BVA– POST GAME WRAP FOR 2019

I enjoy reading these VA reports. It beats the pants off the VAOIG VAMC hospital inspections. Since they could never pass the high bar for emergency rooms, VA simply declared the ERs persona non grata. Now, if you show up with your guts hanging out from a rude encounter with a knife, they call an ambulance for you. How Veterancentric. 

Anyway, it’s nice to see the statistics on how many appeals were remanded to death or got the rocket docket treatment. Most of the ones I’ve asked for advancement on recently still took a year unless the Vets were terminal with metastatic cancer. Fastest was 8 days.

BVA2019AR

Posted in BvA Decisions, BvA HCV decisions, BVA Purplebook, BVA Referrals, KP Veterans, Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA Motions for Reconsideration, VBMS, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

SAMUEL BAILEY–THE LAST DETAIL

Samuel Edwin Bailey 5/03/1952–2/04/2020

A year or more ago, Sam apprised me of the fact that his hepatocellular carcinoma (liver cancer) had returned post surgery. Even worse, when they went back in to take another look under the hood, it had metastasized all over. They buttoned him back up and pretty much told him it was time to go home, take his protein pill and put his helmet on. Sam was adamant he was not going to go through chemotherapy or radiation treatments just to eke out one more year of life at the expense of having to carry a barf bag around with him. He was equally adamant that we respect his wishes that he did not desire fame and fortune or a big sendoff with single malt scotch. That last, above all, was the hardest wish to respect. 

Sam, Brad and I have always had a certain inextricably intertwined camaraderie. We were all in the military-albeit in different services. Sam was Army. Brad was a Marine. I was Air Force.  We were all in Vietnam at one time or another-albeit in different places. We were all in Laos at almost the same time- albeit at different ends of the country. We all had Hepatitis C-albeit different genotypes. We shared the bond of war, having fought it and managing to live through it for the most part- albeit until now. And of course, lastly, we are falling like flies from the secondaries of Agent Orange-albeit different diseases.

Sam’s family put up a great memorial website which you can visit here.

https://www.ywcares.com/obituary/samuel-bailey?fh_id=15324

When I called to check up last October, it was evident we were going to need to prepare for VA’s shenanigans soon after he punched out. It turns out they weren’t going to have the decency to wait even that long. When I got access to Sam’s claims file on VBMS, I discovered some idiot rater in Nashville with waaaaaay too much spare time on his hands. He had decided to do a “cold case files review” to see if he could undo Sam’s 100% rating. Rocky the rater found the Army doctor back in 1971 had described the hepatitis Sam contracted in service after being wounded  was “infectious” rather than “viral”. Never mind the lab tests which said he had Hepatitis B. Forget the Hep test that said negative for Hep A. I had to call the Nashville Bozo Boy up and point out Sam had not one but two Purple Hearts. He had multiple, extensive vein stripping surgeries in his severely wounded right arm which were the most apparent risk factors for contraction of Hep C. His response was.”Wow. I guess I didn’t dial on that, dude.” Not so much as a “Shit, bro. I’m sorry.”

Fortunately, he listened to reason and just re-re-adjudicated Sam’s liver cirrhosis at 100% and said VA was “continuing” that rating after further review. Thank you. Thank you very much.

I was stuck here in Seattle following a 1/2″ kidney stone removal on 1/14/2020 with the laser canon catheter and a GoPro strapped to it. They put a stent in for two weeks and I had to wait to have it removed. Brad and I made plans to beat feet down to Sam’s for the Last Detail as soon as possible after I quit seeing black spots and peeing blood. Sam’s wife Kathie was not sure he’d still be alive by the 4th when we were slated to arrive. Somehow he’d held on. Three days earlier on Saturday the 1st, he’d  crumped and began the inevitable slide into oblivion. I have no idea how he made it that far. I was only glad he was still breathing.

Sam, Kathie and family.

I flew in and got there about 1330 and could see the end was near. Miraculously, he was still holding his own. Brad drove down from Oregon and arrived about 1930. The most touching moment was when his great granddaughter Irie arrived that afternoon and yelled “Hi, Grandpa!”She rushed over to hold his hand and kissed his forehead. She was accepting of the situation and didn’t feel our angst. In youth there is that fleeting moment of bliss, innocence and love.

In Laos when I served there, when a pilot was shot down we expended extraordinary assets to recover them. If they were subsequently captured and killed below us before the cavalry arrived, we had to get on the horn and declare “Negative Objective”. This meant no further efforts were allowed to be expended in recovering them. Our government refused to waste more lives in an effort to recover the body. This caused a 40%  KIA/BNR (body never recovered) rate. We had to fly away and leave them behind. I guess there are no words to describe what kind of toll that takes on the soul. I was not prepared to leave Sam behind- and especially not Kathie. I would have made this trip by walking even if it had been too late. With Brad being a former Marine, I’m sure he is equally well- acquainted with that “leave no one behind” mentality.

Sam departed just before 2200 hrs and seemed at peace according to all. We’ll sorely miss him. Our ranks of Hepatitis C Vets-or HCVets as we’ve come to call ourselves- are rapidly dying in spite of the magic cures. I’ve read literature that says my having Porphyria will increase my odds of liver cancer 67%. So far I’m one of the lucky ones. We’re really going to miss you, Sam. I’m honored to have been called your friend.

The folks from the Funeral Home were kind enough to bring a flag to drape over this proud man. America’s Sons of War deserve no less. And that’s all I’m gonna say about that.

Posted in 1154(b) combat presumptions, 2015 Hugfest Gig Harbor Wash, Agent Orange, Milestones, VA Agents, Veterans Law, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , | 7 Comments

Developing Evidence to Win Your MST Claim

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Winning any VA disability claim can be a daunting task. But Veterans with PTSD related to Military Sexual Trauma (MST) usually face a difficult up-hill battle for one important reason: Sexual trauma is rarely reported in service, often because of fear of reprisal, fear that nothing will be done, and because military culture tells you to “sweep everything under the rug.”

Normally, to establish service connection for PTSD, you need the following:

  1. A diagnosis of PTSD;
  2. Medical evidence establishing a link between the PTSD diagnosis and an service stressor; and
  3. Credible supporting evidence that the reported service stressor occurred. 38 C.F.R. 3.304(f).

Veterans with PTSD related to MST usually have a problem proving that third part because there wouldn’t be documentation of an unreported stressor. So how is this type of claim won?

38 C.F.R. 3.304(f)(5).

The VA has created a relaxed evidentiary standard for survivors of MST, which allows veterans to use circumstantial evidence to corroborate their report. For each MST veteran that I represent, I tell them that a case can be won or lost based on our ability to gather or create that circumstantial evidence.

38 C.F.R. 3.304(f)(5) states:
“If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.”

Evidence of unexplained behavioral changes can often be the key to any MST case. I always ask the veteran if there is a life-long friend or family member who can attest to:

  • Whether the veteran seemed noticeably different when they returned from service;
  • What the veteran was like before service, like:
    • Whether they got good grades, played sports, had lots of friends, had no legal issues, had no mental health treatment, etc.
  • Whether the friend/family member has directly observed any mental health symptoms in the veteran since service.

The VA will consider this type of evidence “markers,” or evidence suggesting the possibility that a trauma occurred. 38 C.F.R. 3.304(f)(5) describes some types of markers, including:

“a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause”

Many MST cases have been won based on the veteran’s (or their advocate’s) ability to identify the above-referenced markers in their record. For instance, I just won the case of a female veteran whose case involved the following facts:

  • Unreported sexual assault
  • Received “failure to adapt” discharge after she was hospitalized for a suicide attempt and was diagnosed with Adjustment Disorder during AIT
  • I found the following markers in her record that the VA missed:
    • Service treatment records showing loss of appetite, sleep disturbance, and depression without explanation, shortly after the MST occurred
    • Service personnel records documenting the veteran’s request to be separated because she was “homesick”
  • I submitted an appeal brief flagging these markers, submitting a statement from her aunt discussing unexplained behavioral changes, and requesting a Comp & Pen exam
  • The VA ordered the exam, procured a positive nexus, and the veteran finally received the benefits she deserved.

Winning any MST case often takes a little creativity and a lot of due diligence. It’s a balance of creating new evidence and identifying circumstantial evidence already in the record. Don’t let the VA tell you that your claim is denied because you didn’t report an MST in service. Use 3.304(f)(5) to get the benefits you deserve.

If you have any questions, please feel free to contact me at kcraveiro@roblevine.com.

–Kelsey

Posted in All about Veterans, Guest authors, Lawyering Up, MST, PTSD, Tips and Tricks, VA Attorneys, Veterans Law, Women Vets | Tagged , , , , , , | Leave a comment

VA–THE NEW VBMS USER’S PRIMER

Back in 2012 or 13, under USB Allison Hickey, we were shock ‘n awed by the foray into what would become VBMS. The crude transition from paper to electrons was like watching trees grow. If too many users logged in simultaneously, it crashed the system. Before 2016, VBMS was off more than it was on between 0800 and 1630 Hrs.  Once again, we are asked to undergo computer change and, as usual, no one at VA sends us the new user’s manual.  Us 70-year-old foggies have a darn tough time trying to “sound it out” like a lot of you younger Phonics®-trained computer users. With the death of Windows 7 logistical support last week, the VA was finally once again forced at the very last moment to leap into the 21st Century before they have to pay for it. 

Fortunately for me, I have Cupcake. She cut her teeth on MOS 1.5 for Cavemen in 1989. Ooops. Cavewomen? She quickly found all the new quirks for me.

Okay, here’s the first step which hasn’t changed. Enter in to Citrix choosing SmartCard.

Follow the instructions from here on out. Authenticate, PIN, Credentials

 

 

I’ll skip the Citrix gateway pictures of the padlock. RO-5 VBApps is now one of the four on the lower left now (as of 2/09/20). On the West Coast, MAPD is on the opening Favorites screen. Click to go to Desktop at the top and click on the blue RO-5 VBApps  TV. Be careful you choose it and not one of the others.

 

 

Then the descent into Government

 

Right here is where everybody is getting discombobuated. When the VBMS initial entry screen first populates, it looks like this now…

Wait  10 seconds and let it populate all the way. After a few 8 seconds, “Sign in options” appears at the bottom. Click on it.

Click on the little doomoflotchie at the bottom left that’s supposed to look  like a PIV card.

And you’re in. Or should be. All you have to do is wait for all the attachments giving you permission to print and roam around (level 6) to load up and away you go to

Once I reach here, I choose where I’m going -CASEFLOW, Outlook emails, VACOLS or VBMS.  I click on the little black and white Windows logo in the bottom left. It opens up your choices like doing it on you own computer (unless you’re one of those Apple idiots). Click on Outlook if that’s where you’re heading.  Or look at all the desktop Icons and doubleclick the VBMS Globe shaped dohickey (second row down in the middle).  This is the easiest path to VBMS.

If you clicked VBAPPS, a new submenu opens and you’ll be  clicking on VBMS unless you want to go into VACOLS. If so, choose VACOLS- not VACOLS VSO.

 

VBMS security is still the same.

 

Gotta type in your VARO code. 346 for Seattle

And just like that, you get to wait about 30-40 seconds for the Claims Queue to populate.

Now for some click tricks. Go to Claims up at the top right near Documents and click on the blue 020 Initial or 170 NOD EP code. The claim populates in rough form. Go up to the top and click on “Open Claim Check” and see if they secreted any interesting notes about c&ps.

If there is some info, it may look like this:

claim check.JPG

At midpoint  on the Claims screen after a list of PII metrics  and Days Pending on your client, look for “Expand Claims Details” and click on it.

It will reveal what’s going on. It tells you which RO (Claims Station) is doing the decision.  If it’s ready for decision, this is where you’ll see it if you didn’t go to “Notes” in the top right of the screen. Since it populates a shit ton faster in the claims dropdown menu, I generally go here (Claims) to look at everything.

Now for the claims command post where you’ll find interesting notes. Look up in the left upper corner for “Go To Work Item“. Click on it. Open up everything on the claims bar of Contentions, Tracked items, Examinations or Notes. If they advocate gerrymandering 38 CFR to screw the Vet out of SMC S or TDIU in tracked items, screenshoot the note(s) asap before they evaporate when RDC (Rating Decision Complete) is announced. Remember, VA personnel don’t realize for the most part that we’re in here roaming around, too. I’ve found decisions in that long list of documents that were not completed and posted to Documents yet. BVA hearing transcripts always appear here for a few days awaiting upload to Documents.

ACCESSING CASEFLOW

FROM YOUR DESKTOP

On the main desktop screen (black), look at the Google Chrome bulls eye and double click it.

A VA brainwashing screen comes on. Erase the vaww.insider.va.gov in the address bar at the top left and insert your CASEFLOW code -https://appeals.cf.ds.va.gov/organizations/your[hyphen]name.

 

It’ll take you through the security entry again. It’s the quickest way to get in without having to scrub your old browsing data and cookies before entry each time if you come in from your own desktop.

Authenticate and just like that, you’re in. Every once in a while I get these ActivClient PIN code requests. They didn’t work on the old Windows 7 system but they do now.

This is the entry for both CASEFLOW QUEUE and CASEFLOW HEARINGS. Just click on ‘Switch product’ to change over. Also, use the back arrow up in the upper left to exit each case so you don’t have to keep hitting the client menu to get back to the queue. I want to know what all the hoopla is about with this. You could discern far more in VACOLS. This  gives us less info than the old fashioned Ebenefits back in 2014.

There are thousands of nooks and crannies to venture into but this is just the get-started Idiot’s primer for the new Windows10  VBMS. Maybe next week, I’ll show you how to find that GS-10 rater in Winston Salem who has the IQ of a dead Christmas tree.

Today’s blog was brought to you by the letters V, B, M and S.

 

First P.S….. Remember  the old VBMS Wondows 8. Over the column “Last date changed” that usually sorts all the decision or recent actions, there used to be a checkmark to click on to arrange the queue chronologically. Notice how it seems to be gone with the wind in Windows 10®?

Here’s the trick courtesy of John Paul Gustad Law Group. Let your cursor slowly hover up in that top right corner until it opens a magic box with a change button. Click on it. The Queue darkens normally as it recycles and voilà! The chrono switches to last page /last document entry as the newest. Beats having to run through the VBMS Rolodex every day  looking for older entries to click on.

P.S. LURP Ed from somewhere south of Portland, who enjoys living amongst those  wild and crazy Antifa folks, sent me this.

Posted in All about Veterans, Appeals Modernization Act, Electronic Filing of Evidence, Humor, KP Veterans, NOVA Attorneys, VA Agents, VA AMA appeals knowledge, VA Attorneys, VBMS, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , | Leave a comment

VA–WAIT A MINUTE MR. POSTMAN!

When I sat down for my first VA poker game, I was using a trusted mailman- a VSO. Well, trusted insofar as I had a pretty good chance of it getting there. Likewise, being fairly naive about all this in 1989, I suppose I bit hard on the precept they (VSOs et al) were going to be my trusted knight in shining armour with a Supersize me® of Sherpa, too.  With many years comes greater wisdom. No, folks. I’m not plagiarizing it (or culturally appropriating it in @Leftspeak). It’s true no matter who evokes it. With that aside, let’s talk about filing integrity.

One thing we assume far too trustingly these days is the assurance that electrons will not go astray. If they do, we presume they conveniently boomerang back with “Your email to roxanne@toohottohandle.com did not go through. Perhaps you might oughta wanna try that again or check your address for her.” Some venues lock up and force you to make a momentous decision like “Mon Dieu! Leave this page and allow this cogent FacePlace© comment to be lost to the ages? Are you mad?” The point being is that they cover your butt for you. It’s like being in Kindergarten again and someone’s in charge of making sure you color inside the lines. Speaking of coloring inside of the lines- check out these new guns the Israelis are using. I’m gonna ask Cupcake for one for Christmas for them coyotes down in the lower pasture.

In the VA world, you gung ho, pro se do-it-yourselfers have several different venues to stick your message in a bottle. Among these paths are Ebenefit.com, efiling.com, Ihopeitgetsthere@va.gov, USPS snail mail and various VA FAX numbers which terminate at the Evidence Intake Center. We (well, at least me) frequent filers who do this for fun and very little profit generally use USPS Priority mail $7.35 (free tracking and confirmed delivery). In addition, I throw a second hand grenade electronically at 844-531-7818 EIC FAX. Others foolishly depend solely on those rascally electrons or some confirmation back saying Rog on your last txmission, over. I was taught by my mentor, fellow Vietnam Veteran Robert Walsh, who in turn was taught by his legal professor, the admonition of “belts and suspenders.” The clear meaning being to file in two venues to ensure one gets there. Similarly, in legal briefs, I have extended this epiphany to using multiple precedental cases instead of just one cite.

What I’m getting at here is preventing a suspense date disaster. In this new age of AMA, it is becoming mission critical to convert a Legacy SOC into a BVA NOD within 60 sunrises and 60 sunsets and make sure it is recorded. Woe betideth s/he who files on the 57th day before Bingo and mistakenly presumes it got there either via snail mail or electronically without some confirmation. True VA confirmation for equitable tolling purposes will generally appear in VBMS about 8-10 days later in most cases. If it doesn’t, something is amiss.

In recent months, I’ve been playing VA Forms Tennis with various VA Poohbahs as to which VA form they will  accept from me to use for filing a CUE. VA now uses the National Work Queue (NWQ) which means you will get a different “technician” every time who determines this. Regardless of which I file, it’s invariably the wrong one. Instead of getting into a pissing match, I just refile it with one of the other 3 forms they “suggest”. This came full circle  last week when I refiled the “right one” (a 995) and they established it as a new claim using the prior 526 document they refused last month. Maybe I’ll start messing with their minds and simultaneously file a 526 and a 995 with a cover letter saying “Take your pick and discard the wrong one.” My guess is I’d get a letter back saying “Thank you for your service. We were unable to construe what it was you were asking for. Please see the  VA Form 20-0998 (attached) on how best to get in touch with us. Ta ta for now.”

We’ve all been told to have patience while the VA squirrels learn the new ropes. We’re approaching the first year anniversary of the implementation of the AMA  come February 19th- a mere 24 days hence. My patience is being sorely tried. Does it really take that much intelligence to determine which form to use? Do they consult tea leaves or cast dem chicken bones? Does it involve a first born male child?  I had a 526 claim rejected  in August for an increase to an existing rating. Yeppers. Wrong. Use another form. They accepted it on the 995 which is a direct violation of 38 CFR §3.1(p)(1)(ii). So much for Chevron deference. Remember. A VA 20-995 is only for refiling a prior, denied claim only. Well, unless it’s on a Thursday and the NWQ sends it to Little Rock. Then it’s a 526.

To me, the smart money in VA claims filing demands belts and suspenders. One of these days fate will come back to bite you. When it does, you’re bulletproof.  At DRO hearings in the past, I used to catch flak for the duplicate filings and told I was “clogging up” the VBMS. Moi? Seriously? Every Veteran’s electronic claims file has at least 30 “Where to send your correspondence” 998s, and as many “What you should do if you disagree with out decision.” blurbs per claim.  Besides, what’s a few more megabytes of .pdf ? How many 98-page SOCs have any of you Vets received where they dang near cut down a tree to reprint  Part III and Part IV of the CFR?

VA jurisprudence continues to evolve for the better which is good. The drag is that it’s improving at about the speed of the dinosaurs’  evolution. I have a good old fashioned Legacy Travel Board hearing coming up in Houston in May. I drew VLJ Michael E. Kilcoyne. I read about 200 of his BVA decisions on various subjects to get a feel for how he thinks. You can tell he cut his teeth on about the first 8 years of the CAVC. All his cites are from that golden era. Walsh calls the original seven COVA judges “The Magnificent Seven” and I agree. Some of the most cutting edge stuff you’ll ever cite to was probably formulated in those early years to counteract the overbearing pomposity of the first VA Secretary-Ed Derwinski. The Court had to actually teach him about judicial power, who wielded it and who most assuredly didn’t. Nowadays we understand William H.Colvin or Roger J. Schafrath  but mostly in much newer cites with newer names. Hickson, Shedden and their  progeny have gradually overwritten Caluza from the BVA lexicon but you’ll still see Judge Kilcoyne cite old Mario and his technicolor guerillas. He’s also fond of substituting Jovita Espiritu in place of Benito Layno. Type in Derwinski on my search bar under the medal and you’ll get a wad of golden oldies I wrote years ago. I learned all my law smarts from reading and digesting these antique gems. Judge Kilcoyne and I ought to get along like peas and carrots.

Posted in Equitable tolling, Humor, Important CAVC/COVA Ruling, KP Veterans, Legacy Claims, Presumption of Regularity, Proof of Mailing, SOCs and SSOCs, Tips and Tricks, VA Agents, VA Attorneys, VBMS | Tagged , , , , , , , , , , , , | 5 Comments

HADIT.COM RADIO SHOW THURSDAY 1/23/2020

Rog on the Radio Show. Jerrell just flashed the Blog sign over Gotham City and I’m en route and inbound.

I have some interesting topics to discuss about Total Disability due to Individual Unemployability or TDIU. There seems to continue to be some misunderstandings about how this works-especially where it applies to Special Monthly Compensation at the S rate.

Put it on your calendar. Two days hence, at the magic hour of 1900 Hrs on the (L)east coast but 1600 hrs on the Left Coast we will commence txmission.

I see several different pathways to  listening. The older method works, I know. That is the timeworn:

347-237-4819 (push #1 to talk to us)

Or the new way, if just to listen, go to Hadit.com here, click on the broadcast link and listen:

https://www.blogtalkradio.com/haditcom

 

P.S. The subject on Thursday will deal with the  problem we see in very old regulations. VA uses the wrong legal standard of review. Once a disease entity is identified and diagnosed, you have service connection. If you ever see the words “acute, treated and resolved before separation” accompanying a denial, you almost always have a CUE Winner. See this attached:

Houston Vet 1991redacted rating

I’ve been puzzling this  since I met Malcolm in the Middle in about 2009 or 10. He went all the way up to the Federal Circuit with this and got his remand back to Fort Sam Fumble- but only for service connection in 2001-not 1991. Since then, we decided to develop it as a CUE to obtain SC in 1991 as it should be.

We began this one in 2017 with a new CUE filing for earlier effective date. I had Malcolm get his mother, a Registered Nurse, to recall his medical state and opine on same when he was discharged on 8/01/1991. Her letter was notarized to ensure it’s submission into evidence later. Sadly, she passed away years ago as we continued to sharpen our VA punji sticks. I just received notice  we have been granted our long awaited Legacy Travel Board hearing before Veterans Law Judge Michael E. Kilcoyne. Judge Kilcoyne has been at the BVA since ten years before God was born. He began getting Acting Member gigs in 1998 and got his wings in January 2004.

This is most excellent. Judge Kilcoyne was a staff attorney at the time Malcolm was rated. He’s more than acquainted with the contemporary CAVC jurisprudence at the time. He has an intimate knowledge of what we are going to argue. The last thing I need is a wet-behind-the-ears VLJ who is going to lean hard on his own staff attorneys for a decision.

 

 

Posted in All about Veterans, Humor, KP Veterans, TDIU, Tips and Tricks, VA Agents, VA Attorneys, vARO Decisions, Veterans Law | Tagged , , , , , , , , , , , , , | 3 Comments

§3.103-PRE AND POST AMA RE HEARINGS

In the prior post Home Alone–The AMA, a fellow NOVA member and VA Agent (Jim Radogna)  queried me on the status of the availability of hearings at the AOJ level and how they are conducted now in the post- AMA phase. I promised I would explain my comments further here and clarify it.  Mr. Radogna’s  actual question was:

“I’m confused. Your statement “There is no such thing as a DRO hearing now unless you opted to stay in Legacy. If you want something close, we have the HLR (higher level of review) available…So, a formal face-to-face hearing has evaporated into, at best, an unannounced informal hearing via telephone only if you’re lucky enough to be in the office in Seattle and not in East Bumfork, Michigan at a BVA videoconference with your Veteran.” doesn’t jibe at all with my reading of §3.103 (d). Am I missing something??? What part of §3.103 leads you to believe that Veterans aren’t any longer entitled to a comprehensive face-to-face hearing at the AOJ???

I guess I zone in on comprehensive but that isn’t quite it. The easiest way to portray this is to begin with the pre-AMA §3.103. I’ll start with the actual hearing language where it begins in the old Legacy subsection at  §3.103(c)(1),(2) (pre-2/14/2019):

(1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter subject to the limitations of §20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans Appeals for appellate review. VA will provide the place of hearing in the VA field office having original jurisdiction over the claim, or at the VA office nearest the claimant’s home having adjudicative functions, or,  subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

[§20.1304 deals with a request for a change in representation of the claimant within 90 days following receipt of Notice of Disagreement.]

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee, or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record.”

The last sentence in (c)(2) has been removed and we are no longer granted this tool to have our condition(s) confirmed as debilitating at a hearing- unless….unless you’re still in the Legacy DRO hearing or a BVA hearing path. This isn’t such a loss as I’m zero for five tries both at the Regional AOJ as well as the Board. A good IMO will now have to stand in its stead and be far more “independent” than a VA-provided medical opinion.

——————————————————————————————————-

Reasonable minds can agree this is not the same language in the newer post-AMA version which I reprint below.

Let’s start with §3.103(c)(1) (post-1/19/2019):

(1) General rule.

VA will include in the record, any evidence whether documentary, testimonial, or in other form, submitted by the claimant in support of a pending claim and any issue, contention, or argument a claimant may offer with respect to a claim, except as prescribed in paragraph (c)(2) of this section and § 3.2601(f).

(c)(2) as mentioned in (c)(1) above says:

(2) Treatment of evidence received after notice of a decision.

The evidentiary record for a claim before the agency of original jurisdiction closes when VA issues notice of a decision on the claim. The agency of original jurisdiction will not consider, or take any other action on evidence that is submitted by a claimant, associated with the claims file, or constructively received by VA as described in paragraph (c)(2)(iii) of this section, after notice of decision on a claim, and such evidence will not be considered part of the record at the time of any decision by the agency of original jurisdiction, except as described in § 3.156(c) and under the following circumstances:

Subparagraph (c)(2) (iii)  covers the contingency of §3.156(c)(1) service department records which have never before been associated with the claims file.

§3.2601(f) acts to close the evidentiary record immediately following issuance of a decision. A higher level of review (HLR) action must rest on the evidentiary record alone forward from the decision date even if new and relevant evidence is discovered prior to the HLR.

From the above, we can see there is no mention whatsoever of  hearings being granted on request or otherwise. The regulation speaks only to  documentary, testimonial, or evidence in other form, submitted by the claimant in support of a pending claim and any issue, contention, or argument a claimant may offer with respect to a claim. Conspicuously absent is any mention of a hearing in person at the AOJ level before employee or employees while conducting a new claim (VAF 21-526EZ), a supplemental claim (VAF 20-0995) or a higher level of review (VAF 20-0996).

This is why I stated the DRO hearing-or any hearing for that matter- is no longer available as it was pre-2/14/2019. The only exception to this rule is that Legacy regulations are going to have to lie in parallel with the new AMA version for at least 50 or 75 years. If a 75 yr. old Veteran wins a CUE from 1968, s/he would be entitled-nay-required to appeal via the traditional Legacy path using the 21-0958 post 3/25/2014. Having two systems creates a paradox in these successful Motions to Revise.

We now find all the hearing related regulations have moved from (c) to (d) in the new post 2/19/2019 AMA version. But wait. Read the red highlighted sentence at the preamble to (1).

(d) The right to a hearing.

(1) Upon request, a claimant is entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter…

before

VA issues notice of a decision on an initial or supplemental claim.

A hearing is not available

in connection with a request for higher-level review under § 3.2601. VA will provide the place of hearing in the VA field office having original jurisdiction over the claim, or at the VA office nearest the claimant’s home having adjudicative functions, or videoconference capabilities, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Upon request, a claimant is entitled to a hearing in connection with proposed adverse actions before one or more VA employees having original determinative authority who did not participate in the proposed action. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

Summary

So, we can see a hearing can be requested at the AOJ level but the hearing may not be conducted after the initial decision. There is no mechanism to rebut an adverse finding of fact utilizing the former DRO hearing review method. The hearing, if granted, merely permits the claimant to introduce evidence or testimony in the first instance up until the time of the decision. This sham hearing process could just as easily be accomplished with paper or electronic records. Depriving a Vet of the guaranteed hearing at the AOJ level after a decision has been rendered essentially deprives him/her of that additional step of due process at this stage. Offering one telephone call (unannounced) as a panacea in a HLR venue as being tantamount to an informal DRO review hearing is ludicrous. Absent any requirement of prior notification like a Rule 33 conference, the regulation violates due process by depriving you from participating in your own funeral.  The old Legacy DRO hearings were specifically designed to allow the Veteran claimant to produce new and material evidence which might convince the VA examiner to change his mind locally and thus preserve scare judicial resources for others at the higher appellate venues.

Let me be clear. A HLR hearing which limits you to only debating the existing facts and how they were evaluated limits and constricts the very essence of ex parte justice. It’s the antithesis of a nonadversarial, Veteran friendly venue in which to present our claims.

§3.103(d)(2) pretty much parallels the above (c)(2) subsection:

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers relevant and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses must be present. The agency of original jurisdiction will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony.

 As Mr. Radogna pointed out, I was remiss in suggesting hearings were no longer permitted at the AOJ level. I apologize for any confusion in that regard. The clear and unmistakable evidence shows they (hearings) are now relegated to the front end of the process before a decision has been made. I’m sorry. I don’t see the value or purpose in this. It combines two processes into one reducing the safeguards. It merely forces a Veteran into two more choices after denial-neither of which permit that magic hearing after a decision on the claim.

Granted, a supplemental claim might cure your deficit such as lack of an Independent Medical Opinion (IMO). Likewise, if a clear and unmistakable error (CUE) occurred in the initial decision, an HLR might cure the error- but only if the adjudicator is knowledgeable enough to discern it. An HLR can be conducted by anyone at a GS 11 level or higher. This is not the DRO review of yesteryear by a knowledgeable GS 13 or 14 with many years under their belts. Wouldn’t it be far easier to suggest the claimant obtain a solid IMO prior to submitting the claim at the beginning?

To my thinking, one should never need a Supplemental claim to cure a defect. Bryant v. Shinseki and §3.103 require the hearing personnel to identify anything missing that might help explore fully the basis for possible entitlement before a denial.

I have to stand by my assessment that no meaningful hearing mechanism now exists to provide the due process Veterans enjoyed under the old pre-AMA version of §3.103. Essentially, the former Notice of Disagreement (NOD) process, as well as a request for a hearing to submit new and relevant evidence, has merely been shoved up the ladder to the BVA. This is the much-touted “Improvement” in the adjudicative process.  I’m not buying it.

It is my opinion, and probably mine alone, that the BVA is already overwhelmed and inundated with appeals. The AOJ has now moved the workload out of the Regional level. This allows them to work on just new, supplemental and HLR actions. Gone is that intermediary step of a second set of knowledgeable eyes looking at exculpatory evidence (including a hearing) which might conserve scarce judicial resources at the appellate level.

The only good that come of this is  a real attorney, in the guise of a Veterans Law Judge, will now be that second set of eyes  and conduct a hearing, if so desired.  I suspect that will produce superior justice which will probably be more error-free than that served up at the AOJ level. Statistics collected to date for 2019 show the choice of HLR or a BVA NOD are just about equal. I don’t care if a HLR only takes two months. To me that’s two months you could have invested in waiting for your docket number. Haste merely makes waste.

I hope that settles the question of meaningful hearings at the AOJ level. I think we were sold a bucket of worms which will result in more errors, less Veteran participation due to ignorance and a marked decline in compensable claims. I’ve queried numerous Veterans Service Organizations locally here in the Tacoma area and none could cogently explain to me what I just recited above.  But then virtually all were unaware that there are higher levels of compensation above 100%- i.e. SMC.

Everyone is entitled to their opinions on whether we are better protected post-AMA than pre-AMA. I don’t make the rules. I’m forced to operate by them. It works no hardship on me personally other than having to learn a new way to skin a VA cat. For my fellow Veterans who are attempting to find their way through this maze, I feel sorrow. Without a Sherpa in the form of a good VA attorney or agent, many Vets are going to find themselves on the outside looking in for eternity.

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

 

 

Posted in Appeals Modernization Act, Complaints Department, CUE, DRO and BVA Hearings, Duty to Assist, Food for thought, Independent Medical Opinions, KP Veterans, Lawyering Up, Lay testimony, Nexus Information, NOVA Attorneys, RAMP Appeals (AMA), Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA Attorneys, VA BACKLOG, VA statistics, Veterans Law | Tagged , , , , , , , , , , , , , , | 4 Comments

HOME ALONE–THE AMA

View from the cockpit.

Live… From the VA Entertainment Capital of the World… Iiiiiiiit’s asknod! As the title suggests, I’m home alone if you exclude my extended menagerie of pets. Cupcake is off to do her radiation therapy and CT afterwards. I’m recovering from my surgery yesterday to remove the Gozilla-sized kidney stone (16mm) from my leftmost renal architecture. No “I’m so sorry to hear it” platitudes requested. No pity parties. I’m glad to be done of it. I’ve been pissing blood for two months which has saved me from doing monthly phlebotomies in the interim.  With the exception of the abominable global warming  outside today and the fact that I can’t even approach the water closet without my kidney and bladder screaming in advance, I’m fine. Dilaudid takes the edge off …and a little more. I sure wouldn’t want to perform (I don’t practice) law in this altered state but my humor is unimpaired. What I find amazing is my kidney has GPS and even knows I’m in the bathroom. For sure, Dude. I walked in just now to see and it began to hurt in anticipation of an impending urination. Who knew kidneys and bladders have nerves? Not me.   

Princess Pickles just had her first encounter with snow this PM. She’s eleven months now and decided it’s the cat’s pajamas. Not only can you skid on it but you can eat it, too. How cool is that?  The age-old problem of finding the snowball and fetching it is brand new sport for her.

Check it out:

A fellow NOVA attorney contacted me this AM and wants a copy of my killer cites designed to win claims. Every time I run across a real daisy, I copy and paste it into my library. It’s a compendium of case law, statute, regulation, and yes, even the occasional M 21 cite to make my competitors eat Chevron/Auer Deference.  It’s become Dropbox™ -sized now like the Encyclopaedia Britannica. Some folders could be better named but it’s all spur of the moment copy-and-paste grabs while reading other cases and they each require a folder and a .docx. What the hey? It’s cheaper than West Law. Even better, sometimes you find an extraneous quote from a decision that isn’t touted as the bright line precedence… but is equally valuable on some other case you’re working. What I found while reading this recent year’s Morgan v Wilkie 31 Vet App. 162 (2019) is a treasure trove of all manner of cites. Thank you Zach, Amy et al. at CCK. It’s like repaving the old AB v. Brown Road with 2020 thinking and extra legal sprinkles on top.

THE NEW AMIA

The subject today is simple. Do VA folks call it Ama like ‘mama’ without the m or do they throw in the i and call it amia like a girl’s name?  By now we’ve all had a heapin’ helpin’ of the AM(I)A and are less than enthralled by it. It’s like being told Baskin and Robbins© is coming out with White Chocolate Macadamia Nut Cookie Ice Creme and they hand you Avocado-Bacon flavored shit on 2/19/19 in its stead. The errors are so mundane and egregious, we (litigators-not VSOs) all are astounded anyone VA can come up with them. I just got back a 526 EZ I used for a CUE and was told to refile it on the “correct” form. This, mind you, from some astute young GS-8 VA Turk who knows what a “prescribed form” really is. Arrgh. My kingdom for some kompetence. It seems I remember David McLenachen  or Judge Cheryl Mason saying it didn’t make any difference because there was no specified form to use. That was in Portland less than 110 days ago. I disremember seeing it in the Fed. Reg.

While rereading the new, improved §3.103 Due Process to grab the (a) for “every benefit that can be supported in law” and insert it into my ‘AB v Brown and progeny’ file, I read down further and came to the part guaranteeing us a right to a hearing.  Thence it dawned on me. While this “right” is still available, it has been enormously truncated. Gone are the days of the DRO Hearing (on or off the record) at the local Puzzle Palace. What we’ve been seeing with our new friend Amia is a lighthearted attempt at ex parte justice. Cupcake calls it “All VA hat and no Wilkie.

Imagine if you will. There is no such thing as a DRO hearing now unless you opted to stay in Legacy. If you want something close, we have the HLR (higher level of review) available. This is a chimera. I get  emails saying “Can you imagine that? The HLR guy emailed me and declines to hold the informal telephone call “conference”. He said nothing would change his mind anyway.” Well, hush my due process. These jackwads invented all this hooey and now are blowing us off. If you truck all the way up to Part III (D)-§3.2601, you’ll find this gem under (h) Informal Conferences

For purposes of this section, informal conference means contact with a claimant’s representative or, if not represented, with the claimant, telephonically, or as otherwise determined by VA, for the sole purpose of allowing the claimant or representative to identify any errors of law or fact in a prior decision based on the record at the time the decision was issued. If requested, VA will make reasonable efforts to contact the claimant and/or the authorized representative to conduct one informal conference during a higher-level review, but if such reasonable efforts are not successful, a decision may be issued in the absence of an informal conference.

So, a formal face-to-face hearing has evaporated into, at best, an unannounced  informal hearing via telephone only if you’re lucky enough to be in the office in Seattle and not in East Bumfork, Michigan at a BVA videoconference with your Veteran. If you want a real scheduled sit down BVA hearing now, you have to go sit on the Washington DC Group W bench of Alice’s Restaurant fame and wait your turn. and wait…and wait…and wait. Welcome to Camp Delay and Deny. Did I mention the I in A.M.I.A. stands for Improvement? The good news is the BVA waiting room at 1425 I street is really buff and freshly remodeled. The chairs are comfy too.

The new AMA surprises are endless and well-concealed over the four corners of 38 CFR. You think they’ve reinvented the wheel when in reality we’re back to horse-drawn carts and nobody knows which side of the road to drive on again. You cannot but wonder how (or why) an “intake specialist” chooses when to say you used the wrong form. They pointedly do not tell you which to use-only that the one you’ve chosen is incorrect. With only two input choices, you had a 50-50 chance of getting it right. So why is it always the wrong one?  With CUE, your odds should go up to 100%-maybe. I refiled my CUE yesterday before surgery on a 995 and can’t wait to see a) another rejection for the wrong form; b) a two-week delay in CESTing it while they try to construe the meaning of “Motion to Revise”or; c) sending it back to me and demanding the client wet ink sign it even though the POA is in the VBMS. This is worse that Forest Gump’s box of chocolates. It’s not that you never know what you’re going to get. It’s that you never know if you’ll get anything.

We’re encountering the same thing at the BVA with 10182s. The Litigation and Support kids call it a 10 182-two number groups- not a one-oh-one-eighty-two. Just for shits and grins, from now on I think I’ll start using the word “Ama”, or better yet, the word Amia and see if I can conflusticate these acronym-obsessed dickheads. How about “Well, I hold his Poah (POA) so I’m confused as to what else I need to discuss this claim, sir.” “……….Ah, poah? What’s a, a what’s a poah Mr. Graham?… Wait.  Did you say her first name was Amia? How do you spell that?” Hiller for HLR? The choices are myriad. Have fun.

“There’s a dog in Wisconsin that tells jokes.”

 

 

 

Posted in Appeals Modernization Act, FACE HUMOR, Food for thought, Humor, KP Veterans, Pickles, Tips and Tricks, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , | 6 Comments

VBA-FORT FUMBLE, Va.–DOWN FOR DOUBLE

My Father’s P- 51 in WW 2 ( 16 1/2 kills)

In my war, we were taught to have a three-to-one advantage in force and air superiority to ensure a win. What we were taught and how to employ it varied greatly when it came time to apply lessons learned. In fact, we were often outnumbered ten-to-one and air superiority was on speed dial. And, like the police, it took a while for them to arrive. Would that we could get a VA claim accomplished in 40 minutes. Regardless, with few resources, my fellow NOVA litigators and I win these David/Goliath contests regularly- and never with 3 to 1 numbers or napalm.

With that said, when litigating for my clients, I love to have the smoking gun, or even better, several with which to bitchslap those smarmy DROs with 0 degree Celsius blood. How many times have I presented a case at a DRO Hearing (now the bulljive AMA Higher Level of Review or HLR) and have Ms. Whatzerbutt recite some idiotic M 21 mantra which is waaaaaay off point. Sometimes they try to throw in Latin phrases like de minibus [sic].

Nevertheless, nothing gives me greater pleasure than to catch them out-be it CUE  by awarding you something with the left hand and the right hand having no clue that the left betrayed it over a year before. Cases in point. Sharpen your pencils and let’s look at some SMC law with a magnifying glass.  Always remember the pertinent cites to use like Buie and Bradley. Don’t ignore treating physicians (White v Principi 243 F.3d 1378 (2001)). McWhorter is a prerequisite. You can even demand Chevron Deference because you want the Secretary to choke on his own regulations. Breniser v Shinseki is also your friend in this endeavor.

CASE #1  BAIT & SWITCH

Lori the Law dog

This one I apologized to my client for this morning. She’s a lawyer to boot. I woke up early Wednesday morning about 02oo Hrs and raced into the office to look at Lori’s rating sheet from the last SOC. (see below). I had one of those premonitions. VA first ignored diagnosed foot drop (SMC K in 2012) but… they granted SMC L for Aid and Attendance. Okay so far. But in September 2014, they had to admit she had LOU of both one hand and one foot. That’s SMC L again. The two combine to make SMC O. Since one of the Ls is for A&A, she advances to Boardwalk and collects R 1. Or at least that’s what should have happened. What VA did was rescind the Aid and Attendance grant and convert it into loss of use of the hand and foot. Hold the phone, Ramone. Absent a finding of CUE, you cannot just white out an SMC L for A&A and substitute an SMC L for LOU. No way. Shoot, that’s against the law in 56 VAROs across our fruited plains-57 if you count the AMO. VA would have to prove the award of L for A&A was fraudulently obtained or somehow an error on their part in 2012. But they didn’t Ruh-oh, Rorge.

2012 A&A redact

CUE for A&A rescission

There was the CUE large as life and twice as natural.  Fortunately, the Virginia Puzzle Palace would never have caved in on this one so I don’t feel so bad. Since it’s such a novel occurrence, even I have never run across it. The reason I say Roanoke would never Chieu Hoi is the sheer amount of the error measured in VA shekels. They owe for SMC K for one foot from 2012. What’s that? about a buck a month for two years? $2,400 total. Chump change. However, they owe R 1 from 9/23/2014 when the combination of A&A and LOU of one foot and one hand began. Think about that.  Moi? Why, I never dwell on money but apparently VA does -to their ultimate detriment. VA’s been paying her roughly at L 1/2 from 2012 and then M 1/2 more recently (2017). Playing round off, L 1/2 just for the time from 2014 to 2017 is gonna be about $4,400/month average. Since it should be R 1 @ $8,000/month, the difference is $3,600 times six years or 72 months… or roughly  $261 K and some change if you throw in the SMC K error for several years. VA doesn’t roll over for that shit without a serious fight. Don’t kid yourself. I dinked them once for $378 K but we had to go up to the Big House over at 625 Indian Ave. NW and torque their testicles to accomplish it.

I so look forward to flying back to DC to argue this one for Lori. Look up hornswoggled in the VA dictionary and there’s a picture of her.

CASE #2-MISSISSIPPI MADNESS

Author and client

If you’ve never had the pleasure of doing a DRO review hearing in person, you just  haven’t litigated yet. The DRO threatened to have me frog marched out of there by the VA Gestapo if I didn’t quit running my mouth about §§3.350(e); 3.352(b). The instant problem here was the client had received  his Vehicle grant 4 months before the DRO hearing and the Secretary had acknowledged loss of use along with the magic “equally well-served by prostheses” mantra. Jensen v. Shulkin was brand new and on point. Nevertheless, the DRO continually refused to even concede the LOU point all the way through to the 11/2018 SOC. She’s living proof that the Flat Earth Society is present and accounted for. My guess is Fort Jackson hasn’t granted many R 1s unless at CAVC or BVA gunpoint. Shoot, they even started talking about how my severely disabled Vet was out riding a bike. He tried out a loaner recumbent bike and discovered in short order it was an impossible situation. VA glommed on to’ bike’ and ran with it.  Quick! Say nonadversarial , Maniano v Principi and Hart v. Mansfield as quick as you can. What the hey? Throw in Kahana v. Shinseki, too. Harvesting negative evidence has been a Bozo No-No for years but  those wild and crazy Jackson, Miss. raters haven’t gotten the email yet. Maybe the VA Secretary should resort to Facebook messaging… Shucks. Everybody’s on Facebook and they can advertize for all those pesky job openings for psychiatrists they never can fill…

Mississippi Madness

We had to make the pilgrimage to the house of the Great White BVA Father far to the East to present our case. Sadly, with the passing of the new Appeals Management Act, the time-honored Travel Board Hearing at your local RO est mort. From now on, it’s a videoconference or hit the road to DC. We chose the latter. There’s no way I was going to let this puppy go south and end up at the Court. We planned it better than D.B. Cooper. Remember him? We even drew a very pro-SMC Veterans Law Judge- David L Wight. He’s no spring chicken around there. He signed on as a staff atty. back in 2005. He got his solo wings about five years later. So I laid a killer brief on him demanding he make the decision based on the medical evidence of record. Well, that and the fact that I wanted him to see my client was sitting in a VA-issued wheelchair wearing a VA-issued AFO (ankle foot orthotic) on his left foot on the off chance it might help keep him from falling when he transitions to his VA-granted vehicle. I’m a mite proud of this amended brief. That Robert Chisholm of CCK is quite the master of SMC jurisprudence. Taught me well, he has. Yessssss.

BVA brief redact

I read Judge Wight’s decisions on R 1 extensively and there were many. Seems Vets got the benefit of the doubt in the majority of his decisions, too. Thus we were overjoyed to see that pronounced wrinkle of consternation begin to grow across his brow when he looked from the  11/18/2018 SOC to the 3/26/2018 Vehicle grant based on conceded LOU of the lowers and then at the  12/17/2017 DBQ which stated my Vet’s legs would look equally good in lightweight composite plastic.

Speaking of which, here’s an interesting quirk. VA refuses to allow us to go out and get an IMO declaring LOU. They cite to their false god M 21 (IV.ii.2.H.1.b) that no “clinician” can make this pronouncement-only a lofty GS-11 VA examiner. Well, boy howdy doesn’t that kinda poke a hole in Colvin v. Derwinski (1991)? You know. The one where the Court said a trier of fact cannot make a decision medical in nature…

Well, if a VA examiner can (and did), and a VLJ can’t, and your own treating physician and the VA Secretary already have, then what? Turns out, the VA examiner felt our unpaid treating physician wasn’t trustworthy. Yep. The guy who knows the most about all this was bullshitting VA?  Worse, going back to the M 21 cite above, if a “clinician” is not allowed to make this decision, why in Sam Hill would they print it on a DBQ and make it available for this purpose? See page 8, Section X (10).

https://www.vba.va.gov/pubs/forms/VBA-21-0960C-5-ARE.pdf

This just gets more and more mysteriouser, huh? Our Esteemed Secretary reserves the sole right to dx LOU but will allow-yea- encourage an unknown doctor to bloviate about something he, the Secretary, will never consider? If it sounds absurd or ends up being an absurd outcome, it is. Yep, there’s a cite for that, too.

“Regulatory interpretation begins with the language of the regulation, the plain meaning of which is derived from its text and its structure.” Petitti v. McDonald, 27 Vet.App. 415, 422 (2015); see Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (“The starting point in interpreting a statute [or regulation] is its language.”).

But the pièce de résistance in these cases is a resounding:

If the plain meaning of § 3.350 is clear from its text and structure, then that meaning controls and that is the end of the matter. Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006).

 

I guess the last straw at the DRO hearing was asking for a Bryant v. Shinseki/§3.103(c)(2) request to show us the magic handshake/secret password to grant SMC R1 and getting that deer-in-the-headlights look from Ms. Traci Whatzerbutt. She just nodded and said “Okay. I’ll review it all and get back to you.” No discussion of the VCAA. Nothing. Not so much as a hint about what would float her boat and change her mind. Recite after me: “Nonadversarial, Veteran friendly due processs, ex parte” ad nauseum.

Just remember that when you go to Jackson and try to talk SMC turkey.

Here’s another trick to look for. VA is fond of citing to evidence in an SOC or decision. How about it’s 2018 but  they only look at everything from 2015-a year before you even got out of the service? What’s worse, the 12/19/2017 “examination” (our LOU DBQ) says it only mentions some muscle abnormalities. You couldn’t win this in Jackson even if you had a Buddy letter signed and notarized by Jesus H. Christ. (“Yo. What he says, Bro. It’s like, ya know, totally true.”)

Evidence trick SOC 11-21-2018

Today’s Blog is brought to you by the Letters S, M, C, R and the number 1.

P.S. Here’s another “Down For Double”

Posted in Aid and Attendance, Appeals Modernization Act, BvA Decisions, CAVC Knowledge, CUE, DRO and BVA Hearings, Humor, KP Veterans, SMC, Tips and Tricks, VA Agents, VA Medical Mysteries Explained, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , | 3 Comments

WHILST PICKLES’ AWAY, THE MICE WILL PLAY

Pickles the Law Dog. AKA GIB; Six; Wingwoman

This is too good not to share but not appropriate for younger viewers. On New Year’s Eve morning, Pickles and I launched for a USPS mission to deliver some more love letters to the VA from my Veterans. Our journey takes us down to Key Center-approximately 4.5 miles south of our casa. Wait. Is that cultural appropriation to use the word “casa”? Just kidding…maybe. Pickles immediately hopped in the back seat area and tried to excavate the passenger front seat from behind. Much digging and growling ensued. I figured she’d lost her ball. Negatory.

 

 

After she returned to the front seat, I opened the center console to remove a mini Butterfinger bar. It’s for the mail lady… er…. Postal delivery associate? I put them in the mailbox and flip the flag up to remind her. She’s partial to them and it gets me excellent service. I looked down as I approached the mail box and discovered Pixie and Dixie had found the candy bars – not just inside the Expedition- but inside my console. I’m a little confused. I don’t recall leasing out residential space in my NOVAmobile. They’re probably homeless. At any rate, we (Pickles, Pixie, Dixie and I) proceeded to the USPS.  After our postal ablutions were consummated, I immediately sashayed over to what passes for our local hardware store and  picked up a couple of traps…er… harvesting devices (mouse guillotines?). We departed home to the LZ. I found what I suspected was the ingress point to the console and plugged it with Cupcake Kleenex. What? Your significant other leaves home without a box of Kleenex and a fresh roll of toilet paper? GTFOOH!

I set up the ambush on the floor on my side so Pickles wouldn’t jump in and step on it. This morning on the way out to feed the horses, success greeted my efforts. Pixie est morte.

Pixie or Dixie?

However, when I looked in the glove box to make sure they hadn’t been back in there, I was shocked. The little buggers not only had gotten in and chowed down but they slipped through what could only be a 3/8″X 3/8″ portal. I couldn’t get my middle finger in it and I have petite, aristocratic digits- or so I’m told.

Sensing Dixie is still afoot and may even have pitched a tent under the seat by now, I dug a new Punji pit with fresh extra sharp cheddar.  I dutifully invoiced the mousetraps and candy bars as a business expense. News and film on this developing story at Six tonight right here on the asknod network.

 

P.S. Great news! I found Dixie this morning. Now I have to wonder about their offspring.

IMG_1038.JPG

PP.S.  Pickles was put in the laundry room this AM because we have the burglar alarm folks over for a revamp of the fire alarm system. She found my spare mouse entrapment device and “remodeled” it for me.

IMG_1037.JPG

P.P.P.S.

Don the 1st SOG Vet 11 Bravo F4P I represent out in Wyoming has a burning question he wants answered.

Weren’t Pixie and Dixie both guys? And if so, were they in a committed, monogamous relationship? Inquiring minds want to know…

Well, Don. I gave that some thought and went back out to the trash can. I took a gander at Dixie’s privates and to be truthful, my eyesight isn’t that good. I’d hate to hazard a guess because mice aren’t my strong suit. And, truth be told, I didn’t look at Pixie’s unmentionables before I gave her/him it’s Last Rites and interred it either, Don. In sum, I can’t say that Pixie wasn’t Dixie or vice versa. I put in a new Claymore and will report back soon. We have a good magnifying glass in the office here so perhaps you could give me some pointers on identifying a Pix from a Dix.

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