Homeless veteran eligibility and the Lifeline free cell phone program

Posted on January 18, 2013 by Laura

The FCC has recently modernized and reformed the Lifeline program but still makes it too hard for homeless veterans to get and keep a free Lifeline cell phone.

Briefly, the Lifeline federal benefit program has subsidized landline phones for low-income people for a number of years.  A household could apply with proof of low-income or  participation in a federal program such as a VA pension (some states).  In most states, the income must be less than 135% of the Federal Poverty Level (FPL).  In 2012, that would be folks scraping by on $15,079 for a household of one;  $20,425 for a household of two in the 48 states (higher in Alaska and Hawaii).

The FCC rule-makers insult homeless vets in a 2012 report.  In paragraph 486, they write (emphasis mine):

The Veterans Homeless Initiative Office, a division of VA, suggested that we include homeless veterans programs as qualifying eligibility criteria. Our rules for demonstrating income eligibility require the subscriber to provide documentation such as an income tax return or current income statement from an employer to establish income is at or below 135 percent of the Federal Poverty Guidelines. The rule does not address, however, situations in which the consumer has no income at all, and therefore lacks any such documentation. We seek comment on measures that would enable veterans who lack any income, but are not otherwise enrolled in a qualifying program, to demonstrate eligibility for Lifeline. For instance, should a low-income consumer that lacks any income be permitted to sign a certification under penalty of perjury that he or she has no income, with some form of additional certification from an authorized VA official, such as an outreach worker or program coordinator, that the person in question is a homeless veteran or at risk of becoming homeless? Given the unique difficulties in verifying transient and homeless Lifeline consumers’ eligibility, are there any additional measures that should be implemented in situations where an eligible veteran has no documentation of income eligibility to minimize waste, fraud, and abuse while ensuring Lifeline access?

Under the Bush Administration, cell phones became eligible for the subsidy but a recipient applicant had to have a permanent address.   But while the FCC’s reform now allows a temporary address (ex. shelter, nursing home) to be used by a homeless person, that address still has to be certified every 3-months whereas someone with a permanent address has an annual certification.  If the phone isn’t used at least once every 60 days, it’s deactivated.

So just what is this free government largess?  Well, a low-income person can get a free basic (no camera/smart phone) phone, 250 minutes, and 250 text messages per month from Assurance (Virgin);  Safelink (Trac phone); Reach Out (Nexus).

Let’s see.  That’s 4 hours and 16 minutes a month.  Or about an hour a week to talk to a family member, a friend,  or make an appointment.  A little comfort and security.  I’m good with it. FCC to disadvantaged veterans:  “Thank you for your service but we’d rather you were–completely–invisible and voiceless.” 

FCC to disadvantaged veterans:  “Thank you for your service but we’d rather you were–completely–invisible and voiceless.” 

Posted in Guest authors, HOMELESS VETERANS, PTSD | Tagged , , , , , , | 9 Comments

VIReC VA WEB SITE

Posted on January 18, 2013 by joeaveragevet

It’s the acronym’s acronym.  Yep.  vA has an acronym page to look up acronym’s.  I guess you can not look up the acronym unless you know the “look up” acronym,  VIRec.      Only in the vA world does this stuff happen.

Ed. note: They have so many they need a web site just to decipher them all!

Posted in Guest authors, vA news | Tagged , , , , , , , | 3 Comments

CAVC SERIES–GILBERT’S LASTING LEGACY

Posted on January 18, 2013 by asknod

When we survey our Veterans fiefdom for judicial uniqueness, we notice that in spite of what is described as a Veteran-friendly environment, we often manage to end up on the wrong side of it. 85% of you, to be exact. That’s the beginning statistic. It is becoming more and more apparent from Vet’s we survey that the cattle drive to denial is far easier to “grant” than service connection. Very simply, it is easier to stare at the ceiling than the file in front of you. It’s easier to not connect the dots than the obverse. Results? More claims “completed” and accuracy stumbles to record lows of 35-40%. The cattle are moving and statistics are proving the backlog is deincreasing slightly, imperceptibly.

One thing we cling to in our humble journey though this is discovering a mistake. Not a little “We forgot to read him his VCAA rights but it was not prejudicial”. I’m talking an 81 mm magnesium flare mortar on a dry lake bed in the middle of nowhere-at night. My C-file before the Court of Veterans Appeals is eight volumes and 3715 pages long. Trying to find something incriminating is akin to the proverbial needle in hay. Going through each document is droll work but here it exposed a twenty four year old mistake with no question as to the blatant illegality.

In 1989 when I filed, I assumed they had all my medical records, including my “off-road” records at far away Lima Sites and remote Operating Locations (OLs). All of us in the Air Force would. We were very civilized in the 60s and 70s and prided ourselves on keeping track of their health and welfare. Once it was ascertained that they didn’t have a lot of them (95%), I requested what would now be called a DRO hearing. Back then, it took almost, gee two and a half  months to get one.

I got to see my SMRs for the first time (no copies for me) and there it was-or more precisely-wasn’t. No civilian hospital records of anything. I promptly submitted the address with my testimony and the transcriber dutifully noted it in the record. End of search. When they issued my Supplemental Statement of the case, they made no mention of the records- just a simple “Sorry, Nod but we cannot grant.” Obviously they had made no effort to assist in finding these records. I immediately contacted the hospital half way around the world in northwest Thailand person to person for $135.00 and in my best Thai asked for my records.

A week later a photocopy of one page came back showing my hepatitis (which I wasn’t claiming) and an X ray request for left hip dated 3 months after my injury(s).  Here is where the VA made a clearly and unmistakably erroneous finding. These are rare because VA is usually careful not to leave incriminating evidence in your C-file. I received my very own copy in 2009 and the below wasn’t in there. Nevertheless, the Record Before the Agency, known as the RBA clearly reveals it. While digging through it page by page I spotted this and shared it with LawBob.

2-25-91 CUE

Sure enough, in smoking black and white, on the 25th day of February of 1991, some dingbat decided that just because I had submitted some”private medical records” (PMRs) from a voodoo hospital written in Thai, that they did not constitute their definition of evidence (forever). That is a “finding”. Yet the VA has recognized those very same records as having established that I had hepatitis in service 18 years later.  That is a “finding”, too. VA cannot have it both ways.

CM Xray

Notice I’m Mr. Nod. No rank then. Everyone was Mr. Bill and Mr. John or Pilot Ralph. Life off the beaten track was far different in 1971. Uniforms were rare.

This is the conundrum of a VA “finding”. WGM can tell you all about a finding. Once they found out his HCV was from willful misconduct (picking up an STD) they denied. Once it was established that it was in bad taste (but not willful misconduct) to have contracted this, VA was still inexorably stuck with their finding- that the STDs were the culprit and that it occurred in service. What it was NOT was clearly and unmistakably erroneous to find that he was infected during service so that part had to stay in the record. This is called Openmouth Insertfinding disease. VA couldn’t suddenly NOT find the HCV was SC but rather due to sitting on dirty toilet seats after service. They had spoken, and unless the VA examiner wanted to fall on his sword (and he didn’t), WGM was now SC by a CUE TKO.

Similarly, here, VA has made a finding that the PMRs are not evidence of a disease or injury in service- albeit in 1991. Both are evidence of what was described as clearly and unmistakably erroneous in Gilbert. This is an extremely high hurtle to get over. After you establish that it happened, you are obligated to prove that it manifestly changed the outcome of your decision. WGM’s was rather cut and dried. Mine was an arbitrary decision to exclude legitimate evidence from the record and someone in power signed off on it.

From the Veterans Benefits Manual, Page 1167:

Clearly erroneous is a standard that Congress has rarely, if ever, used for court review of federal agency action. The Court interpreted this standard of review in its landmark decision in Gilbert v. Derwinski by stating that a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. The Court also stated:

This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty . . . if it undertakes to duplicate the role of the [BVA]. . . . If the [BVA’s] account of the evidence is plausible in light of the record viewed in its entirety, the court . . . may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.

Although the CAVC made clear in Gilbert that a BVA finding of fact may be clearly erroneous even though some evidence in the record supports the finding, later case law indicated that the court would rule that a BVA finding was clearly erroneous only if all of the evidence was against the finding. In other words, if the evidence was controverted, the Court would either let the BVA finding stand or remand with instructions to the Board to reconsider and prepare an adequate statement of reasons or bases for its finding.

Ever since Gilbert, the Court and VASEC have been chipping away at this important right. We are now required to identify the magic moment and the seminal phrase or action that caused history to diverge into two different time streams. WGM’s was newer and more easily undone while it was still fresh at the RO. Mine had traveled to the BVA decades ago and been sustained. My DAV rep. forgot to tell me about the brand new court. Back then things were a little bit more informal…

1991-2 (2)

1991-2 (1)

Nothing much changed for years and years until Padgett v. Nicholson (Fed. Cir. 2007). The CAVC hung him out to dry on a strict reading of Gilbert and the Feds reversed-much in our favor. Again, the VBM:

The BVA finding at issue in Padgett v. Nicholson was that Mr. Padgett’s right-hip injury was not related to his service-connected left knee disability. The record contained four medical opinions on this medical nexus issue. Opinions from two VA physicians were that the right-hip injury was not related to the left knee disability, while two private physicians stated that the right-hip injury was related to the left-knee disability.

As an aside, remember in my book that I advocate having several nexus letters when you play poker with the VA. Here’s a classic example of how much work they’ll go to to deny Mr. Padgett.

In determining whether the BVA’s finding was clearly erroneous, the Court evaluated for itself the relative probative value of each of the opinions. The Court observed that the two opinions in the veteran’s favor were from doctors with intimate knowledge of [the veteran] and his medical status; one had treated the veteran’s knee condition for over a decade; while the other had treated his right hip for over a decade.

The Court contrasted these two opinions based on personal examinations and knowledge of Mr. Padgett’s pertinent medical and physical history with the two opinions from VA physicians. Although the first VA physician had examined Mr. Padgett, he did not review the claims file and made no mention of the material fact that the veteran injured his right hip in service. In the Court’s eyes, this rendered the opinion of questionable probative value. The probative value of the opinion was further diminished, according to the Court, by the use of non-definitive language; the opinion was couched in terms of what the evidence suggests, plus the physician stated that [f]or a more definitive opinion, it is suggested that a certified orthopedist review this case.

This, of course, was from the proctologist masquerading as an ortho doctor.  It’s his CYA moment of saying “Not it.”

The second VA physician’s opinion was also of questionable probative value because it was made without knowledge that the veteran injured his right hip in service. The Court then concluded that given the little probative weight, if any, that can legally and reasonably be accorded the opinions of the two VA physicians, as opposed to the opinions of [the two private physicians] that strongly support secondary service connection for the right-hip injury, the finding of the Board that the evidence preponderated against this claim is simply, not plausible and the Court has the definite and firm conviction that a mistake has been committed.

VA uses different standards to determine these CUE errors. In WGM’s case, the VA erred in a factual finding. They misread law to put him on the wrong side of the fence. In my case they did something similar. The high standard needed to prove it is a finding by the Court that it was clearly and unmistakably in error and to point out the error of law. This, on the other hand, is done not by an error of factual finding but by the clearly erroneous standard (the sum of all the evidence) . The whole weight of the evidence comes down in favor with nothing of any substance pointing to a pre-existing condition or any other obvious event post service that it can be ascribed to. The VA in 2013 have constructed a perfect foil for most new CUE claims.  Like a trained dog, they have learned from their mistakes and rarely repeat them in public.

In my decision here, VA was on the ropes. This was less than a year after Congress created the COVA. Everything was in flux. Uncertainty ruled and the old way of adjudicating claims based on if you were a Senator’s relative or not were unsettled. Mistakes were made in public and just as quickly swept up and disposed of. How this could escape the C-file in 2009 and resurface in 2012 will remain one of those enduring mysteries of the file room. I call it Immaculate Reconception- it rose like the storied Phoenix from the ashes.

What this means is a new battle for CUE. I didn’t see this or argue it in my filings. I didn’t know about it. I guess this means dismissal without prejudice and another trip to the RO for a do over from scratch. Win or Die, right?

My favorite airline

Posted in CAVC Knowledge, CUE, Veterans Law | Tagged , , , , , , , | 2 Comments

FACE PAGE TODAY

Posted on January 17, 2013 by asknod

My favorite Amendment-Article #2

More Face

Face page

Posted in Food for the soul | Tagged , , , , , | 3 Comments

BVA– LEROY MACKLEM’S OTHER BROTHER DARYL

Posted on January 17, 2013 by asknod

FROM THE MONTGOMERY WARD

CATALOGUE RO IN ALABAMA

Here’s one that will take a while to be docketed at the Court. VA will play “Fish on! for a few years. The most common modus operandi is to stick your appeal for a higher rating at the bottom of the in-box pile repeatedly. Ten seconds before the BVA is ready to pronounce you’ve won, VA grants again. Unfortunately you’re keeling over with near constant and debilitating symptoms  and they’re thinking  …more than 30 days a year but less than 3 months of the year–hmmm– 40%, right? If he was sick, he’d go to the doctor every day and it would be in the records. He’s only going every three weeks so 52 divided by 3 is 16 and something. We’re rounding up to thirty days. What’s the beef?

Leroy Macklem, as most know, got a TKO on his CUE claim due to VA accidentally sending out a “You’re a Winner” letter. They quickly tried to erase the evidence by shipping the Veterans Service Center Manager to the Philippines VARO and everybody else to Puerto Rico. This leaves fingerprints. They did some other Bozo no-nos and finally ran afoul of the already-rescinded Excessive Awards Program (EAP). VASEC appealed it up to the Fedup Circus for a do over. He actually wants them to remand it all the way back down to the RO for a new haircut. Well, gosh. Do you think they’ll see their CUE reversal was CUE? There goes Leroy’s 1951 rating. VASEC swears it will be an above board decision fully supported by law regardless of who prevails. He sure isn’t lying about that. That decision will have more fingerprints on it than a 1957 pin-up of Marilyn Monroe.

Here, Leroy’s lookalike from Good ol’ Alabamy put in a claim back in 1977. He kept at it but VA performed due diligence and denied. He even infected his wife with it and her contemporary records were there at  Noble Army Hospital (Fort McClellan) from 1978. Finally he gave up in 1979.

Once again, he tried to scale Mt. Impossible in 1997. He lost repeatedly through to 2007 and then finally prevailed. In 2008 and 2010 RO decisions he started riding the ratings hamster wheel. Here, in 2012, he has finally adjudicated himself into a 1977 effective date due to good ol’ VA stupidity and a propensity to never finish that which they started back in the early days. Being a closed shop like a union, attorneys couldn’t get their foot in the door to help us.  Daryl is sporting the American Legion on his bumper sticker but my guess is if he’s attempted this before, he’s probably getting pretty savvy on it in his own right.

VLJ Keith W. Allen has written the Gutenberg Bible and torn the claim apart like DEA drug agents disassembling an automobile at the Mexican border looking for black tar heroin. There’s simply nothing there to support finality and Daryl has shown he’s pursued it non-stop.  He’s into it 15 years on this latest voyage without touching the shores of Indiana Ave. NW. Almost a course record in VA intransigence, no? There almost ought to be a “last man with the oldest claim reversed” trophy or some Ceremony to honor his patience.

These cases turn up with horrible regularity so they cannot be anomalies. Few of us have the guts to keep on trudging through the swamp of denial for decades. That those who do are almost always vindicated speaks volumes for the quality of the decisions regarding our claims. Based on 85% denials, it bespeaks a culture on ne’er do wells bellying up to the bar for a free drink. Knowing you’re going to be associated with riff-raff and malingerers tends to cast a chill on otherwise legitimate Veterans filing. That, and the risable amount offered as “compensation” at the lower percentages is a strong deterrent in the minds of many who might feel the urge to file. I say this from personal experience in the late 80s and had no idea what they were paying because I never got past the ice creme cone with two scoops of 0%. I’m hoping to change that, too. That’s why this case has so much resonance to me.

Now that you have all the principal characters identified, the plot takes a boring turn. Yes, patient reader, the story will become a yawning litany of lather, rinse and repeat. A plea to raise the rating to TDIU, will result in 15 months in an increase to 60% sans the IU. This will necessitate yet a new NOD to protest the failure to adjudicate the TDIU which apparently is deemed denied. You don’t know because it wasn’t mentioned and your VSO is on Spring Break. More medical records will be submitted and another 15 months will go by. The claim will once again be poised on the lip of the Form 8 trebuchet for its inevitable launch to Vermin Ave. when Touche- TDIU is granted. Its now 2019 and you’re shopping a new liver. You won, Daryl. A grateful Nation turns its lonely eyes to you and salutes you for your patience and stamina. The American Legion will very soon be in touch and want a picture of you for their “trophy wall”. Go to a Halloween shop and see if you can find some of those black and white striped prison outfits. I wonder if they’ll catch on to the analogy.

images

Leroy Macklem and the “Last Man with an old CUE Win” club. (circa 2008)

Posted in CUE, TDIU, Veterans Law | Tagged , , , , , , , , , , , | 2 Comments

OH. THOSE HERBICIDES? NEVER HAPPENED

Posted on January 16, 2013 by asknod

Member  Frank of Vermont maple syrup fame sends us this.Once again with tongue in cheek, the US military is forced to lie through their teeth. Every time something like this pops up, everyone starts examining their shoelaces and noticing they need a shoeshine. “We’ll get back to you” is the general rejoinder like a poor VA ex parte joke. An excuse is promptly formulated and everyone is briefed on the new game plan.

Here, the references to Okinawa and AO are old hat. Veterans who witnessed this were denigrated and cast as being untrustworthy. One notices that they also suffered documented AO diseases but this was simply one of those coincidences that pop up around Regional Offices. Anyone who files for it with VA is lying because they have a monetary interest at heart. What is so subtly overlooked is the medical interest- as in “Gee. I’m dying from some chemical ingestion. I wonder what it was?”

With the disclosure that Johnston Atoll is also similarly drenched with the AO “relocated” from Kadena (and probably Naha AB as well), all is well. Notice that there is mention (finally) of AO storage and presumed use in Thailand expressly violating the King’s edict on it. Shoot, bubba. How do you think all the AO Air America was spraying out of their two PC 6 Porters got to 20 Alternate? They brought it in to Sattahip and trucked it up country to Udorn. From there, it went over the fence in 123’s. I’m sure a good chunk of it was used around the base perimeter as well.

Lying about this in the 70s and 80s was all for political politeness. We said we didn’t and our allies took us at our word. Now that the cat is out of the bag, the US would have us (and SEA countries) believe it’s merely a typo and uncorroborated by anything other than a passing mention in some CHECO reports.

Why hasn’t anyone gone down to Kadena and scooped up some dirt? A simple lab test is still going to show residuals of 2,4,5 T.  For that matter, what about Udorn? You can’t erase that stuff for many years-even decades. It acts like any heavy metal and sinks below the surface but never completely dissipates. Finding this stuff in the soil isn’t all that complicated. Either it’s there or it isn’t. Bending over to tie your shoelaces and ignoring the question is not going to make it go away nor will forty years of monsoons.

The VA has to take it’s lead from the military and accept what they proffer as the unvarnished truth. The reality is there isn’t enough money in the world to remunerate Veterans for this boondoggle-hence the short list of approved diseases. Most scientists will tell you the panoply of autoimmune disorders is almost a given for AO due to warped genes.  If you lie down with fleas, do not be surprised to be scratching by morning.

Let’s just pretend for a moment that some made it into Okinawa but it was never used. Next theory? How about Thailand when everyone was dumping it all over the trail in Laos, Cambodia and the DRV? Nope. Nosireee, Bob. The King forbade us to use it in-country and we obeyed his wishes. We opted for “Roundup” and Malathion so as to obey his desires.

The real shoe has not dropped yet. When will the governments of Cambodia and Laos join the gravy train that Hanoi is demanding ( EPA mitigation in the billions)? This story has not even begun to be told and here we only have (putatively) a mere 867,000 documented Vets exposed still left alive.

Off hand, I’d say a lot of Lima sites are toxic waste zones from spraying, not to mention Route 7 up near the northern edge of the Plain of Jars. Lima 108 ( Ban Muong Soui )  was one of the most heavily sprayed areas I can remember. Ban Khang Khay (LS 8) and Xieng Kouang (L22) weren’t far behind. I’d suggest finding the AirAm PICs (pilot in charge) who were assigned to the Porters equipped with spray tanks but I severely doubt they’re still alive.  You don’t live to a ripe old age being around this stuff apparently.

AO in 55 gal. drums at Bien Hoa AB RVN 1970

Posted in AO, vA news, Vietnam Disease Issues | Tagged , , , , , , , , , , | 1 Comment

MILITARY SUICIDES HIT RECORD NUMBERS IN 2012

Posted on January 16, 2013 by asknod

Military suicides (349) surged to record heights in 2012 exceeding the number of losses in Afghanistan (295). Leon “the pants” Panetta had tentatively forecast  325 so this came as a rude surprise. In fact, all the services reported more this year but the Army far and away led the pack.

Investigators are querying medical examiners’ findings closely searching for errors as everyone knows troops are often careless when cleaning their personal weapons. This was in light of the discovery that over 60% of the suicides (or gun-cleaning accidents) involved a soldier’s own personal weapon rather than a service weapon. The same investigators were stumped as to why anyone would point a service-issued rifle or handgun at themselves thinking it was empty and pull the trigger accidentally.

The Puzzle Palace had this to say about military versus civilian suicide rates:

The Pentagon says that although the military suicide rate has been rising, it remains below that of the civilian population. It says the civilian suicide rate for males aged 17-60 was 25 per 100,000 in 2010, the latest year for which such statistics are available. That compares with the military’s rate in 2012 of 17.5 per 100,000.

The Pentagon did admit off the record that if the newly-separated Veteran population were included and measured exclusively versus the civilian cohort, the percentage of suicides was right off the map. They declined to be interviewed on that saying it was simply too touchy a subject currently and was an unfair comparison. “Actually, Veterans are civilians and it makes perfectly good sense to separate them out of the military numbers” said the unnamed Pentagon spokesman. When asked about comparable Vietnam Veteran statistics, the same spokesman became even more testy. “The reasons Vietnam Vets commit suicide are many and varied. To attribute it to the military and their experiences during that time is simply unsupported by facts. After forty years, there can be numerous causes and besides- the courts addressed that in Maxson vs. Gober in 1999 so ploughing that ground again is pointless. We maintain that there have been no studies on this to ascertain the cause and it remains a sad coincidence. People from all walks of life commit suicide including former military personnel of all wars”.

Well gee. There you have it. The history of suicide-both military and civilian- is available and we are free to conjecture on the why. What we are not permitted is to lay it at the military’s front door because they smartly have declined to do any studies on it thereby absolving themselves of blame. Sounds a lot like the “non-tests” to determine if jetguns were capable of transmitting HCV. (“While plausible, any conjecture on this is just that. No testing has ever revealed a link between jetguns and the transmission of HCV because no testing has ever been done. Case closed”.)

Circular logic is so wonderful. Here, no evidence is positive evidence much to their delight. Or… perhaps Leo thought the newsies were referring to the Salvation Army.

images (2)

I can almost hear that Awwerrr? of Tim Allen’s from Home Improvement.

Posted in PTSD, vA news | Tagged , , , , , , , , , , , , | Leave a comment

HERE WE GO AGAIN

Posted on January 15, 2013 by asknod

Great. Buffalo’s VAMC is in the news again. This time they are attempting a redux of the venerable jetgun using one-patient insulin pens again and again on multiple patients.

Their feeble plaint? “We changed the needles before reusing the pens”. Wow, have they been living in a time warp somewhere? On an ordinary syringe, it’s been a bozo no-no for decades now to take the needle off and replace it with another and keep on shooting.  Where do they find these employees? Where do they post the circular explaining sanitary protocol?

Mark my words. VA will assign a .0000000021%  potential of cross contamination among the affected Vets even if 20 of them come down with HCV from this. One thing they’ll never do is check to verify genotype and RNA markers to find out if it’s an identical strain. They don’t invite §1151 claims down on themselves if they can obfuscate their way through it.

Why is it with each new innovation, VA continues to use the “10¢ holding up a dollar” technology. Epi pens, junkies’ IV gear and insulin pens should all share one common philosophy. You do not share them. If you do, the chance of contamination is a given. If you shared a straw with your buddy indulging in Peru’s number one export even once, you have contaminated yourself and will never get service connection for hepatitis. However, if you get reused insulin pen shots down at the Buffalo shoot-and-go, your chances of ever picking up the bug are slim and none. Can someone explain how that works?

images (1)

images

Posted in HCV Health, Medical News, vA news | Tagged , , , , , , , , , , | Leave a comment

CAVC–KETCHUM V. SHINSEKI

Posted on January 14, 2013 by asknod

Hot off the presses for 2013. The very first HCV decision of the new year.

Click here.  Erase the word {query} and then insert  11-3304 in the search bar. Then click on the blue download in the upper left to view.

Keith W. Ketchum, under the able tutelage of Robert V. Chisholm, seeks to associate his depression to the bug juice therapy he took for his HCV. VA would just as much have everyone believe it  happened before , after or maybe is simply a fig newton of Keith’s over-stimulated imagination. It certainly couldn’t have anything to do with Interferon. Why, that’s never been proven, let alone observed as a noted side-effect in more that 68 % of cases and at any rate is not corroborated by any nexus submitted.

They’re not out of the woods on this by a long shot. I suspect there will be a few more C&P exams and some head-butting behind the scenes, but a new nexus would be the icing on this cake. A good brain doctor could inveigh on how it is “more likely than less likely” that ol’ Keith’s trial by bug juice not only kicked his ass but did what it does in a majority of cases-caused unmitigated depression. That would seal the deal unless VA wants to go find one of their proctologists to opine that it “is not at least as likely as not” that this is secondary to HCV drugs. You sure aren’t going to find one in the civilian ranks of gastrodocs willing to look like a boob and say this with a straight face.

I don’t mean to be Captain Obvious and do Mr. Chisholm’s work for him but I will carry the water for Keith. Here’s the VA’s very own website on the subject of Interferon side effects and guess what’s documented as being very prevalent in conjunction with bug juice?

You do not need an astrophysical degree to type in “side effects of Interferon therapy” on  Google. Likewise, a rudimentary high school education in the English language and composition will permit most to absorb some simple numbers and sentences.

Treatment-related side effects are nearly universal

Most common:

fatigue (interferon and ribavirin)

flulike symptoms: fever, headache, muscle ache (interferon and ribavirin)

mild anxiety (interferon)

skin rash (ribavirin)

depression (interferon)

gastrointestinal symptoms: nausea, diarrhea (interferon and ribavirin)

Monitoring for severe side effects (eg, marked anemia) is an important part of treatment follow-up

Management of symptoms due to side effects is critical to completion of therapy

When the VA goes so far as to admit the below, I think we can safely say that they would be contradicting their own research to come up with this lame assertion to deny Keith.

Side effects of treatment, however, are essentially universal.

Well, there you have it from the VA Horse’s mouth. Bug juice causes depression but it   can’t conclusively be said that it caused Keith’s. That would be pure speculation. Welcome to the new VA miracle of a nonadversarial form of denial. Just like members of childhood soccer teams who no longer “keep score”, everyone gets a trophy and a certificate of participation.  Unfortunately, nobody wins first place or gets compensation in this format. To win requires about 10 years or until they realize you’re not going to go away. The addition of a VA attorney will speed things up immeasurably.

Mr. Chisholm understands this and will take his remand back to the BVA for a new bite of the apple. He will also rub this in their noses and remind them that it’s in their words, not his. Sometimes VA must wonder how they get themselves into these predicaments.

#1 Open mouth.

#2 Insert medical treatise.

Depression develops in 20-35% of patients treated with interferon and ribavirin. This can be one of the major morbidities associated with treatment, and practitioner screening for the development of suicidal or other destructive ideation is essential when patients develop symptoms of depression. Comanagement of patients with a prior history of depression or other mental illness by mental health professionals, with appropriate therapy before treatment, is very important.

images (1)

Posted in CAvC HCV Ruling | Tagged , , , , , , , , , , , , , , , , , | 2 Comments

EENY MEENY MINEY MO

Posted on January 13, 2013 by asknod

EENY MEENY MINEY MO

WHICH VSO CAUSED ALL MY WOE?

                     FROM THE EMERALD CITY RO AT THE                  END OF THE YELLOW BRICK ROAD

Here we go again. I try to impress on Veterans that the VSO rep is just a glorified mailman   Strike that. I lied. No only is he not a glorified one but he lacks the rudimentary “In sleet and snow and hail and rain” mentality.

We have a Vet being repped by a law dog (finally) who understands the importance of dates for filing. Mary Ann Royle is no country bumpkin and knows her stuff. Nevertheless she cannot prevail on this because the VSO stepped on their necktie before she took over the helm. I have seen this before on a claim I was helping a Vet with down in California (Cleotis) in 2006. His Rep. simply blew him off and didn’t file the Form 9 in time. He lost his filing date of 2004 and ended up with a newer one in 2008. Sucks? I think that is a masterpiece of understatement. We entrust these people to do this for us and what happens? They can’t even be bothered to take care of business. What’s more ironic is the cavalcade of excuses that tumble from their lips with no thought that they can be rebutted.

Fortunately we can narrow this down to several VSOs. At American Lake, I am very familiar with the building that houses the VSOs. I’ve been there innumerable times until I washed my hands of the turkeys. There is a MOPH, an AmLeg and a DAV office there. Which one is the criminal? Who knows. Let’s investigate. shall we?

Here’s the crime:

As to the Veteran’s next actions, the claims file contains two submissions from her, both date-stamped by the RO as having been received on April 25, 2007. The first is a hearing request dated February 22, 2007. The second is a VA Form 9 dated March 28, 2007. Both also have an unidentified “received” date stamp of April 12, 2007 in addition to the later RO date stamp. During the April 2009 hearing, the Veteran’s representative confirmed that the earlier date stamp was that of her veterans service organization. The Veteran’s representative further noted at the hearing that “there were some administrative problems with the mail runs” at the field office at the VA medical facility in American Lake and delays in getting mail from the field office to the Federal building in Seattle. The Veteran indicated that she mailed her submissions to her representative.

Yessiree, Bobby. That administrative problem. Since I am a victim of this as well, allow me to follow the bread crumbs for you. The VSO rep. takes the evidence in question to the central mail room of the building next door to the hospital. It’s located right next to the Release of Information Office in the basement. They in turn put it in Rubbermaid™ baskets and it is placed on the VA shuttle bus that travels several times a day to the Seattle VAMC. From there a courier takes all this over to the Henry M. Jackson Federal building (915 2nd Ave.) and delivers it to Clayton G. Hopperstad, GS 4 Mail and file clerk, Annual salary $38,822.00 (2010 bonus $391.00) in the mail room. I know this. He’s signed a gazillion of my Certified Mail Return Receipt Requested green cards.

I say I was a victim too. I gave my blue ink copy of my prized nexus, which the MOPH never informed me I needed, to  my representative Pat Boyer for delivery via this route in February 2008. Surprise, surprise, surprise. No nexus arrived. He went so far as to imply I never gave it to him. This is the “administrative problems” they are trying to pawn off on the VA. In this instance, and considering it happened at almost the same time, I suspect her and my representative may have been one and the same. Coincidences don’t travel in pairs. If they did we’d always get a pair dealt to us in 5 card stud.

In view of the earlier unidentified date stamps on the two submissions from the Veteran and her credible testimony that she furnished these submissions to her representative’s American Lake field office, it appears that both documents were in the possession of her representative for some period of time before being received by the RO.

This is probably the only time I will believe an employee of the VA is telling the truth. The disdain we accorded behind our backs is appalling.  Now for the panoply of pathetic pablum.

Another assertion from the Veteran concerns the applicability of the “mailbox rule” of 38 C.F.R. § 20.305 in this case. This rule does warrant consideration insofar as the postmark of the Veteran’s Substantive Appeal is not of record. The Board notes, however, that the length of time from February 8 to April 25 in 2007 was 76 days. Even when applying the “mailbox rule,” and taking into account two weekend days (April 21 and 22), there would still be a passage of 69 days, well in excess of the 60-day response period required by 38 C.F.R. § 20.302(b)(1). Moreover, while the Veteran’s representative cited to “a holiday in there” during the April 2009 hearing, the Board must point out that the only holiday in April 2007, Easter Sunday, fell on April 8. In short, the VA Form 9 was untimely even with application of the “mailbox rule.”

Below is the final nail in the coffin. This unequivocally proves the Veteran’s representative has no conception of the regulations concerning the timely submission of a Form 9:

Also, the Veteran’s representative argued that “if there was a piece of evidence to be found,” the 60-day clock should be set again. In this case, however, the Veteran submitted no evidence between February 8 and April 25 of 2007, and there was no basis for the issuance of an SSOC. As such, 38 C.F.R. § 20.302 and, as described above, VAOPGCPREC 9-97 (Feb. 11, 1997) do not apply in this instance.

Does anyone continue to cling to the idea that Congress really had our best interests in mind when they limited our representation before the VA to a bunch of uneducated chuckleheads with a smattering of CFR knowledge? Just because you have a “Certificate of Attendance” proving you were there at the VFW bar and can provide proof of the purchase of two Jack Daniels and cokes, it does not make you a leagle beagle I’d want to entrust my claim to. Oddly, it’s either this or go it alone pro se. Social Security claimants are accorded an attorney and we aren’t? Hellooooo? McFly? Now, to add insult to injury, they just legalized pot in my state. Rug-oh, Rorge . “Your honor, I think I was stoned that day week”.

Round up the usual suspects

images

 images (3)

images (4)

Posted in BvA Decisions, VSOs | Tagged , , , , , , | Leave a comment