ANDREWS v. McDONOUGH–THE NORM GILBERT REDUX

Last summer, I had a lot of irons in the fire. Funerals to attend and briefs to prepare for fifty year-old §3.156(c) claims. One thing I regret is when I cannot write for the blog as in days of old. The timeworn image of a one-legged man in an asskicking contest is the first to bloom in a male’s mind. Being happily married, I won’t offer conjecture about what the fairer sex (all 46 of them at last count) might conjure up as an image. Suffice it to say, it was a terribly busy time in my life. Thus, with great remorse, I wish to apologize for not writing this one up to digest over Brie (Ex. sharp Vermont cheddar for men) and a Brewski ( pinot noir for women).

At the recent NOVA conferences in Scottsdale, I had been assigned to a Friday lunch at Robert Chisholm’s table. I wanted to thank him once again for the wealth of legal precedence on higher SMC he has left in the BVA decisions search site. He turned me loose on it down in San Antonio at the Spring 2016 NOVA when he mentioned getting SMC L twice for two totally different disease processes was actually simple. I think he used the term ” SMC is the art of the possible. So little of it has ever been held up to the light.”

Anyway, he had a death in the family and was unable to attend. Thus, I ended up at Mr. James Ridgeway’s table instead. Funny thing. When I was a youngster of about 13-14, my dad was stationed at Langley AFB in Hampton Virginia. When he held cocktail parties, he invited all the fighter pilots. I was drafted to take orders and deliver the drinks from the kitchen being made by our aides.  A Major ( or LtCol) Ridgeway attended and I recall being introduced vaguely. Mostly, the name stuck in my mind. Well, that and he was tall for a fighter pilot. It’s a bitch trying to cram yourself into an F-4 or a Thud if you’re 6’4/245. You have to sort of fold up like a Swiss Arm knife and your helmet is still scraping the plexiglas overhead.

So, the first thing Mr. Ridgeway asked me was with my heavy blog emphasis on all things Hepatitis C, why it was that I was remiss in writing up Andrews v. McDonough CAVC # 19-0352 Decided June 22, 2021.  Well, truth be told, I had no excuse and said as much in my apology. Today I correct that error. After downloading it, I understand Mr. Ridgeway’s dissatisfaction. He was first chair on this with Glenn Bergmann of Bergmann and Moore on the brief. As such, it’s his opus dei at the CAVC working on the side of Veterans rather than the obverse. By that, I do not mean to imply he was adversarial or “anti-Veteran ” as I have seen some VLJs. The BVA, by and large, has a far more openminded view of Veterans’ justice than their counterparts below at the AOJ. That’s why they call them the Triers of Fact. Nevertheless, staff attorneys develop an appeal. The VLJ is handed a fait accompli for the most part and concurs or send it back to be repaired.

Anyway, Mr. Ridgeway now not only advocates for Veterans but proves he’s extremely adept at the business. Andrews, to me, just redefines Gilbert v. Derwinski in 2022 terms rather than 1991 terms. Additionally, it puts an exclamation mark after §3.304 because of the infernal new AMA method of sending you out for another c&p even after you’ve submitted a dynamite IMO from a subject matter expert MD. To add insult to injury, some c&ps come back from Nurseynurse Jane who holds an RN degree and often denies what an MD opines on. This used to be a fair process in the Legacy arena. Now it’s nothing more than a pissing contest with the VA’s ARNP prevailing over board-certified experts 30 years her senior. Idiots’ delight.

Andrews_98-1849

Medal awards day

Andrews focuses on the benefit of the doubt with a side of CUE semantics stirred in:

“Per Mr. Andrews, this is the most natural reading of 38 U.S.C. § 7261(b)(1), which expressly incorporates the “benefit of the doubt” (or “approximate balance”) standard into the Court’s scope of review, instructing us to “take due account of the Secretary’s application of section 5107(b).” Thus, he contends that reversal is appropriate because the “only permissible view of the evidence is that it weighs in favor of granting the claim regardless of whether it is possible to decide which of the three in-service risk factors”—dental work, inoculations, or STD—”was the cause of the infection.”

The bolded portion above illustrates the new VA technique of the poor clinician overwhelmed with the possibility that multiple etiologies could be the culprit and thus, it would be too speculative to figure out which was the causative factor. This ignores that any one is viable rather than having to pick more than one.

Note the standard issue S&W Model 39 single stack 9mm.

Mr. Andrews would have won this on remand had the Secretary had his way and obtained a new IMO/ IME from QTC. Coming down with the clap in service was and is not willful misconduct under §3.301. I’ve won many Hep C claims on that facet alone. The problem VA thought they could get away with was that Mr. Andrews didn’t have an official IMO written by a medical specialist. It’s long been known that citing to Wikipedia articles or almost anything else on the internet is about a useful as nursing utensils on boar hogs when attempting to win your claim. The gold standard has, and always will be, obtaining the magic paper. However, in Mr. Andrew’s case, he had a pretty tall pile of paper and all of it was sound medical theory.

From past experience, we know he would have, in the normal course of events, been given a VA c&p and then granted SC for the hep but the date would be this year not the date of claim. They’d just pull the ages-old trick of pointing out he didn’t have an ‘official’ finding of fact made by their ARPN until now which unfortunately precludes an earlier effective date. Par for the course.

Tucker v. West, 11 Vet.App. 369, 374 (1998) is considered the yardstick on whether to reverse or set aside and remand to determine the truth. Here, the Court (and Toth of all Judges)  appear to jointly concur in this opinion. That’s a good thing. I think they need to reverse more frequently-a lot more frequently. §3.304 needs to be  dusted off and placed front and center when VA attempts to conduct just one more c&p when the evidence is 5 miles past equipoise. The Court should call them out and ask what (or why) in Sam Hill they are wasting the taxpayer’s bucks on these unguided ARPN denial safaris.

Andrews doesn’t break any new ice for Veterans but it at least points out the inequity of endless c&ps and permitting one more stab at a denial when the evidence is overwhelmingly in the Veteran’s favor. Ask yourself at what point a VA examiner should be held to the crime of misfeasance for continuing to bring out  fresh horses and new rope to hang Veterans with. Think back on the Leroy MacKlem fiasco for relevance here.

The M 21 undergoes 135 changes in a slow year-more in a rapidly changing precedential year. Any document that flawed on its face should undergo a intense review to rid it of the inherent adversarial nature it is imbued with. Yeah, right. I hear VA pukes who are quick to say “Show us the adversarial language.” I’ll concede it isn’t in the language so much as in the application of the manual. If 88% lose the first time out and later win, it’s flawed. If 22% more prevail at the BVA, it’s flawed. And by God if 74% are overturned at the Court as defective and returned for readjudication, then somebody is screwing the pooch.

Lady Justice wears a blindfold everywhere but the VA in my myopic estimation. But then I’ve only been a bystander for 33 years. What do I know? Shooo doggies. I don’t even have a JD.

P.S. This is a good one. Looks like something I’d do…

Posted in CAvC HCV Ruling, NOVA Attorneys, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , | 3 Comments

BVA–AAAAAAAAll Aboard

A funny thing happened on the way to the Forum barn to feed the horses last October. A former SEAL called me up and asked for representation. Seems he was qualifying for BUDS back in 1974 after his RVN tour and had a mishap. He and a few fellow candidates had driven across country from San Diego to Ft. Gordon (in his VW microbus) to get their parachute certifications. He caught a bad crosswind on the third jump and, as could be expected, managed to wreck his back/neck and everything connected to them for life. He sucked it up and went on to qualify several days later. It stuck in his craw that VA never granted this most obvious claim of all. By way of explanation, he’s already 100% for Prostate and IHD. This wasn’t going to net him any more shekels but would at least set the record straight.

The Air Force-issued RVN Roach clip. Never left the hootch without it.

Well, you know me. I’m a pro bono sucker and special forces like SOGs, LRRPs, Rangers and SEALs always hit that soft spot in my heart. So of course I took it. He was at the BVA on an old Legacy claim and had 26 days to whip up a winning defense to save his claims bacon. On November 10, ’21, I conducted the shortest BVA Travel Board hearing in history  and asked for a time out using Hamilton v. Brown to obtain a good IMO from my world-class nexus letter folks. VLJ Keith Allen wasn’t ecstatic about the delay but graciously gave me the 90 days to put up or shut up. We came in with 16 days to spare. As my client is terminally ill, we got the 78 rpm BVA advancement  on the docket and a quick grant for all four orthopedic conditions.

redacted BVA hearing 11.10.21

No, it didn’t cost me $10,000.00 (US). No, it wasn’t 60 DBQs long nor the least bit holistic. Fact is, I don’t use DBQs and have little use for them. The outward-facing ones VA supplies us are a far cry from the ones that QTC/VES/LHI use. Theirs have a place to insert the medical opinion- even if it’s just the ruminations of an ARNP with a specialty in pediatric medicine. Those provided to us do not. Funny thing is back in 2015, USB Allison Hickey explained this absence to Congress at a hearing that they were just “using up” all the old forms for economy’s sake. Considering the forms are in electronic format, this bogus explanation was never called out by Rep. Filner or the Big Six VSOs.

 

The Peter Pilot’s job

My Vet’s IMO came in, as I said, with time to spare but I abhor cutting it that close-just as I’ve eternally wished they’d put one more second on hand grenades. The good doctor’s synopsis was clear and concise. People who jump out of perfectly good airplanes are going to eventually grow shorter and ache like a son of a bitch… forever. Where’s the big mystery to this? I rode a PC 6 Porter into the ground at 85+ knots one morning and went from 5’9 to 5’8 3/4 instantly. I’m about 5’8 1/2 half now. My L5/S1 is bone to bone. We didn’t have parachutes and would never have had enough time or altitude to deploy one anyway. Some days it just doesn’t pay to get up and go fly with drunk pilots. But that’s another story for another day.

redact IMO

redact bva win 3.18.2022

I don’t suggest that Veterans dawdle and lollygag about with a Damocles-like hearing hanging over their heads. Nevertheless, it’s a good feeling to fix a sixty nine year-old wrong-even if it’s for free. I suppose I can take the long view and figure with incurable Prostate cancer that my Vet is going to be a candidate for SMC L or R1 all too soon, but that’s not why I did it. We aren’t required to ‘donate’ any certain amount of time to pro bono work but it’s great for padding your resume if your chances of getting into Heaven are sketchy. I probably need all the help I can get on that.

Once upon a time in 1994, I filed for Agent Orange issues and VA took the position that I’d never set foot in that part of the world. That belief held until I managed to get my records declassified in 2007. Bingo. 100% just like opening a box of Crackerjacks™. In addition to being a Trident-wearing SEAL, my Vet has a Combat Action Ribbon. He should never be suspected of being a charter member of the Safeway® slip-on-the-floor Club. In my book, he and I didn’t get none of that Rodney Dangerfield “respect”. So of course it’s always morally worth it to set things like this aright.

My good friend and fellow blogger Gene Groves (https://veteranclaims.net/ ) was kind enough to share the import that Hamilton carries when you desire to put your claim/appeal on the back burner in order to clean it up or obtain some time to get an IMO. It’s just one more tool in our pouch to win with- or put off losing. Gene always has the perfect cite. He’s like a walking talking Westlaw.

The G-3 Wundergun.

A good time was had by all. Johnny SEAL Vet can now meet and greet his fellow warriors with his head held high knowing he’s been exonerated. Me? Why, I get a shot at rehabilitating my Karma resume. I think I set myself back a bit in January when I shot the meth head who stole my car.  But I digress. That, too, is a story for another day.

Next week, I’ll teach you fellers how to make bottle rockets out of old c ration cans, 81mm mortar crate baling wire and Semtex from Claymores. These are life skills everyone needs.

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

P.S. If you like Country and Western music, this might raise you spirits. I reckon I’ve been selling the genre short all these years. Shut the front door.

Posted in All about Veterans, BVA Hearings, IMOs/IMEs, Independent Medical Opinions, Lay testimony, Nexus Information, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , | 3 Comments

MARCH 29? WHO DREAMED THIS DATE UP? VA?

I was going to write about this several years ago and it promptly escaped my ADHD -addled head. Jez, I gotta get one of those little pocket-sized Joe Friday/Dragnet spiral notebooks and carry it around with me. Just the facks, ma’am. Whoa. That was ten years ago. Seems it came to pass in Congress’ hallowed halls that a day was needed to tie yellow ribbons ’round diseased oak trees and officially declare “Welcome Home” to Vietnam Veterans. How a day celebrating this war conflict was overlooked for so long is immaterial. In this new, woke age of calling out every mistake or error committed by Americans since the dawn of Jamestown, it was probably inevitable that someone figured he could monetize this and sell a shit ton of ___________s on March 29 every year out in front of the Wall. 

I  look back and remember the days prior to the official day everyone beat feet out of Saigon in ’75-not ’73.  They were still boogying a week later so March 29 1973 DEROS Day, to me, doesn’t seem to have any particular cachet-let alone meaningful import   Sounds like some politician’s Fig Newton of the imagination. May 7th, 1975 is the official Olly-Olly-Income-Free day for VA purposes. So who’s in charge of assigning days for War remembrance? Veteran’s Day and Memorial Day have deep roots. Ditto the 4th of July. Did Congress’ Wheel of Fortune spinner just inadvertently stop on March 29? Here’s what the Google Encyclopaedia regurgitated…

In 2012, President Barack Obama signed a presidential proclamation, designating March 29 as the annual observance of Vietnam War Veterans Day. The signing of the proclamation marked the 50th anniversary of the departure of the last American troops from Vietnam — March 29, 1973.

Aruuuuuh? The official explanation by our 44th President was that March 29, 2012 marked the fiftieth anniversary of the day of departure of the last American soldiers from Vietnam (March 29, 1973)? With all due deference to our former President, I beg to disagree.  First of all, 1973 plus 50 = 2023… without even using tortured VA math. A commenter  below links to an official proclamation tying all this back to 1962 as the date we “landed”. Negatory. We landed while the Dien Bien Phu debacle was developing in ’54.  Eisenhower’s Presidential Library has plenty on the subject. Ask Joe Vietnam Veteran what significance March 29 has to him and you’ll get the 1000-yard stare. Ask him what 1/30/68 or 5/7/75 means and you’ll get a far different response. Nobody forgets a Huey Throwing Contest at Dixie Station. Look at the VA’s regulation as to when they maintain the Boundary disagreement began-§3.2(f)- 2/28/1962. So again, where in Sam Hill did 3/29 enter into this again?  How about 2/8/71 (Lam Son 719)? More appropriate, if you wanted a purely American, historic involvement date would be 11/14/65 (Ia Drang Valley).

We were still running SOG ops looking for our POW/MIAs in ’73. We still had probes working in Barrel Roll and Steel Tiger MRs until 1975 -and occasionally afterwards. They were being run out of Thailand until the King began tiring of the complaints from his neighbors. Without the clout of 80,000 US troops in his country, he didn’t cotton to an insipient communist insurgency either. His most modern fighters at that point were F 86s and leftovers from WW II like P-40s. His new neighbors in charge to the east had MIG 21s.

I  recently saw a picture of the Traveling Wall -a shorty version of the DC wall they haul around the country. It’s advertized as the ‘Healing Wall’. I’ve been to the regular, full-sized version  personally four times. I try to go when I’m in DC for hearings or when I visit my family in the tidewater region. It’s a short jaunt by Uber from the Hyatt Regency. Seems each time I go, it’s a mission to go find yet another long-forgotten acquaintance on there. I need to remember to pack charcoal for these expeditions. In this case, bad news travels extremely slowly. When I came home in ’72, I never settled down again back east and failed to reconnect with my former life. Friends of our family mention these more recent epiphanies now that I do VA law for a living.

With advancing age, the one thing us old farts need most at the DC Wall these days are benches to sit on while we visit and feed the squirrels. Most of us Vietnam Vets still vertical look like remnants of the chip-and-dent club. I guess benches are probably right out with the new ‘green outdoor camping’ phenomenon taking root but they sure would be nice.

I’m pretty sure many of you will never feel how this impacts you-even those of you my age- unless you have family on the Wall. It began subtly. Back in 1965, we young’uns began to notice a slow exodus of fellow classmates at Evergreen Elementary next door to Seymour Johnson AFB, NC. They were packing up and moving out of base housing and heading back to family homes in other states. Their dads were fighter pilots of the 4th TAC Fighter wing who were being reassigned to Vietnam combat squadrons. I began to find out when we moved to Langley AFB, VA that some had been shot down and were now POWs of the North Vietnamese. Some were MIA. But up in Laos, they were KIA and BNR. That stands for body never recovered.  And then my dad got his orders in June ’66. Fortunately, he made it back alive but one of my classmate’s fathers- Major General Robert F. Worley- didn’t. He was shot down west of Da Nang by a SAM and that was all she wrote. The GIB egressed successfully and it’s theorized the smoke/fire in the cockpit overwhelmed him.

I sent his son an email last week with my condolences about his father’s passing. That was July 23, 1968. He works for VA and I happened to spot his name in VA’s email rolodex. It’s a small world but I wouldn’t want to paint it.

Many of you who served with me over there, either before or after me, lost friends, too. Nothing about good friends dying is healing to me. I’m sorry. It’s like picking  at a scab until it begins bleeding all over again. Since I don’t go every year, when I do, it’s more like a chance for peaceful reflection on what could’ve been and what will never be. What if I hadn’t thrown those eggs at Officer Rohrbuck in his unmarked cop car four days after I graduated from high school? What if my draft number hadn’t been 39?  But then reality intrudes. Why, I would never have met Cupcake and have this wonderful life helping Vets get what they (and I) should have received…yep…fifty years ago.

The fifty-year conundrum means little. I’ve never bought extra fireworks just because it’s the 25th or 225th anniversary of something. Likewise, it doesn’t refresh me or heal me to immerse my mind back into the biggest shit show I ever attended in my life. Going to the Wall is not healing. It’s sad remembrance. It’s guilt that you survived and your buddy didn’t. Every Vet I rep who carries a dx of PTSD will tell you that attending weekly Tuesday night Vet Center Kumbaya meetings where everyone sits in a circle and relives (and shares) life’s shittiest moments is not exactly cathartic. I don’t care what psychologists insist on as valuable therapy. I’d say it might make me want to ‘self-medicate’ more than I do already. Waaaaaay more. Certain parts of folks’ existence over there, by rights, deserve to be filtered or attenuated. Even mine. Rehashing old stories about Bouncing Bettys for discussion, dissection and Monday morning quarterbacking heals no one. I reckon it does wonders for pot sales though. That’s what the majority consensus is from the cheap seats. But then we’re not psychologists.

The period Vietnam photographs above I insert here awaken memories of that unique camaraderie I enjoyed for a fleeting moment in time. I don’t wish to remember the angst or the fifty-year emptiness of an aircrew who will never land again and laugh at their narrow escapes. I’d rather remember the whores in Vientiane to be brutally honest. I’d prefer to remember sucking oxygen in the morning with my GIF trying to get rid of our splitting hangovers before the preflight briefing.  Going to visit the Wall, whether it be the Virtual Wall, the Traveling version or the raw, live one in 3D living color need no words.  They need  a place to sit serenely and visit with your best friend(s) you haven’t set eyes on in fifty years… And that’s all I have to say about that.

Speaking of fifty-year events, I had a close encounter with death January 15, 2022-forty nine years and some change after I left. Someone stole our Expedition and a friend spotted it several days later and followed it to a residence. I was informed and went over to “repossess” it. Seems Johnny Methhead was reluctant about relinquishing it. He backed up and tried to run over me with it. That’s attempted murder so I shot him. He’ll survive. He’s missing a large percentage of his right ear and suffered a through-and-through to the right upper shoulder.

The Expedition didn’t fare so well. I accidentally put a few into the engine block which prevented him from leaving. He opened the driver’s door and caught my noggin with it as I tried to jump out of the way. It rang my bell but I’ll recover. Cupcake’s synopsis is I’m fragile but still agile.

P.S. Perhaps what concerns me is that due to the fact we now have a set aside for Vietnam Veterans Day, who speaks for a Iraqistan Veterans Day? The remaining unrecognized Korean or WWII Veterans Day? The granddaughters of the Spanish American War Veterans Day?

Posted in The Vietnam Wall, Vietnam War history | Tagged , , , , , , , , , , | 13 Comments

HIHO, HIHO, IT’S OFF TO NOVA WE GO

After two long years in front of  Virtual Video boob tube Conferences, I finally feel confident enough to venture out and attend a conference in person. Having virtual cocktails with other virtual people in a 28- to- a- screen Zoom “gettogether” lacks that je ne sais quoi I seek. I did a test run Mon.-Tues. through the airport down to Houston for a TB hearing before a VLJ who looked like she just graduated from high school. I’ve been cancelled on the hearing three times. This went quite well. I joined CLEAR when it first started so I get to sail through the airport line at 78 rpm.

This Spring, we’re bellying up to the legal bar at the Scottsdale Plaza Resort. I hear they have that crazy miniature goat yoga down there on site. Minigoats are a hoot. Nobody told them they’re vertically challenged. I’d just like to play with them rascals. I wouldn’t want one to shit on me. Besides, I have a bad back.

 

As a way of explaining the why of this shindig, all of us accredited as Attorneys or Agents (even accredited National Service Officers of major VSOs) are required to attend continuing legal education (CLEs) to keep us current in our knowledge of VA law. Very few VSO organizations are willing to cough up $2,500 for one of their poohbahs to attend though. VA  reg §14.629(b)(1)(iii) dictates:

(iii) As a further condition of initial accreditation, both agents and attorneys are required to complete 3 hours of qualifying continuing legal education (CLE) during the first 12-month period following the date of initial accreditation by VA. To qualify under this subsection, a CLE course must be approved for a minimum of 3 hours of CLE credit by any State bar association and, at a minimum, must cover the following topics: representation before VA, claims procedures, basic eligibility for VA benefits, right to appeal, disability compensation (38 U.S.C. Chapter 11), dependency and indemnity compensation (38 U.S.C. Chapter 13), and pension (38 U.S.C. Chapter 15).

Upon completion of the initial CLE requirement, agents and attorneys shall certify to the Office of the General Counsel in writing that they have completed qualifying CLE. Such certification shall include the title of the CLE, date and time of the CLE, and identification of the CLE provider, and shall be submitted to VA as part of the annual certification prescribed by § 14.629(b)(4).

I attend both spring and fall classes to keep my hand in. It’s like Cliff Notes™ for VA representatives. It’s cheap knowledge for the price. And we get to write it off, of course. But imagine if you will, the warm camaraderie of seeing old friends who are legends of the industry. It’s also heartwarming/refreshing to see new practitioners begin their legal journey into VA law. I only wish their numbers were increased one thousandfold. NOVA teaches us all manner of VA technique by our very own members. Even better, we have an inward-facing comment/query board for members who need something-be it that perfect precedential cite or an old 1953 version of 38 CFR.

I joined in 2015 and attended the spring conference in San Francisco. Imagine meeting  Court of Veterans Appeals Judge Mary Schoelen and talking shop. Where is that ever going to occur but at one of these soirées. When these hoedowns are held at the Hyatt in DC, all the old VLJs come over for some CLEs but mostly to hobnob with the big boys like Ken Carpenter and Robert Chisholm or the CAVC judges.

To me, being an accredited agent and a nonattorney practitioner at the CAVC is an honor and a privilege. I’m sure we’re more plentiful than granules of sand on the beach but if my phone ringing off the hook every day is any indication, we need more attorneys and agents desperately. No Veteran should ever have to walk this road alone. I did it for 28 years. Most VSOs mean well but most lack the extensive, continuing education needed to be successful. I don’t mean to be insulting but that’s the gist of it as told to me by VSO service officers who contact me for help with their client(s). What gives me hope is that I have mentored six and encouraged them to become agents. And there are more queuing in line every day.

The Resort looks upscale. I do hope Scottsdale’s warm enough to go swimming. I keep my ce-ment pond cranked up to 88° even in summer and it still feels marginal. Pickles would still love it if it was 36°.

Hope to see you there, folks.

P.S.3/13/2022— Just got an email pointing out I misspelled de nova.

Posted in 2022 Spring NOVA, NOVA Attorneys, Pickles, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , , | 3 Comments

EXPOSED VET RADIO SHOW NEXT THURSDAY-3/10/2022

Well, well, well. Seems there was some sort of kerfuffle over at Hadit after I published a post about a VA-authored list of doctors who purportedly write sketchy IMOs. Some took offense. The usual suspects showed up to denigrate and dismiss anything I reported. While I never actually tarred and feathered any of the poor physicians/psychologists on the VA’s list of alleged reprobates by name, I stand accused of same. Then the owner (whom I represent) 86’d me. Seems standard procedure at Hadit is to shoot the messenger if they don’t like the news. Which is sad when you consider their Logo is  “Leave no one behind”. 

This was our idea of leaving no one behind in 1970. We were colorblind.

Looking at the Court of Appeals for Veterans Claims (CAVC) docket search, anyone can search decisions. As most know, when you get to the CAVC, all bets are off as far as traveling incognito. No more “Dr. A. opined this and that…” Unlike the BVA site, it lets you know who the major characters are by name. The IMO shit list I published the other day did so too which technically makes it an outlier. VA is supposed to be nonadversarial.

It would also appear some on the Hadit site are a wee bit inept when it comes to ascertaining the e-publisher of the document and some even doubt its authenticity. The repair order seems to be to 86 both the post and the poster. As for guilt, who knows? I never accused anyone of misfeasance, malfeasance or unprofessional conduct. I merely published that which is in the public domain. Apparently, that was a Bozo no-no.

Since I commiserate with the shortcomings of the e-sleuths over at Hadit, I print a screen grab of the “Properties” of that document anyone-even Homer Simpson’s monkey Mojo- could pull up to enlighten them.  One thing is certain. I didn’t manufacture it nor did I put any extra names on the list.

 

Looks legit. Seems it was constructed on 5/2/2019 by none other than our good friends at the corner of Delay and Deny Avenues. Doug doesn’t work for VA. He’s a friend of mine but has never helped me drink my wine (yet). Likewise, I can’t manufacture an official Maryland governmental website which lists doctors who have stepped on their neckties and been called to account. Only a convicted party can make the hit parade list. If this was on appeal, they would have to stay the punishment until the appeals had run their course. It’s in the public domain. A moderator at Hadit has stated he feels the link to the below was hacked by the Russians to defame the doctor.

The original link I published works. Trust me.

https://www.mbp.state.md.us/sanctions_2020.aspx

Does this make me an ogre for publishing these links? Have I maligned any person on the list personally by sharing this with my Vet buddies? Knowledge allows us the power to make certain informed decisions. Hadit Moderators would appear to be desperately attempting to censor this information. Aren’t they guilty of harming the very same people they profess not to want to leave behind? Let that sink in.

 

Some of you folks, including irate VSOs, who dislike to be maligned for their legal ignorance, come here and accuse me of being pure poison for Veterans. I don’t get where that comes from. I rep Vets. I figured out the Rosetta Stone on this in 2008 and have never looked back. I use a Nexus/IMO outfit who charges a flat $2000.00 for their services. No mystery here. I don’t advertize for them. Fact is, I don’t advertize for anyone. Unfortunately, some (again no names) who have been in this IMO business for decades, feel threatened by my revelations of cheaper prices. They think paying $10 K for a nexus is par for the course. Having successfully cornered the IMO market for all these aeons, they take umbrage with the idea that Veterans are suddenly shopping with their wallets. I guess it incenses them I let the Pandora IMO faery out of her box. What? You paid $10,000.00 dollars for your PTSD IMO? GTFOOH. Well, boy howdy. I didn’t force you to do it. Why blame the messenger?  Is it my fault I found a better IMO mousetrap? I confess. It isn’t a holistic mousetrap with aromatherapy and goat yoga but my Vets win.

First, I do not advertise. I have more work than I can keep up with. I don’t want your business to be perfectly honest. However, if you’re dying from some funky AO shit, then you’re one of my special people who broke c ration biscuits with me and shared your Tabasco™ and peaches once upon a time. If possible, I’ll try to make room for you. I married a rich girl so I don’t do this for the money. The only downside, if there is one, is that Cupcake doesn’t own a liquor store, too. Hell, in retrospect, I’d settle for a gas station right about now. Come another month and gas is going to be more expensive than whiskey.

Here’s one threat I received from an unnamed doctor. He came unglued a while back in August of 2019 after one of these  radio shows…

“Hey I heard you compare your docs to my 90% successful outcome with for [sic] a lessor [sic] fee .. not fair play on the radio  (terns [sic] and conditions) to advertise at my expense probably a violation of rehab act of 1970s.

I do Holistic work  – all issues 10-60 plus dbqs ya da ya da so an add [sic] for one off 1500 issue letter is just like medicine now which is all dumbed down to one complaint  in 15 min but it does not get our veterans a fair comprehensive rating”

Dr ____ _ _____

10-60 dbqs? Cool beans. I had no idea there was such a thing as a holistic nexus, folks. As with all upset souls, I offer these dissatisfied individuals a free soapbox here to convince you, the reader, that they are legitimate and have a fantastic product to tout. It’s a win-win for Vets. Remember Johnny Vet? That’s who and what this is all about. Not you and me.  As for their price, I guess it’s pretty much like lobster or gasoline these days- whatever the market will bear. I don’t charge for the IMO. My IMO company (which I have no financial interest in) sets the rates. I have no idea who they’ll choose to write the IMO nor do I care. My job is to help the Veteran win without reducing him to poverty in the process. If he’s broke, sure, I’m buying until s/he wins. If I lose, I eat it. Sometimes I buy one and don’t need it. I eat it.

Now, with that said, I share this tasty morsel I received this morning from someone who purports to be counsel (i.e. a lawyer) for the unnamed individual above they feel I have maligned. Reminds me of Lily Tomlin saying “Is this the person to whom I wish to speak?” I don’t malign folks. The internet already seems to be very efficient at that without me. I merely find information or am pointed to it by others and report back to you. Think Deep Throat. Would you hold me responsible for not telling you about a cheaper (or better) IMO source if I knew about it? Of course you wouldn’t. But some seem to think it’s a crime to reveal bad news about one certain person over at our former sister site. In essence, I’m forbidden to reveal that the Emperor may be naked. Now that that cat’s out of the bag, I must be excommunicated. I’m crushed. Bad Company…and I won’t deny it.

Dear Sir,

This email is intended for the poster of the https://community.hadit.com/topic/87015-vas-list-of-suspected-imo-fraud/page/5/#comment-519772   https://asknod.org/2022/03/02/the-vas-imo-shitlist/

My name is Steve and I posted a response to your question on hadit.com.  As a new member, it must be approved but below is my post.  I was contacted by my client, the MD in Maryland you cite.  He was not happy!  This is the only MD performing free IMEs for any poor veteran in the entire world!  He did mine for free and I am at 100%.  In exchange, I agreed to prepare his divorce answer.  After seeing how bad a disabled veteran MD was being discriminated against, I stayed on and now performed for free over $100k in legal work for him in 4 different venues!

In fact, with your credentials, it baffles me that you would even post something against him, or anyone, unless you are soliciting or have an agenda?  Thats [sic] what happened in Maryland.  A dirty DVA advocate was losing clients and kickbacks because my doctor’s IMEs were being done for free instead of a cut of the back pay!  Do you not get paid for your services?  I suggest returning any and all funds collected from vets ASAP as a sign of good faith.

Just last month  I got a Texas law firm to pay $25,000 without even suing because a female lawyer posted some derogatory stuff based on hearsay identical to yours to solicit away clients!  That female lawyer removed her post and was fired days later. Although that Texas law firm did found out [sic] I am the craziest one of five senior counselors state side for the largest cartel south of the border.

You appear to be just some wanna-be lawyer who may have made a terrible mistake.  Let’s just hope you realize that now!
You may want to have a real lawyer repsond [sic] to me!  A guy with your balls/crendentials [sic] should have plenty of lawyer friends!

Anxiously awaiting your reply.
SCT

MY post follows———————————————————————————————–

Hello all,

I will answer your question as plain as day!  The Doctor in Maryland you link is a disabled veteran medical doctor.  He completed his residence for free because he was injured during training and is a quadraplegic.  His practice is solely doing IMEs and DBQs for veterans.  He saved my life for free, I finished law school and now I am suing in the USDC AZ against the psychologist who falsified my psych exam and hundreds others.  I suffered for 21 years because of the refusal to treat PTSD and I now have the names of every physician who tried to kill me with bi-polar malpractice.  Digital world has its benefits!

You are not BI-Polar, and if any VA “physician” said you were after 2003; you have a claim if its within 2 years for sure.  The 6th appeals court ruled all veterans are considered sound with more than 90 days of service in 2003!

If you are not 100% in AZ or anywhere, I will cover all IME costs and legal fees for your claims! The Doctor you cite from hearsay is in fact the only one in the country who does this directly.  If you are broke, you do not pay!  We are the only MD/Lawyer combo who charges $0 if you are broke!  For those who were not broke and just trying to squeeze the DVA, I have over $300,000 in outstanding debt from them!  So, that is why the DVA is impossible for the really sick!  There are over 3,000 100% disabled veterans making six figure salaries at other federal jobs as we speak!

I represent the Doctor you link in Maryland and the fine was increased from $1,000 to $50,000 when disputed due to fraud by the Veteran who filed the complaint and with head of the MBP who was behind it.  They raised the fee to CYA.  Then I stepped in!!!  The case is still pending a ruling from the COA in Maryland.  If you are not a lawyer, I strongly advise not to judge any reporting against any MD or post any links implying wrong doing until justice is served.

The patient was/is a junkie former Baltimore cop and professional patient who was on his 3rd strike with the VA over heartburn per se.  Despite over $60k/year in income, the patient beg the doctor for 4 signed DBQs for $4k.  The patient went from 50% to 60% as a result.  Significant benefits increase!  The veteran then charged back the $4k to AMEX the next day after uploading the document to the DVA just hours prior!  The patient then called and threatened the Doctor’s billing lady repeatedly with violence until she gave back the $4k to AMEX.  At the first trial, the patient admitted not having the money and was broke.  If he had told the MD that, it would of been free or pay later.  Instead the veteran patient filed a bogus complaint that now has him on the run from me, the FBI and the DVA.  My investigation proved discrimination by the Maryland Board of Physicians against a disabled quadriplegia veteran Doctor.  In fact, the junkie veteran patient was a patient at one of a dozen pain clinics owned by the head of the MBP at the time, a DO, with a grudge against the Doctor.  And most likely typed up the bogus complaint since it was medically thorough while repeatedly claiming to be not sure.

Again, if you need any help with getting 100% and you are really sick and broke; just email me!

I WAS/ AM A CORPSMAN AND I NEVER LEFT ONE MARINE BEHIND AND I HAVE NEVER HAD TO PAY FOR A DRINK AT A MARINE BAR IN 33 YEARS!

(signed) Steve

Pretty wild and wooly email there, Steve. I’m not sure if I should shit or go blind. I never said I had bipolar disease. As for getting free drinks for 33 years, my suggestion might be to see a gastrodoc (or your good buddy doctor) pronto and get a Liver Function Test. Well, that and a crash course in English Comp 101.  I have found that when it takes 500 words or more to explain why you ended up on the wrong end of a punji stick, it probably has a much longer backstory with a heapin’ helpin’ of stupidity that explains why.  Or… in the instant case, the low-life ‘junkie’ Vet mentioned above discovered he got taken to the cleaners and found out a hop, skip and a jump after the check cleared the bank. Caveat emptor, dude. And P.S. too, I’m already 290% P&T but thanks for the offer of the free IME.

While I love Hadit.com and have always tried to be brutally honest in my responses to queries about VA law, it seems there are a few there, much like the Poohbahs at “Pink Peggy’s VBN site” who equally dislike being told they are leading Vets astray. VBN  Moderators insist the VA is a stand up outfit. I want some of what they’re smoking. I prefer to tell the truth-as ugly as it may come across. I don’t wrap advice in cotton candy. I don’t need to. A Vet will find out in short order if I am blowing smoke up their ass. In the same vein, they come thirsty for knowledge, not wild goose chases to links to CCK or DAV explaining it to them in lawspeak. And most probably do not come (but I’m not sure) looking to find the most expensive holistic IMO provider in the Yellow pages. When I get into a heated disagreement with a VA DRO, I like to remind them that this is not about them or me. This is about the Veteran. I offer that same advice today free to Hadit.com. It’s difficult to avoid leaving Vets behind when you choose to sanitize what Vets are allowed to know.

Which brings us to John and Jerrel’s famous radio show for aspiring VA compensation seekers. John likes to ask me what my contact information is at the end of the show. Even if I declined to say, it’s readily found on the VA OGC’s accreditation site. Frankly, in this business, if you have to advertise, you’re doing something wrong. I get about 100 calls a week begging me to help. I wish I could. Maybe I ought to start a gofundme™ site to buy a bunch of JDs to cover the overload? Anybody know Gary Sinise’ phone number?

Anyway, I’ve been invited to discuss the VA’s letter and the idea of how that weaponizes the IMO process against us. Jez, I’d say VA looks like a Spad in 1970 struggling for V2 7,500 feet down the runway at NKP and the stick ain’t responding. VA has had every litigation hard point loaded with CBU 26/49 and liquid sunshine since the War of 1812 in case a body hadn’t noticed. Their IMO shitlist letter is merely more proof of the crime.

This is what it truly means to leave no one behind. Even wounded civilians.

But let’s talk about that next Thursday on the 10th. I’m heading out to Houston tomorrow for what may be my last Legacy sit down face-to-face travel board hearing. It’s for my oldest client Malcolm in the Middle. Google him. You’ll find him on my site.

The call in number is

(515) 605-9764

Or, if preferred via your computer…

https://www.blogtalkradio.com/jbasser/12072048/connect/b2d536118f0ed9fa748df0fd1e41b3bbe5c0630c

The show starts at 1900 Hrs EST or 1600 Hrs on the more enlightened, liberal, westerly side of the nation. I look to see you there. If you come to “bash” us (certainly no pun intended), why, hell’s bells-we’ll still welcome you. While I cannot speak for other VA litigators, I can say that I profess to be a bit of a mustang at representing Vets. I’m the A in ICARE. Advocacy is the VA’s choice for the letter  in the acronym. I might say it stands for ahole. Litigators have to be one to win one. Shoot. Why not assknod? It does have a certain cachet, n’est pas?

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

P.S. Revised 3/09/22

Posted in All about Veterans, Exposed Vets Radio Show, IMOs/IMEs, Nexus Information, Tips and Tricks, VA Agents, VA Attorneys, vA news, Veterans Law, Vietnam War history | 6 Comments

THE VA’S IMO SH*TLIST

Bad Docs. Bad Docs. Bad Docs. Whacha gonna do when they screw with you? Love that show but it’s waaaaaaaay too politically incorrect to admit to watching now. What’s the opposite of woke? Asleep? It’s probably above my paygrade so I’m not gonna poke that sleeping dog. So here’s the gig. I have friends who send me things. I don’t need to go into exquisite detail about who. That’s where things like the Purple Book came from. Sometimes, VA employees see things that are over the top.  Suffice it to say this dropped into my e-inbasket. I probably should make him/her a client so I can claim attorney-client privilege and protect us should a subpoena arrive demanding the identity of my Deep Throat.

See the attached.  It’s a VA work product. and identified as such in the properties info. I find it interesting that it was distributed to the usual suspects (VES/QTC/LHI) and VHA/AFIP IME doctors used to rebut private IMOs. For the uninitiated, an IMO is an Independent Medical Opinion. Some call it an Independent Medical Evaluation or IME.

IMO IME list

So, I noticed one of the offenders, Stephanie Procell, Ph.D was a neighbor (relatively speaking) to me. She was listed as being up in Oak Harbor which is just a hoot and a holler up the coast from me here in Gig Harbor. Puget Sound is huge and has a gazillion harbors. Captain Puget started running out of names on this expedition in 1792 and began naming harbors after boats (gig) and even their shipboard kitchen cat (Rainier). I called Dr. Procell up to tell her she’d been tarred and feathered by VA and got her recorder. Turns out it wasn’t Stephanie’s name, rank, airspeed and tail number at all but that of her boss Sarah (Sally) Sharp. Ph.D.-also listed on the bad boys list. She has an IMO practice but isn’t quite the bogus nexus letter gin mill she’s being touted as. Dr. Procelle works for her practice and is equally besmirched by VA by being included in this consortium of miscreants.

19-yr. old kids who were playing with Mattel Tommyguns 6 years before

The fact is we’re beginning to see a cottage industry of genuine, legitimate doctors providing IMOs beginning to be overrun by a plethora of greedy internet outfits preying on unsuspecting Veterans. It began as a trickle but has since turned into a veritable gully washer. I’ve had guest authors write articles discussing this phenomenon over the last few years and their ranks have sadly only increased in number.

Ah, the magic peach can to prevent feed jambs

To begin with, being accredited by VA has some very strict rules. In most instances, we can only charge 20% in fees for our successful representation. Extremely complicated representation at a higher level can warrant up to 33 1/3% if all parties agree. That is a rarity. Most of us do it for 20% and some for nothing. In fact, if you win for your client right out of the gate, you get nothing. I don’t have a problem with that. Others are a wee bit more avaricious. Here’s an example.

Pop Smoke

Johnny Vet has been denied again and again. He never got the email on Caluza v Brown. He didn’t have a diagnosis of PTSD in 1968 when they extracted him from their forward LRRP position. Seems someone got the wrong coordinates and FB Bronco laid 35 rounds of 155 on top of their position and killed everyone in Johnny’s platoon except him. The PRC-25 on his back saved his ass. He spent a year in the psych ward on the sixth floor of the Seattle VAMC picking out little pieces of retained metal fragments and “calming down” while doing the Thorazine Shuffle.

So Johnny hears all about an outfit that guarantees you a VA win with most excellent compensation ratings and it’s free. No up-front down payment. Let’s call them GoodtogoVAclaimsguys.com for shits and grins. JohnnyVet shows up for their c&p workup and gets 6 IMOs for all his ailments-including the SFWs and the tinnitus. He seeks out an attorney or an agent and they refile the whole shiteree. Well, sure enough they win.

DShK

The attorney says 20%, Johnboy- as per our fee agreement. Johnny, being an honest Vet like all of us,  says Roger That and coughs up the 20%. A day later, the folks at GoodtogoVAclaimsguys.com call up to remind him “Dude, you owe us 5 months worth of the increase from what you were rated at before you hired us. Soooo, if you were at 0% and all of a sudden you’re at 70%, that’s $1659.00 shekels times five months or $8295.00. Even more if you have some rugrats. But wait. The total went back to your filing in March 2020 and they paid you $1659 per month back to then. You got $19,908 from VA less the 20% for your law dog. That $3,980.00 reduced you down to $15, 928.00 before  Goodtogovaclaimsguys.com came knocking. Their $8295.00 tithe knocks you down to $7,633.00. Pretty skanky, huh?

Now do not get me wrong. There are those among you who are very busy people who work for a living. You don’t have time or the legal acumen to win your claim. You purposefully made a decision to farm it out. I’m sure you didn’t quite see this scenario unfold that would divest you of more than half of your winnings. Neither did Congress when they wrote the regulations. So, in essence, what we have here are a group of quasi-legal, greedy scalawags who have no qualms taking you to the cleaners for their services. The problem is the legality of the business. Technically, if you are not accredited, you can’t sit in on this poker game. Goodtogovaclaimguys and all their like-companies would insist they are merely “facilitators” or mayhap Sherpas whom you hire to take you up the claims mountain. Congress did not authorize this technique. VSOs do it for free (no comments from the Peanut Gallery). It now falls to the DOJ to prosecute these carpetbaggers. As with most government entities, justice moves at a snail’s pace. I’m sure somewhere they’re holding a hearing on it and maybe have even empaneled a Grand Jury. By  2033, we should have the authority to lock ’em up.

130 Arc Light Mission w/ 105mm flares

More interesting is that these rapscallions are starting to pair off with attorneys and pliant doctors and form loose consortiums of Veteran-scalping raiding parties.  It’s rumored some are trying to interconnect a nationwide, fruited plains group from sea to shining sea with some fancy brand. Google Trajector Legal LLC to name one may be one of these. It’s even possible they used to have another moniker. No aspersions intended. This is a knowledge expedition-not a name-calling one.

But wait, Roberto has been a busy little beaver…

So, if the Bobmeister above is charging (or even a party helping to charge) Vets 5 friggin’ times the amount he won for them, as an agent that’s a violation of his accreditation agreement. By rights, if this is true, he should be reported to the VA’s Office of General Counsel (022D) for being out of compliance with 38 CFR §14.636(f)(1). And, as an aside, I’m sorry Robert. I sure don’t mean to endanger you or make you feel uncomfortable but  you are aware of the regulations -anything over 33 1/3% is considered unreasonable and unlawful. It’s also rumored that one of our members at NOVA, James S. Trieschmann Esq. might have become an attorney at Trajector Legal, LLC. I pray that isn’t true. [update: I was informed by a fellow NOVA member at the conference last night (3/16/2022) that Mr. Trieschmann has subsequently withdrawn from the company and indeed, the Trajector LLC company has since disbanded or is no longer in existence.]

Project Heavy Green participant- Laos 1970

Which brings us to poor Doctors Procelle and Sharp. They tell me they were inveigled into this web of greed by one or another of these avaricious outfits and sold a bill of goods. Once they grasped the concept of what they were being asked to do, they beat feet and divorced themselves from these 5/50 guarantee ( five months of the increase or $50,000.00 dollars-whichever comes first)  companies that practice the technique. Again, let me be clear. I’m unsure of the legality but something grossly unfair to Veterans like this should be declared illegal if it hasn’t been already. No Veteran should be subjected to this level of greedy insanity. We deserved more than a saliva medal w/ 2 OLCs at San Francisco Airpatch in ’68 or that stale “Welcome home” shit they began regurgitating about ’91 when the guilt and angst for all Veterans began to surface. Yellow ribbons on trees don’t pay mortgages. But that’s a story for another day.

 

Aside from Drs. Procelle and Sharp, I note the inclusion of some well-known names of some of the old hands in this business. I’ve only hired one of those on the list (and lost);  I have no knowledge firsthand of the others’ track records. I’m old fashioned. I rely on Court (CAVC) records to gauge a fellow’s prowess. Go to the CAVC site yourself and pull up a few cases to see what you think. I’ll throw out a few for your perusal. CAVC # 02-2195; #06-0451; #09-0260; #09-1349; #17-3556; #16-1515; #14-0437; #19-0709. Obviously, some of the medical doctors and nurses on the list have earned an undesirable cachet that precedes them in this business. Some, however, do carry some baggage (see entry @ 3/10/2020)-https://www.mbp.state.md.us/sanctions_2020.aspx). I feel sorry for anyone who has their professional qualifications besmirched by anyone-including VA. However, the IMO field is an exacting science. We Vets have to play by the rules. So do the medical professionals.  That VA doesn’t should come as no surprise.

Doctors have specialties for the most part. In the IMO business, it behooves a Vet to choose the board certified neurologist over the jack-of-all-trades podiatrist who just happens to opine on matters neurological for a small fee. If you have a cross pedigree such as a Juris Doctorate and a Doctor of Medicine, it’s advisable to wear only one hat at a time. When you get to Court, you can get in a real pickle when the Judges have a hard time discerning which hat you’re wearing- the one with the white wig attached or the one with the caduceus. I’m really not sure how I feel about this truthfully. I find it abhorrent to think a Veteran’s choice of his IMO doctor might exert a negative influence on the probity of the IMO or its author’s bona fides. As you can see from the list, VA doesn’t hold some physicians with a JD in very high regard. That is a horrible stain on a Professional’s reputation. I do not condone it. Each IMO should be given a fair hearing. Why they keep the list hidden and unpublished does Veterans a great disservice. Sunshine is the best disinfectant. But what is equally unfair-far worse in my mind- is putting innocent physicians on the list . It was Jonathon Swift who opined “A lie travels around the globe while the truth is putting on its shoes”.

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

P.S. I just got an email from a Vet disgruntled with the outfit formerly known as Vetcompandpen.com. He says he decided to fight and blew them off for the money they claim he owed them(which he contends he did not). They sued and the Judge dismissed it.  Turns out the contract was, and is, unenforceable and defective. My guess is they should have hired an attorney to write it.

 

Posted in C&P exams, Complaints Department, IMOs/IMEs, Tips and Tricks, VA Agents, VA Attorneys, vA news, VARO Misfeasance, Veterans Law | Tagged , , , , , , , , , , | 15 Comments

§5104(b)–WHAT’S IN YOUR RD?

February 22. In Bent Brain land, the folks in white coats call it a trigger or precipitator of depression. You watch that date approach inexorably every year and dread its arrival. After two weeks in a horrible funk, you crawl out the other side and try to better prepare for next year. And the year after that. Multiply that by 51 years. I’m fortunate. I didn’t find out Chuck had augered in until May 2008 when I went looking for him so I’ve only suffered this malady fourteen years. Time heals most wounds-not all. And I reckon that’s all I’m going to need to say about that. 

Palace Dog was run out of Udorn. RAVEN (Detachment 1, 56th SOW) was listed on the Udorn base roster but was run out of  AirAm’s Air Operations Center (see? the acronym was already taken before the Bronx Barista arrived in 2018) up north at Alternate (LS 20A/LS 98) over the fence in Long Tieng. The 56th SOW HQ was over to the southeast at Nakhon Phanom Airpatch (NKP) under the able command of an old friend of our family… Col. Heinie Aderholt. His son Ross and I went to school together at Seymour Johnson AFB, NC back then. My dad and Heinie loved bird hunting so we saw a lot of each other. And we even went to St. Stephen’s  together …1964 Confirmation Record with Ross Adderholt

A close 37mm AA rd.

It was a pretty small world back in ’64. My dad got transferred to Dir. of Ops at TAC HQ up at Langley and Lt. Col. Aderholt decided to move into Special Ops the next year and was transferred to the spook farm down at Hurlburt Field (Eglin Auxiliary Field No. 9) in Florida. That was the last I saw of either one until I ran into Col. Aderholt up at Alternate one day in ’70. But that’s a whoooooole ‘nother story.

38 USC §5104

I digress. After passage of the AMA in 2017, they (Congress) had to go back and rewrite/add extra things into existing 38 USC Statutes to encompass the wildly different new forms of screwing us out of our benefits. I know the regs/statutes are resplendent with words telling us we are God’s Greatest Gift to America but please- enough bullshit. If only 12% of us get our benefits without a godawful 2-year fight, then the system is rigged. If 74% of everything (excluding Ex. Writs) that goes to the CAVC is vacated, set aside, or reversed, then there’s something queer afoot.  You don’t need a shopping cart full of pronouns to figure this out. If the VA proudly touts its 98% accuracy rate (as did USB Hickey for years) and you, Johnny Vet, are holding twenty eight years’ worth of denials topped by a lowball grant last year, then you know this stinks to high heavens. Why even profess to be nonadversarial? Why not just call a spade a spade, piss on the fire and quit wasting money on a Veteran-friendly façade of bullshit. We could take those billions from boondoggles like Vantage Point and eliminate Veteran homelessness. Keep on dreaming, GI.

One of the little idiot items which we are supposed to get in this Brave New AMA World Order is compliance with 38 USC §5104. It’s also reiterated in §3.103(f)(5). Let’s take a peek at it and see what it says. I don’t think I need to turn it into DickandJanespeak. It’s my opinion that §5104(b) flows from Bryant v. Shinseki, 23 Vet.App. 488 (2010). The Court held that 38 CFR §3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Helloooooooooooooooo?

38 U.S. Code § 5104 – Decisions and notices of decisions

(a) In the case of a decision by the Secretary under section 511 of this title affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant’s representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision.

 

(b) Each notice provided under subsection (a) shall also include all of the following:

(1) Identification of the issues adjudicated.

(2) A summary of the evidence considered by the Secretary.

(3) A summary of the applicable laws and regulations.

(4) Identification of findings favorable to the claimant.

(5) In the case of a denial, identification of elements not satisfied leading to the denial.

(6) An explanation of how to obtain or access evidence used in making the decision.

(7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.

After you read this, if you’ve had a recent denial, I would ask you to take a gander at the end of any of your rating decision (RD) epistles if they were authored after 2/19/2019. Do any of them list any of this? Granted, a RD will always list the items being adjudicated at the beginning thus satisfying the dictates of (1). (2) is  sometimes a goldmine. VA prints up a bodaciously long list of evidence and often pointedly leaves out one essential document- usually the veritable Rosetta Stone needed- to unravel the Gordian knot of service connection. It isn’t by accident. Nothing at VA is by accident. They didn’t disremember. I feel for you when you have this moment. It’s like finding out the tooth faery was your mom. Get over it. VA lies. So did your Mom.

I caught them at this recently when they assembled the QTC/LHI/VES letter to the assigned “clinician”. Absent for review was a very important IMO from my private doctor which was the only way to win. I sent an email to the booth bitch and demanded that the document be tabbed and included for review. It was but the dickhead Doctor treated it as contaminated and worthless. The RD didn’t even bother to list it.Whoop! Whoop! Whoop! Violation of §5104(b)! Predecisional error. The RD is fatally flawed and must be readjudicated.

(3) Here’s another one that looks to be legitimate. Check it carefully. If you filed for loss of use and they are telling you that your SMC rate is at a&a and you do not have loss of use of your arms or eyes, they’re screwing up. If you  find no mention of §4.71a DC 5110 loss of use of lower extremities, they’re funning you. You probably won’t find any mention of §3.350(b)(1) either. In short, they will inadvertently use the wrong reg/statute and pretend they’re legitimate like dress up lawyers.  Again- it’s a §5104(b) violation. Argue it in a HLR. Call them out on it.

Never heard of using a thumper in a tunnel but it would have to be easier on the ears than a .45.

 

(4) is a big one. VA sometimes gets this quasi-correct. They’ll probably redundantly announce you need a&a when you’re already getting it. It’s what they do not say that makes this an error too. So, if you’re falling down a lot due to that mega-PN problem in you feet and can’t even feel them, that’s called functional loss (§4.10). If they just up your ratings for PN in the lower extremities from 20% to 40% and call it good, they haven’t addressed your new and relevant evidence from the VAMC that you were an inpatient (again) due to continued falls and a need for a neurological workup to find out why you fall down a lot. VA cuts corners and hopes you won’t notice.

Hue. Tet ’68

(5) is the biggee for Vets. Did these pukes ever discuss what was missing that they needed to help them grant your claim? Did they just obliquely say you do not have X or Y? This is important. It would normally be discussed somewhere in a denial under each disability being rated or denied. If it isn’t , then proceed to HLR  or  a 10182 NOD after the denial.

(6) is not very helpful to Joe Average Vet. He doesn’t have VBMS so he can’t “see” what VA c&p adjudicators write about him. You’d be surprised what they don’t write down and /or get wrong. I have Vets with DM II go in for a PN increase and the clinician checks off the no box where it says “does he have DM II?”

(7) is the absolute must for  most of us. You need to know exactly what it is you need to win. If VA doesn’t tell you, it’s a pretty good chance you’re going to be sitting on the Group L bench for losers forever. If you ask and the folks just shrug their shoulders and say ‘that’s not our job’, then you again have a pre-decisional error. But once they write the RD, the record is closed. You can’t stick in the new IMO or the new 4138 buddy letter. So, the §5104 data you need only occurs at the end when it’s too late. The only way to get a can opener into it again is to produce some new and relevant evidence ( a buddy letter) and file a 995 supplemental. At that point, you can take advantage of  data what you earlier lacked and §5104(b) demands they inform you of. But if they fail to tell you, you won’t ever know.

This popped up the other day in a CAVC oral argument. Ken Carpenter was arguing this very point. Where is it written that the BVA doesn’t have to do this too? §5104 is not specific as to which august body is required to comply. Certainly, the fact that this is also summarized in §3.103(f)(5) is indicative that it certainly applies to the Agency of Original Jurisdiction, but think about it. The Statute doesn’t give the BVA VLJ a bye to foist §5104(b) dicta off on the rater below. Food for thought. Boy howdy, listen to Judge Allen ream the OGC attorney. It’s fun to watch.

And that’s our lesson on how to win a claim today. On behalf of myself and asknod Inc., I hope we passed the audition today.

Posted in Appeals Modernization Act, Duty to Assist, Higher Level of Review (HLR), Humor, Tips and Tricks, VA Agents, VARO Misfeasance, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 4 Comments

PART IV VASRD–ELIMINATING PESKY DCs

Well, pilgrims. We talked about this possibility several years ago when our Overlords of Munificence brought up the idea of giving TDIU a haircut after 65 years of age. I mean What the hell? Dude, you’re getting SSA by then… or can. So what’s the idea of freeloading off the VA system when SSA can supplant that drop in your compensation check? That has now metastasized into an even larger compensation grab if ever I saw one. The most recent proposal to “modernize the Diagnostic Codes” so as to more greatly benefit the Veteran is pure hooey. Read the language and it makes your hair stand up all over without anyone scraping their fingernails across a chalk board. 

I include more pictures of my war as my readers have indicated a desire to see these.

Knowing the author/architect of this was no other than our former Home Depot© Manager and recently demoted/brevet promoted to USB (but never confirmed) Thomas Murphy and you instantly recognize why this is afoot. VA keeps returning to Congress every year with hat in hand begging for a few 10 billions more than last year just to keep their VA Poker Game afloat. Featherbedding is expensive in DC. I’m almost surprised Hunter doesn’t work there but they’re not willing to pay enough for his art work. This newfangled Cerner Electronic Medical records computer changeover from the old VistA system is sucking up oodles of dough and hundreds of VA employees are running for the exits. I don’t think they even have enough extra baksheesh to buy the medical dumoflotchies for the new Denver Medical Palace. The huge influx in claims has really just begun and they need more raters. The war that fired up in 2001 has just ended for Statutory purposes. Just as Vietnam ran officially from 1/9/1961 to 5/7/1975, so too will VA “close the books” on Iraqistan. If this Ukraine insanity turns into a shooting affair and we stick our foot in it, VA will be opening a new chapter of “Ukraine Era Veteran” and announce it in future ratings decisions. As much as things change, so do they stay the same.  SOSDD.

Seriously. Think about it. If I’m filing Vietnam AO exposure claims at a record clip 47 years after we bugged out, what does that say about the future of Iraq/Afstan claims for presumptives? A large number of us who were there are coming down with cancer and Parkinson’s. Well, that or DM II with IHD hors d’oeuvres on a bed of peripheral neuropathies. As I said, that war ended 47 years ago and it’s costing the VA tons of money alone now-in 2022. It lasted fourteen years. This latest one ran for 20 years.

One of the results of the newly resolved conflict are  MUCMIs in VAspeak. Medically unexplained chronic multisymptom illness. Ewww. Sounds like something you catch from sitting on a dirty toilet seat. Think doing the 26-shot series for anthrax and its side effects. Think about sucking in all that smoke from the burn pits for 10 months… or 30 months from 3 10-month deployments. Think about racing across deserts in Humvees and weaving in between burning oil wells. Think archaic diseases like Leprosy and tuberculosis that were supposed to be extinct. In my war, it was watching the old $1.23s come lumbering by overhead at about 1,800 feet ASL dumping AO (or AW, AB, AG,  or the two APs). Back then we appreciated it.  Seriously, it was truly amazing shit. It killed the mosquitos and those nasty red ants that bite and sting. And it didn’t even bother us. But it didn’t stop there. It killed monkeys and snakes. I never saw any more wildlife like the occasional tiger ever again flying over those areas. And need I mention what it did to vegetation? Human life 50 years later?  Here’s the list of mucmis:

What Are MUCMIs?

  • Fatigue.
  • Headaches.
  • Joint pain.
  • Indigestion.
  • Insomnia.
  • Dizziness.
  • Respiratory disorders.
  • Memory problems.

Every war is going to have some shit like tear gas, AO or VX. Somebody always figures a better way to snuff you with fewer casualties. It’s been said this Coronabug the Gooks were experimenting with at Wuhan was a new flavor of the flu and and it got away from them before they had it mastered with their own vax for it. Once she’s out of the box, there’s no use crying about Pandora.

So, the takeaway if you’re Tommy the VA bean counter is how to make it harder to get VA comp money out of Monty’s Cookie Jar hidden behind Door Number 3. If Congress passes a law suddenly granting entitlement on a presumptive basis for this MUCMI shit, it’s almost axiomatic that VA is going to make it harder to qualify shortly thereafter. However, this time they are going after several “problem” disorders. Perhaps they want to be ahead of the game before Congress gets munificent.

The pulmonary disorders (of or having to do with breathing) are changing. It will be harder to obtain an OSA rating or something in that vein. If you have tinnitus, and boy howdy was that almost guaranteed, you’re going to get it lumped in with hearing loss. The actual DC 6260 will be a thing of the past. Think of all those defective ear plugs 3M pawned off on DoD. The chickens are coming home to roost and if you don’t have diagnosed hearing loss, you’re gonna be getting the Zeroes for Heroes ™ treatment at your local Fort Fumble. No more of that subjective Tinnitus for 10% from now on.

37th ARRS out of Udorn. BUFF- when you need a lift.

Modernizing the evaluative rating criteria for sleep apnea, using developments in medical knowledge to evaluate it based on its responsiveness to treatment, bringing the rating criteria for sleep apnea more closely in line with the stated purpose of the rating schedule.

Obstructive Sleep apnea? Hooooooooooooooo, doggies. That 50% for a CPAP is  gonna be gone with the wind if the Home Depot© Dude has his say. There’s a medical surgery that can be performed that will rid you of OSA and its detrimental effects. If you refuse the surgery, guess what. Sayonara rating. Of course if you do have the surgery it’s also sayonara so what’s the difference? Please, sir. May I have a medical dispensation granted for that?

But wait. There’s more. That PTSD gravy train that Vietnam Vets walked point on in ’81 for us all? That’s going to get a progressive remodeling:

Evaluating mental health conditions based on a more robust and holistic approach that assesses how impactful the disability is to cognition, interpersonal relationships, task completion, life activities and self-care. Additionally, the proposed evaluation criteria include a 10% minimum evaluation for having one or more service-connected mental health conditions and will no longer require “total occupational and social impairment” to attain a 100% evaluation.

Where do you find people who talk like this? Or better yet, think like this about Veterans? That ‘robust and holistic approach’ must mean the acupuncture and aromatherapy clinics coming soon to a VAMC near you. Any time VA says they want to fix something, rest assured it’s time to move to a corner table and put your wallet in your front pocket.

If you’re concerned, and every Vet should be, call your congressman/woman and let them know what you think of this. What if they say your PTSD got better?  Do you get whacked under the new system in 2027? Psychologists tell us you can ameliorate the symptoms but, like a broken rubber band, you can never tie it back together and get the same guy or gal back. All this is going to produce is more homelessness, more suicides and more grief. The only thing it may cure inadvertently is the desire to ever enlist in the military.

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

P.S.

Posted in Agent Orange, All about Veterans, AO, Complaints Department, Diagnostic Codes (DCs), Legislation, Medical News, VA Agents, vA news, Veterans Law | Tagged , , , , , , , , , , , | 7 Comments

CAVC– Barry v. Denis the Menace

Long have we waited for some guidance on this subject. The quandary was, and still is, simple…and ageless. Reading §3.350(f)(3) or, arguendo, (f)(4), is it open to conjecture as to whether a half-step and/or a whole step increase in SMC is applicable more than once? The M 21 says ‘No!’ and sturickly profriggin’ forbids it.  But seriously, reducing §3.350(f)(3)/(4) down to DickandJanespeak, doesn’t it seem rational that a Vet could accrue more than one (f)(3) for a half-step bump from SMC L to L 1/2, and on to M (or more)? Chevron non-deference anyone? In the same vein, could Johnny Vet be awarded more than one (f)(4) bump from L to M and thence, perchance, on to N? Add in an (f)(3) and a K and poof-the next thing you know, you’d wake up in SMC O land… and still have two legs intact. 

The Pig Packer

Up to now, there have been many vociferous arguments both pro and con. As you can imagine, various minds, up until Barry v. McDonough, were divided on the subject. I still am. Last year, I did look up about 7 BVA instances in which a VLJ indeed granted a double bump at (f)(3) or a combo of (3) and (4). Therefore, no one can look you in the eye and start a valid stare decisis argument. I’ve also searched the Purple Book for some guidance and found nothing. If Denis the Menace is going to hang his hat on the M 21, I doubt the Fed. Circus would give it much credence. Every time I ever quoted the M 21 to a BVA Judge, I had to eat my hat pretty tout de suite. Their unanimous response was “We don’t allow that shit in here. Gimme a CFR, a USC or sit down, bubba.”  I know I put the links somewhere showing double bumps but it would take some forensic sleuthing to retrieve them.

Look closely at the 16. No bolt assist= USAF model. Barrel tip says after ’68.

What is intriguing are the possibilities of continued appeal above to the Fed. Circus. Or not. I personally believe this panel decision is not the correct vehicle to reverse this precedence. But if not this one, our opportunity will slip away into res judicata without some vociferous appellate disagreement. Think about it. Read the whole 28-page decision, and boy howdy is it a close second to the Gutenberg Bible. Then look at what was not taken into consideration in the appeal. Even better yet, look at the 10-page dissent by- of all Judges- Jacquith the Unmerciful. He’s an ex-JAG (’82-2011) lifer who only made O-6. Not a glowing judicial resume. But nowadays we all get a trophy for being a Participant so I’ll shut up. Shoot. He’s probably like Col. Lynsey Graham and has a Bronze Star and never heard a shot fired in anger.

PSP as a roofing material

Judge Jacquith’s dissent doesn’t buy into half of what Mr. Barry is asking for. He does find disfavor with the concept that you cannot have two (2, deux, hai, song)  awards of (f)(3)…

Based on these facts, the veteran argues that the plain meaning of §3.350(f)(3) entitles him to four intermediate rate increases, to the SMC rate prescribed by section 1114(o). The Secretary
contends that the one intermediate increase the veteran has received is all he is entitled to under the plain meaning of the regulation. The majority reads subsection (f)(3) the way the Secretary does but acknowledges that the plain language of §3.350(f)(3) does not conclusively resolve the issue. The words I see in subsection (f)(3) give the veteran SMC at the section 1114(n) rate, but no higher.

But hey. Let’s read it ourselves…

(f)(3)Additional independent 50 percent disabilities. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.”

Here’s what my feeble brain extrapolates from the (f)(3) regulation. If you have extra disability or disabilities, and have a few that can be constructed using the old Buie v. Shinseki Cash Flow System (based on the Dave Del Dotto model), then you should be allowed to do it. Remember the operable word ‘nonadversarial’ and the §3.103 mantra of Browkowski. 

However, in (f)4), the language is more nuanced and explicit. All those multiple expressions of “disabilities” (plural) are absent. Nobody who litigates for a living could try the Bradley v. Peake argument that (f)(4)’s language is ambiguous and TDIU would be okay as a stand in for an (f)(4) 100% schedular disability…

(f)(4)”…additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o).”

Either this was a photo op or there will be a pig feed jam in 3, 2, 1…

What I do not see anywhere in the Barry decision is a well-argued BVA argument below before Mr. Barry arrived at the Court. The panel decision discusses issue exhaustion and issue preclusion. At the BVA, you have to argue case or controversy-or both. Either the VA pukes at Ft. Whacko, Texas misread (f)(3)/(4) by depending on their exalted belief in M21 or they didn’t have the facts right. You have to say up front what is wrong. If the VLJ denies, you can import that argument to the Court and reargue it. You have to “exhaust” the issue at the BVA. If you never brought it up to the VLJ, you cannot litigate it at the Court. That’s issue preclusion. You can’t just keep boiling more spaghetti and trying to get a new batch to stick to the wall at 625 Indiana Ave. NW.  A pro se Vet can get away with some small stuff if s/he gets a sympathetic Court. Here, you couldn’t get a better Judge than Allen. Falvey and Jacquith are renowned for disliking Vets. Falvey has more Texas necktie parties under his belt than even he can count. That’s not what you want to draw to on a panel. Which is why Jacquith is somewhat the oddity here. To me, his arguments are under-developed because he doesn’t even look at the legality of getting two SMC Ls for a&a. See §3.350(e)(1)(ii).

            Regrouping and going back to the AOJ

Why not go back to Fort Whacko  to the beginning and argue if any of these hundreds of ratings he has could be fashioned into a single TDIU a la Myler v. Derwinski. After all, a shit ton of SFW’d muscle groups will be rated by muscle groups (MG), not individual muscles. Some are going to be minor and some are going to be waaaaay out there in severe country-or missing completely. But the amalgam of all those MG percentages could show a clearcut case of TDIU which frees up other disabilities which are separate and distinct and make them available to be added up into (f)(3) packages of 1/2 step bumps.

Think about what Congress intended with SMC. So few of the Judges other than, say, O’Malley, understand that SMC is a cumulative thing. The closer you are to resembling Hogan’s famous Goat, the more you should be awarded. Just as you can be granted two SMC Ls for separate and distinct disabilities involving different anatomical components (think PTSD and IHD), so, too, would it seem you could get multiple combos of (f)(3)s because let’s face it. You may be missing more fingers and toes and eyes and cojones than the average bear and you shouldn’t be short-sheeted by (f)(3) for it. SMC is a cumulative game. The more you get shot off or exploded off what you were born with, the more you should get. (f)(4) doesn’t suffer from ambiguity the way (f)(3) does, however.

Boots down = KHA

I love my SMC bookends of Bradley and Buie  but, as with any legal screwdriver, you have to use them correctly. First, Mr. Barry did not put forth a theory of rearranging his disabilities a la Buie post-award to maximize his entitlement and permit VA, as they say in Unicorn country, ‘to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government’. If he goes back down to Ft. Whacko, he preserves his effective dates and can reargue TDIU instead of a 100% combined. This is win-win but sadly will not stay the decision about multiple (f)(3)s.

Leach escargot for dinner hors d’ouevres

I know it sounds weird to try to disagree with a finding of 100% combined and the big check and argue instead  for TDIU based on one specific disability of 60% (think IHD) or 70% (PTSD). What the hey. We’re in an AMA wonderland these days. Make a u-turn from the CAVC, march smartly back to Fort Fumble and refile a supplemental with an IMO or a VRE assessment of dead in the water-including the impossibility of selling time share condos in Hawaii from the privacy of your own home for $12 K a month. That’s certainly one repair order.

Why we didn’t have women in combat in 1969

But, as for undoing the CAVC panel decision, it will be cast in concrete if not appealed to the Fed. Circus. While Jacquith’s dissent will be noted, Mr. Barry will have to find a Veteran-friendly panel above- one where Jacquith’s pro Veteran dissent will resonate. Or, Mr. Barry could ask for an en banc Court  do over. There, I wager to say he may get a different outcome-maybe a win.

Pre-’66 M 16. Note the roachclip tip on the barrel

Everyone has the benefit of Monday morning quarterbacking when looking at any case. I sure do not mean to pick apart Ken Dojaquez’ work. I understand. I get a lot of cases that are already cast in concrete below and you have to search for the escape hatch to win or work with what you’re dealt. The above are a few suggestions I’d make which are a day late and dollar short.  The ‘but he had…’ arguments that come to mind all lead to the Fed. Circus if we, as Veterans, are to right the misunderstanding of (f)(3). At this point it’s imperative to appeal it because the Fed. Circus may take a look at the (f)(3) regulation and come to a completely different conclusion. Like old Spec 4 Gump said about a box of chocolates, You never know what you’re gonna get.

P.S. Everyone likes a good dog story.

Posted in AO, BVA Hearings, BVA Purplebook, CAVC Knowledge, Earlier Effective dates, Humor, Lawyering Up, TDIU, Tips and Tricks, VA Attorneys, VBMS Tricks, Vietnam War history | Tagged , , , , , , , , , , , , , , | 4 Comments

HADIT.COM RADIO SHOW- THURSDAY 2/3/22

Can you imagine ol’ Punxsutawney Phil crawin’ out of wherever he crawled into (last Fall) tomorrow and seeing this Global Warming ‘event’ across Pennsylvania’s fruited plains? I doubt he’d make it past his front door. It’s probably about 4 feet under. Shadow my ass. Maybe the spectre of starvation shadow if things don’t start heading smartly towards Spring. 

With that said, I guess your wondering why I called you here. Right. Thursday, being the day after Groundhog Day and very auspicious for special events, just happens to be John and Jerrel’s preferred day for holding VA Court and discussing the VA disaster of the week. This week it’s one of the wildest and wooliest c&p medical opinion I’ve ever read, and trust me, I’ve seen a passel of them over the last 30 years.

When you think you’ve heard Le Whopper de l’anée in terms of a long term-claim appeal fight, look no further than Mr. Charles. He had 55 years into it before he got VA to sit up and take notice. When they did, in 2008-2011, they inundated him in grants from bilateral frozen feet to status post (S/P) encephalitis at 100% with all the tinnitus  etc. thrown in to attain SMC S. That’s when Mr. C decided to go for the date he filed. He died waiting after investing a total of 69 years into this. Now it’s Mrs. C’s turn at the  rudder.

One of the beauties of VBMS is that the subcontractors are handed a paper file and they scan it. All of it.They couldn’t give a hoot whether what they are scanning incriminates earlier raters and proves their mis/malfeasance. They’re like a hammer and every piece of paper in the claims file looks like a nail. Scan. Scan. Scan. Next Vet? Ditto ad infinitum. In Mr. C’s case, it showed he arrived at the local Topeka, Kansas VARO in November 1953 and filed a claim. It isn’t in there but the issuance of the claims file number is…17 xxx xxx.  He gave them his wife’s and kid’s name, rank, airspeed and tail number. They have the marriage license. Why all that if you are not filing a claim? And, just like all negro Veterans’ claims back then, the VA pukes filed it in the trash can. Probably even had a good laugh over it at Happy Hour that night. Well, if any of them are still alive, I’d love to see the look on their faces when this comes out of the oven.

Accrued money from past VA errors is meager pickings. No back interest and a 10% rating in 1953 was about $6 a month. In 2008 I won a 10% back to 1994. $18, 250. I won a 10% increase up from 10% to 20% from April 1970 to March 2015. $45,000 or so. It isn’t a pot at the end of the rainbow if that’s what you’re hoping for. But if you got screwed out of a 70% rating in ’53, then you’re talking some serious folding money. And boy howdy does VA take a dim view of that crap… as I’ll share with you all.

But we’ll discuss that Thursday. If their show is still all the same, John and Jerrel’s FB will light up about 1900 Hrs on the Easterly Coast for some H&I. For those dysleftic, that would be 1600 Hrs over here adjacent to our Shining Sea.

Here’s all the Data you’ll need.

(515) 605-9764

Or, if preferred via your computer…

https://www.blogtalkradio.com/jbasser/12058153/connect/fbd75b3bf5f34019a7c9ae96c4aff1eeca24dfc0

In the interests of keeping it down to a dull roar, please refrain from dialing the number 1 unless you wish to ask a question. We have enough problems with all Jerrel’s hounds barking and making a ruckus in the background as it is. I hope to hear you there.

Posted in C&P exams, Exposed Vets Radio Show, IMOs/IMEs, Nexus Information, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , | 3 Comments