This just in from an AFGE union member and photographer who works for the Central Office. He wishes to remain anonymous but forwarded this picture he took of the water cooler in the atrium where they were holding their cheese tasting:
Rumor has it their Patton look-alike was spending waaaay too much time in close proximity to this device.
We have seen much and heard even more about Vets who come to us with reports of vA substituting an ARNP, PA or DBC (designated bedpan changer) as the “physician” of choice for their C&P. Paul, husband of Leigh, tells us of this bait and switch.
Well, here’s the latest definitive law on it and it explains how vA is cranking out ARPN-generated examiner’s reports. What isn’t explained to us (or Paul) is where the signature of the doctor is on the form. Vets had better start requesting this and a summary of a doctor’s specialty. This should be done as rapidly after a C&P is done, too. This might have to be couched in an FOIA (Freedom of Information Act) format. Vets may soon discover podiatrists doing DM2 diagnoses or Registered Nurses opining on the cause of HCV. Just because a doctor signs it doesn’t mean he had anything to do with it. Unless he is directly supervising the ARNP or whoever in the same building and is not 200 miles away in BFE, the C&P is worthless. Direct supervision is what was envisioned in medical circles such as this. Here’s the M-21 language:
Now you know. It’s like peeking behind the curtain and seeing the “Wizard” pulling the levers. You cannot complain when you do not know the rules of this crazy game. My hope is to remove the curtains one at a time until there is no mystery. Today Bugtussle. Tomorrow the rest of the ROs.
Well, 2012 may just be a banner year for jetguns wins, Ladies and Gentlemen Vets. Read here where the Vet, repped by the venerable American Red Cross, wins big in the benefit of the doubt. He has NO risks other than the gun. The vA has inadvertently given him his win because the vA examiner failed to find some niggling inconsistency they could use to collapse his house of cards. If this keeps up, there really won’t be any need for this website. Unfortunately, this is only #3 in the first 100 I’ve read of the 2012 decisions. That’s hardly a trend. Patricia probably knows this guy and helped him.
This one is clean as a whistle. The Veterans Law Judge threw out the biased VA examiner’s tripe about how it was due to a life of drug abuse after service as being “picky”. This one defies logic. I’ve never seen anything like it. All I can surmise is the guy was related by birth or marriage to the Judge. Either that or a large sum of money traded hands in the parking garage under 810 Vermin Ave. NW. Come on. The guy was pro se and didn’t even have a VSO to screw it up. No nexus, no nothing. Any other ideas?
The VA loves to tout how they “hire Veterans”. I wonder if the manager of IRIS, below is a Vet:
| Discussion Thread | |
| Response via Email Via Email (Department of Veterans Affairs) | (Date) 11:38 AM |
| Dear Mr.Joe Average Vet:This is in response to your inquiry to the Department of Veterans Affairs (VA) dated xxxx 2012.We apologize for the delay in responding to your inquiry. We are currently experiencing a large volume of inquiries and are working as quickly as possible to respond to each in a timely manner.You indicated on your inquiry that you were the Veteran, however, the contents of the inquiry was written in the third person. Please clarify who you are if you are not the Veteran. We appreciate your understanding of our security measures, as they are essential to ensure the integrity of your information. Once we receive this information we will then conduct the necessary research and respond to your concerns accordingly.
Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below. Sincerely yours, Donovan W. Thompson I would humbly suggest that neither Mr. Thompson nor “TLJ” are a Veteran. Why not? Well, most Veterans (especially Marines) know that, especially in boot camp, you are not allowed to use “I” or other pronouns. You refer to yourself as “the private”. In a similar manner, the VA apparently did not “get it” when I referred to myself as “the Veteran”, that is, “in the third person”. We need more Veterans in the VA. It does not make sense that some Vet’s are making do with their “VA Homeless Kitchenettes” while VA executives are awarding themselves big bonuses. To see how much your friendly VA executive got as a bonus, click on the pdf link. |
|
Yes, I know that one is a mouthful. However, how many times have we read where the Veteran was denied because “the record shows no evidence of treatment” for this malady?
This is precisely what the vA is doing. They are saying because we can’t find it in the records, it did not happen. It isn’t necessarily true. or the reverse… because it’s absent, it proves you are not telling the truth. That is negative evidence that says they cannot trust your lay testimony.
I will propose that “documentation in the SMR’s” is independent of whether or not we actually have a disease or injury in service. Why? There are numerous reasons why it is that there is nothing in your medical record suggesting treatment for the malady, but you do, in fact, still have a disease or injury inflicted in service. Here are some of the possible reasons:
1. The evidence was lost. (Most frequent mistake)
2. The Veteran was treated for the condition in service, but there was no record to begin with. Maybe the medic who treated you thought it was more important to treat the next guy, than to fill out a medical record, that would be difficult or impossible to keep in this battle anyway. Maybe the medic was just too scared of those bullets flying overhead, or could not find his pen. Or, maybe the doctor was lazy, and did not write it down.
3. Perhaps the Veteran was treated for his malady “outside of normal channels”. Maybe he had to get treatment from a private hospital, instead of the military one. For example, I was personally treated at a private hospital because the local VAMC was “full” and not accepting new patients, and it was an emergency. This is not against the law. This hospital could be closed, could have burned down, etc, and the records were not recovered. Or, the hospital may charge a fee for the records and the VA refuses to pay.
Now, lets consider when the SMR’s have “negative evidence” as opposed to just nothing there. You go to the doc and tell him you think you broke your leg, or at least sprained it. He does an Xray, and an MRI. He writes in your record, “There was no evidence of a fracture or even a sprain” in the Xrays. Now THIS is negative evidence, and the Board can deny based on this negative evidence. This is a legitimate denial where the Veteran will need to overcome this negative evidence. It does, however, qualify under Wilson v. Derwinski though. The mere mention of treatment or the reporting of symptoms is proof of injury.
But, I digress. Back to the guy who got treated, as in one of the above scenarios but there is nothing in the record. Remember these numbers. They have been known to “sign retro checks”. They are your friend. Are you ready for them? Here they are: 38 CFR § 3.156 (c).
3.156 (c) was written to protect Veterans against vA’s (and the military’s) bad filing habits. If you were denied in 1994 and just now found old records, they can be used to revisit the 1994 denial. If they are instrumental in proving your case, you win. You found those old service records, and there is, in fact, documentation of this malady. But it further says that you get your retro check, BUT, ONLY if you tell them about 3.156(c). Why? Because, most of the time the VA won’t tell you about this. They will just award you with a bad effective date, hoping you won’t remember these numbers and explain them to the judge. Worse, you have to mention this during the course of the claim and before the BVA decision is final.
3.156(C) can beat “absence of evidence”. But 3.156 (c) won’t beat “negative evidence”. To beat that negative, you need an IMO or IME from your doctor, not vA’s.
You may have to read this again. Your retro may just depend on understanding this. The VA hopes you won’t.
Does anyone have a pen? I need to document this injury.
In CAVC 1 I began the introduction to what all of you who come after me will go through. In my book, I suggested all Vets do the mirror test. Make sure you’re positive on this and you know you’re right. If you had the stamina and endurance to withstand a gruelling two year wait for the BVA, you are now entering the beginning of Phase three. Another mirror test, please.
This time you are going to do the triage test, or for lack of the mot superior, quadrage test. Step one is the preliminary to this. How badly did the BVA hamburger this decision? If you had a VSO, was there some inadvertent complicity in the loss-say, lack of a nexus letter from a doctor that everybody neglected to mention at the VFW bar? It’s salvage time but is this salvageable?
After that analysis, move into quadrage. Is your evidence so blatant, so over the top that you can (or should) ask for reversal? For the uninitiated, reversal is an extreme bitch slap. The Court tells Uncle Eric that he was raised by wolves, knows nothing of law, and orders your case be sent back for an immediate rating in your favor and to be quick about it. This happens about 12% of the time. Sometimes the VA gets stuck on their inimitable, stupid setting and then begins inventing unique, unheard of interpretations to explain what is indefensible. This is the legendary post hoc rationalization advanced for the first time on appeal of all places. Baaaaaaaad idea. Make the word “bad” sound like a sheep saying it. It’ll make you smile. So will a reversal.
Vacate for Remand is one step down. Judges are lazy. They hate to make decisions. They would rather find legal fault with a decision and remand it for vA to fix it. This can have some really evil effects for guys like Leroy Macklem. For most of us, it is an admonition from the Court to the BVA that they screwed up yet again for the umpteen gazzionth time and, if they’d done it right, you wouldn’t be here in the first place. Some might see this legal tool as a deficit. In most cases, you will have been doing this either yourself or with a VSO for a representative. If you’re here reading this, we won’t get into how that worked out for you. The beauty of a remand is that your attorney can often fix it by getting that nexus nobody told you about, the medical C&P exam the RO never gave you, and any other odds and ends the VA overlooked in their rush to the Texas necktie party.
A partial remand is a conjunctive ruling that affirms some items you appealed and remands others that will live to see another day. If you have multiple issues you are contesting, some may be weak and others may have substance. The Judge may pick and choose between them based on their strengths or weaknesses. Thus the age-old argument for 10 or 20% for hearing loss is going to fall on deaf ears there if you can still hear out of the other one. We’ve all been there. Hell, I wager 80 % of Vets have a 0% hearing rating. As my DAV guy said in 92 ” Way cool! Now you get free hearing aids!”
An affirmation of the denial is what you do not want. and that is the last phase of quadage. Is it simply a no brainer? Were you led down this primrose path by a VSO like mine? Was he/she infused with boundless enthusiasm when receiving the POA and then suddenly invisible as though you’d contracted Ebonic plague? Many’s the Vet who gets to this doorstep and finds himself with no sage advice. Worse, his case is such a hash no self-respecting attorney wants it due to the poor handling from the outset. This is a harsh mirror test. If you thought your VSO was hard to get in touch with before, honey you have not even seen the tip of the iceberg.
You will get last gasp, Code Blue legal help from the NOVA, other kindred pro bono attorneys, and the NVLSP. They are the Lone Rangers on the White Horses at this point. They wrote the VBM for us. They can help but… Your claim is sealed upon denial at the Board. No more evidence may be admitted. The Court decides this from a standpoint of law. If VA violated it in their pursuit of a denial, the Court will usually find it and remand back for the do over. Here is the golden moment we spoke of above. Many a Vet finds the VA has lost their taste for this fight when they get caught out. The whole rationale for the denial up to this point has been dissolved. They will have to come up with a whole new alien abduction theory. They have too many fish to fry so chances are if you are even close to a win, you’ll get here. The trick is in finding the remandable defect.
The very last, unspoken, behind closed doors, aspect that isn’t part of this is a JMR (Joint Motion for Remand). I do not include it in the vacate and remand section because that is not where it goes. These are cases that effectively evaporate. They’re gone-invisible to the judicial eye. They arrive in Court and suddenly beat a hasty retreat never to be heard from again. They do not become Court statistics in the decisions-adjudicated column. They are decided outside on the Courthouse steps with a handshake and a follow-up on paper later that week. No powerpoint presentation, no apologies for the 8 years of denial, and no admission of stupidity will be forthcoming. VA is cheap. Not even a good Stolychnaya 104 proof (stirred, not shaken) martini with the obligatory obeisance of Vermouth eastward towards Paris.
This concludes the “Should I send in my Notice Of Appeal?” part of the discussion. Vet Warning. If you file pro se to protect your 120 day window to do so, you will be inundated in solicitations for attorneys. Many old growth trees are sacrificed for this noble endeavour so be forewarned. It’ll cause problems finding space in the recycle bin.
On a final note, I will say this. If the claim is dead in the water and has no chance of new life, admit as much. On the other hand, if you honestly believe you were disenfranchised, don’t cave in. You know who you are. A mirror test might let the next Vet in line get a shot at justice sooner and save us all some time. Your consideration of this is appreciated.
Remember Dean Wormer on Animal House putting the Fraternity on “Double Secret Restriction”? Well, the same appears to be happening here. Detective Eric always gets his man and he’s appointing a panel of senior officials (unnamed at present) who will finally get to the bottom of this. Unfortunately what the Ericmeister neglects to mention is that it will consist of Good Ol’ Boys from within his merry band. Now how can you fix it if you’re part of it? Stay tuned.
While I have constantly railed at the uselessness of quoting single Judge decisions at the BVA in your appeals, it appears I have been less than forthright. I ran across the decision here this morning and was taken aback. As often as the BVA and the CAVC have denigrated our efforts when illustrating what passes for justice, they now take another tack and use this same logic against the Vet. So what is it? A BVA decision or a SJD (single judge decision) from on high is not precedent or it can illuminate a legal tenet? The VA attempts to have its cake and eat it too.
I do not need to tell you how many times I’ve read a BVA decision where the VLjudge says “The decision the Veteran quotes is a non-precedental decision involving another Vet and has no bearing on this decision. Decisions issued by the BVA are unique to each Veteran and can not be applied generally.”
Memorize the language to get this important bye.
Now you can take anything and mold it to fit your arguments secure in the knowledge that it will have to be considered. Since it appears that the BVA decisions site is back up and running and you don’t need a degree in computer science to get in, I’ll start putting the links back up again to them.
I note with satisfaction that a new voice lends itself to the discussion. I welcome that. Nothing gets looked at better than when someone comes along and analyzes how you do it. Fortunately, after building houses for forty years, the quickest way to get them up correctly is always welcomed, no matter the source. If you’ve only been doing it for four years and offer some unusual insight like “Gee. How come you always do it like that? If you cut the plywood when it’s down here, isn’t it easier than doing it after you jack the wall up?” This is the essence of learning. I’m lazy. If it made the job go faster, that meant I didn’t have to pay out so much for labor.
Robert K comes to our site and asks equally pertinent questions. Why this or Why that? A picture is worth a thousand words-as is a BvA decision. Every decision shows what ROs have done (or not done) on any given disease or injury. The reaction of the Veterans Law Judge is of interest to determine which way another Vet’s claim will be decided. If something terribly unique is found and disseminated for other DIYers, it becomes a way to win. Teaching a man to fish is an apt analogy.
vA does not volunteer the info needed to succeed. They do not suggest a new ploy or gambit that may result in you winning. It’s up to you to find the can opener and do it. My stock in trade here is to show others the technique vA uses to defeat you. That it happens 85% of the time is no coincidence. By looking carefully at the denial, I analyze how he could have done it differently. Many’s the time in these decisions where the VLJ gets shoe in mouth disease and gleefully divulges that a Vet did this, but not that. He or she cannot conceal the glee in their comment to my way of thinking. Nevertheless, the knowledge is exposed and their hand tips forward enough to see their cards.
VA constantly reinvents the denial process. We are all familiar with that. Reading a 1992 hep or back decision reveals that. Since their technique constantly evolves, it behooves Vets to learn these new tricks and avoid them. The ex parte system demands it. If you submit everything you have with no knowledge of the process, you might be taken aback that you lost. If you were unschooled in the process, you wouldn’t see an age-old semantic argument and realize how easy it would have been to counter it by closing off the loophole and using different phrases.
The beauty of BVA decisions are that they are numerous and very predictable to me now. I do see a quirk every once in awhile and note it. You who are new to this gain some insight. Those of you who have experienced it firsthand can begin to see the pattern and perhaps help others avoid it. What is apparent also is that there are innumerable web sites for Vets that teach nothing more than the age old “claim bone connected to the denial bone; denial bone connected to the NOD bone; Nod bone connected to the SOC bone; SOC bone connected to the DRO bone, etc. This teaches you how to be a VSO/mailman but does nothing to increase your acumen for winning.
Winning is all about reconnaissance. Success is increased by knowing what your opponent is going to do (or is famous for) and preparing adequately to deflect it. Since the VA is so predictable in their denials, a BVA decision gives you the perfect teaching moment. What it also give you is an avenue to explore the legal concepts that support it. If the Vet wins, you see the precepts that supported the successful claim. When a Vet loses, one observes the detritus.
I have a host of claims under Frivolous filings to show you why you shouldn’t file. These are, for the most part, Vets who made life choices that have now come home to roost. Virtually none will succeed at this. Conversely there are a number that demonstrate losses that should have won. There are examples of claims that shouldn’t have won but did. Each one is unique and contains its nugget of knowledge. I add humor or personalize them to embody what I feel the Vet emotes via his claims motions and arguments. The decisions are like dry dog food if I don’t add medical or legal insight that illuminates what’s ensuing.
For you, Robert K, it seems that is over the top or spoils the dry legalese. I can’t help you. If I changed the blog to accommodate you and removed all the running commentary other readers would complain. If I posted wins with no accompanying discussion of how or why, I’d just be plagiarizing the BVA site and serving no purpose other than cut and paste.
Why a Vet wins or loses is paramount to how you approach your claim. As an example, I do not often advocate DRO reviews due to their abysmal success rate. That is not to say a Vet should never entertain one, but that each case is unique and evidence is what we win or lose on here. If you have new exculpatory evidence that they haven’t seen yet, it may be that a well-reasoned explanation in person with the new evidence in hand will carry the day. What few know is once you are denied and file the NOD, a DRO is going to review it for legal sufficiency anyway. If you bring up some major flaw, he will spot it or should. The important thing to know is you do not have to wait a year for a DRO review to get that closer examination. Simply filing the NOD provokes it. When money is tight, a win at the RO can be the difference between home and homeless. A long, drawn out legal battle of three years is death to your marriage and you finances. Its often a pyrrhic victory to finally win a decade-long battle at the CAVC and realize you’re almost too old to enjoy it.
That’s what this site is about. Dissect and discuss. Examine why Vet A got a bye and Vet B the circular file. Granted, a majority of the cases I read are ones where the Vet has no nexus. What is so egregious is that they are almost all defended by the ones Congress appointed (read chartered). If that many are not getting good advice, it stands to reason that sites like this are needed to provide that knowledge. Denials often teach more that wins.
If I had not studied up on Porphyria Cutanea Tarda (PCT), I would have never known I could get 40% for it (phlebotomies) rather than 10% (scarring). VA sure didn’t volunteer that when they rated me. I happened to read it in a 1997 PCT ratings increase. I found three examples, put in for it and won. Soemhow I don’t see a VSO coming up with that for me. Finding the optimum reading for your circumstances, the most liberal interpretation for a DM2 rating or SC for bent brain have one thing in common-the legal technique employed. vA has 500 or more lawyers arrayed against you and your VSO if you have one. Take a page from their playbook and learn how not to lose.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 