BVA-TWO AMERICAN KIDS GROWING UP IN THE HEARTLAND

Rarely am I given the exalted job of helping a widow on such short notice. In the instant case, Jack  and Diane turned out to be Larry and Shirley. They began visiting asknod in search of that which can be found nowhere else-real VA knowledge rather than rumors and propaganda. Larry contacted me about a claim for psoriasis back in January 2016. From there it mushroomed into a plethora of questions.  Naturally, Larry, and later Shirley, began to ask for advice fairly regularly over the intervening years. Could be they contacted me earlier but I didn’t start saving the emails at that point. 

Larry aboard the USS Vermillion

Larry served in the Marines from 1961 to 1965 including a 25-month stint at Camp LeJeune from 1963 to 1965. Seems there were quite a few cancer-causing chemicals in the drinking water supply that would eventually come to light later in the eighties. To add insult to risk factor, he worked as a driver in the motor pool and his exposure to cancer-causing chemicals was far and above his contemporaries there. That didn’t seem to faze VA’s thinking later on when he filed.

As an aside, I love it when I get to write about my clients. I have to ask permission to do so and I like to think of it as a teaching moment for all of us. After all, that’s why I began this blog in 2008-to teach all of you how to play VA poker. I asked Shirley if she had any good photos of Larry and boy howdy did my inbox overflow directly after. A picture is definitely worth a passel of words which is why this article is rife with them.

Larry served aboard the U.S.S. Vermilion (AKA 107) during the Cuban Missile Crisis in 1962. He also served during a period of traumatic political upheaval in Morocco about that time as well. It had a lasting effect on him and undoubtedly matured him far earlier than his years.  Sounds like our kind of people.

U.S.S. Vermilion

Larry and Shirley were both raised in the small town of Baxley, Georgia. Shirley said he caught her eye early on. She decided to wait and see if he was the ‘right one’ for a while after he got out of the service. Apparently, he met her high standards. They got hitched in 1969. They had two sons-Bruce and Brian. Life was good  for forty five years- right up until it wasn’t.

Larry was diagnosed with glioblastoma multiforme in 2013 and began to get ill. All the King’s men and all the King’s horses couldn’t put Larry back together again. His service at Camp Lejeune was, for all intents and purposes, his only risk factor for brain cancer. Unfortunately, the VA folks didn’t see it that way. Larry filed in 2014. VA fought him tooth and nail with no less than three IMEs saying Larry smoked, drank, carried on and was an iron worker. Shoot. There you go. Guilty. They said his post-service risk factors were the cause. They even went so far as to point to his preservice work (about 5 months) as a service station attendant with exposure to gasoline which contains Benzene- one of the chemicals in Camp Lejeune’s water. Sure makes you wonder why that Baxley Benzene was more toxic than what they were pouring into the Marine camp’s H2O. Problem was Larry didn’t pump gas. He was way smarter than that and drove a tow truck. His only risk factor was getting clobbered by a tire iron changing flat tires or repairing them. They didn’t do their homework.

Larry passed October 22nd, 2017 after a long battle with his disease. In fact, he was so ill, he was unable to attend his BVA Travel Board Hearing in April 2017. Shirley did it solo inasmuch as she had a Georgia Dept. of Vet Affairs braindead tag along who did his level best to hamburger the issues. I note in the hearing transcript that Judge Ursula Powell finally had to tell the gomer to quit flapping his lips so she could elicit the real facts about Larry from his wife. Judges generally don’t tell a VSO to put a fork in it during a hearing. Shirley put in some high-quality evidence but, as we all know, if you don’t have that MD after your name, it’s like trying to cut meat with a spoon.

Judge Powell did give Shirley an honest shot at a new IME but we all know what a VA “Independent Medical Evaluation (IME) really is. They just get a new rope and a fresh horse. That’s why we call this game a Texas Necktie Party. Sure enough, the new IME was a déjà vu prognosis. Old Larry was room temperature due to all those eeeevil habits he had both pre- and post-service. Shirley disremembered any of these evil habits and had told that Judge as much back in April. Fortunately for her, Judge Powell’s asking for that IME gave her a spell of breathing room to call me in early November. How could I turn her down? As a lot of you know, Theresa Aldritch (T-Bird), the owner over at the Hadit.com® site has a trademark logo I often point to that is my battle standard as well…

 You tell me how anyone could walk away from this obligation if they had enough knowledge to help. Some who know me understand I had to do that once upon a time in a far away place a long time ago. Never again will I leave anyone behind if I can possibly help or no one else will. Not on my watch. Even if I lost this one, I was not going to deprive Shirley her day in court. This isn’t about money to me. It’s about that bitchslap VA gave me in 1994 when they told me I disremembered being in Vietnam. Said it must have been some other body.

I use a technique most would call ‘offensive representation’. My daddy’s unofficial motto was “It ain’t a f___up until you can’t fix it.” Of course, too, my daddy was a P-51 fighter pilot ace with 16 1/2 kills. You never bail out until you can’t fix it. I’ve always advocated this posture. It does no good to sit in a static defensive posture and wait for the inevitable attack. You create enfilading fire. Make them run into and through some new evidence. I immediately obtained a probative nexus letter (IMO) from my new best friends at Mednick Associates. I had noticed a fatal flaw in each and every one of  Larry’s VA doctor’s nexus letters. They weren’t so much nexus letters as they were “absence of evidence is negative evidence” diatribes. In addition, each IMO mistakenly explained over and over that glioblastoma was not on the list of the eight magic diseases caused by that skanky water. Well shucks. You don’t have to have a degree in oncology to say that. What you do need is to consider whether the glioblastoma was caused on a DIRECT basis such as working in the motor pool, bathing, showering or drinking the water. Or… because you served there over 2 years. Certainly, if the minimum exposure to qualify for the CJCW presumptive was a minimum of 30 days, what, pray tell, might transpire after 760 days? Anyone?

VA “experts” sometimes get all het up about a presumptive disease and myopically focus on the presumptive aspect to the exclusion of all other factors in the Vet’s immediate environment. All I did was spot the absence of any discussion on VA’s part about whether it was caused by direct versus presumptive. Seems to me these Doctor folks stepped on their presumptive neckties and Judge Powell caught them out.

We don’t always win at this game but I’d expect there must have been some chemistry or shared angst between Shirley and Judge Powell that contributed to this success. Lord knows it wasn’t due to my cutting-edge legal talents. Shoo doggies- I sure don’t have any juris doctorate. I just have that prescience born to all of us called common sense that tells you when a wrong has been perpetrated on another. I’m glad I was able to somehow sway Judge Powell’s thinking (if indeed I did) in this claim.

I do have an alternative pet theory. Judge Powell has been doing this for so many decades now that she feels plumb sorry for all those souls she denied. Let’s face it. She’s had to meet and greet a gazillion Vets and their poor wives and deny them because their VSOs led them up there to a guaranteed slaughter with no nexus letters. It must be refreshing for her to occasionally encounter a savvy old Baxley Gal with a slick-tongued Virginia devil for her mouthpiece who happens to have the magic paper at the eleventh hour.  Well, anyway. That’s my take on it.

Here’s my argument for service connection and Judge Powell’s opinion.

Medders BVA intro of new evidence redacted

Medders BVA Glio + r2 redact

I’d also like to thank Adam Taranto of Mednick Associates for getting me the nexus letter lickety spit that saved Shirley’s (and Larry’s) bacon. I don’t much cotton to advertising on my site as you all know but in this case I cannot sing Mednick’s praises loudly enough.  You always get a warm, fuzzy feeling deep down inside when you win these for folks like Shirley and Larry. I expect my association with Mednick can only produce many more.

I reckon Larry can rest easy knowing a fellow Veteran (even if I wasn’t a U.S. Marine) didn’t leave him or his kinfolk behind. It’s hard to find friends who care enough to help you when your own government spends a million dollars trying to deprive you of your due. I expect they spent far more denying me over my 20-year long battle-not to mention that greenhouse they’ve fought 7 years.  Seems these folks could take a page from Maj. Gen. (Brevet Col.) George Armstrong Custer’s playbook and avoid dying on my hill. Are they mad? I’m passive aggressive with anti-social tendencies or is it vice versa? Better to pick a fight with a Silverback gorilla suffering from hemorrhoids.

Cupcake and I are planning on making a trek back east directly to break bread with Shirley and her family. That’s one dinner party I really look forward to.

God Bless you Larry. I wish I’d had a chance to meet you. Rest easy. I’m so glad I was allowed a small part to play in this victory. The real medal here surely goes to Shirley for her perseverance and her dedication to her Marine.

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

 

Posted in BvA Decisions, Camp Lejeune poisoning, Food for the soul, KP Veterans, Lawyering Up, Medical News, SMC, Tips and Tricks, VA Agents, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , | 12 Comments

PROPER PROTOCOL FOR HANDLING PRESS CONFERENCES

What the hey? Not that any of you avid readers will ever encounter this intractable problem, I nevertheless supply it for that inopportune moment when you find yourself at a temporary loss for words. As an important mentor instructed me once during the war geographical argument over certain territories in Southeast Asia “If you can’t impress them with your intelligence on the matter, baffle them with your illuminative bullshit”. Herewith, I submit same. 

Premier Kim Jong-Un announced he would personally be giving a news conference discussing North Korea’s imminent landing of a man on the sun within the next several years. After his initial announcement on the subject, many reporters raised their hands with questions for the Premier.


One rude reporter shouted out, “Rubbish. The sun is thousands of degrees Celsius. No one can even get within 10 million miles of the orb! How do your propose to do so?”
 
The audience was stunned with the reporter’s brazen query and the room fell into a long silence. Jong-Un, unruffled in the least by the outburst, declared in even tones “We will land at night.”

The gathering and everyone in North Korea watching on television broke into thunderous applause at his rejoinder.

 

Back in Washington D.C., Nancy Pelosi and her staff were watching the news conference. Upon hearing Jong-Un’s remarks  about the sun landing, Pelosi sneered, “What a complete idiot – everybody knows there’s no sun at night.”

 

Her staff broke into thunderous applause at this tidbit of insight.

In the immortal words on one Forest Gump, a noted philosopher- “Stupid is as stupid does.”

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

Posted in Humor, KP Veterans, VA Agents | Tagged , , , , , , , , , , , | 4 Comments

Potassium conundrum

My old Marine has been undergoing various tests to determine the cause (s) of his current gut problems; no answers yet.  Along the way, he has been warned about recent high blood pressure spikes and kidney function problems which include high potassium (hyperkalemia).  His last potassium reading was high enough to be told to go the ER to get checked out; his other  tests were mainly okay.  Why the insistence on a trip the ER? It turns out that too much potassium can slow or stop hearts.  These facts, and the words “acute and chronic kidney failure” on his problem list have our attention.

The only dietary advice he received was to cut out foods like bananas so I’ve had to analyse and change our menus by consulting online renal diets from authorities.

The VA’s Kidney eClinic website (LINK) provides basic information with a focus on DMII and high blood pressure and self-care.

Click screenshot to go to this site.

The site states that VA issues BP cuff by request.  Within a few days, he received a really good cuff.  An unpleasant thing about all of this is that his kidney numbers haven’t been too good for quite awhile but his PC docs didn’t deliver the bad news–VA or non-VA doctors–even though he has DMII.

Image from VA-issued blood pressure cuff.

Our “Mediterranean” diet no longer controls his DMII either.  Someone is cranky about all the new dietary restrictions to add to the old ones but adaptation is essential as we age.

I used to think of food ingredients as, well, food.  Something comforting and good like mashed potatoes.  Now I think of it as chemical compounds we ingest–beware.  Cooking potatoes, if at all, is a whole new experience.  Blah….

Kiedove

 

Posted in Agent Orange, All about Veterans, Food for thought, General Messages, Guest authors, non-va care, Tips and Tricks, Uncategorized, VA Health Care, Vietnam Disease Issues | Tagged , | 5 Comments

SPRING NOVA–LINKEDIN ON STERIODS

One thing you can always count on is running into someone you either know or have read about at NOVA conferences. I got a bang out of being introduced to Bart Stichman who said I didn’t “look” like asknod. Okay, I’ll bite. What’s an asknod look like? The other interesting situation I get a kick out of is folks coming up to me and saying Gordon! How are you? Remember me? We met in San Francisco in 2015 Spring NOVA. Not.  I don’t go by my first name. I’ve never introduced myself as Gordon to anyone ever. Buckwheat, maybe. Alex almost always-but never Gordon. 

This NOVA looks to be a wee short on presenters and choices compared to some in the past but learning about how to saddle a VA horse and ride it is always interesting. That’s the beauty of VA law. It constantly mutates with new legal breakthroughs and all those wonderful cutting edge programs like the new RAMP rocket docket appeals fiasco. Who in their right mind would sign up for one of these programs? The deck is already stacked against you. Why volunteer to have what’s left of rump denial perpetrated even sooner?

VA has long protested that the much-vaunted duty to assist Veterans is uppermost in their minds. How is it then that they have been trying their damnedest to eviscerate that duty with the Fully Developed Claims (FDC) program?

I fear the day when they will declare CUE a thing of the past and declare that Dead on Arrival. As it is, it’s one of the few tools at our disposal whereby we can attempt to right a wrong perpetrated on a Vet who was clueless in 1970. I have several of those in the oven right now and each is a veritable antique ratings error.

Ever since the Fugo decision, we are tasked with being anally attentive to detail in how we describe a CUE to ensure it is precise and not too ambiguous such as to fall flat like baking a soufflé at a daycare center. Additionally, one has to determine if it was a CUE at the BVA or the AOJ. Was it subsumed by a later  BVA decision on the exact same grounds? The pitfalls that precede a CUE filing are numerous and exacting. One false step, one wrong assumption and your CUE is dead in the water. The fact is, winning a CUE is undoubtedly the hardest thing to accomplish even if you have all the ingredients. 95% of the time when I lay it out and submit it, I get a denial back in the next day’s mail. Hell, if it took me a month to unravel it after glossing over a c-file six times, how in Sam Hill can a VA Appeals Team GS-12 wünderkind determine it isn’t CUE in such short order.

My personal best was last November when I caught Phoenix out on NINE CUEs in one decision.  Just for poops and grins, we decided to go back and roll them with a NOD for r(2).

I like to fight VA the way I fought  the war. An offensive, aggressive stance is my signature trademark. Why be nice? They sure as hell aren’t going to reciprocate in kind so the pleasantries are wasted. Set up your M-60s on the flanks of your ambush and draw them into the middle. Keep hammering the evidence out in front of them until they run into it and “discover” it on their own. Let them think they are the Einsteins who discovered the miscarriage of justice.

As many times as I have been admonished not to resubmit old existing evidence, I ignore them. It might be old but if it’s material when taken in context with anything newer that unequivocally supports the claim, then it isn’t redundant in my book. Remember always, the last thing submitted will always be at the top of the .pdf file. If it’s the smoking gun, it doesn’t help if it was submitted in the last claim that was denied and it’s buried on page 492.

Cupcake has taught me from her real estate experiences that a human mind (let alone a VA rater’s) has an overload limit. Sometimes you have to do a powerpoint presentation for some of those VA gomers at the Puzzle Palace. After about  40 pages, their eyes glaze over. It’s not about  making a good presentation. It’s about keeping  the burning bush at the top of that claims file in the first ten pages when they’re formulating that defective denial. Better yet, explain it several times over. I try to use monosyllabic words that don’t go over their heads, too.

And that’s all I’m gonna say about that. Time for a Single-malt Scotch and some good VA war stories from the troops in the trenches. More anon

 

Posted in 2018 SPRING NOVA San Diego, CUE, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , | 3 Comments

2018 SPRING NOVA IN SAN DIEGO–RAIN & 59°

Hi-Ho, hi -ho, it’s off to Cal we go. And here I thought I was going to pack my swimsuit and the Coppertone® and scare the bejesus out of all the women at Loew’s Coronado with my 12X12-inch Alloderm™ patch on my belly. It’s a daisy. It’s also the largest they make. It was a perfect fit… until the VA Doc put the wound pump on it. Six ventral hernias later, I’m still here.

 

As you can see from the view on the high diving board, you have many areas to aim for. Accuracy of execution is of utmost importance here as well.

Cupcake and I are flying down this trip due to our sick horse. We love to drive but this one just isn’t in the cards this year. Besides, realistically, how many time do we need to see some big trees and a bunch of sea lions hollering at the bottom of  a cave. I’m personally hoping the dogs have a slight case of Indigestion and the shits (from an accidental ingestion of too much Exlax™ ) next spring. We could probably fly again. What the hey? Not.

Spring NOVA 2019 is in Nashville. but Fall NOVA is in Portland- as in Oregon. I can motor that in 3 hours or less in the Cupcakemobile.  This sucker will part your hair with the windows up.

Why would a woman need this kind of automobile when she never gets on it? It’ll pop from 50 to 90 in less than three seconds. I don’t think I’ve had that conversation yet with her about it’s extreme acceleration capabilities. I figure she’d never believe me.

See you in San Diego. Be there or be square. Learn how to play VA poker and beat them at their own game.

 

Posted in 2018 SPRING NOVA San Diego, All about Veterans, Inspirational Veterans, KP Veterans, Medical News, Nexus Information, NOVA Attorneys, Tips and Tricks, VA Agents, VA Attorneys, Veterans Law | Tagged , , , , , , , , , , , , , , , , | 4 Comments

CAVC–#18-1009- YOU’VE GOT TO BRING BACK THAT LOVIN’ FEELIN’

Wowser. Old Butch asked me since bein’s how the Seattle Puzzle Palace refused to do his claim when they promised to, if we could fun them right back and slap ’em upside the head with another Writ of Mandamus for Breach of Contract. I said sure, why not? I’m not going to put my name on this. No need to. Turns out Butch is quite the experienced English major.  So “Butch”wrote this one up to see if the CAVC Judge didn’t cotton to perjury.

Redacted Writ

Well, boy howdy is the Honorable Judge not only a little miffed at getting dissed barely six months into his new job. Lands but he took two pages to say he wants some fairly firm answers in 14 days and 13 nights. That would be about the 19th of March or the end of Spring NOVA if I read my calendar right. Shooo, doggies. Maybe I should tell them fellers down at the Regional Office that Butch (and I) are going to be incommunicado from the 15th to the 19th. They seem to lack a telephone number for him. Mine will probably go onto the answering service for that period. I anticipate a high call volume in order to quench the good Judge’s anger. Bummer dude. No answer…

Cupcake and I are flying down instead of driving because we have a horse who’s a week post-surgery and he needs to be supervised. Kona can peel a bandage off under a sleazy as quick as you can say Jack Robinson.

In most cases, and my current one for my third stab at an Ex Writ for my greenhouse is a fairly representative example, a CAVC Judge will allow 30 days for a nuanced discussion on what the Secretary has to say or apologize for. Hell, sometimes they (VA) even ask for another two weeks on top of it-and the Court grants it. Even if the excuse for delay is flagrant, flatulent and flimsy but still accomplished what was deficient, the Secretary will get a bye in spite of the delay.

18-938 Order -30 days 3-1-18

But…. when you blow off the Judge and the Butchmeister’s suspense date of January 28th by a month (and still counting), with no date of a decision given or even contemplated on the horizon, well then, you get what the Court likes to call  the double secret extra extraspeshull treatment…

Accordingly, it is
ORDERED that within 14 days of the date of this order, counsel for the Secretary provide the Court with the information described above. It is further

ORDERED that the Court will not entertain any motion for an extension of time with respect to the Secretary’s response to this order.

Remember when you were back in ‘Nam and some FNG next to you cut loose on auto and forgot to remove those 3 tracers at the end of the mag? Remember how the ground and the trees around you positively seemed to come alive with all that incoming 7.62 a few seconds later? Well, try telling the Court you’ll have this sorted in 90 days and then come back and laugh and tell them how you were just funnin’ them. It’s about the same. The incoming is going to be a shitstorm of sanctions unless -hell, there ain’t no ‘unless’ this time. I smell blood in the water.

Document

Posted in Extraordinary Writs of Mandamus, Humor, KP Veterans, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , , , | 7 Comments

HADIT.COM RADIO SHOW–ALL ABOUT VBMS AND CMAs

Boy howdy did life get a whole lot finer in a week. It’s not perfect but my Change Management Agent (CMA) at the Seattle VA Regional Office is a real go-getter. She had been in the CMA saddle all of three days when I met her Tuesday. She subtly indicated she doesn’t always agree with what happens in Appeals. I sure hope she takes a shine to CMAing. With VBMS access and a real whippersnapper CMA, you can move mountains in short order at your local Fort Fumble.

Tina is the wife of a lifer (Army Tanker) and loves this job. She intimated she doesn’t always agree with everything that happens about VA claims adjudication but hooooweeee who does? You won’t get a 3-page dissertation on that subject from me. Maybe a fifteen pager but not a trey.

No VA Bozos

Jerrel has graciously asked me to come on and discuss the latest war stories from Puzzle Palaces across our soon to be fruited plains. Call in and remind me to tell you about the one from Phoenix with 3 glossy 8 1/2 X 11 photos of about 1/10 of a gram of Marijuana vacuumed from 18 pockets of a Vet’s fatigues, jacket and shirt to bust him and give him a bum discharge. Remember, these were introduced into the Vet’s VBMS file five days after the rating was in the “ready for notification” stage. He was already at SMC M and 5-year protected. VA decided to go fishing to see if they could rustle up some Willful Misconduct. I don’t reckon most Vets realize it but the VA is not allowed to depart the reservation and collect negative evidence. That’s a Bozo No-No in 58 VAROs.

Anyway, join us on Monday evening, March 5th, in the year of our Father Howard 2018. The show begins at 1600 HRS local here on the Left Coast or, adding three hours, at 1900 HRS on the (L)eastern seaboard. The call-in number remains

347-237-4819 plus the number 1

Press the number one (1, nung, môt, un) to talk live with us.

 

Posted in All about Veterans, Humor, Inspirational Veterans, KP Veterans, Lawyering Up, SVR Radio on hadit.com, VA Agents, vA news, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 1 Comment