade her in for a brand new Corvette. I will also never ever get a new puppy again. This is almost more work than I have the stamina for.  Pickles turned 8 months on the fifth and has all her adult teeth. I do wish someone would explain it to her  in dogspeak.  There’s simply no reason to keep chewing up the world.

Posted in Pickles | Tagged , , , , , , , , , , , , | 4 Comments

“Service connection for melioidosis is granted”

Burkholderia pseudomallei, (B. pseudomallei) is a bacteria found mainly in the tropics; it  sickens and kills humans and animals.  Anyone directly exposed to tropical soil and water can become infected if there is an opening in skin; ingestion (food/fluids); inhalation (soil dust or water droplet); person-to-person via infected blood and bodily fluids.  Or by subcutaneous inoculation (shots).

Bp isn’t usually diagnosed by imaging alone; it can be cultured from skin, blood, pus, rectal swabs, throat swabs, respiratory secretions, and urine.  Why aren’t veterans being routinely screened for “The Vietnamese Time Bomb?” (LINK)  Researchers believe it is grossly underreported because Melioidosis mimics many other diseases–localized and systemic.

Military personnel exposures were and are impossible to avoid.

“As helicopters deposited troops throughout the tropical nation, their blades kicked up dirt, exposing soldiers and pilots to hidden pathogens in the soil.” (LINK)  Major General Spurgeon Neel stated that after 1967, the Surgeon General set up melioidosis treatment centers (PA, and CO).

L—O—N—G latent periods–BVA has learned about them with HCV and didn’t waste this veteran’s time.  Between 1975-1976, the vet was stationed in Korat Royal Thai Air Force Base and had not traveled out of the country since then.

Citation Nr: 19123328 Decision Date: 03/27/19 (LINK–BVA)

…In August 2015, the Veteran was hospitalized and melioidosis was diagnosed. He has not been afforded any VA examination to ascertain the etiology of melioidosis. However, the Board does not find that an examination is warranted. An August 2015 private treatment record notes the Veteran was seen by an infectious disease physician during his hospitalization for melioidosis. The physician noted that melioidosis is found in Southeast Asia, has an incubation period of many years (described as 20 or more years) and can present at any time in the future. 

This next case, reported in 2005, takes infectious disease latency periods to a whole new level (LINK).  Incredible–it struck 62 years later when the veteran was 82 years old.  “His present medical problems include diabetes, hypertension, osteoarthritis, chronic renal insufficiency, benign prostatic hypertrophy treated with transurethral resection of the prostate, and coronary artery disease.”  And now, after all these years, with his immune system plum tuckered out, this new nightmare?  

Cutaneous Melioidosis in a Man Who Was Taken as a Prisoner of War by the Japanese during World War II

In the [medical] literature, there are only two case reports of reactivation of melioidosis after primary exposure to a region where melioidosis is endemic after 18 and 28 years in a Vietnam veteran and a World War II veteran, respectively (). We report a case of reactivated melioidosis in a World War II veteran 62 years after exposure.

J Clin Microbiol. 2005 Feb; 43(2): 970–972. FREE to read. Ngauy V et. al

What might symptoms look like?

Table 1 (LINK)
“Clinical presentations of melioidosis

Commonest acute presentations
Pneumonia
Pneumonia with septicaemia

Septicaemia

Other presentations

Soft tissue infection: cellulitis, fasciitis, skin abscess/ulcer
Bone and joint infection: osteomyelitis, septic arthritis
Genitourinary: prostatic abscess
CNS infection: cerebral abscess, meningoencephalitis,
encephalomyelitis
Facial: suppurative parotitis
Ocular infection: conjunctival ulcer, hypopyon, orbital cellulitis

Incidental finding
asymptomatic seroconversion”

Bp can infect blood;  swell tissues, cause ulcers and abscesses in the liver, spleen, kidney, lungs, brain, muscles, bones, GI track (heavy colonization), prostate tissues, anywhere–visible or invisible.  And it can hide for decades.

More resources:

Electronic Code of Federal Regulations   (LINK current as of September 30, 2019)

Title 38 → Chapter I → Part 4 → Subpart B → §4.89

  • Title 38: Pensions, Bonuses, and Veterans’ Relief
    PART 4—SCHEDULE FOR RATING DISABILITIES
    Subpart B—Disability Ratings

§4.88b   Schedule of ratings—infectious diseases, immune disorders and nutritional deficiencies.

6318   Melioidosis: Evaluate under the General Rating Formula.

  • Note 1: Confirm by culture or other specific diagnostic laboratory tests the initial diagnosis and any relapse or chronic activity of infection.
  • Note 2: Rate under the appropriate body system any residual disability of infection, which includes, but is not limited to, arthritis, lung lesions, or meningitis.

General Rating Formula for Infectious Diseases: For active disease- 100

After active disease has resolved, rate at 0 percent for infection. Rate any residual disability of infection within the appropriate body system.

This case from 2004, decided in the vets favor, shows how broadly the bacteria attacks human body parts:

  • Citation Nr: 0404516 Decision Date: 02/18/04  (LINK)
    SC granted to Vietnam vet, secondary, degenerative joint
    disease (DJD) of the cervical spine, lumbosacral spine, right and left knees, and pulmonary embolium

The takeaway–If you know someone who has EVER set foot in Southeast Asia or anywhere in the CDC map bp danger zones, who has a condition that eludes a diagnosis, get tested for >>

melioidosis.  The lesions may not be visible like those in the above photos.  If a veteran has served in endemic areas, and has melioidosis, and hasn’t vacationed in endemic tropical areas, chances are good that SC can be granted depending on health status.  Screening might also solve some current elusive medical mysteries.

It would be a good idea for screening at the time of death by a medical examiner even if a veteran didn’t serve in a danger zone because the veteran may have had a blood transfusion or shot.

Why? The Red Cross doesn’t test blood for melioidosis. (LINK-List infectious disease

markers

Continue reading

Posted in All about Veterans, Blood info, BvA Decisions, General Messages, Guest authors, medical injections, Medical News, Tips and Tricks, Uncategorized | Tagged , , , , , | 4 Comments

OVERHEARD AT THE UN ONE DAY

The Iranian Ambassador to the UN had just finished giving a speech and walked out into the lobby of the convention center’s grand foyer where he was introduced to a United States Marine Corps General.

As they talked, the Iranian said, “I have just one question about what I have seen in America.”

The General said, “Well, is there something I can enlighten you on?”

The Iranian whispered, “My son watches this show called ‘Star Trek’ and in it there is… Kirk who is Canadian, Chekhov who is Russian, Scotty who is Scottish, Uhura who is black, and Sulu who is Japanese, but there are NO Muslims. My son is very upset and doesn’t understand why there aren’t any Iranians, Iraqis, Afghans, Egyptians, Uzbekis, Palestinians,  Saudis,
Syrians, or Pakistanis on ‘Star Trek’. Why is this?”

“The General leaned toward the Iranian Ambassador, and whispered back in his ear, “Well, sir. That’s because it takes place in the future…”

Posted in ASKNOD BOOK, Humor, KP Veterans, VA Agents | Tagged , , , , , , , , , , , | 3 Comments

VARO–TDIU WITH A SIDE OF CUE

Sometimes when you review a 60-s-70’s-vintage claims file, you run in to all manner of errors immortalized now in VBMS. Not only that, they are in living color. That old C&P exam on the vintage VA Form 10-2545 is still in glorious living color (yellow). All the VAF 21-6796b  ratings sheets are still in that lovely, light blue color.  The combat code was always correct and you could almost guarantee the rating did not exceed 10% unless you were missing body parts.

Rating sheet 1

Rating sheet 1970 2

Meet my neighbor right down the road Ms.  MEC.  Back in 1976, she was stationed down at McChord AFB.  One day, she needed some kind of workup and they sent her over to the superiorly-equipped American Lake VAMC.  They overmedicated her for the treatment and let her walk out the door. And drive back to McChord. She didn’t make the right turn from Veterans Drive onto Gravely Lake Drive and rolled over a few times. It was obviously LOD. The VA doctors had turned her loose and said she was good to go. Nobody argued that.  I felt this motor vehicle accident (MVA) would be akin to a TBI. Nowhere in the records does  it show she got a psychiatric/neurological workup either after the accident or at her first VA claim when she separated six months later.

In 2008, she finally got around to it and filed for headaches. VA said she’d only mentioned having headaches once during service. I looked it up. They were right-sort of. She mentioned about a year after the accident that she’d been having headaches… for about a year. She complained they were getting worse. Chronic? Well, not at VA, baby.

another headache STR

CUE HEadaches denied

I think, or should say I thought, it was a legitimate CUE claim. I still do. Unfortunately, I did not know, nor was I told, that the client had had additional automobile accidents and a head trauma in the intercurrent period following service. That’s really immaterial for my purposes. There’s a method to my madness. The claim was legitimate in every respect. The motive was purely ulterior.

Ms. MEC had filed several times in the last decade for TDIU but been mysteriously denied each and every time. She was easily TDIU material at 80% combined. She had a solid 70% for MDD and a 20% and 10% for back and right wrist injuries from the MVA and we all knew her and her employment travails very well.

I finally met her in person several years ago but she never evinced an interest in fighting VA for the final assault on Mount TDIU. The final catalyst was the gal that cuts Cupcake’s hair. Men don’t call them stylists or beauticians. She’s my barber (barbrist?). Traci for short.

Traci laid into me in no uncertain terms. She figured if anyone could cut the Gordian Knot, it was probably me. I’m drowning in claims but agreed to do it. I’m glad I did. It was very rewarding. It took six months of throwing more and more claims at them and turning up the heat. I began by filing for increases on all three of the SC conditions. Next, I served up a VAF 20-0995 for headaches secondary to TBI in the MVA and the icing on the cake was a 526EZ CUE on the headaches back to 2008.

Well, that got everyone’s attention. Ms. MEC had a passel of records archived at the American Lake VAMC going back to 1976 as they could clearly see. It took them almost this long just to hunt them all up out of a warehouse somewhere. The result? TDIU.

Without so much as increasing a single rating, without granting a single new claim or granting CUE, they finally sent up the white flag. This is the reason I do this. MEC, of all the folks I’ve ever done this for, was the most obvious candidate for IU. She hasn’t worked since 1998. I even had her go down to the SSA and get a printout of her earnings history to submit. The businesses we sent the VAF 21-4192s to had gone out of business years ago. There was no proof to find in the way of employment. Yet all these years someone had been dogging it. If I didn’t even have an iota of psychiatric acumen, I would still have opined she was a candidate. Check it out.

MEC Permanent and Total

This will mark a first. VA sent us a rating that essentially says “Absolutely nothing has changed, Ms. MEC, but we now think you qualify for unemployability. We really have no explanation why we stiffed you for the last 15 years but we’re gonna make it up to you now.” I usually go through a carefully orchestrated dance- a reduction, a fight to get it restored, an increase on something else and finally a TDIU after 2.5 years, so this is actually a welcome relief.

The teaching moment here is to do what I sometimes warn others not to. If you are filing for a big, brand new rating, it’s a bad idea to turn it into an 18- wheeler pulling a double trailer of secondary contentions. On the other hand, in this case, when you’ve been hitting a brick wall and can’t get any traction for years, the best advice is to get an agent or attorney to come in and start firing both barrels of the shotgun and let them know you’re going to make adjudication life absolute hell for them until they make it right. You don’t have to say so in as many words but your actions will speak for you.

The neat thing about this one is Ms. MEC gets everything behind Door #3. Because VA has granted her claim for TDIU, there is no appeal or Notice of Disagreement. She owes me nothing and I’m happy with that. Remember, the object of this game is the Veteran. It’s not about being paid for the work. It’s the joy I find in screwing VA over again. If they had simply admitted I had served in Vietnam in 1994, I wouldn’t be the thorn in their side now. But they ignored my evidence… and here we are.

As you can see, today’s show is brought to you by the letters T,D, I and U. And that’s all I’m going to say about that.

 

Posted in TDIU, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , | 4 Comments

Before and After: Hepatitis C screening

My, my, my–what a difference a few years and the new direct-acting antiviral (DAA) make in influencing public health policy.  In 2013, the U. S. Preventive Services Task Force (USPSTF) HCV  recommended one-free screening for Woodstock-loving Baby Boomers born between 1945 and 1965.  Now USPSTF (LINK) recommends that ALL adults ages 18-79 get screened:

Patient Population Under Consideration

This recommendation applies to all asymptomatic adults without known liver disease.

The public commenting period has closed.  The CDC has not updated/reviewed their HCV page (LINK) since October 15, 2015 as of today.

HCV is still transmitted by dirty injections including by drug diversions, a criminal form of “health-care associated” infections.  In a recent case from Utah, a former nurse pleaded guilty of infecting seven of her patients in a plea deal. During the free screenings offered by the hospitals that employed the nurse, 37 more cases had been identified but many with different strains.

Historic health-care associated routes for HCV transmission are still played down in the veteran populations–most notably exposures via vaccinations by the jet injectors.  There are acknowledged cases of HCV transmission by multi-vial misuse, routine injections, and surgical and dental procedures in medical literature regarding veterans.

The official VAntage Point blog published a rare sympathetic 2015 post by VA employee Terry R. Bentley (LINK) entitled Treating Hepatitis C: One Vietnam Veteran’s story (LINK ) in which the veteran discusses the “air guns” and his exposure to blood in combat situations.

A new type of “choice” for veterans

But there is a health-care associated route for HCV transmission that is being adopted by veterans in dire need of new kidneys–the transplantation of kidneys which are HCV-positive. Facing death or transplantation with a HCV-positive kidney followed by HCV treatment afterwards, some vets are opting in, risks aside.  Dr. Daniel Katz (LINK) said,

“The high cost of hep C treatment may hinder rapid adoption of this practice in the private sector, where the transplant center may not be reimbursed for the hep C treatment… even with the hep C treatment, though, there will be cost savings over time by removing patients from dialysis.”  

Some VA transplant centers may also be able to offer HCV-positive livers and hearts to some veterans.  This seems counter-intuitive but might give someone many more years of life.  Time will tell.

About HCV, the Utah Department of Health states, “It is extremely contagious and can be spread by people who have no symptoms.” (LINK Besides being “extremely contagious” the way this virus changes and hides in human tissues, besides liver tissues, is going to be the subject of ongoing research for years.  As is the search for a vaccine to provide long-term immunity.

Laura (Kiedove–guest author)

Posted in General Messages, Guest authors, HCV Health, HCV Risks (documented), hepatitis, medical injections, Medical News, Uncategorized, VA Health Care, vA news, Vietnam Disease Issues | Tagged , , , , | Leave a comment

FALL NOVA–POST GAME WRAP

Fall NOVA (National Organization of Veterans Advocates) conferences were fairly interesting and also slightly disconcerting. It is well known that VA is a lying, deceiving, anti-Veteran agency of the government. If you know that going in to this business, you learn how to smile and the acquired art of the meet-and-greet without turning it into a verbal donnybrook. What you never do is boo the competition while they’re delivering the Party Line. While I believe  brainwashing is a viable excuse for atrocious behaviour on their part, I also believe there is some cognizance of what is at play. They seem overly intent on protecting the public fisc at the expense of deserving Veterans. When they recognize we have the same lineage as pit bulls, they may become more amenable to helping Vets. 

Regardless of what you or I think about the VA, I have to interact with the opposition on a daily basis at all 56 regional offices. With the introduction of the National Work Queue (NWQ), we Veterans no longer have a traditional Regional Office setting. Seattle is now a DROC (pronounced D-rock) as in Decision Review Operations Center. St. Petersburg on the East Coast provides the same service on the other side of the Rockies. These are where they do the HLRs. I’m beginning to hear tell of the VSRs or the Senior RVSRs who are beginning to refuse to have an informal conference via phone with us when we ask for it. They say there was no need to waste time on it as s/he would never have changed their minds on the denials.  Ruh-oh, Rorge… due process? Say all after Cushman v. Shinseki???? Welcome to the new AMA, ladies and gentlemen.

You need a VARO Who’s who to find your rater now with the NWQ. Fortunately, we have VA Outlook email in VBMS and you can find anyone in a New York minute with it. If I email a coach (GS-13) and s/he doesn’t answer me in a week, I send him/her a polite email reminder and cc: it to the head of the AMO- David Mclenachen. He has asked us to do this when we hit the wall with room temperature-IQ VA employees. We also have a new contact number at the BVA with someone live-not a recording. Pretty soon we’re gonna be in high cotton.

Decorum, in this business, is paramount. Regardless of what you think of the employees, you still have to accomplish the mission. When I hit a real impasse and steam is coming out both our collars, I like to throw in my favorite.

“Remember, Ma’m (sir), this isn’t about you and me. It’s about our job-the Veteran. I like to think of myself as the ‘A’ in ICARE. You know what ICARE stands for, right? Integrity. Commitment. Advocacy, Respect. Excellence? I’m simply a small part of that VA team. We all are. Well, at least I hope we all are. Your mission is to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. My job is to assist my Veteran in attaining those benefits. You just tell me what you want  or need to render a favorable decision and we’ll provide it.”

It kind of takes the wind out of their sails. Not so much for the hard core brainwashed ones, though. They’re a special case of vicious. Fortunately, the brainwashed outnumber the rabid ones.

Mojo

Dealing with higher up VA employees need not be daunting. They are humans albeit “altered thinkers”. Their mission is to follow orders and procedure. M 21 is their Koran. Agents and attorneys represent a different metric. VA isn’t quite sure how to deal with us. If we have VBMS access, we have VA PIV cards. That, in their eyes, makes us “quasi-VA” employees. Nobody want to make the mistake of insulting us.  VSOs are like whaleshit in VA’s eyes. Think Homer Simpson’s monkey Mojo. They have low access clearance to VBMS and never interact with the VA hierarchy. They report to their Service officer-he who holds a POA code and is accredited. Nothing gets filed until it crosses his desk (which isn’t such a high hurtle). I saw a DAV/AL/AmVets BVA appeals team of three try to argue for a separate 10% award for tinnitus for each ear. The VLJ was suuuuper polite but had to ‘splain in VSOspeak that this was a Bozo no-no and he couldn’t see clear to granting it. Boy howdy if I pulled that shenanigan, the OGC would be breathing down my neck and sending me out for a Psych exam for AOX3( alert and oriented in all three planes).

Chairman Cheryl Mason

Which brings us to Veterans Law Judge and Chairman of the Board of Veterans Appeals Cheryl Mason and Head of the Appeals Management Office David McLenachen. This is the second time we have had the pleasure of the VA allowing these folks to attend a NOVA conference- the other being this spring in Nashville. I always like to get in close to my enemies and see what makes them tick. I like to listen to their spiel to see if it holds water or just the latest propaganda du jour. Chairman Mason is probably far more candid off-stage without a microphone in front of her. Which is not to say she will ever let her guard down. So far, all I’ve seen is the Party line being espoused after being vetted by VA spokesman Curt Cashour. I wouldn’t expect her to fall on her sword and confess any sins.

David McLenachen

Ditto Mr. McLenachen. He has gravitas and presents well. It’s just the content of what is being delivered that beggars the imagination. Merely delivering statistics on how well the VA is doing the job of hyper-adjudicating VA claims is rather hollow. If your Vet has been waiting 18 months for some chowderhead GS-11 in Houston to pick up his claims file and do the decision (which as been ready for decision since 3/18/2019), those statistics are useless knowledge. How about we address why you can no longer file anything without it being rejected (wrong form)? Where did that shit come from? Veteran friendly? Due process? WTF, over?

This is why it’s indelicate to boo your competition when we’re trying to reach out to them and form better alliances and bridges. I remember the Howdy Doody Show when I was kid on TV. The back benches of the NOVA conference sounded like the Peanut Gallery.

The Peanut Gallery

Our mission is to meld with the VA such that we work together for the Vet rather than against him. You don’t engender respect by insulting the guests you invite to present the VA’s hollow statistics. You grin and bear it. You network. You sidle over to Mr. McLenachen at the Friday evening après conference cocktail party and strike up a conversation with him on some subject you know well that VA needs to improve on … like §3.156(c). You never insult them. You treat them as a cog in a greater wheel who may help or hinder you. An old Russian Proverb comes to mind. “Don’t piss in the well. You might get thirsty.”

As usual, since the Court sent Judge (Saint) Mary Schoelen, I got Cupcake to snap a shot of us together. I promised I would never embarrass her if she let me. Of all the judges who have ever sat on the Bench, I respect her the most. Her father was a Navy Officer and a Veteran. She brought much to the Court in compassion and giving the pro-Veteran canon of construction a fuller interpretation. She will retire in December along with Judge Robert Davis. We’ll miss them both.

CAVC Judge Mary Schoelen (Saint Mary)

 

Be polite. It costs you nothing and helps build friendship. Say what you want to about President Trump. He’s the first President who got up off his ass and went halfway around the world to meet with Kim Jung Il. That sure beats the last four Presidents who ignored him and his father for the last 60 years. Keep your friends close but your enemies closer. It’s really good advice.

And that’s all I’m going to say about that.

Posted in 2019 Fall NOVA Portland, All about Veterans, Appeals Modernization Act, CAVC Knowledge, Complaints Department, Food for thought, Humor, KP Veterans, Lawyering Up, Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA Attorneys, VBMS Tricks, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , | 9 Comments