NOD v. SHINSEKI–VA CAVES IN ?

This just in. After reading their cards and weeping, VASEC has just acknowledged they are holding what appears to be a compromised or losing hand. Oddly enough, it only took them 5 years to ascertain this (2008). I guess someone sat down and read the file instead of continuing to blindly fight on.

From: Purcell, Emily [mailto:Emily.Purcell@va.gov]
Sent: Wednesday, February 27, 2013 9:13 AM
To: Robert P. Walsh
Subject: Nodster CAVC #12-XXXX

Hi Mr. Walsh,

The Secretary can agree to remand the issue of the Board’s denial of entitlement to an effective date earlier than February 23, 2007, for the grant of service connection for Hepatitis C.  The remand would direct the Board to provide adequate reasons or bases for how the January 1995 SOC clearly conveyed to Appellant that the decision on that claim was final.  In order to enter into a JMR, however, we would need Appellant to abandon the tinnitus claim and arguments pertaining to CUE.  Please let me know at your earliest convenience whether this is something that Appellant is interested in pursuing.

Thanks,

Emily

Emily C. Purcell

Appellate Attorney

U.S. Department of Veterans Affairs Office of the General Counsel (027K)

810 Vermin Avenue, N.W.

Washington, D.C. 20420

w: (202) 632-6981

f: (202) 632-7118

In an effort to appear grandiose, they have condescended to allow one of the following:

1) a remand back to the BVA for a restatement of how the 1995 SOC was clearly a denial. This will attempt to show that the following should have amply warned me that my claim had been denied…

“We are reviewing the additional records that you submitted with your appeal and we will notify you of our decision as soon as it is reached.  We are scheduling another examination to see if your tinnitus has worsened. You will be notified by separate letter of the date and time of the examination”. (RBA 3383 SOC dated 9 January 1995)

Scenario #2 will be a Joint Motion for Remand (JMR) which will hash out their surrender and the terms of my 1994 rating.  As you can see, VASEC has already started putting in preconditions  that require me to drop my tinnitus appeal and to withdraw my CUE claim.

Law Bob, being a gambler like me, stated the obvious. “The bid is now 3 no trump”. VA has suddenly realized their legal arguments are akin to screen doors in submarines. However, since they are so munificent, they are willing to accept my apology and hand out old Halloween candy if I throw in two claims.

I would ask Bob to think back on General Anthony McAuliffe’s response when he was asked by the Germans to surrender in 1944 at Bastogne.

According to various accounts from those present, when McAuliffe was given the German message, he read it, crumpled it into a ball, threw it in a wastepaper basket, and muttered, “Aw, nuts”. The officers in McAuliffe’s command post were trying and failing to come up with suitable language for an official reply when Lt. Col. Harry Kinnard suggested that McAuliffe’s first response summed up the situation pretty well, and the others agreed. The official reply was typed and delivered by Colonel Joseph Harper, commanding the 327th Glider Infantry, to the German delegation. It was as follows:

To the German Commander.

NUTS!

The American Commander

So, in sum, since I am in possession of a full house, why should I acquiesce to a remand all the way back down to Fort Fumble in Seattle  and get the traditional Fenderson 0% fight for 5 years? Either VASEC offers the 60% from 1994 or we go to trial and let VASEC explain in his best post hoc rationale that VAOP OGC PREC 9-97 doesn’t mean exactly what it says it means or that the 1995 Statement of the Case was a typo and I should have understood that at the time.

Stay tuned to the next exciting adventure. Same CAVC time. Same CAVC channel.  News and film at 6.

Posted in ASKNOD BOOK, CAVC Knowledge | Tagged , , , , , , , , , , , , , , , , , | 7 Comments

FED. CIR.–WALKER V. SHINSEKI–§3.303(b) SAYS WHAT?

After years of zooming by 38 CFR §3.303(b) like an anonymous building alongside  the freeway at 65 mph and seeing it quoted often in denials of HCV cases, I was rudely awakened to the following. Apparently a lot of us pro se idiots were misinterpreting it to encompass diseases as well as injuries like degenerative disc disease. No way, Jose. Mr. James E. Walker and I just got an education in what the regulation says, and most importantly, what it doesn’t say. Oddly enough, the VASEC apparently has been lost in the same fog and finally stumbled out of it with an interesting legal epiphany.

38 CFR §3.303 has been around in one form or another since 1947 so it isn’t some new mission creep, post hoc rationalization trotted out for the first time in a dastardly attempt to create new law or precedence. It pretty much means what it says. It encompasses in section (a)  much what 38 USC 1154(a) does in how the rating shall be based with due respect on the what you and your organization were up to during your service. If your platoon was effectively wiped out and you survived, it could be said that you deserve the combat accommodation in  §1154(b) as well.

They throw in the benefit of the doubt at the bottom just to make it look fair.

§ 3.303

Principles relating to service connection.

(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran’s service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

In the red above, please note that it mentions both disease and injury. Now parse §3.303(b)…

(b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

Wow. Big uh-oh. No longer can you point to a back injury in service and a current, ongoing, chronic injury and say it’s the same one by basing your argument on §303(b). You will have to rely on your SMRs and the word “chronic” mentioned there. Any nexus letter will also have to discuss quite a bit of medical science and why the doctor came to the conclusions he did. 38 CFR §3.303(a) will now be the default setting for all “injuries”.

VA has probably under-enforced this for years, or, on the other hand erred in favor of the Vet with a generous interpretation. That will all be erased by a quick revamp of the M21-1MR to regurgitate all the prior ones for a redo based on CUE.

Walker is going to be anathema for years until a new defense based on other legal facets can be fashioned out of 38 USC Part 3. Either that or someone is going to have to pull their plug and go upstairs. The CFRs, being an invention of VASEC, merely interpret the Statute. If they become overly broad and are determined to be too restrictive for Vets or overreaching, they’ll be trimmed like the proverbial hedge.

Herein lies the poison pill:

Walker’s briefs on appeal, and his oral argument, reduce the appeal to a single question: whether Walker is  entitled to a remand for consideration of service connection for his diagnosed bi-lateral hearing loss under 38 C.F.R. § 3.303(b). The answer to this question requires interpretation of the term “chronic disease” as it appears in § 3.303(b). Under Walker’s interpretation of the term, he is entitled to the remand he requests. Under the Secretary’s interpretation, the Veterans Court correctly denied the remand request. We thus turn to subsection (b) of § 3.303   Walker v. Shinseki 2013

This one sentence will be quoted for a long time.

 The Secretary thus concludes that “every ‘chronic disease’ is persistent or long-lasting, but not every persistent or long-lasting disease is a ‘chronic disease’” for purposes of §3.303(b).”   Walker supra

Here’s the bombshell in footnotes 3 and 4 (pages 13 & 14)…

3   The Secretary advises us that he disagrees with Savage v. Gober and other Veterans Court decisions in cases that have extended § 3.303(b), in reliance on Savage v. Gober, beyond the list of chronic diseases found in § 3.309(a). For example, the Veterans Court gave the benefit of §3.303(b) to a claim for psoriasis in Kent v. Nicholson, 20 Vet. App. 1 (2006), and to a claim for varicose veins in Barr v. Nicholson, 21 Vet. App. 303 (2007), even though neither condition is named as a chronic disease in § 3.309(a).

4  The question of whether and to what extent § 3.303(b) is constrained by § 3.309(a) is new to this court. This question has not arisen for adjudication in the limited number of our cases that have cited § 3.303(b). In one case, in dictum, we suggested that § 3.303(b) is not so constrained. See Groves v. Peake, 524 F.3d 1306, 1309 n.1 (Fed. Cir. 2008). That suggestion is incorrect, and the decisions of the Veterans Court that have extended continuity of symptomatology under § 3.303(b) to chronic diseases not enumerated in § 3.309(a) are hereby abrogated.

This is over the top. The Federal Circus has already ruled in the positive in Groves v. Peake and now they are striking it down. Groves was a fine, well  reasoned piece of law that adequately accommodated §3.303(b) in the context that a mental disease in service was the same (chronic) after service. As you can see, they stepped on their necktie and are attempting to revamp established precedence. This isn’t over. I can see Mr. Walker’s leagle beagles headed straight to the Supremes for certiorari. Whether they get it or not is going to be intriguing. The rending asunder of years and years of work (and established precedent) cannot be done so arbitrarily or lightly. By reading §3.303(b) as they did for this long, they have inadvertently given their seal of approval to it. In this matter, Walker  is now settled law and a new “finding”. The Feds are  trying to go back and erase that which came before. Abrogating Groves and a host of other  similar ones like Savage, Kent and Barr is going to set Veterans rights back on their heels. A large vein of jurisprudence is predicated on just Savage alone.

The BVA and VAROs can actually have a field day with this and undoubtedly will. Watch how quickly this is inserted into the mix. I know in 1992 during my BVA decision that numerous new precedents like Wilson and Shafrath were ignored for months, if not years, even though promulgated as much as 90 days previous. Don’t be fooled. Walker can’t stand as it is. Too much goes down the tubes with this. The Feds have been granting it for almost a decade. VASEC hasn’t protested once (until now). This smacks of a way to have more denials and thus fund more Human Rights seminars in Costa Rica.

Eventually, the Supremes could rule that VA has been doing it this way for years so why the bitch all of a sudden. Isn’t that the favorite complaint from VASEC when they are caught rearranging the judicial regulations to mean new things?  Oddly, the VASEC is on very firm legal ground but indefensible inasmuch as he has never put his foot down and complained. To do so now smells of desperation and a desire to be vindictive. He’s convinced the Feds to go along and they are only obeying the undisputed reading of §3.303(b). Arguments about §3.309 missing from it are specious and cannot rise to the level of it being flawed.

Say what you will but §3.303(b) is one of those tar babies the VASEC forgot to keep track of for the last sixty six years and now wants a do over on. It would appear he has it. Anyone who obtained ratings based on this with less that 10 years under the belt stands a darn good chance of being pulled in and having it removed. For those of you with less than five years, I think we can say Sayonara to any Savage or Barr jurisprudence. Time will tell if this will stand. Earth shattering would be a good synopsis for Vets.

And if you thought the backlog was ginormous before, wait until you see the VA crank up the CUE machine on all these erroneous grants based on Savage v. Gober and its progeny. This may get ugly. What the hey? Now VASEC has another excuse for why 2015 and 125 days is right out.

Thus we award the Alfred (I don’t care about Vets) E. Neuman award to the Federal Circus this month for finally putting their glasses on and actually discerning the difference between 38 CFRs §§ 3.303(a) and (b).

http://caselaw.findlaw.com/us-federal-circuit/1622844.html

What? Me worry about whether it says "diseases"? No way.

What? Me worry about whether it says “diseases”? No way. I see it now so no harm, no foul. Got it? Make it so, Numbah 1.

Posted in CAVC ruling, Veterans Law | Tagged , , , , , , , , , , , | Leave a comment

KURT PRIESSMAN’S PROJECT CHECO REPORTS

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Attached here are Kurt Priessman’s seminal Project CHECO (Contemporary Historical Examination of Current Operations) reports for Laos and Cambodia. They are a real eye opener and a big help for trying to remember which Lima Site you were at back then. There were so many that they blur after 40-odd years. Eventually every Karst and mountaintop looks similar. We used highways and rivers to navigate with in good weather and a compass with allowance for wind in bad.

Project CHECO wasn’t declassified for quite some time after the war in order to protect a lot of asses. It’s refreshing to see them come to light and illuminate history. It’s fun to see what was going on up at the nominal 7th/13th AF Headquarters at Udorn even though we all took our orders from Ambassador Godley. From what I gather, he was an improvement over “No-nape” Sullivan. That is an allusion to his strict policy of over-managing our air strike requests and frag orders from 7th TACC.

At any rate, it illuminates another side of war no one knew was in progress.

Posted in From the footlocker, Vietnam War history | Tagged , , , , , , , , , | Leave a comment

FOOTLOCKER–UNCLE JAY’S STORY

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Nod, Uncle Jay and Aunt Jackie October 1987

Nod, Uncle Jay and Aunt Jackie October 1987

Recently I received my Cousin Denise’s last job for my Uncle Jay. She shipped me all his memorabilia relating to his military service. I wish to share it with you and in the process, paint the picture of an uncommon patriot. Please don’t think for a minute that I am biased because he’s a blood relative.

My Uncle Jay was never on good terms with his Stepfather (whose name both he and I bear). When he reached 17 plus one day, old Alex took him down to the recruiter in Bakersfield and signed the paperwork. I think it was mutually agreed that they would never get along with one another and that Jay wanted to get out and see the world. And see it he did. This was 1934 and America was at peace. Jay was a real cut up and got into a lot of scrapes while in service. He frequently went up and down the pay scale over the next seven years and was intimately acquainted with Article 15s .  As it appeared there was going to be trouble in the South Pacific, he and his cohorts were sent to the Philippines from Hawaii in anticipation of it in early 1940.

When the Japanese attacked, America was ill-prepared. Few of you-even seasoned WW2 Veterans-have heard of Stokes mortars. The 1903 Springfield was still the issue infantry rifle. Hand grenades were few and far between and mostly leftovers from WW1. Yet these were the implements America accorded it’s warriors in the opening days. Unfortunately, they were woefully inadequate and unavailing against the invading Japanese.

Jay and his unit (Company G, 2nd Battery, 31st Inf. Regiment) were decimated on the Bataan peninsula in the ensuing defense of Manila. Jay took a round through his ankle in the last days of the battle prior to the retreat to Corregidor. Gen. Wainwright’s surrender in April of 1942 set the stage for one of the most brutal and remembered atrocities of that war.

The Bataan death march began with between 60-80,000 American and Filipino troops from Balanga on April 9, 1942. Jay did this on his injured ankle with the help of fellow soldiers. Anyone who fell or could not continue was bayoneted and pushed to the side. I sat down once with Jay in the early eighties and discussed this as Veterans of all ages are wont to do. We discussed it once in its entirety and never talked of it again. The tears in his eyes when he described having to drink each other’s urine to survive was indescribable. The carnage of watching fellow troops murdered with no way to retaliate marked him for life. Jay must have been constructed of sound timber. Most (and a large percentage of the survivors did) suffered horrible mental symptoms akin to what we now call PTSD for life. Jay exhibited few signs outwardly but it dwelt within. He was a guest of the Imperial Government for 3 years and four months. That leaves lifelong, unhealed scars.

Jay was repatriated January 30th 1945. At six foot two inches, he normally weighed around two hundred. When he was examined by Army doctors that day, he clocked in at 87 lbs. He was also missing a finger- punishment for his second escape attempt -and his ears had numerous open cuts and festering wounds. He had lost most of his hair. He had tapeworms. He suffered beriberi, dysentery, malaria and pellagra. Each time he attempted to escape (3), the Japanese had hung him by his thumbs for days. He spent innumerable days in solitary confinement contorted by ropes that injured his lower back. They used their rifle butts to knock out most of his teeth. He ate things you or I would be loath to consider “food”. Jay, to me, was a testimonial to how strong the human spirit is and how brightly the candle of life burns in some. To be sure, most would have succumbed far earlier on the 63-mile forced march with lesser injuries.

He was promptly evacuated by ship to Letterman General Hospital and stayed there for over a year while the VA attempted to patch him up. He didn’t even know his name at that point. He was often found hunting bugs in the hallways and eating them. Eventually, after a year or more, he regained his senses and was released. They were never able to repair his leg and ankle as the bullet traversed through the joint. The pain was virtually unbearable and Jay reluctantly opted for amputation in 1968. Jay  also suffered acutely from PTSD before the military even had a name for it. I can vividly remember being in Bi-Mart shopping together when he spotted an oriental fellow. It was all he could do not to assault him. He suffered this affliction until his passing. Other than sleeping with a gun and drinking too much, he was remarkably like you and me. Hell, I still sleep with mine. Doesn’t everyone?

Jay and my father were opposites. My father joined the Regular Air Force early on in 1940 and received his commission in 1941. Jay. By contrast, had made it up to Staff Sergeant by 1938 and was back down at Private First Class by the time of his surrender at Corregidor.  He had an affliction for adult beverages and could become belligerent when drinking. Jay told me he had attained the rank of Corporal more times from both directions than he could count. All those records were lost in the fall of Manila but would have made for some interesting reading. Fortunately for him, the incarceration allowed him to regain his former rank of Staff Sergeant if that’s any consolation. Jay wasn’t the least morose about it. He remembered it all fondly as being one big youthful adventure than unfortunately culminated in a three year jail sentence with poor food and lifetime repercussions. Even afterwards, I can say he was a happy man and did not have an ax to grind over his internment. Fortunately, he didn’t remember too much of it either. That was probably a Godsend. His beef afterwards was strictly with anyone of oriental descent.

When I was young, it was not uncommon to receive a collect call from Jay in some out of the way town in the west in the middle of the night. He was fond of working for circuses and traveled quite a bit. He would beg Dad to wire some money Western Union to bail him out of jail. My father, God bless him, always complied. Dad understood the travails of the POW experience but he could not fathom Jay’s continued plunge into the dark side with alcohol. We know a lot more about how the mind works now, and in retrospect, his actions were rather mild and predictable compared to the current PTSD problems Vets are returning with from Iraqistan. Fortunately, Jay’s love of life and booze at that point far outweighed any desire to suck on a lead lollipop.

Jay met his third and last wife Jacqueline and they married in Bakersfield in November, 1971. He’d met his match. She was made of sterner stuff and finally got Jay back into the land of the living. It required a lot of bellowing and screaming but he eventually realized Jackie meant well. He never absorbed her love of religion but he respected it.

Our paths crossed in 1977. Jay found out from my father that I lived in Seattle. He had since moved from Bakersfield to Cottage Grove, Oregon and was only six hours away. He and Jackie came up to visit us and our new daughter that summer for a day and I learned more about him in 3 hours than in 25 years. Jay was a hoot. He liked to poach deer out of season (like me). Society’s rules were for mortal men-not us Veterans. He was, and always will be, a hero of immense proportions to me. It might be said that he gives me the immense inspiration to do what I do for other Vets these days. Everyone in my immediate family are educated and down to earth. Jay and I were the opposite-black sheep- and I finally understood where my “wild and crazy” gene came from. I, too, was no stranger to Article 15s.

In 1983, Jay opted to set his military records straight and seek out the medals that he had never been awarded. Like him, I am currently doing so to, too. It is something on the bucket list that needs doing. We don’t do it for ourselves but our descendants. Someone will eventually come along doing Ancestry.com and ask.  He found out he had been awarded the Bronze Star twice- once by virtue of his also unknown Combat Infantryman’s  Badge and the second oak leaf cluster for his defense of the Bataan Peninsula in combat until the fall of Manila. To my way of thinking, they should strike an award for POWs. The rest of the medals were the normal “I was there” ones except for the Purple Heart.

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Does it strike anyone as strange that Defense Secretary Panetta is advocating for the Distinguished Warfare Medal- one rated higher than a Bronze Star- when America only saw fit to award Jay with several Bronze Stars? Where is the justice or common sense in that? It risks demeaning the medal as well as the man who wears it. How can you feel any respect for a soldier who sits in an air conditioned room drinking Mountain Dew, munching Dorritos and playing with an X-box controller. Granted, he’s doing a great thing but there is no danger of death or harm.

From reading through his military and VA correspondence, I see he was awarded P&T ten years after his foot was amputated in 1968.

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To put it in perspective, Jay never asked for a dime before 1962 for his injuries in WW2. He survived his POW status and the intervening 17 years without so much as a whimper. There’s a reason why. VA never told him to go out and file when they released him from Letterman Hospital. It was painfully obvious he was entitled but VA didn’t lift a finger to help. So much for the informal claims process. It took an inebriated fellow soldier in a VFW bar in Oklahoma to alert him to his status as a Veteran and his entitlement. To add insult to injury, he got the usual lowball of 30% and Special Monthly Compensation (K) for the foot. He didn’t even appeal for a higher rating. Jay told me he still didn’t pursue it further until the American Defenders of Bataan and Corregidor Inc.  interceded on his behalf following the amputation. That was just the unassuming kind of gentleman he was. He didn’t want to bother anyone with his problems. Imagine that. Neither did I when I came home from Vietnam. We were pariahs and baby killers.

Much like soldiers before and after, he never sought fame and fortune for his service. Jay summed it up once when he told me he “wasn’t a parade kind of guy”. For some reason, this seems to be the case more often than not of most combat WW1 and WW2 Veterans. It can even be said for Korea and my war. Many of us just wanted to blend into the populace and leave Vietnam far behind because it was so unpopular. The stigma attached was so overwhelming that many refuse even to this day to discuss it. I never revisited it until 2006 when the enormity of the hepatitis death sentence loomed. Trying to remember the minutiae of details surrounding an injury usually brings back pleasant as well as decidedly unpleasant memories.

Jay passed January 21st, 1990 at the VAMC in Portland. He was 74 years old and carried himself like a teenager still. If you have occasion to be traveling on I-5, he’s buried at Comstock Cemetery in Curtin, Oregon close to his home of so many years. It’s about 600 yards off the east side of the freeway with an easy on-off.

Jay grave 2

In closing, I will say that we, as Veterans, are far more knowledgeable about our rights and VA’s obligations towards us now. Nevertheless, I could never see Jay filing for hemorrhoids or hammer toe. Had he desired, I’m sure he could have filed for any number of the diseases associated with POW status and had a rip snorting 300% rating with SMC L. He didn’t. He didn’t file for sleep apnea associated with having his nose broken 10 times by the Japanese. He didn’t file for loss of use of his thumbs due to being hung by them for days at a time. In short, Jay is remarkable for what he didn’t file for and what he didn’t seek even though he was clearly entitled to it. I mention this for the edification of a new class of warriors who are only now entering the arena. Clearly, you are entitled to many of the ailments you will be filing for. Many have been irreparably harmed-both mentally as well as physically- by repeated combat deployments. Weigh the ones you are going to suffer from for life and concentrate on them to the exclusion of all others. Focus on the DM2 and the back injuries that will impair you for life. Concentrate on the Hepatitis and PTSD and make light of the MDD with narcissistic tendencies.

Lastly, Jay (and I) would admonish you to live life in the now with those you hold dear and put aside the things in the past that cause so much anguish. Fight your battles early with the VA. You must be well aware by now that it is going to be a protracted encounter. Dead Veterans have much to teach live ones. Without a doubt, all of our lives in my family have been touched by Uncle Jay. For those of us who served, even more so. Included in the papers I received is the death certificate of my namesake and Step Grandfather I never met. He passed at the LA soldiers home in December of 1946, shortly after Jay returned from his Camp O’Donnell incarceration. He, too, was a Veteran-of the First World War. It runs in our family apparently. I had no idea.

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Posted in From the footlocker | Tagged , , , , , , , , | 6 Comments

PREPARING FOR APRIL FOOLS DAY

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As most know. April Fools day is not just any day. It’s my birthday. If you were wondering why I’m so twisted, this may explain it. And by virtue of it, I look for really truly outstanding jokes to spring on people.

Member Tombo, the one who sandbagged me with the Mars v. Venus fiasco, sends us this  to placate our need for more humor. I really can’t wait to be readmitted to the hospital as an inpatient. This is priceless.

An old Vet in the hospital…

There was one nurse that just drove me crazy. Every time she came in, she would talk to me like I was a little child. She would mew like a kitten in a patronizing tone of voice,

‘And how are we doing this morning?’  Or ‘Are we ready for a bath?’, or ‘Are we hungry ?’ It was more than any man should have to bear.

 Tuesday, at breakfast, I took the apple juice off the tray and put it in my bed side stand. Urine testing was done on Tuesdays.  Later, I was given the urine bottle to fill for testing.

The nurse came in a little later, picked up the urine bottle and held it up to the light. 

‘My, it seems we are a little cloudy today. ‘

I motioned for her to hand it to me.  When she got closer with it,  I snatched the bottle out of her hand, popped off the top, and drank it down, saying, 

‘Well, I’ll run it through again. Maybe I can clear it up a bit with another trip.’

Yep. My kind of Vet. My kind of joke.

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MILESTONES–VAN T. BARFOOT

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Some of you may recall the saga of CMOH winner (and numerous other medals) Mr. Van Barfoot, recently a citizen of my home state of Virginia. His exploits span three theatres of war and as many continents. Look up courage in the dictionary and I’m sure you’ll find his picture.

 

Mr. Barfoot took exception to his Home Owners Association’s  (HOA)myopic view of putting a flag pole out in front of his house to demonstrate his high esteem in which he held his country. The HOA took offense and threatened to sue after he installed it. Due to much media attention and the inherent bad press you get when you diss our flag, they backed down. That they would even have the gall to limit anyone to displaying it unless it hung on the house  shows their disdain for our Country. To show this indifference to a Medal of Honor winner is even more cheeky.

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Mr. Barfoot didn’t do anything more extraordinary than what he felt was his job as an infantryman. To wit:

 On May 23, 1944, near Carano, Italy , Sgt. Van T. Barfoot, who had in 1940 enlisted in the U.S. Army, set out alone to flank German machine gun positions from which gunfire was raining down on his fellow soldiers.

His advance took him through a minefield but having done so, he proceeded to single-handedly take out three enemy machine gun positions, returning with 17 prisoners of war.

And if that weren’t enough for a day’s work, he later took on and destroyed three German tanks sent to retake the machine gun positions. That probably didn’t make much news either, given the scope of the war, but it did earn Van T. Barfoot, who retired as a Colonel after also serving in Korea and Vietnam, a well deserved Congressional Medal of Honor.

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Mr. Barfoot checked out of the hotel on 2 March 2012. He was 92 years old. His flagpole still stands proudly out front- as does mine. Love of one’s country never goes out of style-nor should it.

Posted in Inspirational Veterans | Tagged , , , , , , , | 2 Comments

SPAMBOT GOT IN

Sorry for all of you not being able to comment or use the site. I inadvertently uploaded a spam bug on the Mars v. Venus thinking post and it caused the site to seize up. It took 24 hours to get the WordPress police on it. Problem solved. Even though I take full responsibility for it, in the future if you send me something to post, try to ascertain if it’s clean beforehand. Your help with this would be appreciated in advance.

The Hired Help.

Posted in General Messages | Tagged , , , , , , , | 1 Comment

New medical coding: Out with the old: Amputation; in with new: Detachment

Here is a change veterans should be aware of:  The VHA, like all health care stakeholders, is implementing the Tenth Revision of the International Classification of Diseases (ICD-10).  The government-wide conversion deadline is 10/14.

The ICD-10 is far larger and detailed.

ICD-10  Clinical Modification (ICD-10-CM) will go from about 13,000 codes to about 68,000 available codes.  ICD-10 Procedure Coding System (ICD-10-PCS) will go from about 3,000 codes to 87,000 available codes.

This change will impact veterans’ claims in the future.  A 21st Century System for Evaluating Veterans for Disability Benefits (2007), by the Board on Military and Veteran Health, provides an overview of the ICD and VA schedules.  For example, “Raters must match conditions in the medical records to the proper diagnostic code in the Rating Schedule.(p. 263);…VA provides flexibility by allowing the rater to use an analogous condition as a guide for determining the rating percentage.”

The Rater’s schedules only have about 800 codes, many of which are outdated. Veterans lucky enough to have a rating may want to learn about the new diagnostic codes.  Errors are sure to multiply.

Click the image below for a brief discussion of PTSD diagnoses comparing the ICD-10 and the DSM-IV.

PTSD Diagnostic Criteria

Click image to go to VA.

The terminology in the new ICD can be bizarre.  Living babies delivered by all means are now objectified with the term “products of conception” in the ICD-10-PCS.  This bothers me.  Will people with terminal illnesses be referred to as “products of terminal illnesses” in the future? 

New terms, new world?
“Ahhhh, it’s a female product of conception.”

Well, coding is another huge topic.  The resource quoted above is a free download or it can be read or skimmed online.  Scroll down to see the Table of Contents.  Sample chapters:

4 The Rating Schedule

5 The Medical Examination and Disability Rating Process

6 Medical Criteria for Ancillary Benefits

Another good resource:

Private search engine: http://www.icd10data.com/

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VA GUN SCARE– IT’S A CONSPIRACY

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Every time I get one of these in the mail, I immediately digest the entire website to make sure I’m not being inveigled into promoting some goofball “Holes in the Poles” theory about where the aliens park all their spaceships and do the  5 million light year/50,000 hour maintenance under the hood.  Come on. I don’t want to belong to the E Pluribus Unum Club with the “one eye on the pyramid” logo.  Read some of the stories to get a feel for it. I’ve been sucked in by a few. They’re like black holes-plausible at first but then you feel like you’re in Oz, Kansas.

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So if they have stories like “Use this single loophole to avoid paying taxes (HD video-$9.95), see if the guy’s last name is Madoff. If it  has articles like “Bill O’Reilly finds who killed Jesus”, move your wallet to your front pocket and leave.

I only have enough time to fight for Veterans and try to stay alive. Add in farming and it gets crowded. If I had to join the tinfoil hat club, I might have to give up one of the others. So what should the emailbox regurgitate but 8 tiny reindeer attached to a bunch of cc’s informing me that VA now requires you to give up your guns. Not. I don’t care if everyone you know is digging an underground bomb shelter/gun storage for the Last Days. It’s coming but not for a while.

Let’s read this like good ol’ boy Jeff Foxworthy.  You may be incompetent :

if you are unable to find your way to the supermarket.

if you are unable to find the trail of breadcrumbs you left to help you get home from the supermarket.

if you are unable to remember which jacket you left the Glock .40  in.

if you can’t remember if you ever wear jackets.

if you have someone else do your finances.

if you can no longer spell finances.

if you wear adult diapers and drool a lot.

if you are not actively involved in the changing of the above diaper.

if you can’t remember your wife’s name.

These are clues to warn you about being incompetent. If you fit this category, VA is instructed to get you a fiduciary or see if one of your family members can do it. Family is probably better if you are worried about theft. VA has a pretty spotty record on that fiduciary-appointing business. Best someone in your own family takes you for a ride than a total stranger. That way the clan benefits as a whole.

So, you get the idea. You’re no longer a candidate for Mensa. Chances are, you probably shouldn’t be toting anything more lethal than a butter knife. VA knows this. You know this. Chances are your wife/daughter/ fiduciary knows this. They may have already taken precautions and removed the lead lollipops.

Much ado about nothing. The sky is not falling. Chicken Little is a bit premature. The VA is not going to suddenly turn you in to the FBI. What will happen is that your name will be entered into the Honorary Adam Lanza Memorial database as one who should not be allowed to own or possess firearms. It does not encompass Vets with PTSD-yet. The operable word is “yet”. Gun control is a gradual process like moss growing on your roof. One day you look up and it’s green instead of grey. I can see them getting their fair share of the hairy eyeball soon but not today.

This isn’t a conspiracy to take your rights away. It’s a concerted effort keep guns out of the hands of crazies. You have to start somewhere. VA is simply helping to compile their portion of a database for national consumption. If it ended there, it would be okay. A conspiracy consists of silent, dark night hand offs and subterfuge. VA isn’t hiding what they are up to. It’s what they will start doing openly to the large cadre of bent brain Vets some day that is of concern. Will they or can they adjudge this group as mentally unbalanced to the point where their 2nd Amendment rights may be abridged? That’s an interesting discussion for another day.

I guess I don’t have to mention how this will cause a lot of servicemen to think twice about claiming PTSD with the inevitable outcome of deprivation of their constitutional right to keep and bear. Pretty tricky, huh? Chances are the VA just found a cure for the disease and doesn’t even know it.

VA IS THE FOX NEWS

OF CLAIMS ADJUDICATIONS

YOU REPORT

scWE DENY

Posted in vA news, Veterans Law | Tagged , , , , , , , , , , , , , , , , | 3 Comments

VETS DYING WAITING FOR BENEFITS MORE FREQUENTLY

Yowsers. From Membress Shawn who is Law Bob’s girl Friday, we are showered with these two sad articles.

VA promised us something when they set up shop two hundred years ago. They aren’t performing for anyone but themselves. You notice the Orlando Learn and Play Vacations go off without a hitch unless VAOIG catches wind of them. Same for all those bonuses at the Central Office. With that much efficiency, we should be able to accomplish claims in two shakes of a lamb’s tail.

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