FORT FUMBLE, ANYWHERE USA–WHEN FIRST WE PRACTICE TO DECEIVE

Posted on January 2, 2022 by asknod

Happy New Year, pilgrims. I don’t ever want to come across as too bubbly and effervescent in these posts because I know there are many of you struggling to survive-both medically and financially. Concomitantly, I try to avoid giving false hope to those who need it knowing they are doomed. Rather, I like to remain upbeat, positive and glass-half-fullish about life. In my current profession, I’m blessed in that, for the most part, I can forecast the weather holds nothing but clouds with silver linings for my Veterans.

The last week at LZ Grambo

Have you ever gone to Denny’s™ for dinner with the family and the ~~waitress~~ oops- waitperson (s/he, they) brought your youngsters paper placemats and crayons? Granted, the maze puzzle is not overly complicated but it still requires mentally tracing you way to the center with a few false starts. Comprende? Now, imagine giving it a cursory glance and being able to discern the path instantly. Or, equally, being able to see no path and know it was impossible instantly.

My front yard several weeks ago.

I don’t profess to be an idiot savant but I’ve kept a good diary of my successes and my failures. As most know, I take the impossibles, the improbables or the dying Vietnam Vets. I have a horrible soft spot for crying widows. But what is striking is that, with very few exceptions, I can foresee who are going to be the chicken dinner winners and who are most definitely not. I’m not some cherry picker who takes the mega-lucrative claims. They come to me unbidden. Usually, nobody else would take them. I did a pro bono for the widow of a Vietnam eleven bravo this fall who was heading over the cliff with her VSO. He refused to file it for her. Said acute myeloblastic lymphoma wasn’t on the §3.309(e) presumptive list and to get lost. I won a R1 at the Little Rock RO last spring without a fight. You end up doing a lot of pro bono stuff and that’s a good thing.

I spend a lot of time talking or answering emails from Vets who ask me questions about “what if…? Most of these are about Special Monthly Compensation at the higher/highest rates. As a one-man band, I’m time-challenged. It forces me to make snap decisions so I can get back to work. Being able to see the possibility of a rock-solid claim quickly saves me a two-day review of every page of 235 pages of 1970s handwritten SMRs.

Which brings me to today’s church service on SMC. This one will really roll your socks down. I’ve been working with a Vet and his wife/caregiver for three or four years trying desperately to get them SMC at the L rate for A&A. I took this one on shortly before the March NOVA in Nashville back in ’18. In fact, in the middle of a presentation, the Hartford Puzzle Palace calls me and informs me they tried like the devil to grant my boy that A&A but they just couldn’t find enough to pull the trigger. This guy is 100% for COPD and about 80% for DM II with PN in all four extremities… and sleep apnea… and sinusitis ad nauseum. I wisely gave up on the local yokels and beat feet to DC for a 10 182 Direct BVA review. It was a slam dunk but VA has recently rolled up the Welcome carpets at their 57 service centers across the fruited plains. If you thought it was difficult to win A&A before, it’s now even worse that trying to extract teeth out of a live, pissed off alligator. TDIU is equally as dicey.

In the meantime (August 2018), my boy got another 100% for his now major neurocognitive disorder with a side of incompetency. When my Vet’s PN in the lower extremities became so debilitating this year, I decided to go for the SMC L loss of use codicil to get him what he really needed-R1. Fort Sam Houston immediately pulled up the drawbridge. We got a denial back in 5 business days in spite of him being admitted to the VAMC for a really bad fall last March (2021). He thumped his melon on the sidewalk and got a concussion. This is where being able to ascertain the path through the maze pays off.

First, I’ll put the rating decision up. The obvious 800 lb. gorilla on the sofa was a new 100% mental rating which got an automatic ticket to a SMC L for A&A all by itself-but based on something six months after filing. Huh? VA glommed on to that as the predicate and ignored the 2008 100% for COPD w/ DM II. And, being ignorant of the ways of SMC, failed to infer that he got a bump up to SMC M for the extra COPD 100% -§3.350(f)(4). That began my second battle to get him up to M. The pukes ignored me and told me to engage in sex with rolling donuts. redact narrative A&A 3-4-20 reconsideration Bad idea.

After a year of no traction, I emailed our acting Under Secretary for Benefits and asked him for relief. Bingo. Seven days later, on August 27, we had the SMC M. VA fell on their sword and granted it but found CUE and moved the effective date for the SMC L back from August ’18 to February ’18… based on the same 100% neurocognitive disorder. No can do GI. My boy wasn’t 100% for the neurocognitive disorder on February 12. He was 50% and that, with another 20%, will get you little more than SMC S and some shitty VFW coffee at an Interstate rest stop. But the big error was the camouflage attempt to cover their asses. The DROs huddled and tried to braille their way out of it. Phonics© won’t save your ass at the RO if you can’t figure out how to read a Code sheet. The M 21 doesn’t go that far.

My Vet had asked for A&A in February 2018-not August of ’18. By using the neurocognitive disorder as need in the February earlier effective date, they couldn’t support A&A. Check out page 4 highlight. It read like someone high on Phonics©. The PTSD bone is connected to the… asthma bone and the asthma bone is connected to the …DM II bone… and the…okay-got it. Call CUE and grant EED for the M.

redact SMC M RD 8.27.2021

I called bullshit and asked for a Higher Level of Review and explained all this to the booth bitch. I even grilled her as to whether she understood SMC law or had to take her shoes off to supersize her abacus. About six hours later, out comes the HLR. She tried to fix the anomaly of not having a 100% by simply waving her magic rating wand and changing the medical reason for the A&A. Boy howdy is that a Colvin violation unless she has a MD after her moniker. This framed the idea for the name of this post. Sir Walter Scott nailed it in 1808 when he inadvertently prognosticated on how VA would forever rate claims “Oh, what a tangled web we weave, when first we practice to deceive!” . The problem was her statement that the a&a did not include any psychiatric disorders. See underlined in green on page 4. Kinda makes you wonder how they get their shirts on in the morning facing forward, huh?

Redact 9.28.2021 HLR RD

My Vet’s A&A now was predicated solely on the COPD as it should have been when the shit show began in March 2020. But by doing this, Ms. HLR reviewer freely vocalized the anomaly that they had already admitted the 100% neuro disorder was also an A&A in it’s own right… but was not being considered in this particular a&a determination. Shit. I can’t make this stuff up. After three bites of the apple, they admitted without saying as much that he has two needed separate and distinct 100% a&a entitlements to obtain R1.

This is easier than fishing with hand grenades. I admit it took me about an hour to follow the error back to February 2012 and realize this lipstick-on-a-pig gig wasn’t going to fly at the BVA. What the hey. I’d have a field day with this at the Court. So here’s the prelim brief. If it seems redundant, remember it takes a lot of breadcrumbs to keep these folks on the reservation. Even staff attorneys at the BVA can’t follow the SMC Yellow Brick Road without going in the ditch. Which brings to mind the immortal revelation by Stephen Hawking…

“The greatest enemy of knowledge is not ignorance. It’s the illusion of knowledge.”

Imagine if they took the M 21 away from raters. They’d be lost. They suffer the illusion of being knowledgeable. They don’t know statute and regulation. They push X + Y and the M 21 magic 8 ball spits out the answer. If you file a NOD, they cobble together a bunch of cut -and-paste Adobe 2 Pro phrases which leave dangling participles and incorrect syntax scattered galley west. Who cares? Right? You’re denied.

redact10182 R1 Brief

That concludes this teaching moment for VA raters. Be careful how you craft a CUE revision or you may find you inadvertently have created a bow wave into SMC R1.

P.S. PFC Princess Penelope (Padawan 1st Class) is practicing up for her gig with the Rebel Alliance.

Posted in Aid and Attendance, Appeals Modernization Act, CUE, R1/R2, SMC, Tips and Tricks, VA Agents, VBMS Tricks | Tagged asknod.org, Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, VA R1 ratings, VA SMC Ratings, VA SMC rules, VA special monthly compensation, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 2 Comments

No Bones About It: Dogs Have a Positive Impact on Our Health

Posted on December 23, 2021 by jamesaurora

If you’re a pet owner, you know that pets make you happy. But as a Veteran, did you know that owning a pet can be especially helpful? Having a companion animal is highly beneficial for veterans with PTSD, and lowers our blood pressure and increases our happy hormones, which can make our lives longer and better.

If you’re on the fence about getting an animal, AskNod.org shares some more information on how our pets can make us healthy.

Physical Health

Research has shown that paying attention to animals gives us a feeling of calm and can lower blood pressure, cholesterol, heart rate and stress hormone levels. Recent studies show that our brains release dopamine and serotonin, nerve transmitters associated with calmness and happiness, when we’re interacting with animals. Not only do our moods improve more quickly than if we took drugs for stress, but also the effects last long after the animal has left our presence. Petting animals in a rhythmic manner releases oxytocin, the stress relief hormone, and comforts both you and the animal.

Staying Present

More importantly, pets make us focus on the present moment and keep us from feeling isolated. They don’t worry about the future or fret over the past, and they demand that we pay attention to them. When we are stressed about work, life or whatever, our animal companions can help us refocus on what is in front of us. They make us laugh, but they demand that we play with them RIGHT NOW. That has a way of making other concerns fall away if only we let them. As the Serenity Prayer says, let go of what you cannot control… (and then go play with your dog).

Of course, there are ways to get health benefits without actually owning a pet. If you can’t have animals in your home or cannot afford to care for one, you can help both them and you by volunteering at a pet shelter or becoming a dog walker. You will be getting good exercise and socialization, but you’ll also be helping the dogs you walk to learn social skills and be more likely to get adopted. That’s a win-win if ever there was one!

Mental Health

Animals can also help with our mental health. Dogs have been trained to provide focus for autistic patients, uplift people with depression, and be calming presences for those battling PTSD and anxiety. Therapy animals are pets who have been trained to visit people in need of comfort, such as in a hospital or nursing home (unlike service dogs which are trained to provide assistance to a person with a particular disability, like a seeing eye guide dog, and are not considered pets).

Emotional Support Animals are pets that provide comfort but are not necessarily trained to do so, but they are considered companion animals to those in need of emotional assistance so they are allowed in certain housing and transportation venues where pets are not. Some doctors use animal assisted therapy, so you might be able to benefit from it even if you cannot afford to get a specially trained dog of your own.

What You Need to Keep a Pet

When you’re ready to take the leap into pet ownership, there are certain supplies you’ll need to gather. Food, food and water dishes, toys, a collar, a leash or harness, and a comfortable bed. Depending on the level of activity you anticipate with your pet, a waterproof bed is a solid choice since the cover can repel moisture.

Your living environment will determine which size dog you get, but remember that a smaller dog will do better in an apartment than a larger dog. If you have a yard that’s unfenced, this is another consideration to keep in mind. To ensure your dog has room to roam, you need a fenced area that will keep them secure. You can remedy this situation by working with a local fencing company. They can help you choose the right materials to fit your budget, and can do a faster job than if you were to DIY.

Please know that adopting an animal is a commitment that should not be taken lightly. Your dog will depend on you for companionship. If you’re lonely or depressed to the point that you cannot care for another, please do not take in an animal that you might have to give away later. While animals can help you to feel better, you should not get one unless you can care for it as well as yourself. You want to create a good home for your pet so that you both benefit from being together. That’s paws-itively the best situation you can have.

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EXPOSED VET RADIO SHOW 12/23/2021

Posted on December 23, 2021 by asknod

Holy Macaroni. Sorry for the late announcement. I’ve been buried in the computer solving claims mysteries and completely forgot to put up a blurb to announce the show. John & Jerrel are doing a day-before-the day-before-Christmas show and asked me to come on and discuss my client’s recent SMC R1 win and the secondary CUE claim for R1 going back to June 2014. It’s been sitting in CASEFLOW since last Wednesday as “Ready for signature” by Veterans Law Judge (VLJ) D. Mantz Ames. Judge Ames has been kicking around the BVA as a staff attorney since the dawn of time (all the way back to 2005). He was awarded his wings in 2017 and seems to be a straight up Judge. Fingers crossed.

Some, as we know, are decidedly not the Veterans’ friend but life is full of prejudice. No use crying over that.

A nice Christmas present for any of you who served in Thailand, Laos or Cambodia would be to joint the TLC Brotherhood. You can find them at www.TLC-brotherhood.com. They’re a great outfit and we help unfortunate villages over there with donations and construction projects. Check them out.

Here’s the skinny on the Show:

(515) 605-9764

The show starts at 1900 Hrs on the easterly Area of Operations and 1600 Hrs in the Lefterly AO. Armor up w/ beer and pretzels before the show so as not to miss anything.

The www. link is:

https://www.blogtalkradio.com/jbasser/12041401/connect/6c0b625e6d658518e5ebf3028944c70985440b11

Dial one (1) (nung) (wən), (un) only if you wish to speak to the person you wish to speak to. Otherwise, refrain from dialing 1 so we do not get a lot of background noise. Merci.

Posted in Exposed Veteran Radio Show, Humor, SMC | Tagged asknod.org, Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, VA Claims for SPECIAL MONTHLY COMPENSATION, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 1 Comment

BVA-SMC(r)(1)–YOU MAKE MY DREAMS COME TRUE

Posted on December 18, 2021 by asknod

Helio Courier

Last night, Cupcake announced she was watching a new series on the boobtube called Project Runway. The meaning of that phrase was indelibly planted in my brain in 1970 flying into a mountaintop Lima Site airstrip on top of a Karst for the first time. They didn’t make Depends® undergarments back then, either. Limestone Karsts in Laos looked like Madonna’s bras. The airpatch, LS 148 Ban Nou Kachok, elevation 2900 metres, faced northeast, was uphill, bumpy, waaaay shorter than a football field and maybe 40 feet wide. Our aircraft, a well-worn AirAm Helio Courier (Tail number XW-PGB if memory serves), was probably older than me (19).

When we came ‘left’ on final, or what approximated it in the PIC‘s mind, I asked where the runway was. He laughed so hard he had to wipe off the snot running down his face. He said I must be new around here. The cargo was 4 wooden cases of old .30 Cal. M1 Carbine ammo, ditto the 60mm mortar rounds, a pig and a bunch of chickens. The return cargo were the pig/chicken shit all over the deck, two armed USAID agricultural specialists in full camo and three very dead tahanns (Hmong soldiers) whom we always returned to their birth villages for burial. They were usually wrapped in cargo parachutes which helped wipe up the pig shit but it did nothing to quench the stench. Which is why knowledgeable airmen upcountry always carried those small Vick’s Vaporub jars to mask unpleasant aromas. They sold a shit ton of them down at the Udorn BX. Due to the solemnity of these occasions, everyone politely ignored the smell. It was de rigueur to share your Vick’s.

From the Man Cave wall

Project Runway in 1970 was twofold back then. Landing was relatively easy. Taking off from Nou Kachok -even in a VSTOL aircraft like a Porter or a Helio was an act of faith. Or a leap. Taking off with seven (7) passengers in a six-passenger craft was also not the smartest idea but Hmong were small of stature. At the very bottom end of the downhill runway was… absolutely f—king nothing. You developed sustainable airspeed by expeditiously retracting your leading-edge slats and diving into the valley below full throttle. Which aptly describes that sinking feeling in my stomach in April 2018 when Lori asked me to take over her claim. She was an attorney and if she couldn’t win it, maybe I was in waaay over my head. Her VSO, Virginia Department of Veterans Affairs didn’t even know what R1 was- let alone how to spell it. I was still wet behind the ears on SMC but had a rough enough grasp to know Lori was getting screwed. Besides, she was busy fighting (and losing) Multiple Sclerosis and hors de combat for this project. About all I knew on the subject of MS was you didn’t want to catch it. But if you did, you were in for a shitstorm and a lot of pain and misery. Add 25 years and stir. The end. I wrote about her here:

BVA-FORT FUMBLE, VIRGINIA–SMC=SMALL MENTAL CAPACITY

After a pretty thorough records review, it was obvious the Handy Helpful Hampton VA folks knew absolutely nothing about how to maximize a SMC claim. But then, that’s what their M 21 manual is for. They’d granted SMC L for Aid and Attendance but when the extremities began to crap out, they tried to keep gluing on bits and pieces of L ½s and Ms and L-2s. Seemed like all roads led to SMC P with no off ramps to SMC O or R1.

We politely waited our turn. Because I’m gun-shy, I placed two bets on this game. Bet one was a CUE going back to 2014 for R1 instead of SMC M. Bet number two was a simple cold call supplemental refile for R1. I got what I expected- a dry hole. And like all of you pilgrims on the claims trail, we took a number and sat down on the Group W bench. I felt the two appeals were inextricably intertwined and convinced the hearing judge to entertain both of them. They promptly bifurcated the appeals and assigned them to two entirely different VLJs. Idiot’s delight.

redactfiled Brief 5.4.2021

We got the biggest problem solved last night. It popped up in VBMS about 1659 Hrs EDT as a rushed publication. Check out the typo denying R1… right after the award of R1. Fortunately, reasonable minds can only conclude from the follow-on Conclusions of Law language that VLJ Keith Allen is indeed granting R1 but denying R2. Shoo doggies. I can fix that faster than you can say Denis McDonough. The jump from SMC M to R1 was the original game plan. R1 pays out $8635/month vs. the SMC M at $4900/mo. R2 is small potatoes and only gets you another $1200 per month.

I like to divide my battles into fights. Winning R2 is a simple, post-R1 affair. Getting an intelligent VA person to employ SMC Phonics™ and grant R1 involves appealing every time. I know. ‘Intelligent VA person’ sounds like a non sequitur. Even then, due to what some feel is the utter complexity of the regulation, these G-14 snowflakes will still manage to wander astray into SMC P and focus on stuff which doesn’t apply. Herding cats is tame in comparison and takes far less time. Too bad we couldn’t just use canned cat food to win VA shit. Heeeere, Kitty Kitty Kitty…

Anyway, here’s the shiny new rating for Lori. It’s being written up at the Office of Administrative Review, formerly the AMC, nee AMO (VBA397) in DC as we speak. I’m guessing that typo is going to throw them for a loop. It doesn’t take much to conflusticate these folks. Rumor has it that it takes them three signatures just to get permission to go to the loo at the VSC.

Merry Christmas, Lori. Thank you for choosing me to help make your R1 dreams come true. I apologize that it took me so long. That CUE appeal they mention is ready for the VLJ’s ( D. Marz Ames) signature so we hope to report back soon. Hopefully, the CUE is not going to be a catfight up to the Big House at 625 Indiana Ave. A $2500/month increase for 90 months is going to go over like screen doors in submarines. Oh well. Win or Die, right?

redact r1 12.17.2021

On behalf of Cupcake, Kona, Cooper, Ambush, Buddy, Pickles, Widget and myself, I hope we passed the audition this year. Merry Christmas to you all and best wishes for a new year devoid of this infernal bug.

P.S. Merry Christmas to those who couldn’t make it this year due to prior obligations.

Posted in Aid and Attendance, BvA Decisions, Humor, Inspirational Veterans, SMC, Tips and Tricks, VA Agents, Veterans Law, Vietnam War history | Tagged asknod.org, Disabled Veteran, Help with vA Claims, Helping Veterans, Service Connection, VA claims, Veterans Benefits, Veterans claims help, Vietnam Veterans Claims Help. | 8 Comments

LORD, TELL ME IT’S NOT THAT MEDRANO

Posted on December 8, 2021 by asknod

Cupcake and I were having coffee yesterday morning and I was scrolling down through my Google® newsfeed when I inadvertently administered (again) a coffee enema to my nose. The article described a former Marine, now a Veterans Service Officer (soon to be former), of defrauding the VA out of beaucoup de shekels for himself and his wife. Is this a Marine thing or did he just think nobody was going to pick up on the Faceplace™ posts? These cases seem to pop up periodically enough to make me wonder, too, as to whether they even bother to research the contemplated fraud and assign a probability of getting busted.

Here’s the link to the article. https://www.justice.gov/usao-sdca/pr/former-employee-sentenced-defrauding-veterans-administration

I’m sure today’s diatribe will be dissected for political correctness/awakeness and I will be found wanting (again). No sweat. I’m covered. Cupcake can, and will, insist (rightly) I suffer Tourette’s Syndrome and claim it’s par for the course. What the hey? I think it’s kinda neat when you have no idea what’s going to emanate from your pie hole next. Sometimes it’s actually hilarious. Sometimes….

Dad

Here goes nothing. When I was very young, my dad gave me some sage advice. The crux of the discussion was that cops are not exactly the sharpest tools in the shed. They mean well but the cop hierarchy doesn’t want a fleet of Sherlock Holmes-types running around ruminating on how a crime went down or who might be the perpetrator. That’s the Poohbahs’ job. Ergo, the list of suspects ends up being several pages long even though the most likely suspect appears guilty as Hell. In the cop world, Occam’s Razor is inapplicable. That’s cool. It makes for more cops on the street. He further opined that there was a certain pecking order in the military that most of us know. It rarely is talked about at the O club unless one has ETOH disease. To wit, service members who scored rock bottom on the old AFQT tests in all four categories were pretty much doomed to be cooks. Above them were cops. The ladder continues upwards through the engineering corps to include carpenters etc. The top of the pile is Intelligence. Not your IQ, per se, but the actual work of interpreting reconnaissance data, photos and the like and prognosticating on the possibility of whether all those new construction sites that look like SAM emplacements are real or well-contrived fakes. Or reviewing new post-strike RF-4 recon data showing they just repaired the Paul Doumer Bridge in downtown Hanoi (again).

In the same vein, Daddy pointed out that a large majority of Marines were gorillas- about 6 foot 4 and weighed about 235+. Their AFQT scores aside, the proclivity to be assigned an Infantryman MOS was not an incredible coincidence. Similarly, most Marine officers were lucky to make light colonel after 20 years of excellent, nay, exceptional accomplishments. No matter how many BSs, PHs and Air Medals w/ Vs they accrued, they rarely attained the higher O ratings above field grade officers. Strangely, even well-connected officers seemed to hit the wall about O-8.

By now, unless you are semantically challenged, you can see where I’m going with this. I certainly do not mean to denigrate Marines – or cops for that matter. I merely point out the fickle nature of coincidence. So, let’s take a gander here.

Voila la Pig

Fortunately, I was wrong. The Medrano in question is 42-year-old former Marine Anthony Medrano. I was mortified to think it might be the Medrano of Medrano fame in Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007) holding the Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority. See 38 U.S.C. § 7261(a)(4). Here’s the skinny on Alphonso Medrano.

Alphonso filed for bent brain in August 2000. In the spring of ’01, right after passage of the new VCAA, they sent him a §5103 notice explaining the dog and pony show requirements. Good to go. They denied as expected in late July ’01. He dutifully filed his NOD. In their oh-so-inimical way( as only the VA can), they misconstrued his NOD for a brand new reopening of his recently denied bent brain claim. They denied it again in October 2002 and Alphonso enlisted professional help. The problem was simple, really. This time they forgot to “reissue” a §5301 notice. The BVA Veterans Law Judge (VLJ) rightfully affirmed the denial because having received the initial §5103 in April 2001, ol’ Alphonso had been read in on how this poker game was played. In addition, when apprised of its error (failure to send out a new §5103), VA belatedly sent him a new one in April 2004. Through counsel, he (only then) stated he had nothing else to submit. The VA had “misplaced” his Milrecs and all he could possibly provide was Layno/Jandreau lay evidence swearing under oath he had a brain-bending experience in service and it affected him permanently. From there it was off to CAVC to (re)determine what prejudicial error consists of… and in Alphonso’s case, what it most assuredly didn’t consist of.

A lot of folks just assume Medrano stands for a run of the mill §§3.344/3.105 case of an illegitimate or unsustainable reduction. No sir. While it (§3.344) certainly protects you, you can use Medrano for the proposition that once VA issues a favorable finding of fact, it usually metamorphoses into a conclusion of law. If you didn’t lie cheat or steal to get it, it’s yours. Once it’s been announced in a notification letter, the Board can’t take it away nor can the CAVC. While Medrano precedence sounds like it is only applicable to the Court, it’s not.

Notice our USAF-issue 16s didn’t have the bolt-assist and had the old roach clip barrel tip.

In VA litigation, you will see extensive development of a claim and, even once it is determined favorably, there will be a prolonged pause akin to an operating room where the surgeon calls a time out to make sure they’re cutting off the correct leg on the right patient. In medicine, this is the soul-searching Magic Marker Moment wherein they make sure they aren’t pulling a Bozo. As an aside, it’s too bad VA doesn’t invest this much time into determining if they got it wrong before issuing a denial. But I’d be out of a job if they ever changed their MO.

six actual

Once the Rating Decision and the Code sheet are complete, the issuance/mailing of the Notification letter makes it concrete. Assuming all is above board, the VLJ above on appeal can only rule on the propriety of the action (severance or reduction). S/he cannot arbitrarily reduce or sever an award or entitlement unilaterally. Ditto the CAVC. That adjudicatory function (ratings) is the providence solely of the Agency of Original Jurisdiction (AOJ) below. This clearly and convincingly demonstrates that in a vacuum of lawyers, 74% of their adjudications will be wrong. In a final Clear and Unmistakable Error (CUE) claim, you attempt to prove error. The VLJ arbitrates that strict standard only. They don’t get to say “Yeah, you’re right. I see the CUE. Here’s 70% for bent brain. Sorry the gomers in Waco were so ignorant. Thank you for your service.”. Medrano’s bright line holding is more nuanced and hinges on the tenets of due process- i.e., you won and they cannot come back and take it away. When you were a kid, you’d call someone of this ilk an Indian giver. Boy howdy is that ever one of those third rail Tourette-tinged words now, huh? Mea Culpa. Not.

Thus, it was with dread that I feared I would read Mr. Medrano (Alphonso) had become embroiled in malfeasance in his new post-appellant role as a VSO. Thankfully, my fears were assuaged when I beat feet to my office and dug it up. I do find it amazing that the VA’s Office of Inspector General (VAOIG) only took 8 years to figure out he’d been granted A&A all the while being employed full time at the VA as a VSO claims guru. I guess that speaks volumes about the prowess of the VAOIG… but then we’re talking cops again here. I vote we give OIG another Turtle award w/OLC for their dogged, relentless pursuit of VA miscreants.

False alarm. Nothing to see here, folks. Move along. Wrong Medrano. I also want to confess to being biased toward VSOs in the past due to their treatment of me before I figured out how to win VA claims. Since then I’ve met a bunch and for the most part, they’re decent folk limited by their lack of training. Just like cops, the Veterans Service Organizations don’t want proficiency, they want warm bodies to complete .pdf-ready-to-fill-in forms, lick envelopes and affix postage. If they want any shit out of you, they’ll squeeze your head.

Ed the LRRP

Now, with all that said, my absolute BFF (best f—ing friend) Ed, a Silver Star recipient and LRRP, did his two years and separated to become an LA County sheriff. He retired after 20 years. To my knowledge, he isn’t exactly Mensa material -but then he’s a far, far cry from stupid. And boy howdy does he ever have Tourette’s tongue like me. Hoo doggies. We’re like peas and carrots. We’d never last more than ten minutes in a Portland, Oregon restaurant in the present political atmosphere- but then again, it would be a meal few would ever disremember.

To grasp Ed’s humor requires an open mind and a knowledge of boots on the ground. I received this gem for morning coffee. Cupcake still hasn’t grasped my humor yet… let alone Ed’s.

And that’s all I’m gonna say about Ed.

Posted in All about Veterans, CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, Lay testimony, PTSD, Reductions in rating, Tips and Tricks, VA Agents, Veterans Law, Vietnam War history, VSOs | Tagged asknod.org, Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Inspirational Veterans, Service Connection, VA claims, vA CLAIMS FOR PTSD, Veterans Benefits, Veterans Humor, Vietnam Veterans Claims Help., VSO | 6 Comments

2021-GIVING THANKS FOR MAKING IT HOME ALIVE

Posted on November 27, 2021 by asknod

Greetings from the Graham ménagerie-now only eight of us. Our pony, Big Shot (nee Buckshot) passed this fall from Diabetes Mellitus or what passes for pony diabetes. He’s buried out back next to Dude (another pony). Cupcake and I have had an uneventful year but made great inroads in the VA fisc by winning our clients’ claims. Come to think of it, we’re actually still batting .1000 if you can believe it. No, I’m not restatisticating à la VA. I don’t count a denial as a loss until it’s dead in the water. Since I have never given up on any of you, I claim the .1000 figure for the time being.

Thinking back on Txgiving 1970, I had amassed a horde of turkey c rats for a veritable feast with my Tabasco I carried with me everywhere. While flying a mission that morning, someone snuck into our barracks and stole them all-even my peaches. I got Spammed-literally. That was all they left me. Well that and the sixteen year old Lucky Strikes. It’s always been a low point for me and destroyed my faith in humanity.

Sadly, as I posted last week, we lost Butch Long of LZ Cork fame. In addition, my Korean War Vet Charles passed on July 25. Leigh passed in April and lastly, my first Blue Water latecomer Doug passed September 7th. Each came pretty much completely out of the blue. I will miss them all. I couldn’t salvage Leigh’s DIC claim as her husband had passed away and the kids had already received their DEA Chapter 35 benefits. I got her 100% for Hep C and a transplant years and years ago. I was working on the diabetes secondary to the Hep C and an SMC S rating when she passed.

I guess that’s one of the hardest parts about doing this work. You become very immersed in your clients’ lives and family. Then you start repping their kids. When I lose one, it creates a grave disturbance in my mental Force. I strive to keep my representation down to no more than 80 souls so as not to become as inaccessible as did my DAV rep. in 1989. That was the pits. He arrived at my DRO hearing in 1990 10 minutes early but had asked me to be there an hour before for the SITREP. Worse, he walked right by me and didn’t recognize me. I had to give him a short brief on what he was hoping to accomplish. Boy howdy have we come a long way, baby.

SMC- New Tricks

On the SMC frontlines, I’ve discovered an interesting phenomenon that bears inspection and sharing. After researching a Veteran’s claims file, I always catalog the actual ingredient that produced his or her 100% schedular/ TDIU. If it’s a combination to two or more disease/injury processes, you don’t qualify for SMC S. Read it. It has to be a single disease entity at IU or a true 100% schedular. Nevertheless, TDIU is a 100% rating and the gateway to what’s beyond SMC S. If you have one disease process like Parkinson’s or DM II, VA permits combining them all to arrive at a 100% rating (via VA addition of course) to permit a pseudo- 100% combined rating- and thus, permission to advance to the higher SMCs of L and beyond.

The phenomenon occurs thusly. Example #1: Say you’re at 100% schedular P&T for COPD and have been since 2008. Secondary disabilities gradually take you up to a SMC S rating. Your situation deteriorates further. You have to go on 2 litres of O₂ daily and you need A&A. Suddenly, in the middle of your A&A claim fight at the BVA, VA freely concedes your bent brain from all this trauma warrants a 100% scheduler. We all know that never happens.

Anyway, the next spring, the BVA grants a&a and remands it back to the Lokal Yokels. In a splendid display of ratings gerrymandering, they declare your 100% schedular for bent brain is the primary a&a factor -in conjunction with all the earlier ratings, of course- which led to the a&a. But what about that 100% schedular you’ve had since 2008? Why did the advent of the new 100% schedular only now create your a&a entitlement? And why in Sam Hill didn’t any of this provoke the 1/2 step or full step bump we get from §3.350(f)(3) or (4)? You have to go back to the earlier discussion about surveying the original predicate for your SMC S. This is how you spring the SMC punji pit trap on them.

I refiled to get the full step bump to M based on two separate and distinct 100% schedulars and caught them with their pants down. They did exactly what I expected and stampeded back six months to February 2020 and inferred entitlement due to the old 100% for COPD. This way they felt they could award the bump to SMC M for the 100% schedular bent brain without conceding their stupidity in the original rating a year earlier. Again, the punji pit comes into play. If the antique COPD, now, in 2021 is the declared predicate for a&a, why, then, would not the later award of 100% bent brain not provoke yet another SMC L for aid and attendance in its own right rather than the bump to M? What the hey? If bent brain was the predicate first, and now isn’t, somebody’s screwing the pooch. I call it VA three-card monte or “which walnut is the pea under?”

One common mistake most litigators make in SMC law is believing you cannot have two A&A ratings. Or, if the practitioner understands you can, they believe there cannot be any overlap in the criteria described in §3.352. Wrong. SMC is one of those unique situations in VA regulations that permits pyramiding. Here, the predicate for a&a is based on a “factual need” as defined in §3.351(c)(3). VA will try to tell you that Disabilities A, B, C, D and E are the predicate for your a&a needs. It really makes no difference what causes the factual need as long as you have one 100% (schedular or combined) service connected disease that prevents you from accomplishing the activities of everyday living – due to either physical or mental deficiencies. Period.

When, as I described above, a new 100% disease or injury arises that is separate and distinct from the 100% rating that provoked your entitlement to a&a initially, you are legally entitled to consideration to another SMC L rating under §3.350(b)(3). The factual need as described in §3.351(c)(3) allows you to hoist them on their own pétard as many times as you are granted a new, separate and distinct 100% schedular rating. Essentially, once you’ve proved you need a&a, any future 100% rating automatically comprehends you need the identical a&a. No pyramiding. No harm. No foul.

Of most interest in this VA SMC building contest, your early-on rating for TDIU under §4.16(a) can become the inviolate benchmark 100% rating. By law, that is a favorable finding of fact and protected under Medrano v. Nicholson. It’s a finding of fact that cannot be disregarded, modified or tampered with short of an act of commission or omission on your part. VA will almost always “convert” your TDIU later if your sum of ratings -when added up together- exceeds 100% combined. This is why most will never see SMC R1 for anything but loss of use of extremities or blindness combined with their a&a rating.

Example #2: So, you have a TDIU and an extra 60% in separate, distinctly different ratings having nothing to do with the TDIU. When you eventually get a later 100% rating, that, too, must be separate and distinct if you expect to get a&a. But here is where semantics kick in. A mental disorder, even if caused by Parkinson’s, is a separate and distinct (think mental versus physical) disease involving a different organ or bodily system. It is a stand alone 100% that is eligible for a&a. VA knows this but tries to bullshit you out of it with a not-so-generous full-step bump to M instead. When they rate you for Parkinson’s- or DM II for that matter- they add up the peripheral neuropathies in all four quadrants, all the difficulty swallowing, the cranial nerves that make you face muscles hang limp,, lost smell, constipation, ED-the whole shiteree. They almost invariably add up to about 100 +80% or more. Subtracting the usual 30% they give you for the anxiety disorder associated with Parkinson’s never reduces you below the magical 100% combined. Ditto the DM II scenario with peripheral arterial disease, PN, diabetic retinopathy, renal failure ad nauseum.

The perfect storm for a TDIU-based a&a rating is as I have explained. In most cases I appeal, I have to divorce the previous separate and distinct ratings from each other first. I use the clear and unambiguous precedence of Buie v. Shinseki for this:

Buie v. Shinseki, 24 Vet.App. 242, 250 (2010).

In Buie, the Court held that [w]henever a veteran has a total disability rating, schedular or extraschedular [TDIU], based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA’s duty to maximize benefits requires VA to assess all of the claimant’s disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to [SMC] under section 1114(s). This duty to maximize encompasses all SMCs and requires VA render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. See §3.103(a) (2021).

Buie is the fork you use to move this jumbo of ratings around into the most advantageous order to get the biggest bang for the buck. If you had TDIU granted in 2015, and you get a new 100% rating, VA can legally use it for the 60% bump to SMC S. But…they have to first consider entitlement to SMCs-all SMCs- not just SMC S.

So, last month I filed a Vet for loss of use of all four extremities due to Parkinson’s. He had an appeal for SMC S up at the BVA currently before he hired me. My battle plan is simple. I filed it all at once asking for SMC O and the bump up to R1. I purposely held my cards low so VA could read them. “Ned” went to the c&ps for loss of use but… VA threw in a request for increase to his 30% rated anxiety disorder we most assuredly did not file for. Yesterday morning, after a 30 minute chat with a shrink, she wrote him up as totally bent brain at 100%. The DBQ was filed an hour later in VBMS. Their oh-so-subtle plan appears on its face to make an end run denial around the loss of use and munificently grant a&a in its stead solely based on the bent brain and try to throw all the other shit in on top. But if he already had the ingredients to qualify and held a TDIU or combined 100%, isn’t that 100% for Parkinson’s a separate and distinct illness that qualifies for a&a in its own right? By virtue of Buie, they should keep the TDIU/100% combined as the predicate for an SMC L a&a and make the new 100% bent brain a separate a&a. And on to SMC O/R1. In your dreams, jellybean.

VA is predictable. You can stampede them into an a&a punji pit and then file for an extra a&a if you construct it properly. And trust me, it works. VA is so narrowly focused on trying to fence you out of the R1 corral that they often inadvertently create the perfect storm to get there. Pretty cool beans, huh? Even better, you can use Buie to separate and rearrange all their mistakes in order to get to R1. There’s no business like this VA pétard business. Well, maybe fishing with hand grenades in the Mekong. Now that was a hoot.

On another note, please welcome my shirttail relative Don to the 100% club for blindness. I’m fine-tuning his a&a based on blindness but VA is insisting he’s not completely blind-just 90%. They did give him an automobile grant but $21,500 doesn’t go far toward one of them newfangled Tesla self-driving rigs. And you’ll never catch me riding shotgun with him. Hellllllllllllllllllllll no.

Have a happy, safe Thanksgiving and Holiday season and steer clear of the new omicron corona bugs. You might be free to move about the country right now (assuming you don’t beat up the stewardesses) but it’s ill- advised. I have to go to a Travel Board hearing in Houston RO on January 12th and I’m praying it doesn’t get cancelled again. It was scheduled for May 7, 2020.

P.S. If these pictures seem too graphic to the reader, I apologize. Imagine what it felt like to be there in living color. War is Hell. Combat is something entirety different. I can’t tell you how many Vets I talk to who served in Germany that claim they wish they’d been sent to RVN. Be glad you didn’t get your wish. The above would be burned into your mind. The reruns start every night shortly after bedtime. There’s a Black Wall in DC that lists 59,494 reasons why you should be glad you missed it…or any war for that matter. I publish these pictures to remind me of my lost friends. I didn’t have the luxury of a camera and time to take my own pictures. The fact is, I didn’t have the time to mourn in ’70 and nobody was interested in talking about it when I came back two years later in ’72. And that’s all I’m gonna say about that.

Posted in 100% ratings, Aid and Attendance, Corona pandemic, LZ Cork, R1/R2, SMC, TDIU, Thanksgiving and war, Tips and Tricks, VA Agents, Veterans Law | Tagged asknod.org, Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, vA CLAIMS FOR PTSD, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 3 Comments

LZ CORK–THE LAST ROUNDUP

Posted on November 19, 2021 by asknod

It is with great sorrow I announce the passing of Butch Long early Tuesday morning. He fought the good fight with VA but he succumbed to what we frequently chant- Delay, deny until we die. In the instant case, it is true. I took Butch all the way from his reopening in 2015 to the CAVC and lost due to my lack of knowledge on §3.156(c). It took years to synthesize every nuance of it. In the process, I “accidentally” forgot to include all the records we obtained from the 312th Air Evac Hospital at Chu Lai. Records that say Butch was still complaining about headaches 6 weeks after the concussion blast injuries. Neurologists generally agree that TBI symptoms resolve (if they’re ever going to) within 2 weeks of a concussion “event” be it a football injury or an MVA.

These heretofore lost records allowed us to use the AMA to our benefit and continue the claim in the supplemental claim mode. VA, of course, denied it and an HLR was even more bizarre. We filed the NOD to the Board with not one, but two IMOs proving, among other things, that bilateral field vision loss in a setting of only one eye impaired clearly demonstrated an organic brain injury. In conjunction with headaches and tinnitus originating at the same time, the field vision loss IMO was the crème de la crème needed to cement the deal.

Butch in black tshirt standing behind and to the left of Gypsy Lee Rose January 18th, 1969-12 hours before the attack.

Butch’s wife Barb will take over the claim via substitution so the VA delay/deny tactics will be to little avail. It saddens me to have to witness seven years of denials. Worse, it saddens me whenever I open an old claims file from the 60s-’70s and see the perfidy. Claims of now-dead Veterans were baldly gerrymandered into 0% even when the evidence was undebatable. It demonstrates the old adage that power corrupts. Give a group of three government raters (one being an M.D.) a claim for benefits for a combat Veteran and watch them denigrate the credibility, downplay the severity and lastly, eviscerate the thrust of the claim by diverting it into a completely different direction. You’re arguing for TBI and they’re saying you have partial deafness. You say your ears ring and they say Roger that but you don’t have TBI. You’re arguing for a perforated cornea (and the residuals of a traumatic cataract) and VA is saying it’s correctable to 20/40. Your eye is perpetually “blurry” with a “hole” in the middle but it’s 20/40. You have more retained metal in you than the exoskeleton of the Tin Man in Oz but you get 10% just for shits and grins. And this scenario was just Butch.

Butch lived hard, played GI Joe hard and had a good run. He raised four wonderful children and lived to see many of the grandkids. To be honest, at one time I figured I’d be the one to auger in first. Agent Orange took an immense toll on our bodies. As if that didn’t wreak havoc alone, Malaria and a host of other diseases like Hepatitis and jungle rot plagued us in the aftermath. Some of us have diseases that doctors really haven’t seen in decades. Liver flukes in the US are unheard of.

Butch’s right arm with pepper spot tattooing from SFWs

I owe Butch immense thanks for allowing me to represent him. He taught me more than just how to win his claims. I made it clear when he was alive that I’d be there for Barb. I consider that to be my prime directive now. I’m guessing the number of LZ Cork alumnae is now getting down to fewer than one hundred members. In another ten years, it’ll probably become the Last Man Standing Club.

Butch a month after he got out of Letterman General Hospital.

I have the honor of representing certain groups of Vietnam Veterans. I have several of the Vietnam Dustoff Association crew members and their offspring. I somehow also have the honor of repping a bunch of maniac Lurps from F Co., 51st Infantry (Airborne). Somehow my name leaked out of someone’s drunken lips back in Memphis at a Lurp convention and it was all over. I assure you I do not advertise. When I say maniacs, I mean it. Every one of these fellows have about five ARCOms (with a V or two) a couple of Bronze Stars with Vs and about 10 Air Medals from all the combat insertions and hot LZ emergency egresses. A few have Silver Stars. PTSD among them is more common than tinnitus and flat feet. Many had multiple Purple Hearts and they still strapped on a Huey the next day and went back into the bush.

Butch’s daughter Carol cut me my FRAG orders on Butch in 2013. She admonished me not to promise anything I could not produce ( a Purple Heart) for him. She had been to about 3 or 4 VSOs who all promised her the moon and didn’t do squat. The medals and the CIB turned out to be the easy part. Even the TDIU and SMC S was easy but the §3.156(c) hump seemed insurmountable. In retrospect, I see why now. It’s simply waaaaay too much money for VA to ever go quietly into the night. A spouse with four dependents on top of a 60-70% rating from April 1970 to maturation with no kids in 2015 is a bridge too far in VAland. No matter they screwed this up horribly in 1970; they were not about to come clean and make it right now. Butch died while being ignored for six years. VA got their wish. The delay and deny tactic worked well.

Barb fortunately has his appeal already firmly ensconced at the BVA awaiting a win. Let us pray this comes to pass. Butch’s TDIU kicked in March 30, 2015. He had to live until March 29, 2025 (ten years) at midnight in order for Barb to get her DIC. Sadly, he didn’t make it to the finish line. As insurance, I’ve ordered an autopsy in search of anything that might be AO-related that was a contributory cause of death. At this point, we’re not sure but it appears he was having problems with his left leg similar to what caused him to have the right one amputated in 2017. Peripheral artery disease in the extremities is often an indicator if it permeates the whole body-including the coronary artery (IHD).

Most of you know my motto of Win or Die. Butch lived it. I am honored to pick up his flag and bear it for his surviving spouse. Any of you would do the same if the shoe was on the other foot. We are Family. As my fellow VA advocate Theresa Aldrich of Hadit.com fame espouses- Leave no one behind- especially not on a paper trail let alone a jungle trail.

I never had the pleasure of serving with Butch. Nevertheless, we shared a bond no others can. We served in Vietnam and that binds us more strongly than anything else in life…or death.

Posted in All about Veterans, KP Veterans, LZ Cork, VA Agents, Veterans Law, Vietnam Disease Issues, Vietnam War history | Tagged 1969-LZ CORK, asknod.org, Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, LZ Cork Butch Long, Service Connection, VA claims, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 8 Comments

2021 VETERANS DAY–OUR DAY

Posted on November 11, 2021 by asknod

I’d add our day “in the sun” but it’s pouring down rain here and probably will be until next June. That’s our secret weapon against all those hoards of Californites who contemplate moving here but don’t… due to the weather blues. Ain’t cabin fever a great dissuader of geographic relocation? We don’t tan in the Northwest, baby. We rust. Regardless of weather, it’s a great day for living Vets everywhere to celebrate somehow surviving the experience. Think about it. If you were going deer hunting for 8 weeks (basic training) in the wild away from the comforts of civilization, would you purchase a brand new pair of boots that weren’t broken in? It’s a recipe for more blisters than you count. About week six they turn into nice hard pes planus hammertoes…for life. And folks wonder why Vets get a host of foot problems. Well, shit. Imagine shopping at Tom McAn’s Shoe Store and discovering days later that the fitter of your fine new footwear was hired last week and has no clue what he’s about. Oh, and no returns permitted. Suck it up.

Military life was different. I’ve done a lot of investigating over the years and see that statistically, 20% of my brethren who served during the little boundary dispute down on the Indochinese peninsula in the 60’s-70’s seem to have bent brain syndrome. That seems about right. 88% of personnel “supported” the 12% who were busy getting PTSD. 2.3 million served on or adjacent to the theatre. That statistic is skewed as it encompassed a broad age group. My father served there from June ’66 to May ’68. He was 48 when he arrived. I was 19 when I got there in ’70. PTSD wasn’t invented until 1981. Before that it went by a lot of names.

Hue. February 1968

When a fellow airman or soldier around us went bugfucky, we couldn’t handle it. Who wanted that label? It was like a disease. You prayed you didn’t catch it too. I’ve seen a guy demand his 6 to shoot him on the spot because he was flaaaat aaass done. He didn’t feel like waiting any longer. He wanted to see it coming. I’ve heard tales of folks curled up in a ball and shaking for 4 hours after a firefight. And they got up and began it again all over the next day. A client told me his buddy had a can of peaches shot out of his hand and that queered him to eating c rations- period. They hauled him out about 12 days later when he keeled over from starvation. Nothing to see here. Move along.

Being a Veteran could last a week or 2 years. Or four years. Or twenty… or kill you. My dad did 33 but never got his fourth star. It appears nowadays, getting that 4th star isn’t a guarantee of ability or intelligence. History will be the judge.

I have, and still do, rep several Vets who were damaged in basic or AIT. They never got past more than about 90-100 days in before they got the ax. Actual time served is no measure of suffering or injury. I admit I had a little disdain for these Veterans until I read their c files and STRs. The ones that break my heart are the MST survivors. It’s difficult to think back on my years in service and conceive of any man who would brutally beat a fellow servicewoman senseless and rape her. Or spike her drink ad nauseum.

Veterans comprise about 2% of the American population. We were promised much at enlistment and are now promised much still. Actual “gifts” are nebulous and often come in the form of parades and attaboys. For the homeless Vets, an endless supply of used clothing and toiletries are there for the asking. Jobs? Well, not exactly. Job fairs though. The prospective employers want to view the wares. Housing for homeless Vets? You mean, like, nationwide, dude? Well, pilgrim, that’s a work in progress since you came home from Saigon. We’re still in the formative stages of firming it up for our first homeless housing project in west L.A. We’re breaking ground in the next few years.

I wonder how many of you decided one day to file a claim with VA. They sent you down to the VA Medical Center/Hospital for your c&p fully well knowing you were going to see the worst of the worst casualties outside the front door taking a smoke break. VA outlawed it indoors in 1989. So you show up for your hearing c&p and here’s two wheelchair-bound former 11 Bravos mokin’ a Marb out front with no legs down below their knees. They’re happy but they just pissed on your parade. Tinnitus seemed like pretty small potatoes compared to their predicament. So you turned and left-embarrassed as hell. That would be me in June 1989 at the Seattle VAMC. I did go to my back exam later but lost. It would take me another 18 years and a medical death sentence to swallow my pride and seek a claim again.

I’m proud of what I did. No, not strafing gray jeeps or arranging introductions to God for Pathet Lao in contact. I think my reservations about the Vietnam War are retrospective. We were like Hessians in the Revolutionary War. We didn’t have a dog in the fight. The term mercenary almost rises to the lips. I’m sure our motives were pure but you have to admit it sure seems like one hell of a coincidence that we had all those brand new Hueys and Chinooks, untested 16s and Pigs-even newer versions of the venerable CBU 26 with 45 minute time-delayed bombees. You’d think the Poobahs might learn from a couple of world wars and a policing action in Korea, but no. With the latest end to Afstan, we will hopefully enter a new period of peace. Keep your fingers crossed because America becomes tone deaf about every 50 years a la George Santayana.

Veterans are an integral part of the backbone of America. Our skills, for the most part, are convertible into civilian pursuits. We enjoy a special place in our communities- or should. But… no Veteran deserves to be homeless. It should be against the law to permit that. I see the glimmerings of hope at the West LA campus where the VA has been shamed into finally allocating space for the homeless Vet on their sprawling 26 acres gifted to them for this very purpose almost 100 years ago. To think it would take this long to induce them to act in our interests is disturbing to say the least.

Happy Veterans Day to you all. Live long and prosper. And while you’re at it, if you see a Vet in less than ideal circumstances, help him out. If the shoe were on the other foot, you’d appreciate it. Happy 246th Birthday to our Marine Vets. Wetback 26 standing by on frequency.

Posted in VA Agents, Veterans Day, Vietnam War history | Tagged asknod.org, Disabled Veteran, Help with vA Claims, Helping Veterans, Service Connection, VA claims, vA CLAIMS FOR PTSD, Veterans Benefits, Veterans Humor, Vietnam Veterans Claims Help. | 7 Comments

VETERANS ADMINISTRATION 2021–BOLDLY GOING NOWHERE

Posted on November 7, 2021 by asknod

Sunday Morning in America…Overstated? Undue alarm? A bestial scream in the afternoon for more readership? Naw. Nothing like that, I assure you. In fact, this is meant to be one person’s subjective, Sunday Morning Quartertback, personal view of the VBA Compensation Poker Game from a litigator’s perspective. Others who ply this trade may have a different experience but mine is tempered by 32 years of VA rodeos and a bookshelf full of VA How-to Cliff Notes™.

The .45 G3- too bad it shot from the bolt open position. Lottsa fun in a firefight close up.

First, from the perspective of the Jane or Joe Average Veteran of any war, how have things changed in your lifetime on -say- Veteran suicides? Better? Worse? The same? Now look at the data. How much baksheesh has been thrown at this intractable problem and for how many years? How many new “programs” have been employed that were going to positively, fer sure reduce the bloodshed and help repair all the bent brains out there? How many thousands of new slots at VAMCs across our purple mountains’ majesties have been created for new psychologists and mental health munchkins? I can remember when this all first came up on my radar in 2006-7. The number was staggering- 20 Vets per day were driving into freeway bridge abutments at 80 mph. They were sucking on lead lollipops or OD’ing on drugs.

All the VA’s men and all the VA’s horses seem to have encountered some unforeseen circumstances if I’m writing today that the number has increased to 22 per day. If the people in charge of these things spend millions, nay, possibly billions, in pursuit of the dry socks and toothbrushes at Standowns over fifteen years with such abysmal results, I think it’s safe to say the time has come to piss on that fire and call in the dogs. A new perspective is needed. More importantly, if the Grand Poobahs in the VHA hierarchy have flogged the dog this long with nothing to show for it, perhaps a new paradigm is in order. Having walked in those boots once upon a time, I have no panacea to offer. I have a hard time myself distinguishing the forest from the trees. Offering advice to anyone with MDD would be rank tomfoolery. I don’t think I’d ever feel comfortable at a VA Kumbaya circle jerk for Vietnam Vets on Tuesday evenings down at the Vet Center. Considering the moderators are renowned for taking notes on the whole thing for inclusion in your VistA/CAPRI records, you’re giving them the ammo to deny your PTSD claims later. Whoa, Leroy. Says here you admitted at the meetings to being a a heroin junkie and self-medicating. But you denied using any drugs at the c&p. What gives? Our VA shrink says your heroin habit is the cause of your major mental disorder. Denied. Next?

Let’s look at another of my pet peeves-Veterans Service Organizations. True, a lot of my anger stems from that jackwad at the Lancaster, California VFW in 1972 telling me to go over to the AmLeg (American Legion) to apply for membership because VFW only extended membership to folks who’d served in a war. Ergo, since Vietnam was a conflict, get lost.

I’ve had many encounters in the last ten years with VSO mini-poohbahs and to a man, they are mini-power trippers. Power corrupts ad nauseum. The high point of my career so far was being called a VA ambulance chaser by the AmLeg guy in Tacoma. With that aside, why on earth don’t they (VSOs) teach their service representatives VA law? Why not make them every bit as astute as a VA agent like myself? What, pray tell, is the impediment? An openminded person learns a lot every day. Just being immersed in this business means you encounter tons of new things that will help you win existing claims. Better yet, in the NOVA organization to which I belong, there are hundreds of attorneys willing to freely convey a winning strategy to any of us who ask. Most have walked point on it already. With that Encyclopedia Britannica of knowledge at our fingertips, it seems incongruous that VFW et al would not have hundreds of attorneys on their staffs well-versed in VA law and available to dispense it. But noooooooooooo. They have National Commanders ($538 K/Yr) nattily dressed up in thousand dollar threads along with all their entourage bouncing around our fruited plains in their Gulfstream Vs vying with each other to get everyone to buy address labels and Christmas cards. Oh, and a membership. Donate is the watchword. The last exhortation arrived in the mail last week with a shiny new nickel visible in the window. Here’ one for you. Now, send in the other nineteen for me. And be quick about it.

Veterans expect a designated Agency of the Executive branch, one created solely to deal with us, to be streamlined and able to adapt to any circumstance. True, we’ve been at war in SWA for nigh on to 21 years. Vietnam wasn’t too terribly different plus or minus five years. So why is it that each successive reinvention of the VA, each innovative technological “breakthrough” and the entire electronification of the claims files has not resulted in an equally wonderful reduction in the time needed to adjudicate a claim? Remember USB Allison Hickey’s repeated assurances that success was just around the next corner? Why, what I remember was her explaining to a Congressmen one day that they were just “using up all the old DBQs before printing the new ones for distribution” and that was the delay in revamping the forms. Okay. So the problem here is elementary- the forms were (and still are) electronic, not paper. If you insist on letting the folks who perpetrated the problem provide the solution, you’re just buying more of the same problem. To that I would add VA’s entire “IT” department-or what passes for one. VAMC Hospital planning is another problem area. Has anyone in Congress ever considered cutting our losses and privatizing this gig? If we can’t even entice a lot of altruistic, high-minded liberal/progressive psychologists to come work for VA, there’s something wrong with the formula. I expect it has less to do with dental benefits than it does strictures on helping Veterans. If you recall, in 2010, the VBA unilaterally commanded the VHA to stop the annoying habit of writing nexus letters for Veterans seeking compensation benefits. That is the bailiwick of the VBA so keep out. Nonadversarial, indeed.

Considering you can listen to the fart of a mosquito .0009 seconds after it was recorded (and simultaneously uploaded) by someone on Instaglam® in Nigeria, why can’t we have a drive thru lane at our local Veterans Service Center? Really, in this day and age of vaccine passports, RFIDs and credit card chips, why not a VA ID card to prove your identity, a simple video touchscreen TV with menu for category and Diagnostic code, and a thumbdrive with your IMO by a subject matter expert? Insert ID card and remove on prompt. Choose your malady. Plug the thumbdrive into the USB port and upload it. Remove when prompted. Proceed to pull around the corner to the pickup window. Collect the rating decision and enter your bank account and tracking number. Since VA has your entire medical hx in STRs, this should be a thirty-second piece of cake.

But something is amiss in Unicornland. The perils of coronavirus aside, we’ve been inundated in Blue Water Navy claims. And the new Agent Orange Presumptives. And the new chronic MUCMI presumptives. And more Vets filing. And more more more. Pardon me, but I thought all these new electronic jewjaws were to be the cat’s pajamas. Remember when some Rocket boy at VACO dreamed up the Central Mail Processing (CMP) Unit? Let’s set up one gigantic printing press shop up in Janesville WI and send all the RDs and other mail out from one place. Seems they, along with about half of America, ran out of employees around July 2021 and that was all they wrote (pun intended). After a few bitches, in September they discovered the outgoing mail…wasn’t. I’m still getting mail dated early September, But for my computer access to VBMS and my clients’ files, I’d have no idea what was afoot. Considering a Vet has 30 days to answer a proposed reduction and abate the process, this can be lethal to due process. VA could care less.

I won’t even discuss the myopic chokepoint of having two (2) Decision Review Operating Centers (DROCs) at opposite ends of the country. Two. Two centers for decyphering BVA’s grants to Veterans. 6 Actual. Say all after backlog, over.

The VA process is broken once again. No one is to blame. No one is ever to blame. Our woes are merely the aftermath of a new unforeseen event-or the reincarnation of an old problem come back to haunt them. Who woulda thunk the Fed Circus would ever throw out Haas v. Peake? Why, the effrontery of those jerks. As for including SC for bladder cancer due to AO, that’s pure conjecture. Ditto hypothyroidism. The one phrase that makes me want to blow chunks is the threadbare saw: ” The important thing to note is that the mistake was a valuable teaching experience and prepares VA for the future. We’ll never pull that boner again.” So why do we have 200,000 appeals in backlog after streamlining the claims process two years ago? Why do we even have any Legacy claims still awaiting hearings? Back that up. Why do we even have any Legacy claims awaiting anything? 6 Actual. Say all after backlog, over.

I don’t want to be an Influencer. I have no desire to try to fix VA’s myriad problems. I want to be a litigator. I want to fix dying Vietnam Veterans’ claims and prepare their spouses for what’s over the Hill. Each and every one of you deserves a skilled advocate to win your claims. VA is making it infinitely more difficult and harder each day. But why? To what purpose? The lack of a Veteran’s signature on a 526 is now grounds to legally reject it or simply close out the claim. Poof. Gone with the wind. Welcome to End Product Code EP 000. But… at the bottom of the 526, it says a rep. can sign if he has a POA on file. But…the M 21 says you can’t. Who’s running this circus? Who’s right? Sadly, a lot of attorneys are beginning to become disenchanted with VA’s obstructive, untenable litigating postures. They rationalize bailing out on being able to make money with half the work in, say, social security law. This doesn’t bode well for Veterans.

The BVA has assured us they now have secured financing and are hiring 10 (ten) new Veterans Law Judges and training them up to speed. Shut the front door. Why weren’t these VLJs in the pipeline two years ago when February 19th, 2019, dawned? How about another 40? We are drowning in administrative mediocrity and legal shortsightedness. It is jokingly said that it now takes three signatures to get permission to go to the bathroom for VSRs. A claimed DROC specialist in SMC couldn’t even enter the correct parameters into the VA SMC ratings calculator which reputedly will spit out the correct rating. Seriously, she didn’t understand it. Two (2) SMC Ls for two different 100% disabilities = SMC O= R1. Result? Deny. No such thing as two A&A ratings. Go away. Go up to the BVA and sort it out. That’s what a 10182 is for, silly. The BVA is getting equally as obnoxious and remanding them back to the local Fort Fumbles and telling them to fix it before it gets kited back up to the BVA.

The VA has finally descended into the maelstrom of “I don’t give a shit”ism. If it’s complicated (and virtually all my Vets’ claims are) the default setting is to study it like Rubik’s Cube© for about 6 months and try to find the perfect denial phrase using three double negatives and dangling participles. I’ve even had IMOs denied by their doctors or nurses. Where art thou, Norman Gilbert? Equipoise quo vadis?

Here’s a recent verbatim wording from a rating decision.

“The BVA decision found that all service connected disabilities, and not necessarily just on the respiratory [sic] so there wouldn’t be entitlement to separate and distinct 50% or more at that time. In reference to the 9/7/2018 PTSD exam, the 8/23/2018 increase to PTSD (which had the wrong effective date and is a clear and unmistakable error, CUE) would warrant A/A for mental all by itself and then the COPD/Asthma/sleep apnea is separate and distinct 100% so the full P-step to M would be warranted.”

Next paragraph…

“Although only your respiratory disorder was 100% at this time, it is not clearly and unmistakably erroneous that the decision of August 27, 2021, found that the respiratory disorder and diabetes mellitus with residual complications excluding erectile dysfunction required the regular aid and attendance with activities of daily living without consideration of the psychiatric disorder rated as 100% disabling from 8/23/2018.”

Didja follow that one? We’re CUEing ourselves and giving you SMC M but our 3/04/2020 decision wasn’t CUE because we are telling you so even though we got the effective date wrong. As for the 100% you’ve had for COPD since 2008? Well, that didn’t warrant SMC L until we noticed it did. But you had to use up all your ratings to get to that SMC L so we couldn’t give you the bump to SMC L 1/2. Well, until we gave you the SMC to M but you can’t have both. Got it? The HLR got even more outlandish. I can’t make this stuff up.

VA is in denial. It’s time to roll up their collective sleeves and quit making excuses for their inability to get their underwear on correctly in the morning. “Yellow in Front and brown in back” can no longer be the operable phrase. Promoting stupid people based on longevity has always been a deciding factor coupled with a reward for loyalty regardless how outrageous the outcome. VA should get back to focusing on their “framework” as folks are fond of bandying back and forth these days. I beg the President to fix this “paralyzed from the neck up” mentality dilemma and cease concentrating on teaching pigs to fly- with or without lipstick. Our Veterans are sick and tired of this lip service. I have a Legacy Vet from 2017 finally getting his Travel Board Hearing before a VLJ on January 12, 2021. 6 Actual. Say all after backlog, over.

Currently, it takes a village of VA employees to decide a claim. I think it’s called the Chinese water torture technique. One to do intake supervision and reroute FLASH’d Veterans claims. About 5 Senior Adjudicators to handle it and pass it on to an untermenschen. 5-10 to “develop” it and make sure you’re eligible for a presumptive. A ratings team to rate it. A supervisor to check the rater’s work. If it’s over $25 K, a third supervisor to sign it. If over $100 K, the VACO Director or VSCM to sign it. And if it’s ginormous, it’s off to VACO and three more peeks. When finished, there are a bunch of paper pushers who write it, do a code sheet, enter it into a number of computer processes and begin the payments. All in all, one hundred people will “touch” a claim in some way. In the military, that would be 100 opportunities for something to get screwed up. Whoa. I thought your folks arranged for air support… In the old world of pre-2008, one rater would take your file and get to know you literally. He was usually a Veteran himself. It was no guarantee you would win, but it was a far more nuanced hands-on experience. Hell, you could actually call them and they answered their phone.

In today’s world, I contact my CMA here in Seattle and she antiseptically sends me back a reply saying “We have received your query. We’ll get back to you when we get an answer”. Sometimes I see the problem resolved and in most cases, that’s the only evidence I can see that she did something. And then the prolonged email obfuscation game. Me: Where is Mrs. ___’s DIC claim at? Her: Her claim is at the BVA. Me: You are correct. My query is where is she in the DIC process? Her: Did she file for that? Me: Yes. Look in VBMS. Her: Oh, yeah. I see it. I’ll look into it. Whatever became of inductive logic? Transactional Analysis was invented. Probably by VA.

And that’s all I’m gonna say about that. Alpha 6 out.

Posted in All about Veterans, Appeals Modernization Act, Complaints Department, Food for thought, PTSD, VA Agents, VA Attorneys, vA news, VARO Misfeasance | Tagged asknod.org, Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 7 Comments

EXPOSED VET RADIO SHOW–THURSDAY 11/4/2021

Posted on November 2, 2021 by asknod

Jerrel flashed the Bat Signal in the sky this PM and indicated a desire to discuss all matters VA at my soonest. Pursuant to us conversating, I allowed as how I was available for a Thursday night show two days hence. I’m sure we’ll find something to talk about. We always do. SMC being one of my pet peeves, I’ll dangle a piece of Thursday night here to predigest.

First the Radio show-Thursday 11/04/2021 at 1900 Hrs on the East, or, 1600 Hrs Antifa Savings Time. The link is here:

https://www.blogtalkradio.com/jbasser/12022243/connect/7f1567a0aed5c298be920fcd95ae3da70ef2816c

Or, should you desire, call in at

(515) 605-9764

Dial one (1) to speak to the hosts; otherwise do not and keep the show quieter.

Imagine, if you will, being a 68Juliet20 D-8 Heavy Equipment operator keeping the road open between Long Binh and Quan Loi. You have welded plates around the cab with slits for sightlines to protect you against the gook snipers. A 7.62 by 39 will really ring your bell in there. Or two… or three… an hour. Earplugs and hearing protection was pretty skinny in fall ’68 after the big spring Tet Jam. So you tore the butts off Marb Reds and cranked them waaaay in and they kinda sorta cut down on the noise. Or so we all thought. Ain’t no cure for the acoustic trauma.

Moving along, the Donmeister gets a bodacious case of malaria and ends up at the Cam Ranh Bay USAF Hospital for an all-expenses-paid, 21-day vacation with the Round Eyes. He said he was pretty feverish and doesn’t remember. Don was really sick. So sick, in fact, that he still had active live virus when he arrived home in 70. They granted him 10% for a year and then demoted him to the VA Zeros for Heroes™ Program a year later.

Suddenly, in 2008, his right eye retina detached. He had it surgically reattached and everyone said it was really a weird thing, huh? Until 2017, when it re-detached. And then when it re-re-detatched yet again in 2018-this time with devastating consequences. Don’s my shirttail relative by marriage (my daughter). It goes without saying I stepped forward to rep him.

First thing was VA was saying a fasting glucose of 126 is not DM II-even with diabetic retinopathy, hypertension and PN in all four quadrants. Just a fluke, Don. You don’t have DM. Except his private doctor was saying Metoprolol and hold the McDonald’s. I got them to finally grant that as an agent orange presumptive. But, as I teach as loudly as possible, the big shit is where you go for the money. Don’s loss of sight from the retinal detachment was now total in the right eye. He could tell you whether it was day or night with it (<5/200). Then the left eye retina detached in 2019. That kind of put a fork in in it to say the very least. Don no longer drives.

Don had half-heartedly filed this as “residuals of malaria” based on an Internet article back in 3/2017. VA confirmed and continued the 0% for Malaria and that was that. I refiled o/a Halloween 2018-this time with a very specific claim. VA denied and we produced a killer IMO from Mednick Associates. The BVA remanded it and said what about the DM II as the cause, too?

The DROC could see the writing on the wall and ran up the White Flag… sort of. In this day and age, they just couldn’t bring themselves to throw in the TDIU and the SMC for being blind. I’m gonna have to work for it.

redact 10.29.21 RD

But, due to the magic of VBMS, I can “see” the above preliminary 10/29/2021 decision. They gave Don a 90% combo for field contraction of vision in OS and 5/200 daylight in the OD. It’s rated but is not cast in concrete YET because they have not closed out the EP 040 Duty to Assist BVA remand yet. They have to complete the bitchslap by officially announcing the decision and officially rolling up the AMA claims carpet. Having been taught no manners whatsoever in this adjudications business, I reacted like any seasoned combat Veteran would. Attack I did. Yesssss. On Saturday, the 30th of Glocktober, I filed an 8940 for TDIU and an ancillary SMC request for A&A due to blindness. So, now these ingredients have been introduced prior to the completion of the claim. This makes them inextricably intertwined and they must be considered today-not next June.

This is an art form. If Don had asked for TDIU back in 2018 when he was 30%, it would have been denied and dead in the water. But, by bringing it up during the pendency of a claim where his new combined is 94% (90+20+10), it puts down Don’s marker on a desire for the highest and best rating even if they would prefer to disremember the TDIU/A&A entitlement at the present time. Kinda like them trying to whistle past the SMC graveyard.

Let’s talk about the new CAR. The Claims Accuracy Review that has replaced the old 3-day review for accuracy we were always allowed to assert. There was a little box you could check off on in the VBMS Queue for the client saying you agreed. The disagreement button is the CMA (change management agent ).Many pro se Vets had heard of of this ploy and felt all Veterans should have the right to throw out the red flag and ask for this review. Technically, back in the day it was only available to VSOs. In 2007, when we VA attorneys and agents were allowed into the adjudications game, VA became annoyed at being called out on every decision because, well, they were flawed. The easy way to fix it was to stifle dissent. They merely did away with it in 2019. Enough Congressmen complained and the new CAR quickly replaced it. So, we have the red flag back. It’s a pocket “Motion for Reconsideration”. If it’s something minor, I complain. Mostly, if it’s complicated, I shrug and file the 10182. The reason is simple. Donbo didn’t get a TDIU because the local yokels in the DROCs are stupid. It’s because they have been told not to grant TDIUs below. Everything has to go to the Director of Comp. and Pen for their imprimatur. If you’re 70% and 43, you’re screwed. They’ll milk you and defer for a decade. In order to cut to the chase, when this TDIU denial comes out, it’s more logical to take it to the BVA and an independent do over once and for all. I got lucky this time and shoved it down their throat before they could close the claim out. You, Joe average Veteran, are not going to have these cards to play without real time access to your claims file. Using their track record so far on just the new Cerner© Electronic Health Records EHR computer, universal VBMS access should begin in 2035. I heard the new Tag Line for EHR is the old Mattel® Toys one: “You can tell it’s a smash ’cause it’s always crashed!”

Hepatitis C claims are universally coming back from BVA grants with 0% ratings. Why? Well, duh, pilgrim. You’re cured. You don’t have the C anymore so we cannot grant your claim for $. Don’t buy it. The regulation DC 7354 says “With serologic evidence of the Hep c virus…” Try changing those Zebra stripes. Folks. An HCV antibodies test is always going to show the antigens of a prior infection. So, what about all the secondaries? The trick is to file for everything up front-including the TDIU at the outset. Keep hammering them with new supplemental claims for all the DM II, the fibromyalgia, RA, etc. I recommend getting it all done up front with one IMO. Throw in each and every secondary and connect it to the Hep C. Document it with degree of disability.

Playing VA poker is getting to be an evolving game. As quickly as we counter their ploys, they spring new ones. Fortunately, it’s like playing hide-n-seek with your 4 year-old granddaughter. You always win.

Sometimes you wanna go where everybody knows your name….

Posted in VA Agents, Veterans Law | Tagged asknod.org, Disabled Veteran, DIY vA Claims, Help with vA Claims, Service Connection, VA claims, vA CLAIMS FOR PTSD, Veterans Benefits, Veterans claims help, Vietnam Veterans Claims Help. | 2 Comments

Veterans Claims Help

FORT FUMBLE, ANYWHERE USA–WHEN FIRST WE PRACTICE TO DECEIVE

No Bones About It: Dogs Have a Positive Impact on Our Health

EXPOSED VET RADIO SHOW 12/23/2021

(515) 605-9764

BVA-SMC(r)(1)–YOU MAKE MY DREAMS COME TRUE

LORD, TELL ME IT’S NOT THAT MEDRANO

2021-GIVING THANKS FOR MAKING IT HOME ALIVE

SMC- New Tricks

Buie v. Shinseki, 24 Vet.App. 242, 250 (2010).

LZ CORK–THE LAST ROUNDUP

2021 VETERANS DAY–OUR DAY

VETERANS ADMINISTRATION 2021–BOLDLY GOING NOWHERE

EXPOSED VET RADIO SHOW–THURSDAY 11/4/2021

First the Radio show-Thursday 11/04/2021 at 1900 Hrs on the East, or, 1600 Hrs Antifa Savings Time. The link is here:

(515) 605-9764

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SMC- New Tricks

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First the Radio show-Thursday 11/04/2021 at 1900 Hrs on the East, or, 1600 Hrs Antifa Savings Time. The link is here:

(515) 605-9764

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