CAVC–CHECO V. SHINSEKI (ORDER)

Posted on January 8, 2013 by asknod

Veterans justice just took another hit on January 4th. Cerise Checo, a young lady with a mobile zip code, was informed that her legal help was amateurish and she was being denied her right to appeal to the CAVC due to being time-challenged.

Let’s see what she did wrong.  You don’t have to be specific as you do on a Form 9 regarding why you feel your denial was unjust. Check. If you’re homeless you should be accorded some considerations  above and beyond other folks. Check. You should obtain good legal help when you go to the Court seeking redress. Check. The law says you have to file your Notice of Appeal within 120 sunrises and sunsets after the BVA decision. Checkmate.

Cerise violated that one premise after she missed her NOA cutoff date. Her choice of legal help was off kilter or something is extremely amiss. The gentleman, Mark R. Lippman, Esq., made some crucial errors during his oral presentation. When you present your legal arguments to the Court, you don’t “guess” anything. You’re a lawyer. There is no guesswork. Either Cerise’ homelessness was was the causative factor or it wasn’t…

When asked, however, whether he could show that Ms. Checo’s homelessness directly caused the untimely filing, Ms. Checo’s counsel responded, “I guess not.”

Checo v. Shinseki (2013)

It appears the Court was sitting there with parted lips and bated breath just awaiting a statement From Mark that were it not for the wobbly wheel on Cerise’ shopping cart, she would have made it to the Post Office with time to spare. Being homeless is bound to tug at the heartstrings and I have no doubt she had a leg up at the Court already with this. However, if you don’t give your leagle beagle sufficient information or excuses, things can go horribly awry as they did here. I find it almost impossible to believe that Mr. Lippman, who has eighteen years of experience, could step on his necktie in front of Judges Hagel, Lance and Schoelen. The only other explanation would be what happened to me when I met my DAV rep (an hour late) at the Seattle VARO about ten minutes before showtime.

Unlike attorneys, VSOs have certificates of attendance proving they were present and accounted for at a CFR symposium. There is no test afterwards to see how well you assimilated the knowledge.   Since attorneys are not in the same class as VSOs and actually are schooled in the art of law, this predicament rarely occurs. In fact, Ms. Checo was nowhere near 625 Wagonburner Lane NW for this hearing. More’s the pity. Perhaps she could have illuminated everyone on the untimely filing.  Knowing how professional Mr. Lippman is, there has to be another logical explanation for how one could appear before the Court utterly unprepared and bereft of excuses to proffer for Cerise’ inexcusable lack of timeliness.

That Ms. Checo’s counsel misunderstood the Secretary’s response matters not. Even when given the opportunity at oral argument, he did not explain how Ms. Checo’s homelessness directly caused her to file her Notice of Appeal 33 days late. As Ms. Checo’s counsel conceded at oral argument, the burden of meeting the requirements of McCreary lies with Ms. Checo. See McCreary, 19 Vet.App. at 332. Again, the Court emphasizes that Ms. Checo failed to provide any facts to support a finding of direct causation between her homelessness and her failure to file her Notice of Appeal within the 120-day judicial appeal period. Thus, the Court concludes, on the facts before it (or, perhaps more accurately, on the lack of facts before it), that Ms. Checo has not carried her burden.

Checo supra

I suspect Mr. Lippman agreed to take this case because he felt compassion for her.  Hell, who wouldn’t? I also suspect that by being homeless, Cerise was extremely hard to get in touch with. It may be that Old Mark beat feet from sunny Cal. to D.C.  as a stopgap measure without any input from her assuming his legal staff would forward it to him there.  On arrival, he had no ammo to fight with and found himself powerless to defend her tardiness. Regardless, this has caused him to lose face- something he can ill afford. Your name is your stock in trade in this business. No self-respecting law dog wants to be painted as a buffoon- and most certainly not before the Court.

The Court issued this as an order. It is not an opinion as there was no decision on the merits of her claim. The order was simply a legal device to announce their intention not to grant equitable tolling. I feel an important milestone for Veterans was missed. This would have been a giant leap for homeless Vetkind if he (Lippman) had been suitably armed and dangerous.  Gen. Revered Leader was apparently willing to let it slide because trashing homeless Vets at the Court never plays out well on the six o’clock news. I’m sure he told Will Gunn to moonwalk backward faster than Michael Jackson ever did and keep a low profile. VA isn’t doing to well down at the Court of Public Opinion these days. The last time I checked it was Backlog-985,000, VASEC-2015 (maybe).

Ego te absolvo, Mark.

images

 

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

ORIs–VAOIG-STYLE

Posted on January 7, 2013 by asknod

Remember back to yesteryear when we had Operational Readiness Inspections? A pack of chuckle heads with clipboards would spill out of a C-47 on the laterite in crisp 1505 Khakis with spit-shined shoes and begin what seriously reminded me of the Keystone Kops vignettes. Everything was loud and all answers carried 200 yds. in the wind. Baggage was shuffled until it was organized-in a word- a union job. Fifteen guys to do what 4 could.

After a lot of questions, observation and getting in the way, they would determine things weren’t that bad but could be done better. Thus was born the traveling Dog and Pony Show. The ORI team would show up and everyone bowed and scraped their hats. Amenities were observed and everyone performed their dance. Afterwards the signatories would meet and promise to look into  certain “problem” areas that needed improvement.

More bowing and scraping occurred and the ORI team was returned to the C-47 from whence they came. And then? Business as usual. The napalm, which had been hidden over on Air America’s PSP parking apron, would be forklifted over to the bomb dump alongside our parking apron. Smoking would resume within 50 feet of the fuel wagon and life would proceed as if nothing out of the ordinary had transpired. Fast forward to 2012 and the VA…

Specifically, the complainant alleged that a patient presented to the Emergency Department (ED) with suicidal ideation and had to wait in the triage holding area for over 4.5 hours prior to being seen by a psychiatrist. The psychiatrist told the patient that admission was not indicated. The patient had a panic attack, and the police were called to escort the patient out of the facility as the patient was upsetting the staff. We did not substantiate that a suicidal patient was denied admission for inpatient treatment.

Nothing has changed. Their ORI team descends unawares and rolls into town-albeit via commercial air. They aren’t adroit at sneaking up on the medical facility but that is immaterial. They announce themselves and give everyone time to move the napalm and foo gas out of sight. Feast your eyes on what didn’t happen here. Read about what was not discovered or substantiated.  Contemplate the fact that the records did not concur on the patient’s claim of suicidal ideation.

Although the patient’s electronic health record documented the patient was hopeless and depressed, it also documented that the patient denied suicidal ideation.

We determined that there was no facility policy or standard operating procedure written to describe the process for patient evaluations in the ED; therefore, there was no training on such a policy or procedure for anyone working in the ED. This may have contributed to the long ED visit for the patient and influenced the patient’s decision to leave against medical advice.

Gee. Ya think? I thought they said they frog-marched him out for upsetting the staff watching a rerun of House, M.D. Fortunately for Vets in Dallas, all concerned agreed that a better outcome would have been preferable and that the Great Strides Forward Program (GSFP) has been instituted to insure that this unfortunate debacle never happens again (in Dallas- mind you -but they’ll have to visit every other VA ER in America to make similar assessments). A working memorandum was signed admitting a wee bit of guilt and sack cloth and ashes were distributed. Mea culpas were deemed optional and bonuses were handed out to all involved.

imagesAhhh!. America. How sweet the sound of wasted money. Now, multiply that by about 200 Emergency Departments. As Senator Barry Goldwater remarked once ” A million here, a million there and pretty soon you’re talking some serious money”. He had no idea anyone at the VA would have the gall to plan an extravaganza like Orlando. He might have died of apoplectia.

I don’t make this stuff up. I don’t have to. VA does it for me and now I’m on their mailing list to make it even easier to learn about. Thank goodness they feel the need to crow about their achievements so much that they publish it on the web. How many Vets lose out on compensation to pay for this boondoggle?

Posted in VAOIG Watchdogs | Tagged , , , , , , | Leave a comment

2012 in review

Posted on January 7, 2013 by asknod

The WordPress.com stats helper monkeys prepared a 2012 annual report for this blog.

Here’s an excerpt:

19,000 people fit into the new Barclays Center to see Jay-Z perform. This blog was viewed about 80,000 times in 2012. If it were a concert at the Barclays Center, it would take 4 sold-out performances for that many people to see it.

Click here to see the complete report.

I would like to thank my fellow guest writers Kiedove and Joe Average Vet for their contributions. I invite others to submit articles or become guest authors as well. This site is a compendium of all our efforts-yours and mine. I depend on you, my fellow Vets, for much of what I post here. Concise knowledge of VA law, while important, is not all this site was predicated on. My irrepressible humor bleeds through as most know.

Thank you for a wonderful year. I had no idea 80,000+ people felt an urge to learn about hepatitis and VA law. Maybe they came for my arcane humor. On behalf of my fellow authors, I hope we passed the audition. We look forward to another year of success for all of you fighting the good fight. We will strive to print more that may help you understand the maze you have entered and give you the tools to win with. Some have stated that they cannot find my email or a way to contact me with questions. The email is asknod@gmail.com. If you lose it, look above under the Vietnam Campaign Ribbon and click on “email asknod”. What could be easier? All those widgets up there are active. If you put your cursor on them and left-click your mouse, you will discover a world of information you never dreamed of. I strive to keep link rot to a minimum here. If you find it, by all means inform us so we may repair it. Knowledge is power and we want you to have it. VA doesn’t. That’s all I have to say about that.

Posted in General Messages | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 4 Comments

VA ANNOUNCES PAPERLESS SYSTEM IS JUST AROUND THE CORNER

Posted on January 7, 2013 by asknod

In an exciting development, the Veterans Administration announced that the paperless system enshrined at 12 “test VAROs” was working extremely well.  Under Secretary Allison “chipmunk” Hickey, in her latest Hickeygram, illustrated for reporters how this worked. Everyone was invited outside for a touchy-feely, hands-on demonstration of the new paperless system and what VA intends to do with all that extra paper…

images (1)

 

Posted in Humor | Tagged , , , , , | 1 Comment

BAND OF BROTHERS DAY

Posted on January 7, 2013 by asknod

imagesI received this from member Frank this AM. It only seems fitting when we find out once again that the US Government and their lackeys, the Supreme Court, have decided that 18 Veterans’  suicides a day  is perfectly normal and an acceptable attrition rate. I’m sure the esteemed Justices will feel secure in their persons and happy to be Americans but I shiver to think what message this sends to future defenders of our country.

What I hear is:

“Sign here. We promise to take care of you unless we’re suuuuuper busy or underfunded. Hear? No promises but if you so much as disobey an order, we’ll make you pay for it the rest of your life. Now, where were we? Oh, yeah. Sign here and be quick about it before we change our minds.”

I don’t know if this provoked Frank to send it to me but that’s irrelevant. He did send a year’s supply of killer Vermont Maple Syrup for Christmas which was unsolicited. Keep up the good work, Frank. This below is very à propos for this not so august day…

 You may have served in combat or while preserving peace.

You may have retired out or you may have served for a short time.
You may have been a draftee or a volunteer.
You may have served in the Corps, Army, Navy, Air Force, Coast Guard or the Merchant Marines,

BUT YOU SERVED. YOU DID YOUR JOB HONORABLY and for that I am PROUD to call you ‘Brother.’

You may have served during WWII, Korea, Vietnam,  Nicaragua, Persian Gulf, Iraq or Afghanistan , But you served, you did not run.

You have earned your DD 214 with those words “HONORABLY DISCHARGED” two of the most noble words in the world.

Again I am proud to know each and every one of you.

* Today is Band of Brothers’ Day* ; send this to all your brothers, fathers, sons and fellow veterans you know. Happy Band of Brothers’ Day!

To the cool men that have touched my life: Here’s to you!! I was never a hero, but I am thankful and proud to have served among them.

Remember…..A real Brother walks with you when the rest of the world walks on you.

This apparently was authored by one 1st Sgt. Ray L. Flood, U.S. Army Military Police (ret.). He probably wanted to serve in the Air Force but they were undoubtedly all booked up that month when he went to sign up. At least he decided America was more important than being all you can be at Domino’s Pizza.

And to be fair and all-inclusive to the Kumbaya Korps, I embrace all of you who wanted to serve but felt the call of the wild in Canada. As Winston Churchill might have observed   “They served also who only stood on the other side of the border and waited.” Thank you all, my unselfish fellow brothers and sisters.

imagesBand of Brothers Day for all of us who served in Vietnam is officially May 7th every year as that is the day the American Government declared the “conflict” over. I believe the race to the rooftop over at the US Embassy was April 30, 1975 but I do know some of my friends in Air America were still over at Tan Son Nhut packing up PC-6s for transport out to Taiwan on the 7th when the NVA showed up.

Posted in All about Veterans, Fed. Cir. & Supreme Ct. | Tagged , , , , , , , , , , , | 5 Comments

SUPREMES TO HEAR BYRON CASE?

Posted on January 6, 2013 by asknod

Wouldn’t this be a kick in the butt? Member J.A. Vet sent this tidbit this afternoon about the CAVC’s propensity to get out the Pontius Pilate water and wash their hands of all decisions requiring an actual decision based on the facts and rather concentrate on letting the BVA do that. This provokes the much discussed hamster wheel effect. It would be refreshing and speed up justice immeasurably if the Supremes decided that the Court not only has but should exert more energy in deciding rather than remanding decisions. Reversals would be just dandy, too.

Ponzio Pilato Year 1962 Directors Gian Paolo Callegari and Irving Rapper Jean Marais

Posted in Fed. Cir. & Supreme Ct. | Tagged , , , , , | 1 Comment

Another fine Navy photo

Posted on January 6, 2013 by Laura

What an awesome photo to enjoy this chilly weekend.  The image was taken on New Year’s Eve (2011) on the aircraft carrier, the USS Abraham Lincoln, deployed in the Pacific.  This visual post is intended to express our collective solidarity with the Blue Water  Navy Vietnam veterans whose plight Nod has recently called attention to.  The VA’s decision to deny these claims is bolstered by an IOM report (free download) which is actually neutral and inconclusive on the matter.   But your influence counts so do email your elected representatives soon and ask for equal treatment for these veterans!

Posted in General Messages, Guest authors | Tagged , , , , , , , , | Leave a comment

BVA–SECOND REMAND

Posted on January 5, 2013 by asknod

FROM THE HAVE-A-TAMPA

FORT FUMBLE IN FLORIDA

Nothing like justice steeped in the teapot of time. This, from Pete Vet’s 2005 denial, is a continuing example of an ongoing crime. Read through it and you will see the fingerprints of delay and deny. He deserves Sainthood like his namesake for putting up with this injustice for so long. Wisely, he has employed Dan Krasnegor to be his leagle beagle.

How can your decision, based on all the facts, escape the AOJ and head off to Vermin Ave. in a decidedly incomplete format? Remember all those mythical signatures they talked of in Leroy Macklem’s mishap? Why would one of the VA’s finest RSVRs, who pride themselves on completeness, strict enforcement of M21, and a thorough knowledge of rating principles, allow the cat out of the bag not once but twice without checking to see if everything was accounted for? The short answer is that that much-vaunted 86% accuracy number has the decimal in the wrong place.

In view of this evidence, it appears that the Veteran does have risk factors for hepatitis C, but the evidence is somewhat ambiguous and inconsistent as to the exact factors and number of instances of the factors. Along these lines, the June 2012 VA examiner noted that the Veteran’s sexual history before, during, and after service is not known, and that the extent of his drug use prior to, during, and after service is not fully known and there is conflicting information as to the nature and extent of the drug use. In September 2012, the Veteran’s representative indicated that the Veteran is willing and able to provide whatever detail an examiner would need to more fully understand his history. Consequently, as a medical opinion based on a complete and accurate history has not yet been provided, the Board finds it necessary to again remand the claim to allow for the AOJ to schedule the Veteran for another VA examination in connection with this claim. In addition to a medical examination, a detailed history should be taken as to the Veteran’s risk factors for hepatitis C and an opinion should be provided as to whether the Veteran has hepatitis C that is attributable to his active military service.

Hmmm. And the reason the Petester was not handed a Risk Factors Questionnaire is…?  Does anyone see a pattern here? How are we to ever attain 125-day ratings with a 98% accuracy rate when a Veteran-any Veteran-is forced to wait seven years (including two remands) for the rocket boys at St. Pete’s puzzle palace to “construe” the need for a definitive history of Pete’s drug and sexual history in order to make an informed denial?  Why is it necessary for someone with a juris doctor’s degree to illuminate this glaring lack of evidence- damning or exculpatory?

This wouldn’t be so aggravating if it were the exception rather than the rule. Take the first one hundred decisions in any given year for any disease/injury and peruse them. Invariably you will find decisions predicated on absence of evidence being transposed into negative evidence, an affirmation of smoking left-handed tobacco that morphs into all manner of illicit drug use, and a marked propensity to characterize the Vet’s lay testimony as worthless or bordering on incredible.  Peter Vet is tarred and feathered here for his testimony that he never had a tattoo. If I’d taken India ink and tortured myself with a sewing needle when I was 12, I might not characterize it as a true, professional tattoo. Here, VA uses it as a springboard to prove he can’t be trusted to take out the trash.

As to tattoos, the Veteran has generally denied having a tattoo. Nevertheless, his September 1969 entrance examination notes that he had a tattoo on his right arm. At a June 2012 VA examination, the Veteran stated that he put the tattoo on himself when he was 12 years old.

Guilty, your honor. I lied. Mea culpa. Through my fault, through my fault  through my most grievous fault…

images (1)

VA examiner doing what he does best.

We certainly wish Peter Pumpkin eater the best in his travails. If the VA is as nonadversarial as they tout themselves to be, the fact that he was in the service from 1969-72 and cleaning blood out of choppers sounds remarkably similar to someone who might have been in Vietnam. Given that those poor, unfortunate souls are 67% more likely to have HCV than their counterparts who served in Europe or stateside, the benefit of the doubt might be for application here-but never will.

Posted in BvA HCV decisions, Jetgun BvA Decisions | Tagged , , , , , , , , , , , , , , , , | 7 Comments

BVA–HCV WAS NOT DISCOVERED UNTIL 1989

Posted on January 5, 2013 by asknod

Having read every decision on HCV ever published by the BVA, I finally find one that incongruously declares (finally) that a Vet cannot declare he had HCV diagnosed prior to 1991. Keep in mind that I have read about 10,000 that point out with a straight face that there is no evidence of HCV in the Vet’s contemporary service medical records dating to the 60s-80s. For all these years I labored under the misconception that VA was unaware that Dr. Edwin Southern  discovered this in 1989. Apparently VA is more than aware of it but professes ignorance on the subject whenever it will benefit the denial:

 The Board finds one aspect of the Veteran’s statements to be not credible. Specifically, the Veteran contends that the Red Cross told him (in 1971) that he could not give blood because he had hepatitis C. The Board notes that the hepatitis C virus was not even discovered until the 1980s; it was not properly identified until 1989; and the screening process that made it possible to detect the hepatitis C virus in blood samples was not developed until 1991.

I find this almost too large a pill to swallow. In the next few days I’ll try to follow this with hundreds of others hopefully authored by this very same VLJ-J.A. Markey. How would one extricate himself from that sticky wicket? “Well, all Veterans have different circumstances and this is not a precedent-setting adjudication. Circumstances vary from one Vet to the next so this cannot be used as a definitive vehicle for all other similarly situated individuals.”

images

Sir Edwin Southern, M.D.( molecular Bilologist and our patron saint.)

P.S. I love search engines. Here we go J.A, Markey and Hepatitis C:

http://www.va.gov/vetapp12/Files5/1230431.txt

http://www.va.gov/vetapp12/Files5/1234003.txt

http://www.va.gov/vetapp12/Files1/1206456.txt

http://www.va.gov/vetapp12/Files1/1202611.txt

http://www.va.gov/vetapp12/Files4/1225677.txt (This one contains an error of law.)

A separate compensable rating for the Veteran’s hepatitis C associated with his service-connected status-post liver transplant is prohibited because it would constitute pyramiding of benefits under the Rating Schedule.

Most of these were remands so there is no smoking gun on Markey. However, the same cannot be said for the other 59 VLJs and the horde of AVLJs. Actually, one of the above recognizes what he espoused in the claim I discussed above which illustrates he is conversant with the disease etiology. Who woulda thunk it?

Posted in Uncategorized | Leave a comment

ASKNOD BOOK ON YOUTUBE

Posted on January 5, 2013 by asknod

Gez, I paid for this almost a year ago and they finally got it right. At first the soldier was saluting with his left arm. It took six months to fix that. Enjoy. Leave comments to help others if you got anything positive out of the book. I’d appreciate it. I only need another $5,915.40 to break even and start donating the profit to HCVets. I received my first quarterly check for royalties in the sum of $85.60 just before Christmas and immediately rushed out and  squandered it on auto registration. You can’t take the checks to the bank without an up-to-date license plate.

http://www.youtube.com/watch?v=1Cts2qhKAJ8

http://www.dailymotion.com/video/54124826#.UOiS-G9X1QQ  (very slow)

http://www.metacafe.com/watch/9612922/veterans_administration_claims_by_asknod

Please spread the word if you would. In my demented view of the world, I envision everyone who applies for SC winning without my book. Since that is a pipe dream, I’ll go with the precepts of the book, assume VA is intransigent and will never change.

Cover

Posted in ASKNOD BOOK, NEW BOOK | Tagged , , , , , , , , , , , , , , , , , , , , | 3 Comments