PENDING CLAIMS DOCTRINE

Posted on December 9, 2012 by asknod

Several of you have emailed me concerning the effective date of your claims. There seems to be a lot of misinformation about this. I received an interesting article put out by several “scholars” at VA, or perhaps quoted by VA, on the subject.

While the gentlemen do a bang up job of tracing the history of this through the ages from Congress’ enactment of the VJRA, the judicial rationale is constantly shifting. In most cases it is in favor of the vet-marginally. It see saws back and forth as you will read.

Here’s John Fussell and Johnathan Hagar’s synopsis of how we’ve been blessed. I disagree with many concepts of it. Do not mistake that sentence. The legal concepts are futile to object to. I can no more change that than hold back the tide as King Canute attempted. My argument is based more on future litigation. Since law evolves and is not static, new interpretations are constantly “discovered” concerning the existing law. Each new inspection of a conundrum elicits yet anew more conjecture, more law and more trees cut down to immortalize it on paper.

One thing this article never addressed is the concepts embodied in VAOPGCPREC 9-97 where a Vet submits a NOD with new and material evidence and the VA fails to issue a SSOC. This is clearly covered in numerous VA regulations yet no discussion is forthcoming. I can cite a few examples of BVA decisions as they are more frequent.

First look at 9-97  http://www4.va.gov/ogc/opinions/1997precedentopinions.asp

Consider any of the following:

http://www4.va.gov/vetapp95/files5/9520118.txt

http://www4.va.gov/vetapp98/files3/9826124.txt

http://www4.va.gov/vetapp99/files3/9927507.txt

http://www4.va.gov/vetapp99/files3/9923709.txt

http://www4.va.gov/vetapp99/files3/9926971.txt

http://www4.va.gov/vetapp99/files3/9923350.txt

http://www4.va.gov/vetapp07/files2/0715392.txt

Some of these contingencies are not considered in the article.

Now consider King v. Shinseki (2010) and how it applies to this discussion.

 Section 3.156(b) is intended to be a veteran-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met.  72 Fed. Reg. 28,778 (May22, 2007) (explaining that §§ 3.156(b) and 3.400 “provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires”).  To accept the Secretary’s position that the Board correctly determined that the September 1996 RO decision was final would be to allow VA to ignore  this claimant-friendly provision.  It would also create the possibility that VA, by not considering evidence submitted during the one-year appeal period following the RO decision and simply waiting for the RO decision to become final, deprived the appellant of the earlier effective date associated with his December 1995 claim.  This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (noting “VA’s uniquely pro-claimant benefits system”);    Young v. Shinseki (2009) Muehl v. West, 13 Vet.App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision nonfinal); 38 C.F.R. § 3.400(q) (2009) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”).

 And:

Thus, if such new and material evidence had been submitted and had not been acted upon, Mr. King’s claim could still be pending until a decision had been made on that evidence.  See 38 C.F.R. § 3.160(c) (2009) (“pending claim” is “[a]n application, formal or informal, which has not been finally adjudicated”); see also Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007) (“[A] claim remains pending–even for years–if the Secretary fails to act on a claim before him.”)

King v. Shinseki (2010)

From King, it can be deduced that any new evidence submitted during an appeal, sans an inspection of same, operates to suspend the adjudication until it can be determined to be admissible under 3.156(a). There is no requirement at the time that it be material. Mere failure to obey §19.31 and §19.37(a)[ 38 USC §7105(d)] and issue an SSOC makes it an incomplete adjudication or a “pending claim “as envisioned in §3.160(c). When it is finally examined de novo, an appropriate disposition can ensue determining the material value and whether it relates to an unestablished fact necessary to substantiate the claim.

The article does not discuss estoppel. Here, for your edification, is a brief overview of the legal concept.

Equitable estoppel prevents one party from taking a different position at trial than they did at an earlier time if the other party would be harmed by the change. Generally, the elements that need to be proved are:

  1. There must be a representation or concealment of material facts.

  2. These facts must be known at the time of the representation to the party being estopped.

  3. The party claiming the benefit of the estoppel must not know the truth concerning these facts at the time of the representation.

  4. The representation must be made with the intention or the expectation that it will be acted upon.

  5. The representation must be relied upon and acted upon.

  6. The party acting upon the representation must do so to his or her detriment.

Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time. This doctrine is closely related to the concept of statutes of limitations, except that statutes of limitations set specific time limits for legal actions, whereas under Laches, generally there is no prescribed time that courts consider “proper.” A defendant seeking the protection of laches must demonstrate that the plaintiff’s inaction, Misrepresentation, or silence prejudiced the defendant or induced the defendant to change positions for the worse.

Now let’s look at equitable tolling:

 

Equitable Tolling


Definition – Noun
: a doctrine or principle of tort law: a statute of limitations will not bar a claim if despite use of due diligence the plaintiff did not or could not discover the injury until after the expiration of the limitations period

This is where most of us will employ the GCPREC 9-97 defense. If we discover our claim is not final due to inaction (or the wrong action) of VA, the claim remains pending and equitable tolling of the finality is for application.

While I am not a law dog, these precepts are useful to grasp the intricacies of this. A claim is not over until the fat lady sings or the Fed. Circus says it is. This is the last word currently on it from the Supremes (Irwin v. Dept. of Vet. Affairs 1990)

In Bailey, the Federal Circuit characterized Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990), as having held that “equitable tolling is available in suits between private litigants . . .’where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.'”  Bailey, 160 F.3d at 1364 (quoting Irwin, supra). The Federal Circuit held in Bailey that equitable tolling in the paternalistic veterans’ benefits context does not require misconduct (such as trickery, id. at 1365); however, Bailey does require the appellant to have been misled or induced by VA conduct “into allowing the filing deadline to pass”.  Id. at 1364 (quoting Irwin, supra); see also Leonard v. West, 12 Vet.App. 554, 557 (1999) . There must be cause and effect; that is, the appellant must have relied to his detriment on something that VA did (or should have but did not do).  See Bailey, 160 F.3d at 1365 (noting that veteran had accepted and relied on VA advice and was misled by that advice “into allowing filing deadline to pass”).

Chastain v. West (2000)


							

	
			

													
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Tattoos and adverse events


			

				Posted on December 9, 2012 by Laura			


					

				
This article by Tracy Wilson includes an animation and overview of the popular practice.   I recommend Part 1, How Tattoos Work; Part 2 Sterilization; Part 3 Prep Work and Part 5 on Health Risks.  The animation illustrates how invasive this procedure is.


We know about the hepatitis risks when tattooing, but there are outbreaks of bacterial infections like M. Chelonae also. 


PubMed lists hundreds of cases of adverse reactions to tattooing: lesions, skin cancers on tattoos, diphtheria, dermatitis, rash, psoriasis, itching, abscess, and many other nasty conditions for unlucky tattooees.  Rarer effects like penile priapism have been reported.


Art–Do permanent inks belong in a layer of our skin or on paper to decorate say, walls? Only one choice seems harmless.   Possible sinfulness aside, perhaps the ancient Jewish prohibition (Lev. 19:28) against tattoos had its roots in the observation that they can subject the skin to disease processes.  Was the Torah simply giving its readers/hearers a heads up on avoiding “unclean” lesions rather than taking away a form of self-expression or tribalism?


Oh why did I get that bloody tattoo?

							

	
			

													
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NO GOATS OR DONKEYS HARMED IN THIS ENCOUNTER


			

				Posted on December 8, 2012 by asknod			


					

				
Member Jim sends us this latest in the War on Terror. Brings back memories of FAC missions over the fence. We engaged vehicles for the most part but troops were fair game too.


Sometimes we forget how these experiences can affect us later when we come home. This is something that stays with you for life. You don’t leave it there. You will hear “Troops in Contact” frequently. It’s pretty raw and uncut.

							

	
			

													
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TRICKS OF THE TRADE.


			

				Posted on December 7, 2012 by asknod			


					

				
People compliment me on my ability to remember things. This is a man secret I’m going to let you guys in on. Gather round. When planning auspicious events like weddings, divorces, and babies (if you’re really good at it), might I suggest a little trick for remembering them later in life.


Most of us have that insane proclivity to assign a password for entry into a site that requires it and then promptly forget about it. After a while you have a veritable library of passwords and forget which one goes where. Likewise your anniversary can sneak up on you and catch you unawares. Cupcake’s birthday is an example, too.


The old adage of KISS (keep it simple, stupid) is my saving grace. This is why I married Cupcake the day after Pearl Harbor day. In fact, Cupcake’s birthday almost always ends up being two days after Opening Day for High Buck season. While it is easy to remember, I get in trouble for not being there. In spite of entreaties to have it legally changed to say, Veteran’s Day or Labor Day, my request continues to fall on deaf ears. After twenty five years, I’ve given up asking. In 1992, she asked me what my plans were for her big forty year bash. I honestly said “Honey, I’m going to miss you.” That was hands-down the most expensive birthday bash I never attended but paid for in my life. More Dom Perignon was consumed than I can conceive of. Her American Express Card glowed in the dark for a year. It went through the scanner so many times it could have powered a Prius for a decade with all the excess electrons flying around in it. I always come back for a day now but the damage is done. That’s the sympathy card to play if you want a bigger diamond in the wedding ring. I expect it will mushroom up to a carat this time next year.


Memorial Day Weekend in Washington is another good example.  It’s two weeks before inland rivers open for fresh water fishing. Who was the bozo that dreamed up that rule? Didn’t anyone ever hear of killing four birds with one stone?  Come on. Remember the fallen; barbecue, fishing and time with family. This is a win-win for all.  Since I was taught the art of poaching early in life by one of the greatest ( my Daddy), I set up the perfect decoy arrangement and always get the big ones on the vacation. You invite Cupcake and the kids to go with and then pre-position them in camp near the river. What the hey? Give ’em a rod, too. Meanwhile, tell her nature calls and you are going to hunt up that perfect place for the act. Walk out of camp with the shovel heading down river and shout back that you’ve found a promising spot and will dig a hole.  Promptly skirt around camp, pick up your pre-positioned fishing pole and the net and sneak off up the river and dial in those huge 2 lb. Doll Varden and some Cutthroats. Nobody’s been fishing them for over 8 months so they are dumb as a post and will strike on anything. On the way back, carefully stash them and waltz into camp. Nine times out of ten you’ll find the game warden has already showed up and busted them while you were making the big score. Wardens are far more forgiving where tearful wives are threatening divorce if they ever get their hands on the significant other for this stunt. Most forego giving the ticket to the dependents and set off downstream in search of you. All is better when you pull out the stash and ask for a trophy photo.  Never ever put the fish in the ice chest.  When you pack up to leave, scout the trail back to the vehicle without them (the fish, not the family) and make sure the Warden hasn’t circled back on you. This works well with fishing as it’s not noisy. Duck hunting is right out.


images


Likewise, as I have an affinity for April Fool’s day jokes, I wisely planned my birth for that day. Very few people, let alone sperm,  have the foresight to plan that far ahead.   I have other mantricks but do not feel obligated to share them all in one sitting.  Happy Pearl Harbor Day and remember those poor souls who were sandbagged that day seventy one years ago.

							

	
			

													
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CAVC KNOWLEDGE 6–THEORY OF RELATIVITY


			

				Posted on December 7, 2012 by asknod			


					

				
When you get to the CAVC and you are preparing your defense, the proper thing do is to express every theory of service connection-anything- no matter how far-fetched. It should only be theories advanced in your BVA appeal which behooves you to backtrack and confirm you did so already. There are exceptions to this mentioned below. Be careful.


If the BVA has neglected to address some facet of a claim, this is cannon fodder for a remand. Moreover, if they never analyzed whether there was a reasonable cause to grant TDIU, this too becomes the error. Assuming you are unemployed and plan on continuing  in that MOS, the BVA is required to make that determination-even if you are only rated 30%. They can refer you for extraschedular rating to the Director of Comp. and Pen. and sometimes do. Rarely, but they do.


Schroeder v. West 212 F3d 1265 (2000) held that it was VA’s responsibility to consider every possible permutation of your claim no matter how incredible, and discount all the improbable ones. This put a tremendous burden on the BVA. It’s hard enough to get them to consider HCV as a direct cause of Porphyria Cutanea Tarda even though more that a third of us have it. Mostly, they’ll try to drag it over sideways into the Agent Orange Presumptives column of 38 CFR §3.309(e) and say either you were never boots on ground in Vietnam or that it didn’t manifest within one year of leaving the RVN. I filed an either/or as to what caused it but VA refused to even consider the direct cause. According to the Veterans Benefit Manual (2011),






The Federal Circuit’s holding in Schroeder seemed to place the burden on the VA to address all possible in-service causes, even those unknown to and not argued or raised by the claimant. This would mean that a claimant was not precluded from raising and arguing before the CAVC that the BVA should have addressed whether the claimant was entitled to the requested benefits based upon all existing service connection theories.


This was the way matters stood until 2009. Robinson v. Mansfield (2007) reversed this theory and Mr. Robinson strutted on up to the Fed. Circus- and promptly lost.


I have to say that the CAVC tends to be a bit pedantic and down in the weeds. Sometimes this pans out and sometimes not. Here it gave a tremendous haircut to what Vets were beginning to abuse. Claiming alien abduction or eating feces as the reason for HCV is over the top. Allowing an unending parade of new or untried speculative theories after denials  was unworkable. This is what the Circus regurgitated:


As a nonadversarial adjudicator, the Board’s obligation to analyze claims goes beyond the arguments explicitly made. However, it does not require the Board to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision. The question of the precise location of the line between the issues fairly raised by the appellant’s pleadings and the record and those that are not must be based on the record in the case at hand; therefore, it is an essentially factual question.  Robinson v. Mansfield  F.3d (2009)




This changed the playing field dramatically. From then on we have had to enunciate every possible cause for a disease or injury. This isn’t too complicated for someone from Airborne with blown knees. In the case of HCV, it invokes a whole panoply of risks that do not immediately come to mind.


Remember the barbers on base when you did Tech training or AIT? Think about the razors in the “blue juice” jar sliding down the back of your neck. Many’s the Vet who skips over this on the Risk Factors Questionnaire thinking he never shared a razor. As for toothbrushes, well, I draw the line there. I used to keep a small length of Dental floss in my wallet used to dislodge old water buffalo gristle. I never shared that either.


VA would have you believe that these “events” of sharing razors/toothbrushes would be annotated in your medical records. Therefore the lack of that evidence is positive evidence against the claim. Absence of evidence is not negative evidence as they say up at the Court. The BVA (and VASEC’s henchmen) have learned how to look you in the eye and say it straight-faced without giggling.


Other risks are more obvious. How many of you were exposed, even in passing, to blood of others? VA would say that you needed open cuts to satisfy coming in contact with others’ blood. What of the new face splatter shields that are considered haute couture nowadays where lab technicians draw your blood? If they are worried about getting a speck of HCV-infected blood in an orifice such as the eye, then medical science is admitting the possibility of transmittal. Doesn’t that presumption extend back to the 70s and poor sanitary practices? Exposure to blood in a combat setting is a given everywhere but the M-21.  The list goes on.


Consider Squidley’s enigma. He was poked by civilians with EMG needles in Japan and came down with the Nikkon version of HCV-one of the 2s genotypes. Technically he should have checked off on “percutaneous penetrations” akin to acupuncture or unsterile needles. VA cannot claim that the Japanese medical institutions were regularly in the habit of autoclaving their 10 gauge EMG spears after each use in 1982 any more than they (VA) can claim they assiduously scrub out their butt tractor machines after every use in 2012. Otherwise we wouldn’t have Vets with  newly diagnosed HCV in Florida winning claims for it.


The trick to all this is to have your Encyclopaedia Britannica of risk factors well-established from Day One. You want this in the claim when you submit-not as an afterthought when you get KO’d in Round 1. VA is the master of words. You will spend more time in appeals trying to rebut vague references to your character than you will actually presenting your strong points. These slams will be artfully constructed like this:


Although the Veteran claims he was exposed numerous times  to the blood of his wounded  friends when entering Huey choppers, on appeal he has subsequently claimed that it may have been due to air inoculation devices. His VSO representative also says the Veteran spoke of sharing razors. None of this was in the original claim and it now seems the Veteran has changed his story in hopes of monetary gain. For this reason we ascribe little probative value to his lay testimony. A complete review of the service medical records does not reveal any treatment for cuts from a shared razor or reports of exposure to blood or blood products.”


Based on Robinson, it behooves you to get in every possible risk factor. Use good sense, though. Tenuous risks that are not listed should be added. The RFQ is notorious for failing to list jetguns. Enter it under the percutaneous column and list how many times it happened. There is only one saving grace in this. If you were legally unrepresented (pro se) all the way through the BVA decision, your law dog can legally introduce new theories you may have forgotten or overlooked. This is a narrow window in which to get them in and the last one as well. No more will be permitted on subsequent filings, whether it’s you still defending yourself or a law dog who takes your appeal. One exception to this rule is that the Feds will smile down on you yet again if you were pro se at the Court. Again, keep in mind they view all these new possibilities as shots in the dark. In the VA world, you put your chips on the table all at once and they adjudicate it. Even though you can legally drag new ones in at the beginning of your CAVC  (and in limited instances, the Fed. Circus) appeal, it looks tacky to everyone involved but you. You’re not a doctor and they are in essence asking you to be Dick Tracy on this. The axiom is the later you bring these theories up, the more it appears you are getting desperate. You don’t want to go there if possible.


As for the TDIU arguments, it is always assumed you seek the highest rating attainable. This isn’t greediness. It’s common sense espoused in AB v. Brown back in 1994. Why take Bent brain for 50% when you have medical records supporting 100%? If VA fails to look at it, they are in error. Rice v. Shinseki (2009) illustrated this perfectly. Here’s the VBM take on it and I couldn’t say it better:






In Rice v. Shinseki, the CAVC held that a TDIU claim is not a free-standing claim for benefits; rather, it involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Thus, when the record contains evidence of unemployability, the BVA is required to consider whether a veteran is entitled to TDIU, regardless of whether the claim before it is an initial claim for VA disability compensation or a claim for an increased rating and regardless of whether the veteran specifically raised the issue.


That’s about as close as you will get to the BVA going off the reservation looking for reasons to grant the claim or increase. Most times they put on the blinders and gloss over many of the contentions voiced. They are not required to specifically annotate they looked at all these allegations but simply state generically that they did so. Thus you can get a denial that  addresses everything but somehow fails to go into the blood exposure or shared razors. When queried on appeal, VA simply says “Roger that. We discussed that over martinis over at the Army Navy club the day before we gave it the thumbs down. Relax. We considered it. We don’t have to give you a blow by blow description of all our machinations, now do we?  We simply have to say we ‘considered’ them.”


Hopefully none of you will need any of this and I’m wasting my time. On the other hand, if it helps only one of you win then I haven’t wasted my time.




Nope. No blood exposure here. The blood exposure police would have entered it into the STRs.
Nope. No blood exposure here. The blood exposure police would have entered it into the STRs.

















							

	
			

													
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VA–YOUR TAX DOLLARS AT WORK PART II


			

				Posted on December 5, 2012 by asknod			


					

				
Never one to squander too much money on any one problem, vA is fond of flitting from one flower to the next like a busy bee. Addressing everything and nothing simultaneously makes it look like problems have been identified and work is in progress. Thus it would appear homelessness is decreasing in this magic universe. Women’s health issues and access? Done. Veteran suicides? Been there and done that. We hired 1600 more mental health care workers-sort of. The slots are open. If we’d ever advertise, they will come. Everything in vAville is well on its way to being cured.


In this perfect world, we are even treated to a special website – in fact a blog site similar to this one. Everything at this magic site is at your fingertips including soothing tips on how to file. Just because it’s owned and operated by vA is immaterial. It’s that same kind, nonadversarial vA that we’ve all come to know and love. This article caught my eye. It disturbs me that with the new “Don’t ask, don’t tell.” program whereby its okay to be gay, the emphasis is now on HIV testing. Where is the hue and cry for HCV testing? Where is the concern that if you were in SEA  in the 60s-70s, your chances of having HCV are 67% greater than that of your brothers in Germany or stateside and 30% higher than your next door neighbor who isn’t a Vet?  Here’s the skinny on this namby-pamby , not so hearty virus.


So- HIV-dies in minutes outside the body. HCV? Four days minimum. What’s wrong with this picture? Our Matriarch, Patricia Lupole, tries hard to disseminate the latest knowledge on this dichotomy. How can it be both ways?  If a lie is repeated so frequently that it becomes rote memory like “Oh say can you see…”, people-even scientists- tend to zone out when reading it. This applies in spades to those fact finders at the BVA. They have heard it so many times they simply jump to the next sentence.


A proactive, proVet organization that prides itself on its innovative medical approaches cannot even be induced to do a cheap PCR Northern Blot to determine if a Vietnam-era Vet has it? But Holy Gee Wow have you been tested this year for AIDS? This year? Absent a risk factor, it would seem to be a waste of time and money. This is what they try to sell us with HCV. HIV must be “heartier than the lazy, HCV RNA virus”. I expect that’s what I take away from it. That HIV bug must leap from one fellow’s hand to another if this is true. And here I thought it could only be transmitted via blood. No wonder they want us to be checked every six months. Time for us to get serious and start using those toilet seat “masks” to prevent the spread of this disease.


When you Vets assemble your evidence for claims, make sure you ask for or provide extensive evidence concerning exactly how “weak” this HCV bug is. Google HCV transmission and other combinations to rebut vA’s concerted effort to discount the “plausibility” of  jetgun transmittal. One thing that seems to get a pass is vA examiners making statements about HCV that are way out in left field. I stress this frequently but I am beginning to see a new coverup on it coming back like the third remake of War of the Worlds. If, during a BVA remand for a VHA opinion on the etiology of your bug, they happen to come back with some inane remark like “whereas the Vet had an unidentified hepatitis infection in 1970, it is felt that it was HBV rather than HCV because the HBV virus is much heartier than the HCV virus.”, make sure you ask them for this in the form of a cite to a published medical thesis. It is a throwaway line. It gets a pass far too frequently and is glossed over and accepted as fact. It’s not true. HBV lasts a week outside the body- three days longer than HCV is rumored to. So much for that “fact”.


Since this is newer information, some of the older VHA gastrodocs may not be up to speed. More importantly, they are not experts in the minutiae of RNA viruses but have a more generalized knowledge. What was taught in Med school in 1992 is not current. A brief, outdated overview on an infectious disease with no intercurrent updates on newer medical science will yield poor IMOs. We see them all the time and I write up the really bad ones.


This is not something that is going to get your Congressman up in arms. Right now he’s suffering fear of heights at the prospect of having to learn that newfangled winter sport called Fiscal cliff diving. If every Vet who arrived for an appointment at a VAMC went up to the counter and announced loudly that he hasn’t been tested in a year or more for HCV, I wonder what would happen. Would they correct you and say “You mean the HIV test, don’t you?”


Considering Vets as a subset of the population have the highest incidence of HCV of all Americans, this test should be ahead of HIV. If for no other reason, it’s been around longer-albeit unidentified. Granted, if you- Johnny Vet -have a significant other named Ben and hang out in gay bath houses snorting Peru’s number one export, that HIV test would be a good idea every three months at a bare minimum. Conversely, if you’ve been in a monogamous relationship for twenty five years with Cupcake and tested negative on a Western Blot in 1997 for Term Life, chances are 100% that you do not have it. Taking the test every year is a waste of finite medical resources even if you don’t use the toilet doily.


Remove center gasket before use.
Remove center gasket before use for optimum performance


Brought to you as a public service announcement by that “other” vA-inspired website and written on a vA-issued computer.

							

	
			

													
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LIVING WILL


			

				Posted on December 5, 2012 by asknod			


					

				
Veg state

							

	
			

													
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MEMBERS POLL ON VETS AND GUNS


			

				Posted on December 4, 2012 by asknod			


					

				
Back again with Chicago voting. Stuff the box if you must. No cookies. No identifiers. Simple-minded entertainment for all. I’d be interested in what all of you think. Please read this before you vote.




That be me
That be me

							

	
			

													
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VAOIG–YOUR TAX DOLLARS AT WORK


			

				Posted on December 4, 2012 by asknod			


					

				
In an exciting development for Vets, the Dept. Of Justice, in conjunction with the VA’s Office of the Inspector General, finally got around to measuring David Kwiatkowski for his new striped suit. He has now been indicted for the 30+ cases of HCV he’s spread around the Northeast and Eastern seaboard. The man is a regular Typhoid Mary and we wondered why we hadn’t heard from the troops up in Exeter, N.H. regarding his fate. Seems they have a backlog and are taking an inordinately long time to process them. The good news, as reported by the OIG, was that they anticipate completing his inprocessing paperwork and completing his claim conviction within 290 days with  an expected 86% accuracy quotient.


Meanwhile, on the Left Coast they haven’t been slouching either.  U.S. attorney Jenny Durkan announced last week that with the cutting edge investigative techniques of the VA’s OIG, they have now officially convicted one of the five Veterans who were embezzling funds from the Travel Pay program.  Aaron Adams, 50, was convicted of filing 96 claims for $262.00 a pop.In all, nine suspects, including two VA employees (Nick B. Hall and Keishjuan Daniels), were busy as bird dogs filing false mileage claims with the Travel Office at the Seattle VAMC up on Pill Hill.  Apparently Hall and Daniels recruited these fellows and split the take. Steal if you must but never steal from the government.


As we all know, if you are going to engage in a criminal enterprise, there is a mathematical formula involved that explains the inevitable consequences. This was arrived at over a century ago by a small Italian outfit that worked mostly out of Sicily.


N+F($A)=P%


Where


N= the number of conspirators plus


F= frequency of crime committed multiplied by


$A = amount in dollars involved equals


P = probability of getting busted expressed as a percentage.


We discovered in Southeast Asia that the more people willing to admit they knew anything about something, the greater chance that someone would spill the beans and we’d all get sanctioned for it. This was beginning of the “That all depends on what the meaning of “is” is defense. Rules of Engagement (ROE), nicknamed Romeos forbade certain practices. In order to succeed, these ROEs had to be reinterpreted on a case by case basis. Thus napalm could sometimes be characterized as “that sticky stuff that burns” or the Chinese Agricultural Mission and Medical Facility with all the Russian PT-76s out front at Ban Sam Neua  could accidentally be mistaken (and was) for a Pathet Lao truck park.


These gentlemen had a fine scam up and running, but as with all enterprises, they fell afoul of the Italian mathematical formula. Had they been willing to keep their escapades more subtle and involve fewer personnel, I suspect they would still be in business. No one I’ve spoken to has intimated that the prowess of the OIG had anything whatsoever to do with the arrest and conviction of any of these fellows. The mere fact that all have been identified and indicted tells us that there is no honor among thieves.  I, for one, suspect the weak link was loose lips. Anyone involved with a scam this sweet probably couldn’t resist the urge to brag about it. Now, had it been women, we still wouldn’t be the wiser.


The travel pay scammers

							

	
			

													
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VARO–VINDICTIVE? NAW. JUST DOING OUR JOB


			

				Posted on December 3, 2012 by asknod			


					

				
Hair-Stand-on-End-Idiom-explainedThis one will curl your hair. Imagine being protected by a five year old rating. Well, protected inasmuch as you know it’s not getting better. Now, compound that to within a few short months of being protected forever at 20 years. Hooooold the phone, hoss. Time’s up. Gimme back that 10 percent rating and be quick about it.


As noted above, the 10 percent rating for hypertension was in effect for more than 5 years, and in fact, at the time of the reduction, was just a few months shy of being protected for being in effect for 20 years. See 38 C.F.R. § 3.951(b). Hence, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. However, the February 2008 rating decision that reduced the rating and the October 2008 SOC failed to reflect consideration of, or provide notice of, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. No supplemental statement of the case (SSOC) was prepared on the hypertension issue, despite medical evidence providing relevant information being received since the issuance of the SOC. See 38 C.F.R. § 19.31. Among the evidence received was medical evidence noting a diagnosis of “portal hypertension” in 2007.


When you (the RO) decide you want to give some old boy a reduction on a rating, there are a few Ts to be dotted and Is to cross as my grandson is so fond of pointing out.  What’s more, you have to really do your homework, get a few C&Ps, get some red-hot nexus letters to support your proposed reduction and tell him the jig’s up in six months. This gives him time to mount a defense, file a NOD and man the ramparts. Just think- all this over a 10%/$125 a month rating that Johnny Live Free or Die has had most of his adult life. He ‘s had it since separation in September, 1988 and VA is nosing around trying to dump him in August of 2007 and indeed did a month later. $125 dollars a month saved for karaoke machine rentals at the VA’s Kissimmee HR convention. $125.00 a month towards a $2,500.00 bonus to a VA employee for breathing. $125.00 a month doesn’t even cover the phone and CATV. It’s beer money and VA is approaching this like a fraudulent claim. Hell, where’s the OIG?


If you didn’t really pay a lot of attention to these dates and numbers, you would be excused for missing them in the blur of 34,140 decisions this year. Reductions in ratings happen all the time. Reductions in those claims five years and older are rarer. As for ratings in effect for just shy of twenty years, it appears a lucrative slaughter has been identified and a mad race through the file room has begun to identify these scofflaws. Millions, perchance billions are thought to be saved right at their fingertips. Awwwrrrgggghhhh! My Kingdom for an Electronic Paperless Database to find them all.


Meanwhile the old adage appears true. I was warned once by a VSO that it would be foolish to “open old wounds” by trying to CUE my back claim. VSOs to this day always warn not to be greedy and go for big ratings. The accepted practice is to settle for a 10% milkbone and let it fester for 10 years before coming back to the feed trough. You would be more “respected” and not considered as one gaming the system. Here, Johnbo has arrived again, asking not for an increase, but for HCV. This is far worse than the hypertension for 10 he answered correctly in 1988. He’s now in Jeopardy of losing that 10% because they spotted it in the C-file and immediately glommed on to it as being legitimate game for a haircut. Can you say Christmas Bonus in the Neighborhood? Sure you can.


images


Rarely does this ploy backfire as it did here. Most times the VARO carefully arranges the C&Ps several years in advance in order to more fairly “remunerate you in case it increased in severity”. If it did, you’d never see an increase without filing for it. Conversely, if it showed improvement a carefully orchestrated dance begins that seems to get top drawer treatment. If this were a new claim in the pile, it would be normal to see a rating in several years. Being as it’s a demand note to act or get off the pot, it floats to the highest priority ahead of even medical/financial hardship cases. $125.00 a month? Shoot, we’re talking a small fortune of  $1500.00 a year here. If this were allowed to persist for another ten years, why,  it would amount to $15 K! Quick! Get three signatures-pronto but don’t run or look too eager. And you guys wonder why I’m so cynical.


VLJ K. A. Banfield has good munchkins working for him. Those little leagle beagles ferreted  out the finer points of §3.344(a) and exposed this attempt at the bum’s rush. It glows in the dark when the rating’s five minutes away from Bingo. This didn’t require Mensa intelligence but its gratifying to see they actually played it according to Hoyle. All too frequently the same arguments are used to defend egregious behavior rather than protect the Vet.


Score? Christians 1, Lions 0.




							

	
			

													
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