Sorry for the delay in getting this up.

This show I’d like to throw in a BVA argument that will be used to illustrate my particular way of laying it out for the Judges.

Everyone has a theory. Everyone has a technique. Some say brevity is the watchword. Some don’t. I try to make it easy for the Judge and his little people for a good reason. If they don’t have to go look all these events/dates up, they can concentrate on the law. So you provide the law in the Legal Landscape. Once that’s done, you tell your story and bring in the history. Where a regulation has been ignored, you indicate using ________ supra meaning “above” in your legal cites. Et Cetera. Listen in. John and Ray I think are hosting.

Redact filed 10182 3.25.2023

will take you to the show via computer or

(515) 605-9764

for our less electronically inclined/gifted.

Posted in Exposed Veteran Radio Show | Tagged , , , , , , | Leave a comment


I currently have a few cases I’ve shared with a Jedi Master who’s almost a household word in VA circles. Kenneth Carpenter-aka the Word Butcher of the VA litigation World. Ken can dismember a phrase uttered by a VA examiner in a New York minute and find a wealth of information about what was said, but more importantly, what wasn’t said but acknowledged by VA. You folks have to remember who you’re dealing with. You would have a far higher probability of meeting Bigfoot-and even getting a picture- as you would dealing with a VA employee with a triple-digit IQ. These people are incapable of constructing sentences in their native language. They need a computer to tell them when to use the powder room -and then require three signatures to authorize it. Okay. Maybe I exaggerate but you catch my drift.

For many reasons, I try to avoid the CAVC even though I’m admitted to practice there. Federal rules of law require a special way of presenting the case, filing it and prosecuting it. Deadlines can be sudden and unexpected. You have to drop all your clients’ cases (if you’re a one-man band like me) and focus/search Westlaw/ write, write, write to get it perfect. Even then, you can step on your necktie unless you live and breathe that level of litigation. And boy howdy up at the Court, they don’t cotton to excuses. If your shit stinks, they don’t turn on the fan. They let you baste in it.

With the inception of the AMA, we can, for all intents and purposes do away with the Court for all but the most arcane situations a Veteran (or his surviving spouse) would ever conceivably find themselves in. The Court, now, and especially the Fed. Circus, are going to become more focused on pondering perpetual motion and other paradoxes of VA foibles rarer than unicorns. And that is as it should be. I find it odd they’re adding two more Judges to bring the total to 11. I don’t see the need. How many times do you need to do a panel on a tinnitus claim?

But I digress. The subject today is the optimum utilitarian usage of a VA agent. An agent is a far cry from a Veterans Service Officer. A good Agent is like a Swiss Army Knife. We’re sharp. Or should be. We actually have to know the statutes and regulations versus how to answer a telephone or lick an envelope. We have to be able to sort the evidence and find the smoking gun. We have to be prepared to obtain a nexus IMO for our clients to win if they are too poor to afford one. Well, at least I feel that way. We have to have access to VBMS if we have a realistic chance of winning our clients’ claims or appeals. Most importantly, we have to be able to write it such that a VLJ and his staff attorneys can absorb it and come to the correct conclusion (the Veteran wins). All the laws in the world  won’t help you if you can’t translate the above combo into written English.

A VA Agent is unique. S/he is in that limbo/netherworld between VSO and attorney. In spite of an Agent’s level of training requirements of VA regulations knowledge, we still lack the sheepskin of an attorney. That means we’re still sitting in the back of the bus with the VSOs legally-but VA employees don’t recognize our legal difference from attorneys. What the hey? All my correspondence when they disburse fees or discuss POAs refers to me as “Attorney Graham”. Relax. I don’t get bigheaded when that happens. Besides, I don’t want to be an attorney. You don’t have to look any further than that Trump attorney Michael Whazisbutt who paid off Stormy Daniels the $130 K and ended up in jail for three years. No thanks. So because we’re not attorneys, the Card sharks at your local Fort Fumble  and the BVA Judges are supposed to give us the white glove treatment and pretend we’re legal imbeciles. Right on.

I can argue my heart out at my local Puzzle Palace and write the most awesome briefs in the world and still be given the presumption of stupidity legally. Should I venture up to the 9th Floor at the CAVC to argue, I do not get that presumption. I’m presumed to be competent at what I do. At  the regional level and the BVA, the VA is required to sympathetically read my pleadings as if my client was pro se. They always blow it and look at me like an attorney. I want them to snap like an alligator at me. In fact, this is why I like to do my hearing face-to-face the old Legacy way. Bayonet distance is perfect.

Veterans probably don’t understand that they inhabit a special niche legally. We have our own separate legal system including federal review. Congress and the Supreme Court have gifted us a pro-Veteran canon that puts the thumb on our side of the scales of justice. But, even with that, if you are represented by an attorney, they are held to far higher standards. If they stepped on the pink snake and forgot to argue your bad back in the BVA brief, then they can’t dredge up the subject at the Court. The pro se Vet can though. And if I or another Agent were arguing our client’s case at the Board, s/he has to continue to sympathetically construe our arguments as the  pleadings of a mentally/physically deranged Veteran with no legal acumen. They rarely do.

So where this leads to trouble for the VA is when you get to the Court you can say the BVA Veteran Law Judge held you to a higher legal standard and didn’t put on the white gloves. This is like setting up the perfect horseshoe ambush with Claymores. They sashay in there thinking they shit ice cream and walk on water. You get the Dear John letter and that’s all she wrote. Well, ‘not exactly’ as they say down at the car rental place. The CAVC looks at it in an entirely different light. Lots of weird concepts come into play like due process and a fair fight. Concepts like nonadversarial and Veteran friendly become watchwords.

Veterans justice is always under assault. Mission creep at the VA is a fact. We don’t need any more proof of that. The AMA sure sounded like the cat’s pajamas when the Big Six VSOs trotted it out. Hallelujah. No more waiting. Drive thru Veterans Service Centers. Just like the Dry Cleaners-in by 10 and out by 2. What could go wrong? Well-at the VA, a lot. Maybe they didn’t realize there’s this thing called the Internet and a Vet can figure out how to file a claim faster than s/he can figure out where the nearest Starbuck’s© is. Filing a NOD at the Board just dumped about 3 years worth of work on each Vet up there in DC. You can imagine how happy they were to find out… with no  new employees to carry the water.

So, in order to help more Vets, I spend an inordinate amount of time trying to keep my Vets’ claims out of the BVA and dang sure out of the CAVC. Surely, every one of you on appeal are aware of that Corona horror story.  Take my boy Chris. We filed his 10 182 on 4/19/2019 for a hearing. We’d filed a beautiful IMO from Mednick and they refused to read it at Fort Whacko (349). I’m forced to get the VLJ to do so. I got a call from my favorite BVA waiting room supervisor Thomas a month ago. I have a date with the judge face-to-face in DC on 4/19/2023-four years and a day after filing. This is a good thing. Chris had his first heart attack (IHD) a week before they called.

My advice is to ride the local merry go round (formerly referred to as the hamster wheel) at your local VARO until you hit the wall. Go out and get an addendum to your IMO and re file a supplemental. Let them deny.  You’ll know you’re there when they call you up or email you and ask “What part of ‘no’ is it you don’t get?” Only then should you saddle up for DC and the Board. An addendum is great  evidence to take to the Board. You can show the VLJ you tried to reason with these chuckleheads. A judge will see the steel in your words by the fact that you’re willing to do an addendum. If he denies, you can make a u turn and start over… with another addendum.

I should point out that the log jam at the Board seems to be akin to the beginnings of a spring thaw. I got another notice of a hearing date in New Mexico for mid-June just last week. A  widow woman I’m helping who’s on a&a as terminally ill had her AOD done in record time-four months. It’s with the VLJ now ready for signature.  Harvey down in New Mexico has been waiting since September of 2019. Considering I only have one more awaiting a hearing in San Diego, I’ll let a sigh of relief out that I don’t have to continue answering all the emails asking ‘when do I get mine’.

Now, for those of you who want to read a good yarn on how to hornswoggle the Secretary into forgetting about sympathetic readings and due deference to a pro se Vet, click on this one. Kenny takes out his light saber and makes a total mockery of a couple of Veterans Law Judges who thought they were God’s gift to VA jurisprudence.

Roberto asked me for help in 2014. He is one of my oldest Vets. He was pretty far gone from Hepatitis C and was forced to use the San Juan PR VAMC. We got the win (for 10%) and then the liver cancer hit. I’m zero for three at the BVA based on different theories of CUE and this was the last hoorah. It’s bulletproof law, and fortunately the VBMS scan program captured the evidence in living color before it could hit the shredder room floor but VA isn’t about to fall on their sword back to July 1970 for a 40% CUE.

Winning at the VA or the Court is now more a game of ‘gotcha’; of technique and exploiting  your finesse at law. Pretend you’re a lawyer and they’ll make the mistake of treating you like one. After they do, get a real lawyer and hold their feet to the flame. Broadway ought to write a play on this subject- There’s no Business like Vet Business. So, if you think your claim/appeal is taking forever, think about Roberto waiting for 9 years for his day in Court…or 53 years from his September 1970 filing which we are contesting.

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


Posted in VA Agents | Tagged , , , , , , , , , , | 3 Comments


As most of you know, Jerrel is somewhat under the weather since his latest medical misadventure. We’re certainly hoping and praying he recovers from this one and remain positive for the moment that he will. I’m sure he’ll be listening in. Chances are wild horses couldn’t drag him away from the broadcast anyway.

Tomorrow’s show will focus on losing your vision. Oddly, I have two different Vets suffering loss of use of the eyeballs so I had to do a major regulations review to understand it better. As with anything VA, being blind is not necessarily being “VA blind”. You could certainly be so blind as to not be a candidate for even a self-driving Tesla™ but still not qualify for 100% blindness a la VA’s regulations. That figures.

My Vietnam Vet won it at 90% via his Malaria infection in-country that rolled his socks down for a few weeks and left him weaker than a kitten for the rest of his deployment. I had to resort to an extraschedular request  to get SMC though. VA gave him 10% for the residuals for a year after he came home and then promptly reduced it to 0% without so much a c&p. That was pretty much par for the course back in ’70. Shoot. Virtually every old claims file I look at from that era reads the same. 0% for this and 0% for that.   My buddy old Butch, who died back in 2022 was notable for getting a single 10% for his right arm- the one that was numb from the elbow down about 50% of the time. I got him bumped up on a CUE in 2018 to 20% back to 1970 but that was a fluke. They were trying to buy us off and make us go away. VA artificially fenced us all out of anything 30% or higher back then because they’d have to pay for the wifesan and the rugrats.

My other blind Vet Jimbo, who I wrote about recently, was denied repeatedly even though you wouldn’t want this guy on the street behind the wheel. We lucked out because I spotted the c&p from two years ago in VBMS showing he legally qualified as VA blind. For any of you wondering, that’s 5/200 or less bilaterally or concentric contraction of field of view of 5° or less-again bilaterally.

  You’ll find out VA has all manner of different metrics for what they’ll concede as blind. For a single eye, you’d have to be at light perception only to get it. That’s SMC at the K rate. Think about that. If you were 5/200 or less in one eye (or had 5°< field of view), you wouldn’t get the Special K. Shut the front door. Likewise, you wouldn’t get the bump up to SMC N unless you had both eyes removed or didn’t even have light perception.

 I guess I shouldn’t be surprised at VA’s niggardly attempts to lowball us on blindness considering your back could be toast and you’d only get 60% max. Or you couldn’t walk on a leg due to Diabetes peripheral neuropathy  but were only rated at 40% because they didn’t consider it a total loss. They’d probably just give you crutches and tell you to drag it and suck it up.

Can you imagine a non-Vet VA employee with a ambulatory disability? Why, that sucker would be outfitted with everything and a wheelchair-friendly desk to boot. They’d make special accommodations for him/her and probably offer a bonus if they had the right pronouns.

Don’t get me started. I’m in a pissy mood this week since one of my Vietnam Vets got the denial of a lifetime on loss of use. Imagine being told you had to choose between being SC for peripheral neuropathy or Parkinson’s. Sorry, Charlie. Can’t get both because that would be pyramiding. Take your pick. Oh, bummer. You chose PN but you’re only 40% in the right leg and 20% in the left. Missed it by thaaaaaaaaaaaaaaat much, Bubba. Come back before you die and refile. Maybe we’ll take another gander at it and re-lowball you. Or maybe not. Meanwhile, we’ll continue the Parkie shit for the saggy face (10% bilaterally), constipation 20%), incontinence (40%), swallowing issues (10%), aphonia (0%) and balance issues (30%).

I belong to a nationally recognized outfit who specializes in helping Vets but I’ve been admonished not to admit it anymore because it causes them embarrassment when I write articles here about my clients’ adventures in Southeast Asia and some of the names we used to refer to the enemy back then. Apparently their idea of the least offensive term would be “Captain Charles”. Revisionism in history is becoming all the rage. Kinda makes you wonder what Captain Charles’ pronouns were.

The same outfit I mention above suggests we never call the VA Secretary to vocalize our displeasure with what his minions cook up for our clients. Boy howdy is that a hard one to choke down. When your client is dying of a disease, you perform triage. You don’t go into some semantic diatribe and dance around waving the flag trying to get attention. You use every tool at your disposal RFN. The operable pronoun here is YOU. If that includes contacting Denis the Menace and telling him his employees are cheating and denying my boy illegally, then so be it. What’s the purpose of having his email if you have an emergent situation and you don’t make every effort to help?  I lost a lot of friends over there but at least I tried with all my might to save as many as I could. I could do no less now in these circumstances.

I sign my VA emails below my name at the bottom with “We are the “A’ in ICARE”. ICARE stands for Integrity, Commitment, Advocacy, Respect and Excellence. Since VA considers us Agents and Attorneys shirttail VA employees and requires us to toe the line judicially, I think it’s only fair that we all kowtow to that metric. Advocacy to me means kiting an email off to Denis and spilling the beans when VA’s chuckleheads pull this shit. I ran a construction company for 30 years and went back to framing in the ’90s when I discovered all my boys were snorting coke on the job. I fired them. They thought I was a real sore loser and too strict. The last thing I’d want to be responsible for was knowing they were stoned and one to take a header from a 3rd story wall and eat it.

 In war, you sure don’t want your buds all smacked out or jacked up on speed. You want them at the top of their game. I figure old Denis would want to know if his “little people” were engaged in mission creep. This is how Erik Shinseki got into deep shit. Nobody told him his flunkeys were cooking the books. President Obama didn’t let him slide on it and fired his ass licketyspit.

It’s like the Truman thing- the buck stops here. So you bet your sweet ass I emailed him-and the VARO director, the Coach who authorized the stupidity and my change management agent (CMA) who constantly admonishes me to contact her first to pass  along any dissatisfaction I have with how they run their ship. I always get a return email from the Secretary’s gomer saying thanks for letting us know about it. I never get one from the CMA thanking me for bringing it to their attention. The Big Guy always says We’ll get back to you, hear? So if it was forbidden, I’d expect to get a demotion or booted out of VBMS for it. If it’s wrong and it works, then it isn’t wrong.

Back in the war, we had a problem up north on the other side of the fence. In the country that rhymed with Mouse, we were required to call in a TIC  (troops in contact) to Cricket/Hillsboro and request permission to drop ordnance or strafe the bad guys. I was often faced with the proposition of having to wait for 30 to 45 minutes for the Ambassador or his Air Attaché (my boss) for permission to respond appropriately. That was known as the Rules of Engagement- or Romeos in our slang. I dang near ended up in the brig a few times for failure to follow that admonition. Dropping liquid sunshine (nape) was all but forbidden even in an emergent situation. That’s pretty much how I feel about this in the here and now. If all you have on your hardpoints is nape, then nape it is. Clear them in hot and save your folks. It shouldn’t even be up for discussion.

So I hope to discuss some of these subjects tomorrow with John and offer some advice on how to win your VA claims for blindness. Of course we’ll talk about a lot of other things and tell jokes. We always do. The call in number is still

(515) 605-9764

That cute British gal with the accent is still there answering the call, too.

Or, if you are computer savvy, click on this link and join us about 1900 Hrs Easterly time.

We’d keep the lights on for you but Brandon just changed us all back to daylight savings time so there’s no need.

Posted in All about Veterans, Exposed Veteran Radio Show, Food for the soul, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , , | 3 Comments


First off, a prayer for 11 Bravo 20 Eddie who passed last Sunday. I had him in for an upgrade to R2 and he fell prey to the old delay, deny until he died. I’ll be helping his surviving spouse pick up the flag and move forward on a substitution for the accrued and DIC. We offer that to any of you I represent without asking. Eddie married a Swift Boat client’s daughter. Both he and Doug (father-in-law Swifty) served in the ‘Nam at different times and wouldn’t come to know each other for another 20 years. I reckon there’s quite a few of us like that. My dad served from June ’66 to May ’68 at TSN-including the Tet. I didn’t get there until May ’70. The picture is at Doug’s funeral April 26, 2019 over at Tahoma Vet’s Cemetery here in western Washington.

The reason I write this one today is about SMC N. It’s an odd bird. Either you resemble a 50 gallon oil drum with a head and neck sticking out of it and two arms whacked at the elbows or you’re blind/eyeball-less with no light perception at all. Oh yeah. And one leg right at the torso. You get the idea. But, as with anything having to do with SMC, there’s more ways to skin a VA cat than you can shake a stick at. Meet Jim who still has all his fingers and toes.

Jim’s first mistake was to join the Marines in ’69 and run into the Training instructor from Hell. He escaped with his life-just barely. I’ve helped a lot of disabled folks but the blind really tear me up. It’s possibly the most limiting of all disabilities that can happen and the most mentally devastating as well. In Basic, Jim was up about 20+ feet near the top of one of those thick-ass ropes you shinny up when he seized up. We all do at some point in our lives. He just needed about 30 seconds to collect himself before descending. The TI didn’t give him that luxury. He scrambled up the adjacent rope and began screaming, Then he reached over and struck Jim causing him to fall and land hard on his left side-including a whing dinger of a good thump on the left eye and chest. Sgt. TI continued his tirade for a few more minutes before he noticed old Jim wasn’t responding with enough verve. A day or so later everyone realized there was a lot more wrong. They frog marched him over to Balboa and shoved him in the neuro wing. Everyone concurred he was no longer hitting on all eight cylinders. Before you could say boo, he was on his way home.

Jim’s second mistake was not getting a 214 before he waved goodbye a few weeks later. That would consume a lot of time to even prove he was ever there. The Marines weren’t very forthcoming. After all, one of their TIs almost killed him and then they desperately tried to cover the whole thing up by conning him into stating he wasn’t “cut out for this”. What the hey? If they’d just issued the 214  and let him go, I might not be writing this.

Jim was a real scrapper. His c file is over six hundred pdfs strong. He fought the good fight and got his TDIU in ’15 and then a true 100% schedular and finally SMC S in 2018 or so. As with all of us 70-ish warriors, some of our important parts and pieces quit working and there aren’t any replacement parts like at the NAPA® Store. Jim’s left side diaphragm had collapsed over the years from the fall and he was 100% for that alone. His eyes began to give out and he filed for them. VA started telling him he could see just fine but you can’t lie about that. By 2015, his VA psychmeister was noting that he was downright depressed because he couldn’t drive anymore or watch TV unless he sat about 2 feet away from a big screen.

Bingo. All that’s in the VBMS file. There was a lot more. A lot. In 2021, he had a c&p and they noted he couldn’t see much more than light in the SC eye and, because they’re paired organs, when the SC eye goes t— up, and the non-SC one follows suit, it’s ratable too. So they gave him 60%. Boy did that stick out like a sore thumb. Where was the SMC K for it? SM what? Never heard of it.

Jim finally came to me last fall and said these VA scalawags refused to say he was blind. I dug in and did the dumpster dive into the file and found all kinds of goodies. I decided to play along and filed him for an increase on the PTSD and the need for a&a for his now-bilateral “legal blindness”. I didn’t call CUE. Hell, no.  Instead, I affixed my “DUPLICATE IN VBMS” ink stamp and yellow highlighter to all seventeen pages of the 2021 c&p DBQ  declaring light perception OS and 5/200 or less in the better eye (OD).

And lo and behold, today dawned sunny at the Seattle DROC shop. Some poor overworked rater had to put his John Hancock on this and pray they don’t make him do telephone overtime on the Crisis Line during the three-day Memorial Day Weekend. I got everything he’s been fighting for since 2018. That psych note about him not being able to drive and thrive in 2015 is going  to be the effective date for aid and attendance soon. Seems if you’re gonna screw a Vet, you’d be smarter than to leave all the evidence out there to get busted. The inoperative adverb here is ‘smarter’.

redact RD 3.10.2023

Redact CS 3.10.2023

redact SMC calculator.

With the exception of mistyping SMC ‘M’ instead of ‘N’ on the Code Sheet, they got it right. They gave him the 100% for blindness and the bump up to SMC M from L for needing a&a. Then they gave him the second bump up to N for his brand new extra 100% for his PTSD. I’ll have him up to R1 before you can say Rip Van Winkle. You watch and see. He still has a spare 100% for the diaphragm fall injury. Time for some more of that old timey SMC Voodoo.

Posted in All about Veterans, Milestones, SMC, VA Agents, VBMS, VBMS Tricks | Tagged , , , , , , , , , , | 3 Comments


Love that expression. I don’t know if Dr. Phil personally coined it or had one of his staff writers who hit upon it but it dang sure captures the essence of the new VA mindset. Which is “When in doubt, DBQ it”- each of which means the US taxpayers cough up $600 for a c&p plus .415 ¢ per mile for you, Johnny Vet. Of course after that first in-person exam (or two), VA starts asking for ACE (acceptable clinical evidence) exams from folks like Deshonda Rimbreath, FNP -status post 2 years from graduation from the RN University in Grenada. This is who will decide your fate. But that is not the end of the matter which is a phrase I do use frequently in legal briefs.

As some know, I do a lot of SMC R 1, R 2 and T claims for Vets. In fact, between that and §3.156(c) claims, it consumes most of my time. At 72, you really need to bench press your brain a lot to keep the oxygen flowing. Don’t get me wrong. Agent Orange claims are part and parcel of this because so many of us got the bum’s rush in the 66-73 era for our service in Vietnam. I’m still picking up the pieces of that era and righting the wrongs. Sadly, not all can be retro’d all the way back. Worse, most of these Vietnam Vets don’t even know there’s a whole new world after 100%.

Fortunately for some, though, VA was a little bit too loose-lipped in some of their old rating decisions and spilled the beans. From that, you can compare it to what they filed for and sometimes find a glaring mistake even reasonable VA minds can only concede is error. As most know, too, it will invariably result in a mea culpa of no more than a 0% rating until it magically metastasizes into a 100% rating forty years later on the day you filed for it again in 2015.

The secret to getting those 1970 wins for the big $$$ is always the fact that those lazy folks at the VA never bother to go get your records at the very places you identified on those antique 526s. They just kite off the 3101 PIES (Personal Information  Exchange System) requests to NPRC and blithely accept anything handed to them as the whole enchilada – never asking for the more probative records. Often, inpatient hospital records stay at the hospital-sometimes forever-or until requested. But if you patiently keep pointing in the right direction, those aspiring Dick Tracy wannabes will find the §3.156(c) magic paper but then try to slide it in unnoticed. About then you have to take it to the Board. Nobody at the AOJ level is going to grant it. It’s radioactive and you can kiss your VA GS 14 aspirations bye bye if you even volunteer to suggest it seems to resemble a §3.156(c) claim. Move along. Nothing to see here.

But back to the title subject. I have several of these R 2s in the pipeline on any given month and right now I have about four. So, fully well knowing once you are R 1, an advance to R2 can only fall into the narrow purview of §3.352(b). A determination that you are entitled to it hinges on your wife/brother/sister/ Visiting Angel™ or a VA caregiver administering a higher level of aid and attendance care on a daily basis in your home. Remember, in this Chutes and Ladders VA game, if you are institutionalized in a residential care facility, you drop back to SMC O automatically. Ergo, always go for early hospice in-home. But that is not the end of the matter.

In addition to oodles of other little Catch 22s in §3.352(b) which are easy to fix, you have to be “trained” and documented as such to take your charge to the pool or engage in physical therapy. But even easier to comply with is the need to administer injections. Lots of wives have to do this even if it’s just Vitamin B 12. But it could be insulin or even Rheumatoid arthritis heavyweights like  Tocilizumab® spring loaded like the old Morphine Styrets we had back in Vietnam for simplified dosage and administration. Makes no difference what you’re shooting up as long as it’s prescribed and administered by your “caregiver”.

Back in ’10 when I finally escaped the VAMC, Cupcake and her best friend were trained to hook me up to 1000 ml saline IVs daily with my VA-issued pump. They plugged in to my 3 lumen PICC for several months to rehydrate me that summer. I just couldn’t seem to get rehydrated. Eventually, they gave me a 18-inch extension so I could do it myself.

But here is the problem. Our missing village idiot, among perhaps many, is no other than the one in charge of sending out requests for the c&ps. Somewhere, in the cavernous innards of the M21, there must be an instruction that tells him a 2680 must be filled out to determine if you are eligible for R 2. After a couple of these face-to-face exams, said village idiot then determines the contractors haven’t answered the burning question. Does he need a higher level of care? So they send it out for a “clarification”. This is c&p #3 or so. That medical genius opines that yes, you need aid and attendance which still fails to answer the burning question. This can actually go on for years and has to my Parkinson’s Vet. I have one now that I filed 7/25/2021. We’re at the last phase where they’re asking just one more last time if the loss of use of the uppers isn’t due to PN secondary to Diabetes. Who cares? He’s SC for Parkinson’s and Diabetes so it really doesn’t matter unless you’re some mega-anal bean counter…or a VA “examiner”.

David, instead of being awarded loss of use of the uppers and lowers, was granted a&a instead- but for PTSD. I guess they figured we’d piss on the fire and call in the dogs. Fat chance. It did save me several months of work obtaining an a&a to add to a loss of use of uppers or lowers. All I need now is just one LOU of extremities and we have both in the bag. Just now, I counted 30 c&p exams in his VBMS folder-both ACE and in-person so far. David finally got a diagnosis of loss of use of upper and lowers from an October ’22 VA contract exam and that just stirred the hornet’s nest. She had to rewrite it twice and even  after all that they sent it out to a rent-a-doc in Texas for ‘clarification’ that it’s really Parkinson’s and not PN from DM II. She parlayed it into 5 c&ps -one for each extremity and one as a holistic medical opinion. Pretty soon, they’ll be asking how many angels can dance on the head of David’s EMG pin.

The obvious problem is SMC. Nobody knows how to do this anymore, or maybe they never knew how, which is pretty scary and why nobody wins without a Sherpa. If you attempt to explain the what and how and why, they politely shush you and point to the SMC calculator like the Oracle at Delphi. I’ve read their notes on this. It always says “Calculator refused to recognize SMC O and R 1. Coach says to override it and enter it manually.” But that is not the end of the matter either.

I had a “Pre-reduction” hearing on my blind Vet on Wednesday at bayonet distance instead of that hoky palloky videogame version. I like to look my enemy in the eye. I asked her point blank before she cranked on the tape recorder if she had been chosen for this because she was Seattle’s finest on SMC. I got the answer I expected. “Sheesh, no. said Tiffany (who’s younger than my daughter). We just upload the disability and the SMC Calculator does all that for us. They don’t really teach us to do it manually. There’s no need to with the M 21.”

Next thing that happened was she couldn’t get the microphone to work and announced that it looked like we were fixing to have an informal conference with no transcript. I stood up and said we’d be fixing to be back when she got it working and to reschedule. She had IT there in less than 3 minutes and he told her to push the right button (record). Bingo. We were in business. Funny how that works.

This ignorance of even the simplest machinations of SMC explains their asking for 3 a&a exams on 2680s for an R 2 determination and still deny when your VA-trained wife is giving you three injections a day and you don’t even know who the president is. Wait. Maybe that second part’s not such a bad thing…. But seriously. No explanation. Just that old fashioned love song “Here’s what the regulation says you need but we determined you’re not entitled.” It’s devoid of the requirements of §3.103(f)(5,6). File your 996 for an HLR and ask what you need to win and they’re guaranteed to look at you like deer in the headlights. It’s simple. They don’t know what you need but they dang sure know you don’t have it-whatever “it” is. The narrative decision gets pretty sketchy as if this all depends on what the meaning of “it” is.

Thus, the ages-old paradox of why you can’t get to the higher SMCs is finally revealed. SMC is so complicated, it’s easier to just fence it off and have a “Just say No!” mantra like First Lady Nancy Reagan’s old DARE drug campaign of the eighties. Problem solved. DBQ it a few times and deny. Listen rapturously at the HLR and then have Ralph over in DROC Appeals Tag Team “Victory” write it up in Adobe Rate Builder™ and see if they go away.  And here I always thought these folks were just being hardasses when the truth was they’re ignorant. I don’t blame them individually. Would you hate a rattlesnake? They’re only instinct is to strike their enemy. They don’t hate you. Shoot, VA folks are hive people. They don’t even know you so it’s not personal. They’re taught to upload data. The computer determines how to phrase the “What part of ‘no’ is it you don’t understand?”  Your average Joe Blow VA employees must be oblivious to this 88% denial rate. Well, until they get to the higher levels and know better. Then it has to be plain vindictiveness or orders from on high.

A good friend and client, and now an Agent, is applying for R 2. I carefully helped him dig the punji pit and have his wife schooled (and properly documented) in the art of caregiving ahead of time. He already has a running contract with a physical therapy outfit due to his musculoskeletal disabilities so that box is checked. So, what would you expect Joe VA  Intake development service representative to do? Right. Bifurcate all the evidence submitted away from the VAF 21-0526EZ by uploading them as two .pdfs and label the evidence as ‘Third Party Correspondence’. Poof. Gone with the wind. Develop the claim without the supportive evidence. This calls for a DBQ or two.Send that boy out for a 2680 A&A/Housebound. Yeah. We know. He’s already R1 for LOU of lower extremities and a&a so I guess they want to determine if…. ah… he needs…mmm more aid and attendance? Got it. Submit to (choose one) LHI, OPTUM, VES, Loyal. Push print. Send to 499 holding tank and await upload of unneeded 2680. Get attaboy for doing 5 in one day. It’s a well-oiled machine from start to finish and almost guaranteed to generate a completely wrong decision.

So, be untroubled when you’re denied SMC at the higher rates. This is a process that almost demands having access to VBMS so you can shepherd these things through and spot them innocently trying to sabotage the claim. Having real time access to a client’s efile is so critical to winning, I almost can’t imagine how I did without it all those years. This is a poker game and you deserve to see what they’re holding or know someone who does.  I hope I live to to see the day  they grant Vets access to  their claims file. There will much grinding of teeth. Congressfolk will complain mightily that their emails doth runneth over.

P.S. I love this one.   


Posted in M-21 info, SMC, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , | 9 Comments


My good friend and fellow VA agent Eric Hughes (author of Vet Chalk) has provided the greater Veterans community with some extremely beneficial ideas to implement-but only if the CAVC and Fed. Circus are amenable to a rules change requiring honesty from all parties at all times. Currently, that moral condition is inexplicably in short supply in some quarters of what we all thought to be a nonadversarial venue.   

Think about that. You or I (Johnny Vet) are required to testify by signing a 4138 stating “I certify that the statements on this form are true and correct to the best of my knowledge and belief.” It’s tantamount to the civilian version of holding up your right hand and swearing to tell the truth, the whole truth and nothing but the truth so help you, God.

In law, Veterans tend to confuse competence and credibility. They often have their credibility called into question which infuriates them no end. Eric merely exposes  the fact that VA and their employees should be held to the same legal standard. Here’s a short explanation:

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997)

So… what happens when a BVA staff attorney or an OGC CAVC litigator presents evidence that is known to be untrue or slanted? Or uncorroborated? Or the avid pursuit of negative evidence in hopes of winning against you? Or whatever. We’d call that misfeasance. If it was a downright evil deed with purposeful knowledge the evidence was compromised, it would be malfeasance. While I’d like to believe the old VA saw of ‘grant when you can and deny if you must’, reality is far different. Thirty years of seeing the same method to deny is proof enough.

VA will deny a Veteran for years until they see the jig is up. Maybe the JSCRUR guys finally come up with the evidence showing even the cooks were issued 16s with fixed bayonets when they tried to overrun Camp English in ’68. That only validates your stressor. They grant because a shrink today-in 2023- says you have PTSD. But you don’t get your 1970 effective date grant for PTSD/anxiety because you didn’t actually have a diagnosis of PTSD/anxiety in 1970. The psychologist at Cam Ranh Bay said you were shakin’ like a leaf on a tree but his recorded diagnosis in your STRs was ‘rule out anxiety disorder’. Pretty convenient how that ‘rule out’ shit was used to deny you in ’70. Don’t even get me started on the quality of RN c&p exams nowadays.

As officers of the Court, all attorneys, be they VA employees or NOVA attorneys, are bound by a code of ethics. That code  presumes they speak the truth and will not tolerate known contamination of the judicial process by permitting lies to be promulgated into evidence. This is even more critical to Veterans because we enjoy a judicial canon that says our grateful nation should be more accommodating of us due solely to our sacrifices for their country. Cheating in the VA or, more concisely, a biased belief that all Veterans are welfare queens and trailer trash-and thus deserve to lose- should never even be permitted to flourish or be encouraged. That’s where I feel we are now.  Barrett is right on point here:

“The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006); see also Jaquay v Principi, 304 F.3d at 1280 (2002) (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”).

How this mates up with the Department of Veterans Affairs’ attorneys’ practice of fabricating evidence out of whole cloth, presenting it as credible proof against a Veteran without said Bozos having to hold up their right hand and saying “I promise not to lie” is the problem. It shouldn’t be. Essentially, in this petition below, Mr. Hughes asks the CAVC to institute some codicil that holds VA’s attorney folk to account when they come to Court and propagate gross mistruths or withhold exculpatory evidence they possess which might help a Veteran win his claim/appeal. Exculpatory evidence, as you can see here, can also take the shape of res judicata records of 248 years worth of Veterans’ law. It would turn Bell v Derwinski jurisprudence on its ear far earlier than  October 31, 1992.

What Eric has uncovered is essentially the extraordinary efforts  the government went to in an effort to wipe the Veterans legal precedence chalkboard clean in the lead up to the 1989 VJRA. The end product of this travesty was that the Court had to spend decades reestablishing these very same precedents all over again. Say all after ‘Veteran Friendly’, over?

I’ve noticed the proclivity of VA raters to “omit” evidence of record I submit which is essential to the claim. The folks up in Cheeseville separate it and  label it “third party correspondence” and it never is considered until I point it out later at the HLR.  They always innocently say “Oh, dear. How did we miss that? Ooops. Duty to assist error.” Five more months in Purgatory. They also have a propensity to go off on a tear in the totally wrong direction quoting the wrong regulation-or worse- purposefully misconstruing the meaning of the correct regulation- and coming up with a convenient denial based on their interpretation of what Congress intended.

An example would be insisting that you have to have a 100% or single TDIU disease/injury before you are entitled to even queue up in line for Aid and Attendance consideration. Not the actual benefit of a&a, mind you, but the right to even apply for it with the reasonable expectation you might a) be entitled to it; and b) be awarded it. Say what you will but the old days of a paper c-file ensured there was no third party anything. It was all there in black and white.

Pity Philip Cushman’s 34-year travails in the judicial desert but thank your lucky stars he had the gumption to fight (and right) his wrong. It exposes the ugly underbelly of the true day-to -day machinations of the VA. They are not above manufacturing imagined conversations about what you said or torturing the facts to support their decisions. Worse, by relying so completely on the M 21 for dictum, they avoid passing the “I promise not to cheat when I deny you” and instead allow a machine (M 21) to deny you in order to cover their asses.

Petition to Adopt Fed R Civ P 11

This petition is an excellent argument to hold us all equally accountable and hopefully the Court can see it for what it is- a basic requirement by all parties-not just the Veteran or his representative- to tell the truth and pursue justice rather than seek to always win. Wouldn’t it be nice if we never had to cite to Bell v. Derwinski ever again? Yick Wo anyone?

Each decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1). This statement of reasons or bases serves not only to help a claimant understand what has been decided, but also to ensure that  VA decisionmakers do not exercise “naked and arbitrary power” in deciding entitlement to disability benefits. See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.)

I feel richly rewarded for being allowed to litigate for Veterans. But even more, I get immense satisfaction by making sure every Veteran gets justice. Winning is not the object of the game. It’s usually the inevitable product after the successful application of justice. Sadly, in most cases at bar in the Veterans arena, real justice is never attained until you escape the VA reservation. And then we all live happily ever after…except for those who die waiting. Jez, what a totally new concept this might be to Veterans law. Thanks, Eric.

Posted in CAVC Knowledge, Food for thought, Lay testimony, research, vA news, VARO Misfeasance, Veterans Law | Tagged , , , , , , , , , , | 1 Comment


Picloram. Tordon 101. Agent White. It traveled under many different aliases and still does. Shucks, you can still buy this stuff. Here’s the link.  Tordon 101.  It’s sold as Crossbow®.  If you wanted to turn it into Agent White, all you’d have to do would be to add picloram which goes by the trade name Gunslinger®. You mix it 4:1 (four parts 2,4-D and one part picloram. I don’t mix it but was forced to use 2,4-D on my pastures because my neighbor  who has no horses is an asshole and wouldn’t control his tansy ragwort. To all you non-horse people, tansy is pure poison and spreads like the plague here in Washington.  

Your local Amazon is only a click away and you can dang near turn your garage into a gallery of Rainbow herbicides if you so desire- well almost.  2,4,5-T is no longer available… in the U.S. but you can see it was present at Fort Mac from the inventory. Agent Orange and it’s genre have caused more grief and death than can ever be recorded and documented. In fact, every time you think it’s going to become a thing of the past, why, another pile of 50 gallon drums shows up in a landfill in Okinawa. How did it get there?  Uncle Sam doesn’t want to know. So it shouldn’t come as any surprise that they disremember using some of these very same herbicides stateside long after they were used in RVN and Laos.

Which brings me to Mr. Alex J. Gust, and his most wonderful adventures at the Court on the subject  of herbicides used at Fort McClellan up until the late 1970’s. Some of these would still be considered part and parcel of the Agent Orange-type herbicides used in Indochina including Agent White… and thus the presumption of exposure would be met. This is an awesome read if you are fighting a herbicide exposure claim at Fort Mac or another base. Chances are they all sprayed this crap. Here’s more data.

Ft. Mac- AO Gust vs Denis

Let me elaborate. In 1991, subsequent to the ’89 Nehmer ruling at the 9th Fed Circus, those of us who had served in Vietnam got the automatic presumption we were exposed-that is, the entitlement to AO benefits without having to prove we were. The exposure included more than just 2,4-D; 2,4,5-T. It also considered picloram and cacodylic acid-both equally as nasty.  Next came the Procopio 12-mile limit Navy and Marine Vets in 2020. And now, with the PACT Act, Thailand Vets, a handful (if any) of AAM folks in Cambodia and Laos (very narrow window), and the Guam and Johnson Atoll Vets  all are presumptively exposed. All you need is medals or PCS/TDY orders proving service in those locales.

Mr. Gust, above, is a carbon copy of one of my clients for whom I’m arguing the exact same thing- diabetes mellitus type 2 and residuals based on exposure to herbicides at Fort Mac. This decision is a valuable tool for all Vets regardless the fact that it’s a single judge memorandum decision. For any who decide to use my legal musings, here’ the pertinent cite for relying on a memorandum:

Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

Anyway, here’s my denial and my legal brief filed at the BVA a while back. I guess it (Gust) will be recognized as applicable to my client and we’ll prevail. For the record, I submitted a dynamite IMO from my Mednick crew but VA insists no such thing as an herbicide was ever used at Fort Mac. Mr. Gust’s decision speaks otherwise.

redact RD 1-8-2021

redact filed 10182 2-19-2021

Judge Toth is a former Navy JAG. His job was to punish enlisted miscreants who drove while ETOH’d, went AWOL or deserted. He regularly met and prosecuted the dregs of the enlisted corps and some say has a noted propensity to carry that animosity and bias into his new job on the Court. I’m sure there are two schools of thought on that but it’s well-documented that JAGs, as a class of judges post service, are fairly strict and hew to the government being right more often than the Veteran. So it rolled my socks down to see the Judge not only agree  with the Vet but actually reverse the Board’s findings of fact. That’s flat out more rare than unicorn manure. You just never see it happen (unicorns taking a shit and JAG judges reversing the Secretary).

Judge Toth’s law clerks did some deep research confirming all this. Imagine using some of these six compounds in concentrations 13 times greater than what we had for breakfast in Vietnam every day. What is most important from my view is the concession of the presence of these compounds in a residual state years after spraying. This will be cut and pasted by hundreds of Vets soon and a whole new stateside industry of AO claims will benefit from this decision. Here’s the pertinent part:

“The Board reviewed all of this information but determined that Mr. Gust did not provide “competent or probative evidence that he was exposed to an herbicide agent by virtue of contact with the soil or grass during basic training at Fort McClellan.” R. at 12. The Board regarded the Mathers report as nonprobative as to exposure because its conclusion—soldiers who trained at Fort McClellan were likely to have been exposed to herbicides—was “based on active spraying of herbicide agents at that base from 1974 to 1976.

If this were a logically thought out theory, then how are we to assimilate the idea that we spent gazillions of dollars excavating Bien Hoa Airbase for residual contamination by TCDD 50 years after the last drop missed the C 123’s tank and fell onto the PSP? And it’s rumored they’re contemplating doing the same up at Da Nang Airpatch. Hellooooo?

Another thought I’ve had over the years is what happens if you went by Pelham Range merrily spraying Crossbow on Monday and a fellow worker from Civil Engineering unwittingly came by on Thursday spraying Gunslinger. Wouldn’t those two compounds have the natural proclivity to combine into a more sinister compound like Agent White? What’s more, one would think Layno/Jandreau and its progeny cover our ability to testify that we came in contact with the grass or soil. I don’t see where that requires a doctor to weigh in with a yes or no. The Court agreed. I reckon the Board just disremembered the holding in Layno. It was quite a spell ago. Shit happens. At the VA, lots of shit happens.

I wish to congratulate my good friend Zach Stolz. He was the VA law dog that engineered this masterpiece along with all his supportive staff at Chisholm, Chisholm and Kirpatrick. It will go a long way toward providing ammo for future Fort Mac Vets… like mine. Thank you Mr. Gust for your perseverance in prosecuting this to the finish. It’s value cannot be measured.

I enjoyed this. Shades of Risky Business. Another U Boat commander.

Posted in Agent Orange, AO, CAVC ruling, DM II, Tips and Tricks, VA Attorneys, Veterans Law | Tagged , , , , , , , , , , , , | Leave a comment


Perhaps I should rephrase that as looking for PACT claims in some Vets’ c files. Over the last four months, my VA attorney and agent compadres have noticed, and commented repeatedly on, the sudden slowdown in VA claims adjudications. No, you Vets out there-some of whom have been waiting years-are not suffering a fig newton of the imagination. I’m pretty sure I finally deciphered the problem.

As most know, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act -aka the SFCHRHOPTACT Act- was passed by Congress back in the dog days of summer last year. VA poohbahs promised to have this new program up and running by January 2023. As we know only too well, VA promises a lot of things to any who ask. Honoring these promises seems to be another matter entirely. Seems I remember they’ve been promising to clear up the backlog as far back as the inaugural rollout of the VBMS in ’14. Unlike Virginia Slims®, we still haven’t come a long way yet. This one appears to be headed down the same road as fixing that little problem with Social Security funding.

Imagine having a go kart and every kid on the block wants a turn riding it. Eventually it breaks down or runs out of gas. There are 80 kids/day and one kart… Now imagine last year when there were only 50 kids each day who you promised a ride to but you only were able to let 30 kids/day ride it.  20 kids per day times all summer long had to wait until you got it repaired or refueled this spring. By rights, if you’re a stand up guy, you’d give those 20 the first shot at it before the 80/day who just queued up this summer. The inoperable phrase here is ‘stand up guy’.

Denis the Menace and his F Troop krewe want to make everyone happy asap but this is impossible. So the repair order is to give five of the kids who’ve been waiting three years rides and then let 30 new kids cut the line and jump in. Lather, rinse and repeat. In a nutshell, that’s what’s afoot at your local Fort Fumble. It’s actually more like a tug of war between competing factions with an ad hoc mixture of Vietnam Vets, Iraquistan burn pit Vets and AOD (advanced on the docket) Vets who are dying- all fighting for a shot at a ride on the claims go kart. And this doesn’t even include the last stragglers left over from the Korean War. Let’s call it what it is- VA’s new version of ‘equity’ for lack of any better descriptive noun.

Now, if that isn’t the equivalent of a world-class fustercluck, imagine VA raters sending each Vet out for a c&p with defective instructions on what you want them to do. The c&ps come back saying ‘yeppers, he has Parkinson’s’ but the rater requesting the c&p really wanted to know when he came down with it. So they request “clarification” and do c&p #2 40 days later. This one comes back with most of the the desired info but Mr. Rater says “sheesh, they didn’t determine a ‘baseline degree of disability’ from the date of claim. Guess I forgot to ask them for that.” So it’s back to the DBQ drawing board down at QTC for a third c&p. By now, your claim is six months old and they haven’t even begun to sit down and look at it yet. Remember in 2014 when they promised us pretty soon this was going to be a 125-day process max with FDC drive-thru lanes at the RO? Well, don’t feel pregnant and alone. This is an equal opportunity screwing they offer. In 2023speak, this is VA’s version of ‘equity’. Everyone gets equitably deprived of timely adjudications. Docket numbers and date -of -claim mean nothing.

Were the VA an automobile company, it would be like having to recall 60% of your rolling stock to fix the airbags for your 2016 vehicles and a “slight” backlog for all the model years accumulating since then with the same problem. Each promise and each new program to award Vets benefits- be it the Blue Water Procopio Vets, the now-entitled horde of Thailand Vets who ate “non-tactical herbicides” or the newest Afraq burn pit Vets- merely pushes further back the rating decisions and c&p exams promised to those who have waited eons to get their shot at compensation. It’s nothing more than rearranging the deck furniture on the Titanic periodically to keep it dry.

Now, if that wasn’t the bitchslap heard ’round the world, imagine all those other patient Vets waiting for eons back east on the Group W bench in DC for their a) hearings; b) evidence review; or, c) a direct review up or down on the 2019-on rating decision denying them benefits. VA, in their well-meaning desire to speed up the process, elected to hire about 40 or so new Veterans Law Judges (VLJs) with absolutely zero legal experience in VA law. They promised this eventuality back in 2021 and finally got around to doing it last summer. Every swinging one of them (they, their) d—s has to be taught Veterans law before they can venture out on their own solo and begin adjudicating claims. So who would be the logical choice to teach them? Ol’ Denis the Menace and his merry band of chuckleheads didn’t think that far ahead. Guess who? Yep, the existing VLJs and staff attorneys who were, and are, supposed to be doing your claims. So, not only do we have an intractable traffic jam at the BVA but an ever-increasing backup of world-class proportions at the 58 Veterans Service Centers across our fruited plains which, incidentally, still do not have their promised drive-thru FDC claims filing lanes installed yet.

This morning, I spotted VA’s Friday morning attaboy employee email from the current “acting” Under Secretary for Benefits Josh Jacobs crowing about how they had just had their world class best day ever on January 23rd completing almost 8,400 claims- one of the top five highest claims production days in recorded history. I’m guessing the other four days they refer to were in the days and weeks shorty after the war of 1812 or the Spanish- American dustup of 1898.

Almost every one of my Afstan Vets, which are, for the most part, TBI casualties, has one of these identical VA memos (below) in their files on January 23, too. So, we can extrapolate and infer parenthetically that DoD identifying a burnpit victim for VA qualifies as a “claim production” for statistics purposes. Mind you, no actual compensation claim or disbursement actually occurred.  Shoot, this is kinda like elk hunting with an RPG. Lots of success but not much meat to speak of.

Redact §1119 VA memo

Conversely, I don’t see any §1119 PACT claims adjudications- or even VA memos for that matter- that my Thailand and Laos brothers were identified as being toxically exposed to AO on January 23. What’s even stranger is that I can remember burn pits that were so skanky during my war that the mosquitos wouldn’t even approach the vicinity without a gas mask. I guess they aren’t the same kind of burn pits as the §1119 sand rancher versions. Well, either that or they just weren’t in the “correct” geographical locale to qualify. There must be something speshull about SWA burnpits.

Lastly, I wanted to share this tidbit I received this morning from a close friend. I want to apologize up front for my passive aggressiveness. I know I’m not always the model of civility and have sometimes been known to publish embarrassing things about our wonderful VA system. I think that’s an unfortunate byproduct of having been denied myself for 28 years.  The VA’s Purple Book or the VA IMO sh*tlist come to mind.  But interestingly, it seems if you’re at the Wilmington, Delaware VAMC and use one of the three available desktop computers in the MyHealtheVet area, you’ll find is blocked as being an evil, virus-infested hazard. I wonder if it was something I said? So, if you’re bored and sitting around your local VAMC at 1500 Hrs waiting for your 1000 Hrs appointment for ________, sashay over to their computer and see if it’s a nationwide phenomenon. I’m Bad Company… and I won’t deny it.

We speak to truth here. I’m not going to ever blow smoke up your butt. I’m going to teach any who desire to know how, the best way to win a claim-free. I don’t offer the techniques based on one claim I did pro se for myself ten years ago. At asknod, I’m able to show repetitive results for the same claim issue over and over, VA’s evolving and ever-changing reaction to the claims, and how they continue to improve on the ‘delay/deny before we die’ algorithm, constantly metamorphoses. I’ll keep you abreast of their change orders.  All you have to recognize is that if they’ve decided to change the Obstructive Sleep Apnea ratings criteria to deprive you of the 50% for a CPAP, or the sudden need for compensable hearing loss to qualify for that 10% for tinnitus, that the process is getting more and more adversarial by the day.

I don’t know if VA reads the tripe I offer you all, but I hope that by exposing the fact that our proverbial VA emperor is indeed naked, it gives all of you more insight and ideas on how to outfox their attempts at denial.  Remember, I do not advocate cheating. I want all of you to win if you’re legitimately damaged by your service. Consider asknod a Cliff Notes™ book (free) on how to herd VA cats. No pay walls. No membership dues. Just knowledge from someone who really enjoys walking point in this poker game.

P.S. This is priceless. I wish there was video to go with it. My LRRP/former cop sent it to me. If you’re as demented as me, you’ll want to pull this on your next spam call. Enjoy.

Posted in Blue Water Navy, Complaints Department, Humor, Legislation, VA Agents, VA statistics, VBMS | Tagged , , , , , , , , , , | 2 Comments


Wow. Groundhog Day already. Shut the front door. If I were five years old, I’d of figured a year had transpired already. At almost 72, it feels more like New Year’s was a week ago. I had a kickass Higher Level Review  with a nurse as the reviewer this AM. It was a situation I never ever thought I would have to fight for. Imagine you have a brand spanking new BVA decision granting you your long fought (2019) Hep C with residuals and F4 Metavir cirrhosis. You’re expecting ratings commensurate with the level of your debility. And then some goombah rater hands you a 0% for the hep and denies the cirrhosis the BVA just gave you. Welcome to the new, improved AMA circus merry-go-round. We used to call it the Hamster wheel. 

 Chuck is a Vet who did Army until he realized it was more comfortable to fly than march. He transferred to the Air Force and finished out his 20 as a light colonel. Wise man, he.  Unfortunately, he’d picked up the hepatitis from jet guns or dental work along the way. Doesn’t take much in a herd setting like the military. Remember them jars of blue juice in front of the barber’s mirror they put the straight razors in? How about that skanky old leather strop hanging off the side of the chair? In spite of the obvious, VA wasn’t having any of this hooey and denied. I don’t know how you’d get hep anywhere else but in the military if you spent most of you life in it. VA felt he might be less pure than the driven snow and somewhere in the time right after retirement, began the cherchez la femme noire or snorting the white lady. The aspersions were subtle but firm. Ewwwwww, Chuck. You have a ‘dirty’ disease.

That’s when he came to me and asked for the secret password and the Caluza handshake. I scooped the entire file and shipped it off to my IMO outfit. I filed at the local Fort Fugetaboutit a month or so later. They flat out blew it off as useless and denied again. Because it the dawning of the Age of AMA, I filed the NOD and let the BVA VLJ’s common sense prevail.  It paid to get it in front a knowledgeable Judge as long as s/he was pro-Veteran. And we sat back to wait. And wait. etc. And then the pandemic hit. And more waiting.

Chuck says while he was at the VAMC on Valentine’s Day 2022 , he sashayed over to the DAV table and asked the Bozo a few questions about the new PACT act and what the parameters were going to be. Mr. DAV was more than obliging and said sign here and I’ll give you the briefing. Chuck asked if it was kosher to have two POAs going at the same time and Mr. DAV assured him it was legit. Boom. POA cleanup on Aisle 5.   I knew I was missing a client but couldn’t find him because it takes a lot of time to find out which guy is AWOL.

So Chuck calls up around Father’s Day and said what the hey? Weren’t you gonna call me and tell me we won? He was flatass speechless that DAV purposely would lie and pull a stunt like that. I’m not. I’ve read of a NSO that argued to reduce a Veteran with a rater in a DRO hearing transcript. And he had the balls to do it with the Vet right there in the room sitting beside him no less.

redact HCV BVA win

Redact RD 6.1.2022

So anyway, Mr. DAV whips up a four-page Appellant’s brief  right before the decision without even discussing this with Chuck. Remember, I already had mine in for a year by now. Shucks. Chuck thought they were working the future PACT burn pit gig for his sinusitis. Hey. VSOs are what they are. They suffer from too little training and two huge egos each. Their mother organizations refuse to give them too much info like SMC and concepts like CUE. Never heard of it. §3.156(c)? No such thing. The game ends at 100%. Trust me. I do this for a living. Go home.

Having access to the system, I can see the BVA decision hit CASEFLOW at exactly at 14:18:16 Eastern on May 31st. The completed rating decision was uploaded at 08:23:49 Local (Pacific) here at the DROC in Seattle. 0% for hep confirmed and continued. Cirrhosis denied. DM2 denied. Gall bladder removal denied. The teaching moment when you read it is the deadpan giveaway. “He didn’t have cirrhosis in service and has no history of it until after service so it can’t be service connected. The VA c&p clinician held that it was less likely as not you’d  get cirrhosis from hep c if you’re cured. Thank you for your service.” Better than that, the RD says boy howdy did we stay up all last night reviewing your records in order to be able to share your brand new rating with you bright and early this morning.

Not to be outfoxed, I had Chuck round up every private medical record he had since we’d filed the appeal. I submitted them all with a supplemental figuring that would clear the air. I even went into the tool box in Adobe 9 pro and used the call-out boxes with arrows and pointed to words  like “cirrhosis, gastritis, hepatic encephalopathy, malaise, arthralgias, nausea and vomiting”. Once again, I drew a zilch. My final legal gasp when dealing with mental Lilliputians is one last stab at finding competence in a field of stultifying gomers. I decided to try a HLR before setting sail for Washington D.C. At least I could honestly tell a VLJ I tried to reason with these shit-for-brains below at the puzzle palace.

Redact RD 11.10.2022 RD

I quickly filed the 996 to get it over with and sure enough-about that time the HLR instant Informal conference program ended. Used to be, you filed the 996 and the phone rang about an hour later with a reviewer asking you if you were ready to rock and roll. Now, all of a sudden, you file  for it on line at scheduleconference@vadotcom and get crickets. I filed 11/15/2022 and finally got in today. The St. Petersburg DROC may have been eager to put this to bed. Maybe they thought they were still dealing with the DAV chowderhead. I dumpster-dived that VBMS all day yesterday and pulled up all kinds of rich quotes. I had four pages worth including the actual regs to quote from. The gibberish from Nursey Nurse Ashley the VES booth bitch was priceless. She tried to sound like a Nobel Prize winner. Even better, the BVA judge had discounted VA’s two prior c&ps exams for being bogus and used my hired gun’s. The RD they were trying to pawn off on us now, in 2022, still relied on the bogus opinions in the evidence section like they were gospel. Sorry Charlie.

The icing on the cake was that my Reviewer this morning was a bonafide Nurse. She didn’t say which (APRN/PA etc). but at least she understood the concept that you didn’t need an acute case of Hepatitis C to qualify for the residuals. That’s the problem now. These c&p factories of QTC/VES/LHI/Optum teach their own folks how to do this. They’re using VA’s manuals They’re indoctrinating them in certain incorrect beliefs such as once you cure the Hep, you’re good to go… like the flu or a cold.

redact HLR 2.01.2023

All in all, it was a good Groundhog Day. Another Vet is saved from the machinations of the evil VA Goliath. Now, wait for the merry-go-round to fire up all over. Murphy’s law posits if it can get more screwed up than this…. it will. Honestly, herding cats might be easier.

 For some reason, VA has begun denying IMOs written by Board certified surgeons using nurse practitioners barely dry behind the ears. Their rationale borders on the incredible and they aren’t above citing to Wikipedia. I had one recently where an optometrist called bullshit on a noted ophthalmological surgeon 30 years his senior. Yep. The VLJ cut him in half and decided in my client’s favor. But this just begs the question of how we arrived here. Riddle me this. Since when does VA get a bye on medical opinion superiority? I could see a pissing match between two neurologists and in fact just went through that. But why?

The whole VA justice system is tilted ever so slightly in the Veteran’s favor-or was. The benefit of the doubt is a powerful tool but it only kicks in at the end when all the goodies are stacked up on the justice scale. If everything is in approximate equipoise then you win.  If your doctor disagrees with VA’s doctor, then it’s a tie and you win. Since the advent of the new Administration, that rule seems to have been turned topsy turvy. You can’t win fairly on a big claim-especially one with a big retro- at the local fun house. It’s almost guaranteed these days you’ll be sitting on the Group W waiting bench with Arlo and the gang for a lot longer than they promised us when they sold us this new system.

Posted in HCV Risks (documented), Higher Level of Review (HLR), IMOs/IMEs, Tips and Tricks, VA Agents, VBMS Tricks | Tagged , , , , , , , , , , , , , , | 5 Comments


Here’s a Powerpoint presentation for VA employees I received from an Agent I helped get her wings. Imagine that. In one session which they claim will only consume three (3) hours, they propose to make you a VA Jedi Knight and capable of spotting CUE from afar. Ruh-oh, Rorge, as George Jetson’s Astro used to say. Page three makes the mistake of confining the error to strictly one of law and ignores the second tine of the CUE fork inasmuch as it could also be because the chowderheads fixated on the annotated STRs and failed to discern a factual error-e.g., one where the rater forgot to look at a DD 214 or the personnel folder and spot the Purple Heart or the Combat Infantryman’s Badge. This, of course would have required giving the Vet the combat presumption under 38 USC §1154(B)/ 38 CFR §3.304(d). Bingo. Denied. Next?

Here’s the VA version of CUE for Dummies.


And here’s the first error in the lesson…

page 3

A finding, as mentioned above, is not negotiable. If it’s a finding of fact about the evidence that is in error, it’s CUE. If it’s a finding of fact about the application of the regulation that cited to the wrong legal standard, it’s CUE. Once that determination is made either way, the second phase kicks in-did it manifestly change the outcome to the detriment of the Veteran? VA likes to rehabilitate these old CUEs by fixing it in 2022 and giving you a 0%  back to 1970. But, using the above Powerpoint metric, any error surrounding the evidence of record wouldn’t be CUE-just an error in applying the law. Words have meaning.

§3.104(a) sums it up best:

(a) Binding decisions. A decision of a VA rating agency is binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A binding agency decision is not subject to revision except by the Board of Veterans’ Appeals, by Federal court order, or as provided in §§ 3.105, 3.2500, and 3.2600.

So, here’s a case study for you Sherlock Holmes CUE hunters.

First, the Rating decision of 2015. Look at the evidence section. Do you see any mention of a May 2011 diagnosis by a neurologist that the Vet has TBI? Negatory. Right off, you know the evidence, as it was known in 2015, was not before the adjudicator. That’s CUE #1. The evidence section also mentions receipt of an Iraqistan “I was there” medal. But this finding notably misses the Combat Action Badge and two (2) awards of the Army Commendation Medal-proof of combat. That’s CUE #2. But do note they attempt to re-diagnose Mikey right out of a dx of TBI as if he’d somehow pulled the wool over Dr. McPeak back in 2011. Note also that this new c&p was done with a records review only. Dr. McPeak sat down with this guy for 50 minutes. Dr. Wyatt wouldn’t know this guy from Adam’s asshole if she met him on the street. So, refer back to §3.104(d) above. You can’t just announce your IMO is mo’ better than his first one. It doesn’t work that way. If that were true, an autopsy report would be useless. VA could just go get their own opinion and say the coroner was smoking crack while he did the autopsy. At some point you have to call bullshit on this tomfoolery.

redact CUE

I did my usual dumpster dive into Mikey’s records and right off spotted his first interaction with the VA at the local VAMC. He went to them because he was f-u-u-u———–ked up mentally. A VA doctor-and not a QTC rentadoc employee- opined in May 2011 that my boy had mild TBI which would be rated at 10% but neglected to do anything more than prescribe some headache medicine, two attaboys and pat him on the back. In a real world situation, they should have told him to march smartly down to the VARO and put in his claim for TBI. Welcome to the unreal world of VA medicine.

Fast forward through the procrastination period men always go through and it explains why Mikey finally filed in May 2014. I’m not making fun of him. I procrastinated from 1973 to 1989 and Cupcake finally ragged on me loudly enough to get me off my ass and file for my back. And then the Agent Orange shit hit in ’94. And finally, my Hep C took me out in ’06. Cupcake summed up that period of my claims existence as “Vets are alive in spite of themselves.” She didn’t even make it a personal statement about me. You’ll note I’m still married, too. So I have that going for me.

But read the explanation on page 3 of the rating decision above. Right off, they say Sorry, Mikey but you have no dx of hamburger brain. The sirens should have gone off in Mikey’s head but he trusted his VSO to be his sword bearer. Baaaaad idea. The rater went on and decided to totally ignore §3.104(d) and throw out a finding of fact as being bogus. Nothing was said about his combat medals.

“While it was noted in your post-service medical records that you were historically diagnosed with a mild TBI/concussion by Dr. Lisa McPeak in May of 2011, your more recent QTC TBI c&p found no basis for a dx. Additionally, your service txment records do not contain complaints, txment, or diagnosis for this condition. Therefore, SC for this condition is denied.” This is against the law in 50 states.

Again, all you aspiring VA do-it-yourself lawdogs should be reminded there are three ways you can get SC. 1) On a direct basis because your STRs show it; 2) on a secondary basis caused by another disease (example would be getting Hep C from a jetgun); or, 3) on a presumptive basis such as a Vietnam Vet  getting automatic SC for Agent Orange diseases listed in §3.309(e). Here, the rater merely  discussed SC on a direct basis instead of  examining all possibilities.  Always look at their legal standard of review. More often than not, they only look at the direct path. That’s a major reason why 74% of their ratings are CUE.

So, the denial in 2015 festered for seven years. I refiled for TBI and sent them a copy of Dr. McPeak’s old dx supporting the TBI. It caught air and some honest rater said “Holy Shit, Batman. Lookie here”. They sent him out for a brand new, in-the flesh c&p at bayonet distance and the new QTC APRN or whoever said Roger that. You have mild TBI and here’s your 10% but only effective back to last August when you filed to reopen.

What the hey you’re saying, right? Why didn’t I go full on and begin a long, drawn out fight for an earlier effective date? Shoot. That would be a waste of time. Fight the first battle and get the SC for it. Then dig the pit.  Read this filing below for CUE. I learned fifty years or more ago the value of a well-laid out ambush. First off, note that this time they had to acknowledge the 2011 dx of TBI. And, just to CYA, they sent him out to get a new c&p for the hamburgered brain box.

Think about the phenomenon of the “Blue Wall” of police. They tend to avoid jamming up their fellow officers. Good deal. We didn’t sell our fellow soldiers down the river when we served. It was all for one and one for all. Similarly, doctors tend to subscribe to the White Wall of medicine. If  you get a private shrink who says you’re bugf**ky  after a rote VA denial, a new c&p will inevitably agree with your shrink. Ditto for a medical IMO for something like TBI. I depend on it in this business. It’s the whole foundation upon which we build using IMOs to win. It’s the primary reason VA denies all the time- right up until you get your own opinion. Your chance of getting a fair shake at the VA is zilch if you folks hadn’t noticed. Praying that VA will give you a truly unbiased c&p and you’ll win is like praying that Santa will come down the chimney with that shiny new Maserati. No way, José.

I don’t fault Vets for being disgusted and walking away after a denial. I did. Twice. Jez, don’t feel pregnant and alone. We were altruistic and most enlisted out of a patriotic fervor. To have VA treat you like trailer park trash hurts when you come home. If you never learned how to fight, you’d probably lose a few teeth and have about 30 fat lips before you wised up and learned to clock the guy before he even made a fist. That’s the technique I finally came across after 30 years of this. Never never never go on the defensive.

So, I built my little punji pit with the 2011 evidence knowing someone was going to see it and cave in. They did. Read the below on page 2 and see how they very carefully granted and at the same time, adroitly segued sideways and did a soft shoe routine around the 2011 error without mentioning it or the combat presumption at all. This is another thing you, as pro se Vets, need to focus on. Any time you see a rater’s fingers typing, you can be sure half or more of what s/he’s writing is pure hooey. If (they, them, their) give you 10% at all, it means you’re probably entitled to 30%. Or more.

redact RD TBI 12.28.2022

So. How do asshole VA agents like me go after them on this? Well, as you see above, the punji pit is the first step. Let them walk right in and get impaled with a decision they can’t wiggle out of. Remember, they think we’re all dumber than a bag of amoebas. Let them keep on thinking that. Then drop that CUE nickel on them using their own evidence. Right off, you know they know they stepped on their necktie back in 2015. Thus, you hunt for every sentence, every phrase and every damning medical fact and every regulation that will support your CUE claim. You want this to look like a huge tsunami of irrefutable evidence that could only have one explanation-your version.

Now, personally, having never been taught how to write a legal brief, I tend to bogart stuff from the CAVC and the BVA to cite to say what I mean. Here below is the way I chose to go after them for this one. Granted, it’s only about $25 K worth of retro but that can be like a Make-a-Wish™ grant for a needy Vet who’s scraping to get by. Anyway, I get out my book of favorite Court cites and pile on. I know some will say brevity in legal briefs is desirable. I don’t buy it. I subscribe to the avalanche method of burying them in guilt for what they’ve done. You’ll note the way I take it down to a personal level and use phrases such as “The Secretary ignored the evidence of record and….” Humanize your Vet. Make this look like a personalized David and Goliath mismatch between you and Denis the Menace and you aim to settle the score. Throw some Latin in there to fluff it up.

redact CUE filed 1.16.2023

One thing I’ve discovered in this CUE game is to carefully read requests for c&ps. Examine what the rater who requested it is saying. What is he asking the clinician to do? When you see the note they put in on Mikey’s request (page 4-5), you know they’re pissing on the fire and calling in the dogs.  It actually says in as many words, “Write it this way.” Conversely, I’ve noticed c&p requests that pretty much hand the hangman’s rope to the clinician before the pencils are sharpened.

Lastly, and I know you pro se folks don’t have access to VBMS, I like to put in the VBMS address for the poor raters so they can find it in this lifetime. It’s just a professional courtesy but when you file a direct review at the BVA, you are not allowed to submit any new evidence. So… since all this is already in the efolder (cfile), you aren’t “adding” to the record- just annotating for the VLJ where to find it. If a pro se Vet has his cfile on a CD, he can simply refer to the cfile document construction date from the Records Management Center and point out the page the damning evidence is on.

I also have a huge (22 point font) ink stamp with “Duplicate in VBMS”  I use to send in “relevant ” evidence which is already in the file. I’ve been warned not to send in duplicates but think about it. Every time they promulgate a rating decision, they also put in the standard flyers telling you how to appeal if you’re dissatisfied. Most of my Vets have a gazillion of them in their folder so who’s the fool, fool?

I’ll report back when they cut the decision. Honestly, this is more fun than fishing with 40% DuPont stump dynamite. VA should never have told me I never served in Vietnam in ’94. Talk about pissing a body off. And they don’t hand out combat medals for heroic actions above and beyond the call of duty while peeling potatoes on KP duty.

Posted in CUE, Earlier Effective dates, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , | 3 Comments