LZ CORK– HLR-GIMME THREE STEPS TOWARDS THE DOOR

Posted on August 12, 2021 by asknod

I always wonder who the unlucky sucker is that draws the short straw on these claims. VA raters- even the old fossils- do not have a clue how to deal with §3.156(c) claims. To tell you the truth, my comprehension of the regulation evolved by leaps and bounds with the passage of succeeding precedential decisions at the Court. VA has attempted since 1945 to bury this regulation  just as it also enjoyed the “splendid isolation” evoked by Senator Alan Cranston when they discussed the whole idea of the 1988 VJRA and revamping justice, as we know it today, for Veterans. To plagiarize an old cigarette commercial, we’ve come a long way, baby. But not far enough…

And, much like the relative ignorance of VA Examiners, the relative splendid isolation of §3.156(c) has lain fallow at the bottom of §3.156. Few ever scroll that far down as its application is so unheard of. Or is it? I’ve found numerous examples in a lot of my clients’ files. Well, numerous as in 5 times. Not all are so egregious as to warrant a 50-year lookback but some just jump out and bite you on the eyeballs. Because I triage my Vets and many are knocking on Heaven’s door, I don’t necessarily get all wigged out at 5-8 year errors. I mention them to the client and ask if she or he would rather concentrate on their incurable b-cell hairy leukemia and the R 1 decision I’m fighting for. Sometimes you have to prioritize and stay focused. If there is time to pursue them, and the claim is viable, then I fight with gusto. The “youngest”  §3.156(c) claim that’s viable I’ve run across to date is 1989. The Puzzle Palace in Sioux Falls, S.D. failed to retrieve the Yokosuka Naval Hospital records for twenty four years. When they did-voila- service connection for C8 nerve impingement and TDIU. But we’ll brook no argument about an earlier effective date, thank you.

As for its application to Butch Long, his 52-year holding pattern is getting tiresome. VA has burned up over a million dollars and seven years and this is still the original reopening of the 1970 claim kept alive by the miracle of the new AMA. In fact, Butch is my oldest surviving client- one of two I represent who were there at LZ Cork on January 18, 1969.

Seems every time when I get a win for someone like Butch or my LRRP Ed, they always invite a slew more of their buddies who were there getting blown up too. I can’t turn them down. It took me 18 years to get in under the wire and another 8 to make a clean sweep. They’ve been screwed for many of those same  years and all deserve justice. I wish I could clone myself to do more.

So, in order to “build back better” Butch’s  §3.156(c) claim, we’ve elected to do a HLR (Higher Level of Review) to check off one more box on the way up the ladder of VA justice. Make no mistake about it. VA isn’t about to roll over and grant this no matter how wrong it was or is now. The cost will be prohibitive even to a large agency with a 260 billion dollar budget.  I’ve read hundreds of old 1966-1975 Vietnam claims for diseases and SFWs.  They share one thing in common. The max rating in virtually all of them was no more than 10%- occasionally 20%. Most were the “Zeroes for Heroes” ratings. We all know the moment you cross over 30% the VA has to pay for the oke-san and the rug rats. VA was not about to grant that kind of money back then. Vietnam was a meat grinder. Vets were piling up at VAROs across the US and holding out their hands. If you were seriously messed up, you might get to 60% over 15 years but rarely TDIU for a few decades. VA was renowned for granting you IU about the time you hit 65.

So, I scheduled a HLR just for shits and grins. The VA gal, Wendy, is a DRO at the only Catholic VARO in the US (St. Pete’s). At the outset before we began this dog and pony show, I vetted her as to her grasp or comprehension of the ramifications of §3.156(c). She was like a deer in the headlights. She wouldn’t admit to not having ever set eyes on one-let alone doing a  supplemental or HLR. I could tell by her voice she was hoping for the Lynyrd Skynyrd exit and three steps toward the door. Thus, I concentrated on the latter subsections of §3.156(c)(3) and (4). As some know, there is where the power lies in rating these claims. I pointed out to her that for some reason, VA seems to think it was pure coincidence Butch filed to reopen dang near everything he filed in 1970… and won it all on the first throw of the dice along with TDIU. And then, again a year later, they granted for all the TBI shit they should have inferred in 1970. I asked her to be considerate of the fact this man had more SFWs with retained metal fragments than a guy who eats hand grenades for a living. The only thing VA objected to was the earlier effective date under §3.156(c)(3)(4). Essentially, what transpired was a §3.156(a) adjudication based on the submission of the proof of all the old injuries-not any new medical records showing an increase. And yes, there was absolutely no mention of a de novo review and new reconsideration of the 1970 claim as promised in the regulation. Zilch. The DRO in 2017 assured me that just because they didn’t say in haec verba that the reconsideration took place and was found wanting, that it never occurred. I expected her to say the M 21 Adobe 2 Pro didn’t have a cut-and-paste for that reg… or an M 21 cite.

The beauty of shrapnel wounds is they contain retained metal fragments. In addition, dirt and small pebbles end up in there. They all show up on the x rays so it’s pretty hard to cheat. In Butch’s case, it looks like somebody spilled salt all over his x rays. This explains why they always strip Butch down to his birthday suit looking for a bomb when he flies. Butch carries his proof of his claims everywhere he goes. And, when you’re wearing that much metal, it follows you were pretty darn close to where the explosive detonated. In Butch’s case it left what we call pepper spot tattooing from head to toe. The explosive powder has charcoal in it and it stains the skin when you’re mere feet from the detonation.

So, take a gander at the new HLR form. I hope this shines some light on what you can expect if you do an HLR. First, you should have a list of any and all bitches or complaints. What did they do wrong by law? What’s missing? What was declared as fact which isn’t fact? In this one, Wendy forgot to note that a Coach stated I had not submitted any new and material evidence. Ooops. Wrong legal standard of review, Coach. It’s now new an relevant evidence. I submitted 31 pages of service department records VA was (and still is) too lazy to go get. In fact, they still haven’t retrieved them. I guess they just trust us. Somehow, I forgot to submit them back in 2015 or 2017. I guess it’s a good thing I’m so stupid and forgetful because if I’d submitted them back then, I wouldn’t be able to file a supplemental claim now to reopen this, huh?             Redact IC HLR

Back in the “old days” when I could just sashay in to the VARO on the tenth floor of the old Smith Towers to chat with my rater, they were virtually all Veterans themselves. It was almost a prerequisite for employment there in the 70s like getting a job at the US Postal service. Nowadays, you won’t find Veterans in the hierarchy of the VBA because the Grand Poohbahs don’t trust them to be objective. Shucks. I’d sure give some ol’ boy the benefit of the doubt if he got whacked in service but you see the problem? If you haven’t been brainwashed into believing all Vets are trailer trash and liars, then they’re not going put you in the driver’s seat of the claim boat. As a Vet, you can’t be trusted to be an independent arbiter regardless of how many equity classes they pound down your throat.

I would think §3.156(c) claims would be a frequent occurrence at VA. We hear frequently of VA horror stories where they were shredding files in Dayton or stacking them in the janitor’s closet in Oakland for years. VA ain’t no daisy and their history of misdeeds precedes them. I love the predicted rejoinder with the mea culpa- “Well, this is actually fortuitous for Veterans. We certainly learned from this mistake in canceling VA medical appointments without notifying Vets at 67 VAMCs across the country for years to eliminate our backlogs and we’re going to build in safeguards to prevent it from ever happening again in the future. Nothing to see here. Move along.”

With the advent of VBMS, you cannot hide old STRs behind the VR&E files in the right flap of them old c files. They’re sticking out like sore thumbs and all labeled as such. VA pukes didn’t enter all these old records. They’re done by subcontractors who are truly independent. Their mission is to copy everything-not sort through it to discover if the evidence is damning and adverse to VA’s interests. Better yet, there’s a date assigned to all these documents showing when they were received. Thus, if you submit these new/old STRs in 2015, it’s pretty difficult to backdate them to 1970 and say you (VA) already have copies.

 

I strongly feel Butch will prevail on this. I doubt it will occur locally because true justice cannot be had at the Agency level. Nobody wants to go down to the lunchroom and suffer the embarrassment of  all the employees pointing at him and saying “Bummer. See that dude? He’s the bozo who granted an EED back to 1970. Boy is he ever going to lose out on his Christmas bonus like totally forever, dude. ”

VA made the error of granting all Butch’s claims without any fight. Every time they said he didn’t have retained metal in an appendage, I’d go out and get x rays proving he did. Pretty soon, I was on the DRO’s speed dial. They even tried CUEing themselves for 10% and giving him a dog bone back to 1970. But, as I pointed out above, they refused to go over the magic 30% because Butch had a spouse and 4 children. That alone would have been a chunk of dinero all by itself. Likewise, they finally dragged out §3.114 and gave him an extra year of tinnitus. The biggest mistake was caving in and granting 10% for “loss of field of vision” and TBI headaches for 50%. That was a concession that he was damaged by an explosive concussive event with grave acoustical/visual damage. Once you grant that in the §3.156(c) arena, you’ve shown your cards. You’ll never get Pandora back in the box. A filed of vision injury never heals. It’s not like it got worse in 2009.

I hate HLRs. They are nothing more than an imperfect rehash of the old informal DRO Reviews where nothing was recorded. It was all  hearsay and you couldn’t prove what they said were lies. At least this new AMA version of justice can be recorded privately and preserved for posterity to demonstrate misfeasance/malfeasance later.

Onward through the fog. Win or Die.

P.S. This just in.

Nobody forced you to keep reading….

Posted in Higher Level of Review (HLR), Tips and Tricks, VA Agents, VA AMA appeals knowledge, VBMS Tricks, Vietnam War history | Tagged , , , , , , , , , , | 2 Comments

EXPOSED VET RADIO SHOW THURSDAY

Posted on August 3, 2021 by asknod

John just shined the Bat signal in the sky and alerted me to the need for a guest slot on the show. We’ll be there at 1600 Hrs on the Left Coast and 1900 Hrs at the infected end of the country. Be there or be square. I hope to talk about some of the recent Federal Circuit decisions that will affect our claims in the future. We’ll also talk about Barbie’s recent 85th birthday…

The call in number is the same:

(515) 605-9764

The computer link to the show is:

https://www.blogtalkradio.com/jbasser/11981279/connect/ed3422aa35bf7366d7ad02b5bfda7fd91733a1c7

We hope to see you there. If you wish  to ask a question hit the number 1 on your phone or computer keyboard to energize your microphone. Over.

P.S. We checked with Dr. Fauchi and  he assured us you do not need to be vaccinated to listen to the show. Please observe, however, the six foot rule from your microphones if you would.

Posted in CAFC Rulings, Exposed Veteran Radio Show, Humor, Tips and Tricks, VA Agents, vA news | Tagged , , , , , , , , , , | Leave a comment

Charles F. Gardenhire–Korean War Veteran

Posted on August 3, 2021 by asknod

Charles F. Gardenhire
9/6/19933- 7/26/2021

I lost another of my Veterans a few days back. Charles was my one and only Korean War Veteran. He survived the Chosin Reservoir massacre by staying awake and fighting for days. His company was overrun by the enemy. Sixteen of the sixty four men in his platoon survived by the sheer grace of God. Each was awarded a Combat Infantryman’s Badge which was no small feat for a Negro in a segregated unit in 1950. It would be four more years before the true integration of the Army was substantially enforced. 

Charles came down with a nasty case of pneumonia in late March 1951 from the experience that metamorphosed into suppurative encephalitis -also called the Japanese Sleeping Sickness. They refused to let him go on sick call until he collapsed into a coma on April 12. He was unconscious for almost a month with 103+ temperatures regularly. He was evacuated to Tokyo, Japan where he recovered over the next three months. They jacked him with 35 million units of Penicillin over that time and managed to save his life.

Instead of sending him back to the U.S. upon his recovery, they shipped him back into combat on July 15th. He returned to the U.S. under his normal rotation that Fall but never completely recovered from the disease. Dizziness, painful headaches and memory issues would plague him to his dying day.

His loving wife Petra will now pick up his battle flag and carry it forward against the VA for him. VA threw his original claims in the trash can in 1953 as they did all Blacks back then. Unfortunately for VA, they forgot to throw the rest of the claims file in with it and left a paper trail Charles was able to resurrect in 2008. He was eventually awarded 100% for his residuals but VA fought long and hard to deprive him of his just compensation all the way back to 1953. I aim to fix that.

We were right on the cusp of finally putting paid to all this at the BVA when he became ill and succumbed to numerous ills. I hope I have the stamina to make it to 87 and continue to help Veterans avoid these pitfalls too. Farewell my friend. I am honored that I was chosen by you to fight this battle and I won’t rest until you are vindicated. He would do no less for me were the shoe on the other foot.

You can view his obituary here.

https://www.serenityseattle.com/obituary/Charles-Gardenhire

Rest in peace, sir. No finer or braver Eleven Bravo ever wore the blue fourraggere.

Posted in All about Veterans, Duty to Assist, Food for the soul, Milestones, VA Agents, Veterans Law | Tagged , , , , , , , , | 3 Comments

MVA v. SECRETARY OF VETERANS AFFAIRS–ADVENTURES IN ADVOCACY

Posted on August 3, 2021 by asknod

Boy howdy there’s nothing like waking up in the morning (on the left coast) and discovering an email from Chris Attig banging a gong and sounding the alarm. It’s not often we get to take the VASEC out behind the woodshed and administer some wall-to-wall counseling. We VA advocates have always contended the new AMA doesn’t dovetail quite as smoothly into the prior Legacy method as advertised and leaves many unanswered questions. Military Veterans of America (MVA) et al clears the air on a few of these inconsistencies and will force Denis the Menace to revamp not how he wrote the regs but force him to formulate them correctly going forward. 

So without any further ado, by the the numbers. Here’s the decision if you wish to read it.

19-1600.OPINION.7-30-2021_1811957

§5104C(b)/§5904(c)(i)/§14.636(c)(1)(i)

As the appeal was filed by numerous different entities (MVA/NOVA/PVA/ Carpenter Chartered/NVLSP), each signed on to different objections and some presented their own pet peeves. Of all the appealed contentions, only three of thirteen were sustained. Some might feel these errors of interpretation are inconsequential and some may not. Certainly, the biggest one affects us as litigators. 38 CFR §14.636(c)(1)(i), without boring you to death, was written as a fill-in modifier for AMA claims. Considering VA bitched about how FUBAR Legacy was, any improvements they sought should have made the system better. The Fed Circus decided to examine the whole recorded history of remuneration for VA attorneys which had been stuck at $10 per claim since 1864. Inflation kinda pissed in that well over the intervening 157 years. So, in 2007, eighteen years after the passage of the VJRA and the creation of the Court of Veterans Appeals (COVA), Congress graciously let attorneys and Agents like myself in and allowed us to charge 20% for our services… if we prevailed… but only if the Veteran had already been denied previously within the last 12 months by filing a disagreement with the VA’s regional wash and wax job. If the Veteran (or his representative) dawdled for more than 12 months, he had to start over. A win would merely result in a grant to the Vet and all the hard work to get there would be, by operation of law, gratis or pro bono. All the VSOs were in an uproar and fought our admission into paid litigation tooth and nail.

The Secretary’s take (on pg. 43) is “We always did it this way and we aren’t gonna change. Screw you and your interpretations.”

The government does not attempt to argue that
§ 5904(c)(1)’s text directly supports differential treatment
of § 5104C(a) and § 5104C(b) supplemental claims as to
paid representation. Instead, it argues that the VA’s regulation
deserves deference because the VA has an established
practice of treating motions to reopen “finally decided
claims based on new evidence” as a “separate
case[]” for the purposes of attorneys’ fees, which it purports
are analogous to § 5104C(b) supplemental claims under the
AMA, and nothing in the AMA or its statutory history indicates
that Congress intended for the VA to deviate from
this practice.

Let’s be frank here. Ostensibly, the new AMA was inaugurated (in VA’s eyes) to allow more Veterans a faster path to their denials and rid the VA of their pesky backlog. It succeeded after a fashion. The backlog just matriculated further through the VA python’s bowels and piled up at the BVA’s front door. Shit. Who would have thunk all them stupid Veterans would choose to appeal to the BVA? What part of ‘No!’ didn’t they get? VA had, for the most part, made it very difficult to understand how to appeal in the Legacy venue. The AMA was designed to make it easier by creating six new paths to resolution instead of one. VSOs were conflusticated and then along came Typhoid Covid Mary. Shoot, even the VSRs and RVSRs were flummoxed on how to read the new regs. I don’t blame any particular party for this confusion. Anything of or having to do with VA jurisprudence should help rather than hinder. Simplicity should be the guiding principle. You don’t know the government. Considering the Jokers at the Puzzle Palaces across our fruited plains can’t even agree on which form to use (526 or 995), it’s a miracle anything gets adjudicated-right or wrong. You have a 50-50 shot at using the right form to file so why is it always the wrong one? Well, wrong until someone figures it out and “corrects” the record to erase their stupidity.

So why in Heaven’s name would anyone in the hierarchy of VA (think OGC) decide that the proper interpretation of §14.636(c)(1)(i) forbids the award of fees after a win in a post-12 month supplemental AMA claim? The theoretical idea in this new AMA scheme was to make it more attractive to attorneys and agents to represent Veterans-not less. AMA embraces the idea of keeping your claim alive forever. This has to encompass the concept of eternal reopenings that might eventually result in a win. Not all Vets, or VSOs for that matter, seem to grasp the concept of  a 12-month suspense date. Considering this is a carryover from Legacy, it shouldn’t be so alien to understand. And, when viewed in the context of improving the system as  the VA and Congress mutually seem to concede, why the attempt on VA’s part to make it even more adversarial? Whazzup?

So here’s one example of VA’s adversarial methods. Johnny Vet applies for Bent Brain Syndrome after he comes home from ‘Nam in 1968. Of course he loses. VA didn’t have bent brain on the menu until 1982. Perhaps Johnny tried a few more times over the decades and kept on losing. Fast forward to 2019. Johnny contacts an attorney and says he wants to revisit his lost PTSD claim(s). Most attorneys, until last Friday, would have told him to sashay on down to the VFW or VVA and get a brand new denial so s/he (the attorney) could at least make his bones for doing the work after the inevitable denial.  So Johnny Vet trots down to the VFW, files, loses and beats feet back a year or so later. The attorney gets an IMO saying it’s at least as likely as not Johnny is mega-bugfucky in the head and he wins 70%. The attorney gets his 20% and Johnny is ticked pink until death do him part. But by now, he’s burned up five years to get there from the day he motored over to VFW to refile. So how in Sam Hill did the new AMA help him? How was this a vast improvement to speed it all up and 86 the VA’s backlog? VA would have us believe we should be glad it didn’t take ten years.

The correct reading of §14.636(c)(1)(i), by operation of law, has to follow the statute it’s predicated on. That says any time after you’ve been denied-be it an old 1968 legacy claim or a post-2019 AMA claim- and you finally prevail with your shiny new supplemental claim, that the attorney or agent is eligible to pass Go!® and collect his 20%. This is to induce more attorneys (and agents) to become involved, participate in, and give Veterans quality legal representation. The stated ideal of AMA was to repair the convoluted Legacy nonsense from 1989. Yeah. Right. When has VA ever been proactive or inferred simple entitlements without a 30,000 volt CAVC/CAFC cattle prod?

The proper interpretation of §14.636(c)(1)(i) is  a good thing. Granted, VA employees look down on VA practitioners like VA claims vultures or ambulance chasers as it is now. This will probably make us look even more greedy in their estimation. It shouldn’t. It should make them dread the idea an attorney or agent will be more prevalent in their future and recognize more Vets will be protected from their ludicrous VA bullshit. One thing I foresee instantly is a lot of practitioners becoming far more interested in that 1968 denial scenario described above that cries for justice. Mind you, we won’t get paid back to 1968-just to the day you filed the supplemental claim; so actually you get more money if we prevail earlier. You also get to hire the attorney/agent at the outset instead of having go through a VSO to get “pre-denied”. It’s a win/win situation that only the VA pukes could find offensive or unfair.

 

§ 5104C(a)(2)(A)/§3.2500(b)

Denis’ second misreading of what Congress created is §3.2500(b). § 3.2500(b) bars claimants from filing a supplemental claim based on new and relevant evidence while judicial review of one of their claim(s) is/are pending on appeal in federal court. Federal court refers not to the CAVC but to the Fed. Circus or the Supreme Court venues. Obviously, this is a gross violation of due process. You don’t have to be a leagle beagle to figure that one out. Granted, in the broader AMA context, §3.2500(d) and (e) make perfect sense. If you choose to file a 10182 NOD and go up to the BVA, it would sow discord into the process if you decided to jump ship from one venue to another -i.e., switch from direct review to evidence submission or decide to file a new 995 below at your local Fort Fumble (for the same thing) while your direct review NOD is still docketed at the BVA awaiting a decision.

But what if…? What if you’d been fighting a §3.156(c) claim for 6 years for an earlier effective date and finally reached the Fed Circus and were awaiting a decision there? Under the current interpretation of §3.2500(b), you would be precluded from filing a supplemental claim for, say, your Parkinson’s or b cell hairy leukemia until the §3.156(c) decision came down from the Feds. Shut the front door, GI. That’s an insane interpretation which could only be dreamed up by an adversarial Agency interpretation of what Congress intended. This somewhat mirrors what Bruce Taylor just ran into last month when a Fed Circus panel, sua sponte, decided he had been deprived of justice because he was restrained from filing based on a nondisclosure agreement of secrecy of 50 years duration. When obtaining justice  devolves down to whether or not you were born on a Tuesday before noon to qualify, there’s something wrong. Waaaaaaaaaaay wrong. VA’s take is “Piss off. We disagree with you. Besides, we’re in the process of making changes to this to fix it and we’ll get back to you when we get it fixed.” Check it out on Page 54…

The government responds that, as a threshold matter, the primary harm PVA complains of—loss of effective date—will soon be irrelevant because the “VA plans to propose a regulatory change [to § 3.2500(c), (g)] to protect the effective dates of supplemental claims” filed within one year of a decision by this court or the Supreme Court. But more to the point, the government argues, §3.2500(b)’s requirement that claimants pursue administrative review sequentially (rather than concurrently) with judicial review in the federal courts is consistent with the AMA and should be sustained because it “reasonably promotes systemic efficiency without prejudicing claimants.”

The Fed Circus notes that VA has a history of being all hat and no cowboy…

We note that it has been over a year since the government filed its brief, and we have yet to see a notice of proposed rulemaking for the regulatory changes mentioned. Instead, on March 19, 2020, the VA issued a policy letter stating that “[e]ffective immediately, claims adjudicators must consider supplemental claims . . . filed within one year of a Federal Circuit or Supreme Court decision as continuously pursued and apply the provisions of 38 C.F.R. §3.2500(h)(1) when adjudicating the claim.” See VA Policy Letter 20–01 (Mar. 19, 2020).

See? Problem fixed.  We put out an All Points Bulletin. We’ll rewrite the regulation when we see fit. Okay? Well, not exactly as they say down at Avis™ Rent-a-car…

It is unclear what effect, if any, the VA’s unfulfilled promise of forthcoming regulatory amendments and subsequent policy letter has on our analysis of § 3.2500(b)’s validity. But we ultimately need not resolve that question here. For even if the VA had amended its regulations through notice-and-comment rulemaking to extend effective date protections for supplemental claims filed within a year of a Federal Circuit or Supreme Court decision,17 we would nonetheless conclude that § 3.2500(b)’s bar on filing a supplemental claim during the pendency of a federal court appeal is invalid for contradicting the plain and ordinary meaning of § 5104C.

This is why we now enjoy judicial review above the BVA level. The VA, for over a century, enjoyed litigating adversarially in their own secluded bailiwick with no supervision. When called out, their response was, and still is, a condescending attitude and the old “yeah but that doesn’t apply to us.” Newsflash. The Fed. Circus is getting a bit miffed and is beginning to call them out.

 

§ 5110(a)(1),(3)/§3.155(b)(1)(i)–(iii)

The donnybrook over this regulation is simple. Johnny Vet submits a intent-to-file (ITF) on his brand new claim for bent brain in, say, 2016. Within the requisite 365 sunrises and sunsets, he dutifully files his VAF 21-526EZ to complete the process. He gets the ITF date of his filing. Nothing adversarial about that. Everything’s hunky dory and he goes on to a denial as happens 88% of the time. Let’s say he finally gets his shit together after about 2 years in 2021. He files an ITF for his supplemental claim and begins the process of getting an Independent Medical Opinion to rebut the 2016 denial. VA says Hold the phone Ramone. We don’t do ITFs on supplemental claims-just your initial claim. Okay. I’ll buy in. Where did Congress sign off on that one? Here’s the gist of the reg in footnote 15 on page 58…

The “intent-to-file” framework was implemented in September 2014 to replace the previous “informal claims” framework. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014); see also § 3.155(a) (2014). Under the “intent-to-file” framework, a claimant may signal a preliminary intent to apply for benefits by (1) saving an electronic application within a VA web-based claims application system; (2) submitting a VA standard form in either paper or electronic form; or (3) oral communication
with designated VA personnel regarding the claimant’s intent to file a claim. See § 3.155(b)(1)(i)–(iii).

VA decided to go off the reservation and write into this what Congress never spoke. VA’s repair order now that they’ve been busted? ? Why, don’t worry your pretty little Federal judiciary heads over this contradiction. We’ll fix it some day and it’ll be moot. Or, better yet, just remand it back to us so we can take another stab at it. Not so fast, Denis…

The government, for its part, does not defend the validity of §3.155’s preamble. Rather than litigate the regulation on the merits, the government asks that we dismiss and remand this challenge back to the agency. Specifically, “without conceding that [PVA’s] challenge is meritorious,” it avers that the “VA plans to propose a regulation to amend [§] 3.155 to apply the intent[-]to[-]file rule to[§] 5104C(b) supplemental claims” such that “[PVA’s] challenge will become moot.”  But if the proposed amendments to § 3.155 have not materialized by the time we render judgment in this matter, the government requests a voluntary remand for the VA to complete its rulemaking process.”

Once again, the Feds aren’t buying this line of post hoc rationalization of how to fix it. Action talks. Bullshit walks…

We decline, as a threshold matter, to grant the government’s request for voluntary remand. Much as was the case for the promised regulatory changes to § 3.2500(b), we have yet to see any indication that the VA will amend § 3.155’s preamble to include supplemental claims within the intent-to-file framework. While courts have discretion to grant a request for voluntary remand so that the agency can reconsider its previous position, see SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001), the VA has already had quite some time to revise a plainly invalid regulation but failed to do so. Although the VA assured this court that it would make certain amendments to two of its regulations, several months have now passed since oral argument, and not one of these regulatory amendments has materialized. Nor has the VA provided any updates or a timeline for when such changes might occur. Under these circumstances, we are unpersuaded that a remand to the VA would be of any benefit, and we see no reason to avoid resolving the ultimate question of validity.

Seems like VA’s credibility is beginning to fray around the edges in the Fed Circus’ view. This new attitude represents a decidedly new approach to VA stupidity. Five years ago, they probably would have remanded on the expectation that VA would honor its word. I guess it’s safe to say VA’s credibility is somewhat suspect. This will be filed under the Fool us once, shame on us. Fool us twice, shame on you, Denis.

It took 63 pages to accomplish this decision. I apologize for being long-winded here but 63 pages is a lot of verbiage to dissect and disseminate. More than half of it was devoted to establishing who had a right to sit in on this poker game and make a bet. That only three regulations were ultimately sustained as being defective is actually three more than I expected to read about. Perhaps we are entering a new period where the judicial thumb will indeed be placed on the Veterans’ side of the scales of justice as we were promised aeons ago. The Feds are preparing to relitigate Mr. Bruce Taylor’s decision on equitable estoppel en banc. I can’t wait to see if this new judicial approach continues in a positive direction. We’ve been screwed for centuries; it’s difficult to remember when we had a truly independent judiciary rule with such forcefulness and call the VASEC out for his bullshit. The CAVC (or certain new members of it) seems to be in lockstep with VA on a lot of their interpretations of governing statute. A careful analysis of who is “pro-VA’ reveals most of them have a background in the Judge Advocate General (JAG) Corps. From personal experience, I have discovered military justice is to justice what military music is to music.

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

 

Posted in Appeals Modernization Act, CAFC Rulings, Fed. Cir. & Supreme Ct., Tips and Tricks | Tagged , , , , , , , , , , , | 3 Comments

VETERAN SERVICE ORGANIZATIONS-A USEFUL ENTRY TOOL TO THE VA ADJUDICATIONS ARENA

Posted on July 30, 2021 by asknod

Many of my readership bring horror stories to me about their representation by Veteran Service Organizations (VSOs). I get it. It’s one of the prime reasons I decided to become a representative myself-albeit as a private rep.  In the past, I have been known to disparage VSO reps as slightly higher than whaleshit and for that I apologize. It’s not that these folks purposefully set out to destroy your claims. It’s because they are not briefed in on the proper techniques to win. If you were never taught your Veteran needed a medical nexus to win his claim on a direct basis, it follows you probably wouldn’t bother mentioning it to him. This, then, is the perennial problem. It’s not ignorance (for the most part) so much as lack of training. Hence my apology for this belated revelation.

From what VSOs I interact with tell me, they get a crash course indoctrination on VA forms and the most rudimentary principles of VA law. We’re talking about a compressed 30-hour how-to and a few weeks of supervision before they are issued their wings.  Granted, only a National Service Officer who has passed the accreditation exam and is in good standing can legally sign your 526 or 995/996/10 182. The rest of the time, letters and correspondence are conducted unsupervised by the VSO’s hierarchy. This is how/why you end up on appeal to the BVA with your VSO asking for 10% for tinnitus for each ear. Vet reps don’t read Part IV of the VASRD. They aren’t required to. DC 6260 isn’t in their vocabulary. From what I gather, if there’s an error in the pleading, it’s presumed the NSO will catch it and send it back for correction(s). But what if…?

Well, Pilgrims. Here’s a few of the what ifs I’ve seen over the last decade or so. How about your Georgia Dept. of Vet Affairs representative is arguing on your behalf at a Travel Board hearing before  Veterans Law Judge Ursula “the Unmerciful” Powell and he allows as the Veteran “was f–king sick as a dog” to her… all the while sitting beside the Veteran’s surviving spouse. Boy howdy that’s not the position I’d want to be litigating from.

As mentioned above, I was searching BVA decisions for the perfect cite to precedence and ran across a DAV-repped denial by a VLJ that spent two full pages explaining (with a straight face) that the Secretary’s regulation specified DC 6260 (Tinnitus) was awarded at 10% for one ear or bilaterally. There simply was no path to an individual rating of 10% for each ear. There was no mention of the fact that this was a horrible squandering of scarce judicial resources or a legal boondoggle. Crickets. Perfect aplomb.

During my search for knowledge on Tinnitus, I ran across a BVA decision where the VSO’s representative had argued at the Travel Board Legacy Hearing that his client was not entitled to a compensable rating for his SC Tinnitus. Aru? Trying to talk the VLJ out of awarding the client the highest and best award that can be supported in law? Hold the phone. What’s wrong with this ex parte picture? Fortunately, in spite of the VSO rep’s argument against, the VLJ awarded the 10%.

The VSO representation model is a Congressionally chartered process. Each prospective Veterans Service Organization must promise to assist the Department of Veterans Affairs in adjudicating the Veterans’ claim(s). Time out…. Now, read that again. The VSO is promising to assist the VA-not the Veteran. This is why we have  NOVA, VA attorneys and agents. We represent your interests-not the VA’s. That is a very important distinction. I doubt any of you currently doing battle with VA over a claim realize you might be equally well-served by doing it yourself to a certain extent.

From 1989 to 2008 I trusted VSOs as the vehicle to ensure my evidence and 4138 statements were associated with my claims file. I used them as glorified mailmen. Imagine my surprise after finding out I needed a nexus letter. When I provided my representative that very item from my doctor, it never arrived at the VA. I began to suspect something wasn’t kosher so I mailed in a copy myself. Mr. VSO rep came unglued and told me if I ever did that again, he’d fire me. Aruuuu? I saved him the trouble and went pro se. Cupcake’s immortal words as we walked out of his office were “We have a better chance of winning the Publisher’s Clearinghouse Sweepstakes than we do winning with that bozo.” Sure enough we won. Well, not the Publisher’s Clearinghouse gig but the claims. I’m still working on the PCH angle. And here we are.

I used the DAV to begin with and did get 0% across the board. No mention of going for the gold. I was told I’d look greedy if we appealed it. We certainly wouldn’t want that. VSOs have repeated this old wives’ tale since the War of 1812. I wish they’d cease. The whole purpose of the appeals system is to right a wrong. VA argues they have a 98% success rate in their decisions. We know that 74% of all BVA decisions are set aside, vacated, or reversed due to legal error. If that is any benchmark, then the 98% claim is fool’s gold. In fact, why even have a Federal Court process if VA is always right? That’s kinda how it worked until 1989.

Some say “I used the PVA/DAV/VFW/VVA etc. to do my claim. They have a far higher success rate than any other VSO outfit.” There are two sides to that coin. You are assigned a representative. S/he might be new, motivated and extremely gung ho. S/he may also be older, burnt out and depressed with his/her workload and the futility of losing claim after claim. It’s like Forest Gump’s box of chocolates analogy. A given VSO doesn’t translate into an effective advocate. Your advocate has to be willing to go off the reservation and actually advocate for you proactively. Sadly, most representatives who exhibit this mustang behavior frequently get canned. Conformity to a set of rules forbids actually helping a Vet win all but the most obvious claims like GSWs or missing appendages. X rays don’t lie. VA examiners do-but that’s another subject for another day.

In the VA claims arena before the AMA, if you were pro se you could pretty much do anything you wanted and they’d straighten it out eventually. If you had a VSO, they might show leniency for your stupidity. There weren’t any fuddy-duddy lawyer rules that said you have to file this or that just so. VSOs have always been granted vast leeway in their dealings with the VA. Well, duh. They work for VA, pilgrim.

Ignorance of the VA’s regulations probably aids VSO reps and VA employees too. I don’t mean that as an insult. The new AMA regulations seem to confuse most Veterans nowadays. I’m sure it confuses VSOs equally so. VA does expect them to use the right form to file or appeal now. I watched this one unfold back in March of 2015 when the new VA Form 21-0958 Notice of Disagreement came out. VSO reps continued to use the old 21-4138 to file the NODS for several years after that. Old habits die hard. Oddly, VA continued to accept them from the VSOs. Now just imagine if an attorney or an agent had done this. Their 4138 NOD filing would end up in the circular file lickety spit and never be seen again. They’d discover it in the next tranche of records when (or if) they got a new copy of the Vet’s claims file.

 

In sum, the rank and file VSO representative is a valuable tool as your mailbox to the VA. You should be prepared to examine their filings  before they launch. Do not, I repeat, do not let them file for everything including the kitchen sink. If you do not have Tinnitus, don’t let them say “Shoot, buddy. Everyone got that when they were in. We always file the Vet for it.” File your claims for that which you actually suffer from…that began in the service. If you watched them bend atoms down at Bikini Atoll in the Pacific, then file for  glow-in-the-darkitis. If you served in Vietnam or inside the 12-mile territorial waterways, then file for the AO presumptives.  If you’re “Vietnam-era Veteran who only served in Germany, VSOs are famous for filing you for Parkinson’s and your Diabetes Mellitus Type II. When you file a claim, you file it for a disease or an injury. It has to be recognized as such. Itchy skin, absent a diagnosis of shingles- or whatever- is not a disease.  20/80 vision 25 years after service is not going to be a winner unless you served in Vietnam and have diagnosed diabetic retinopathy. Unfortunately, VSOs will try their dangedest to put it in the 526.

I’m glad VSO folks exist to be the first line of attack for a Veteran. Considering how few there are of us agents and attorneys, VSOs provide a valuable service as an intake vehicle to get Veterans aimed in the right direction. Hadit.com and some of the other sites for Veterans claims can also be an invaluable asset for newbies. Helping Veterans is fighting the good fight. Giving them good advice is the hard part. Every claim I open and investigate is unique and different from any other. Each Veteran has walked a different path to get here. Each claim for any given benefit has facets that can help or hinder you. There simply is no one-size-fits-all so don’t buy it. The 12 gauge approach, also known as the spaghetti offense to see what sticks to the wall, can backfire on you later. Due to the immense volume of claims each VSO rep is forced to shoulder necessarily means you are not going to get top drawer service. Nevertheless, it’s the best way to begin your battle. In almost all cases, it’s going to be the only way.

As attorneys or agents, we are swamped with Veterans seeking help. The pandemic only increased the queries because all the VSO offices were shut down. I spend hours on the phone handing out free advice to avoid having to take a claim. Most of us will not take a claim on from the beginning. By law, we cannot charge for helping you file your claims. We enter into the litigation arena only after you are denied. This isn’t meant to be greedy as some VSOs would have you think. Most of the folks in this game who practice VA law have wives, children, a mortgage and a humongous student loan debt by the time they begin their practice. Agents do not. We aren’t lawyers but get to dress up and pretend we are. We may have wives, children and a mortgage but we don’t have that insurmountable debt.

Speaking of money, it’s somewhat facetious for VSOs to say agents or attorneys are only in it for the money. Keep in mind every VA Form 21-22 that DAV, VFW or American Legion (or the 143 other VSOs registered) turns in results in a $200 “contribution” from VA into their National coffers. It pays to file with a VSO. Now, that $200 dollars I mention was way back in 2008 when I queried the Washington Dept. of Vet Affairs about it. The gal confided that it wasn’t common knowledge. Inflation suggests it has probably gone up.

Several years ago, A VSO National Service Officer from DAV called me a VA ambulance chaser. I’m not sure if that was an insult or a compliment. I’m sure I don’t know haw many claims I helped influence or win (or lose). Statistics show we have a far higher win ratio than VSOs. Who cares? The Veteran is our guiding North Star. One thing is for sure. If I hadn’t started chasing VA ambulances five years ago, there’d be a shit ton less Vets getting a compensation check. VA demands we be accredited- period. No one can engage in this without being credentialed. Thus, anyone who helps Vets legally is someone who cares enough to do it. I don’t look gift horses in the mouth. If a VSO can get you there, we all win. Reality shows that after you exhaust the VSOs’ limits, you’ll need to get professional help unless you have figured out how to do it yourself.

My abiding hope is that one day VSOs will engage in far more rigorous training to increase their representatives’ knowledge of this process. The AMA has created a minefield of new problems for the average Vet-not to mention his representative. The more knowledge of the processes of VA adjudication you learn, the more able you will be as a representative to help your Veteran. Punishing a representative for being successful is the antithesis of  logic.  In a perfect world, a VSO would be the equal to his private counterpart. But then, if six was nine we’d all have three more dollars in our savings accounts. Since it isn’t, and since VSOs, while they mean well, are not yet the equal to some who have learned the process, attorneys and agents will always find work until they do.

Again, my abject apologies go out to all of you who toil away at Veterans Service Organizations helping America’s Veterans for demeaning you. I don’t think of myself as a VA ambulance chaser. I prefer to think of myself as a Rain Man. It doesn’t grate on the ears as much.

Posted in All about Veterans, Humor, Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA Attorneys, VSOs | Tagged , , , , , , , , , , , | 9 Comments

TOGETHERWESERVED–THE CANCEL CULTURE

Posted on July 21, 2021 by asknod

Cupcake and I thought long and hard about writing this article and how to respond to the nearly eight years of diatribes by TWS volunteers and most recently, the owner(s). Without any help using Google© Analytics or other gimmicks to drive readership to my site, the original 2012 article has floated ever-upward in the rankings nearly to the top of the complaints about TWS. Why is that? I didn’t include any salacious details or gossip. I never insinuated the outfit is racist or a hotbed of white supremacy. I merely fumed about the relative difficulty in extricating myself personally from their financial clutches. Nothing more-nothing less. This morning, I read yet another armchair quarterback’s take on my literary shortcomings. David S. stated: ” ‘asknod’ comes accross[sic] as a perpetual complainer.” Well, after reading the comments sent in to the Better Business Bureau® over the last 9 years,  I’ll take that as an unbridled compliment, David. Thank you.

Let’s review the history of this TWS outfit under the microscope of public opinion. Notwithstanding the numerous comments below the original article, my contemporaneous 2012 complaint has been echoed elsewhere continuously ever since- i.e., How in Sam Hill do I escape this TWS organization and why do they make it so dang difficult to find the yellow and black- striped ejection handle? Here’s a small sample (on Google® Search):

They billed me and took my money without permission this year. I didn’t want to stay in it. I joined last year since I am a Woman Marine and met someone at a business meeting who told me this was a great organization. This year they billed me for another year and I never gave them permission to do that. I complained to they about it and expected my money to be returned. I thought this was supposed to be an upfront organization. They just laughed about it and refused to return my money. I don’t want this to happen to anyone else so want to put in a complaint so other people can see the way this organization treat people. The fee was *******

or:

We have been trying to cancel the service, but when we call the number we never get a call back, or even an e-mail response. We have no other information minus the phone number on our bill, and we try to call them and get no where.

Or:

RIPOFF-WON’T LET YOU CANCEL OR REFUSE RENEWAL. I JUST WANT TO CANCEL THIS SUBSCRIPTION AND MY MONEY BACK. DO NOT WANT IT RENEWED. I joined Together We Served in 2011 (approximately). When I joined the service was free. I never intended to purchased a membership. I have not used the site in the last few months. My account was automatically charged $19.95 at Together We Served and my credit card was not present. I was not aware and did not knowingly give Together We Served permission to debit my credit card for this annual membership and take funds automatically out of my bank account. I am very upset and blindsided by the charge. I sent a email complaint to Together We Served requesting that my subscription be canceled effective the date of my email and a full refund of my money. Together We Served staff were condescending and ultimately refused to return my money. I will not have not used Together We Served in years and did not intend on using the services or membership. Together We Served hides behind a ‘No Refund’ Policy in order to protect themselves from having to return the money. I urge all military members (active/veteran) to reconsider providing their bank account information to Together We Served. It is a ‘social media’ site for the military that has become irrelevant. My interaction with them was very negative, which surprised me, since they claim to support the US military community. If you decide to join, do it with caution, as their customer service is awful!

David’s recent rejoinder today in the comments section is the classic “We report. You decide.”/ shoot the messenger technique. Did I complain? Yes, but let’s put a ‘hmmm…’ in front of it in the proper context. I complained about my personal experience…9 years ago. The mere fact that my plaint has grown legs is not from its exposure or longevity. It’s that my experience seems to be very much ongoing and encountered by thousands of other similarly situated Veterans daily. The problem, if there is one, seems to originate in the business model Togetherweserved has chosen to run their company. Some might characterize it as ‘If they holler, let ’em go.’ I didn’t even get my $20 back.

In 2018, a member of the TWS team (I presume) left me a love letter explaining my ignorance on how to sign up. Bruce alleged he was a Pathfinder in the Army. Gee, it only took him six years to locate my diatribe. I sincerely hope that wasn’t a veiled testimonial as to his former military Pathfinder prowess.

Approximately a year later, another member, Monica, arrived and eviscerated me for my misspelling of ‘serve’ as in “Together we sever you from your $20.” It was a play on their spiel that escaped her in spite of her Masters degree. Scary, huh?

Finally, this year, on March 28th,  President Brian Foster, the self-acknowledged owner/operator of TWS, arrived to cleanse the air. As always, I encourage folks to come here and comment without casting aspersions on their  motives or ideals. Everyone gets to pull up a soapbox and have their say. Unlike other media outlets, I don’t censor those I take umbrage with. Never. Well, never until Monica came flatass unglued and had a meltdown. Considering this has festered like an open wound for nigh on 9 years, and numerous TWS lackeys have arrived trying to put out the negative press fires that you, the readership, have submitted (complained of?), I find it incongruous that it took Mr. Foster so long to inveigh (and patiently mansplain) on this perceived inability to extricate oneself from a pay-to-play social media site. Actually, if you read his comment, nowhere can there be found an explanation as to why quitting TWS is virtually impossible. It’s like the Hotel California. You can check out anytime you like but we’ll keep on pestering you. His argument appears to be ‘Why would anyone ever want to leave?’ We have a Help Desk manned twelve hours per day, seven days a week. Seems that help desk would be the go-to fix for those seeking help on how to join the other dearly departed TWS souls.

In my miniature world view, a good website, a good gardening tool, or even a useful book on how-to __________ is a godsend. I wrote a book in 2012 on how to win your VA compensation claims. Over one thousand of you personally wrote me an email back stating the book was instrumental in helping you attain service connection. Many succeeded in attaining the highest levels at TDIU or 100% schedular. I had no experience as an author. I wrote from the heart. I provided it virtually free of charge if you purchased the Kindle e-book version.  Coincidentally, up until the most recent diatribe with the TWS hired help last year, the Amazon reviews (64) were running 4½ stars. A new “review” arrived from one “MattK” shortly after my verbal sparring with Sgt. Monica which I capture here:

Check it out. I still got one star. Maybe MattK found some redeeming info.

Again, let me put my complaints theory out for all of you to examine. Some may recall a certain outfit, now a Congressionally chartered Veterans Service Organization, who was exhorting folks to donate $19.95 a month to ‘help’ Veterans. I use the term ‘help’ loosely. I’m sure many of you saw their almost-constant barrage of commercials asking for funds to help Vets. As I am forbidden to mention their name under threat of them resuming their lawsuit against me for slander, I will refrain. Yes. Boy howdy did I complain. Turns out my complaints had a kernel of truth. CBS investigated and the overseers of the site were excommunicated a year or so later for appropriating large sums of baksheesh for their own pursuits. They, too, ignored me until it began to cut into their bottom line. As they say in Texas, all them Exs ain’t driving a Lexus no mo’.

I no longer complain about these types of people who attempt to inveigle Veterans into paying for their yachts or limousines. Mind you, for the record, I am not implying any nefarious aspersions on TWS. Perish the thought. My battles now are strictly with the Department of Veterans Affairs. Having become accredited as a VA representative, I find my time limited to publish articles here on asknod. Personally, I find it humorous that anyone with that much time to spare would waste it on a website akin to FacePlace™ that charges you admission like a theatre. Ah, yes. Monica and Bruce et al. I concede it is free if all you seek to accomplish is to publish your former military exploits. Unfortunately, in order to read about others’ exploits who may have something in common, you have to pass through increasing pay walls to access them. Again. No complaints. I call them ‘observations’.

Mr. Foster has provided a website, albeit complicated to exit (according to others), which purports they have an invaluable service. I have no complaints about that in 2021. President Foster has also aligned himself with what I now consider a formerly great insurance company for military officers. That has segued into something extremely similar to Geico© and now accepts all military-both enlisted and officers. I was forced to take my bundled policy elsewhere due to their ever-increasingly expensive homeowner’s policy costs. Again, I am not complaining. I merely voted with my feet and moved on to greener (cheaper) pastures with far better service.

As for David S.’ comments that ” I think your time is better served trying to be an influencer for good in the world. And no, the above is not what I call being a good influence.”, I have this rejoinder. Thank you for sharing your personal thoughts, David. I have no desire to be an influencer for “good” in this world. I’ll leave that to all the existing professional influencers who abound at every turn of the road. They sure seem to be doing a bang-up job quelling all those “protests” in Portland during the last year. My desires are far more mundane. Perforce, to coin a term, I have what is called “Starfish Disease”. Well, that and an insane humor streak. If the reference to the disease confuses you, scroll down the widget above called “About the author”.

I focus what little time I have left on earth to help other Veterans attain what took me 30 years to accomplish. I wrote a book and gave away the proceeds to the poor. It wasn’t enough. VA is known to legally pursue any who serve Veterans without credentials. I decided to seek VA accreditation to help Veterans-something any of you can do if you weren’t so busy trying to find fault with others and cancel their causes. Giving advice to others is a double-edged sword. You have to walk the walk before you can stand on the high ground and criticize others for your myopic, superficial perceptions of their shortcomings. Most of us learn this by fourth grade.

I have taught (or helped) several others seek and attain accreditation before the VA and for that I can die happy.  Similarly, if I only helped one Vet with my book, then I succeeded. This isn’t, and never will be be, about TWS and me. It’s not about the VA and me. It most certainly was never about me and the Wounded Wallet krewe. It’s about the Veteran. I get into heated discussions with VA employees who attempt to deprive my clients of that to which they are rightfully entitled. Often, it devolves ever downward into a donnybrook over the rater viewing this as a pissing match between him/her and me. I have to constantly steer the conversation back to the Veteran. That’s our job-both theirs and mine. I’m merely the ‘A’ in VA’s much-vaunted ICARE”. That’s where I want to be-complaining to VA and providing the repair order.

I reckon all this sounds like a bunch of sour apples. Nothing could be farther from the truth. I don’t wish to demean David’s observations. Complaints are useful to inform others of their errors. That’s why they invented Complaint Boxes. Complaints can be instrumental in changing the way people act or accomplish their work. Complaints can be productive-but only if they influence the complainee and induce him or her to change for the better. The present victim culture that currently abounds in America of bitch bitch bitch is actually counterproductive. It would appear TWS subscribes to this technique when ostracized. A dead giveaway is the liberal use of the exclamation point (!). When folks resort to that or using the Caps Lock, they have lost the argument and are conceding defeat. Screaming in print form lacks that je ne sais quoi needed to convey the emotion. There are two types of people who complain. Those who complain and those who, having voiced the gist of the complaint, act to resolve the complaint.

Last but not least, I wish to point out the glaring incongruity of those who come here to complain as David has. I use WordPress as my platform for my blog. While I have to pay for my site due to it’s ever-increasing content, it is actually-hold onto your hat here- free. Yes. You read that right. You, too, can have your very own website here at WordPress absolutely free. You can complain to your heart’s delight about all the inequities in the world and try to influence others to do good. The only problem I see is you can’t call it asknod. Unlike my site, you will be able to advertise Russian wives for sale or cheap Viagra from India. The sky is the limit. I chose to forego advertising even though it would be an extremely lucrative sideline to my incessant complaining.

Asknod is about Veterans. Live Veterans. Dead Veterans. Dead Veterans’ surviving spouses who still have a complaint about what VA did to their husbands (or wives). Veterans who got screwed over by some other who took advantage of their naivety. Asknod is about an intelligent discussion on how to help other Veterans-not complain about the inequities of life or self-betterment at the Veterans’ expense. Asknod began because there was a dearth of information on how to win your VA claims. All I did was expose the Rosetta Stone to my brethren. Now, there’s a new Vets’ site or self-help book coming out every other day purporting to either help you win, do it for you or teach you how. They all charge money for this help. I don’t. I publish as much as I can on the subject to help-not to complain. Chances are you the reader are a Vet if you found this site. I’m sure you didn’t come here to read about what pisses me off about TWS  or any other Vet sites. And in spite of how much I rail about the ignorance of VSOs, they, too, serve and mean well. And as for the humor, if it offendeth thee, pluck out thy eyeballs. I’m the victim here. I was born on April 1.

I find I no longer need to complain. I don’t sit idly by the wayside throwing rocks at every passing discussion. I chose to fix it as best I can-one Veteran at a time. Allow me to reiterate-this is not about you (David, Brian, Monica, Bruce) and me. It’s about the Veteran. Try not to lose sight of the objective. We don’t do politics here. We don’t subscribe to denigrating you for your religious preferences, your sexual preferences or your stance pro or con vis-a vis critical race theory. Actually, as my daddy once said, you have the right to remain stupid. Nothing you say can be held against you. We might make fun of you but we’re laughing with you-certainly not at you.

I wish Brian and TWS all the best in their endeavors. And that’s all I’m going to say about that. Shoot, that’s all that needs to be said.

Posted in All about Veterans, Complaints Department, Food for thought | Tagged , , , , , , , , , , | 3 Comments

LT. RAY KROGMAN–WELCOME HOME, SIR.

Posted on July 20, 2021 by asknod

One thing guaranteed to make me tear up is the news that one of my long-lost Brothers-in-arms has been found and we are able to erase his name from the Laos list of KHA/BNR. KHA, for those unaware, was the military designation used for our losses and stands for Killed by Hostile Action. KIA (Killed in Action) is a more recent abbreviation. BNR, to  Plaine des Jarres Golf and Country Club members,  is Body Never Recovered. Thus it gives me great pleasure to announce the return of Lt. Ray Krogman of Worland, Wyoming , the removal of his name from the BNR list and a proper welcome home and burial.

Sadly, when we were shot down in Laos, we were rarely accorded Geneva Conventions Protocols. Whether it was because we weren’t wearing military uniforms or the PLs just couldn’t be bothered to transport us back to a POW camp, the general practice was to execute us on the spot. Some, myself included, wore pure gold 24 Karat gold chains with which to barter our freedom. I had heard it mentioned that Air America pilots had some success with the technique. I carried a snakebite kit in one of the pockets of my survival vest, too. I’m equally glad I didn’t have to take advantage of that either.

On January 17, 1967, 1st Lieutenant Alva Ray Krogman, flying an O-1 F Bird Dog, Tail # 57-0914 out of Nakhon Phanom RTAFB (NKP) with the 23rd TASS (Tactical Air Support Sq.-aka FAC), was shot down. His call sign was Nail (# unknown). He was flying as Lead FAC in a strike against a 37mm AA gun site near Ban Muang Angkhan in southern Laos (MR III Steel Tiger) west of the DMZ when he was struck by groundfire.  The aircraft crashed a few miles away near Ban Loumpoum killing him instantly.

Lt. Col. Craig Duehring (ret.) Raven pilot sitting on wing of a Tango at Alternate circa 1970

Another airman flying a T-28 ‘Tango’ out of NKP was called in on Lt. Krogman’s  Search and Rescue (SAR) attempt to determine if Lt. Krogman had survived the crash. Capt. William Keith Cogdell, of the 606th ACS (Air Commando Sq.), was promptly clobbered by the same AA site while in the vicinity. His Tango rolled over violently on the port side, augered in and burned. Capt. Cogdell’s remains were recovered and positively identified on May 24th, 1994 and returned home for burial. That circle is now complete.

Fifty four years to be brought home seems like a lifetime. To me it is. Lt. Krogman’s niece was six when he was shot down on January 17, 1967. She was there to welcome him home when he landed at Bozeman airpatch.  It would be another three and a half years (1970) before I went over the fence. Considering the casualty rate was 40%, I count myself lucky to still be breathing and contributing to global warming.

1st Lt. A. Ray Krogman 4/12/1941 to 1/17/1967

Welcome home, sir. Another chapter closed. Lord knows how many are still lying there mouldering in the jungle awaiting their turn. I shudder to think…

Posted in All about Veterans, Food for the soul, From the footlocker, VA Agents, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , , | 3 Comments

MORE NEWS ON JETGUNS

Posted on July 11, 2021 by Laura

 

USAID toots its horn and shows off vintage images of retired jet injectors

60 years of USAID: “Innovative Immunizations Past and Present”

There is no question that vaccinations are beneficial for most people. But, and there are always a few buts, the unintended consequences must be reckoned with. They are now being discovered with the new Covid-19 vaccines.

In the case of the mass vaccinations in the 1960s and later, it took a long time to discover/admit the horrible reality of blood-borne pathogen transmissions with unclean instruments, lack of PPE or hand washing.

Louis Pasteur (Link) (1822-1895) developed vaccines for rabies and anthrax, saving countless lives. He helped humanity. We won’t know for years what the unintended consequences of the various Covid vaccines will be. And the pathogens’ origin, is still officially unknown.

USAID has played a large role in global vaccination projects in the 20th-21th century. But>>>

There has been some not-so-funny stuff going on with USAID, NIH, CDC, Eco Alliance, and the CCP government with regard to gain-of-function experiments. Some suspect the Covid-19 plague, still making its way around the world, is one unintended result of these joint projects. USAID has a budget of over $27 billion. It’s involved as a pass-through agency to fund all kinds of projects; oversight by Congress has been lax.

A January State Dept. Fact Sheet denies knowledge of important facts: https://2017-2021.state.gov/fact-sheet-activity-at-the-wuhan-institute-of-virology/index.html

New York Post gets into some taxpayer dollar amounts:

Who is Peter Daszak, the nonprofit exec who sent taxpayer money to Wuhan lab?

Looming question: Did we enable and do this plague to ourselves?

This anonymous website suggests to me to me that the fight for access to non-biased jet-gun studies (new or unpublished, as in buried) on the connection between blood-borne pathogens is going to begin in earnest in the next few years. Too many people have died for governments to persist in acting dumb.

In the meantime, here are two images of a cleaned up–or never used– fancy 1980 jet gun owned by a Science Museum in the U.K..

 

“Med-E-Jet” inoculation gun, in carrying case, by Med-E-Jet Corporation, Cleveland, Ohio, 1980. This gun was designed to make mass immunisation more efficient. It enabled the user to give many people a small dose of vaccine or drug and was used during the smallpox eradication campaign. The medication is forced through the skin at high pressure without using a needle. The gold coloured handle holds a carbon dioxide gas cartridge to supply the power, and the white part protruding from the top of the gun holds the vials of vaccine. In the event, the very simple bi-furcated needle was generally preferred to this hi-tech approach.

Med-E-Jet inoculation gun, in carrying case, by Med-E-Jet Corporation, Cleveland, Ohio, 1980.

 

 

Med-E-Jet inoculation gun, in carrying case, by Med-E-Jet Corporation, Cleveland, Ohio, 1980.

Laura (Guest Author)

 

 

Posted in Complaints Department, Congressional Influence, Food for thought, Future Veterans, General Messages, Guest authors, HBV, HCV Epidemiology, HCV Risks (documented), hepatitis, History, Jetgun BvA Decisions, Jetgun Claims evidence, Jetgun Manual, Legislation, medical injections, Nexus Information, Uncategorized | 11 Comments

Any action on the new presumptive benefits for bladder cancer, hypothyroidism, and Parkinsonism yet?

Posted on July 10, 2021 by Laura

A little. They have been added to the Agent Orange Exposure webpage (LINK).

I do not see anything on this in the Federal Register yet. However, VA

posted on VAvantage blog (May 27) >>>BREAKING: VA plans expansion of benefits for disability claims for conditions related to certain toxic exposures
New evaluation process to be applied in identifying future presumptive condition

VA will begin implementing provisions of the William M. Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116-283), adding three conditions to the list of those presumptively associated with exposure to herbicide agents, more commonly known as Agent Orange. Those conditions are bladder cancer, hypothyroidism and Parkinsonism.

Excerpt: “About 52,000 veterans and another 6,000 family members of deceased veterans are expected to qualify for the new benefits.”

https://www.militarytimes.com/veterans/2021/05/27/va-to-start-processing-vietnam-vets-claims-for-conditions-newly-linked-to-agent-orange-poisoning/

BVA is chock full of Agent Orange and bladder cancer claims. Here’s a denial:

Citation Nr: 20036637
Decision Date: 05/28/20 Archive Date: 05/28/20

https://www.va.gov/vetapp20/files5/20036637.txt

However, they said previous denials will be reviewed. (Hmmmm. I would not wait.)

If we denied your claim for any of these conditions in the past, we’ll automatically review your case again. You don’t need to file another claim. We’ll send you a letter to let you know we’re reviewing your case.

Source: https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/

The Vietnam Veterans of America gives lavish praise to President Biden, calling him a “saviour” for swift action. (Press release 5/27/21).

Posted in Agent Orange, All about Veterans, AO, BvA Decisions, Complaints Department, Congressional Influence, Food for thought, General Messages, Guest authors, Legislation, Medical News, Uncategorized, VA BACKLOG, Vietnam Disease Issues | Tagged , , , | 6 Comments

BVA-DOWN FOR DOUBLE–WHY WE SERVE VETS

Posted on July 9, 2021 by asknod

Attached, please find a wonderful BVA present for the weekend. It isn’t very often that you find a fellow Vietnam Vet living 5 miles away from you who needed a lot of help-help his good ol’ VFW post service officer said couldn’t be had. The officer also told him there was no such thing as SMC and his chances of getting A&A (via pension, not compensation) were between slim and none. I reckon John didn’t even bothering arguing for two A&As.

2 A&As = R1 BVA redact

In that certain country north of Thailand that rhymed with mouse, we often found ourselves tasked with swooping in and picking up a downed USAF, Squid or Gyrine pilot who had the misfortune to have his chariot shot out from under him by a 30 Mike Mike or a lucky .50 cal round. Waiting for the 38th ARRS Jolly Greens to show up from 20 Alternate with suitable air cover from NKP to suppress the PL around the pilot would be too little too late.

The LLDB of the aerospace rescue and recovery folks

We drove those old ungainly H 34s left over from Korea but they were remarkable for being able to withstand small arms fire. Well, the aircraft, not the PIC way up there in the driver’s seat anyway. The point being that sometimes you just had to ignore OSHA shit and go in or lose him. There’s nothing more forlorn than to hear the FAC declare “Negative Objective.” It still gives me the willies to this day. We didn’t have the luxury of surrendering up there. If the PL got to you first, they executed you right there on the spot. Period. Game. Set. Match.

UH 34 D

Thus, John couldn’t dawdle and wait for suitable help on this one. He knew things were going south in 2018 and asked me to perhaps consider taking him on. So, when the Parkinson’s got bad in September 2019, I filed him for the A&A. VA couldn’t very well argue he didn’t have it. His hands were shaking like a leaf on a tree and you had to get way up close to hear what he was saying. He’d already fallen and broken his back. VA said he was fine. A month or two later it turned into a shit show. Before you could say Jack Robinson, he got hit with the b cell hairy leukemia.

 

 

He and I both knew he wouldn’t be around for Act III so I filed him for A&A and/or loss of use of bilateral lower extremities-  trying to at least get a deathbed R1 for his wife. I know it pisses the VA raters off. Vets should toodle along and die and not be heard from when they get that ill. VA went so far as to avoid conceding loss of use of the lower extremities by noting in his VAMC txment notes “Well, shucks. He can’t be that screwed up. He drove hisself down here.” Somebody might have overlooked that his alternatives were between slim and none unless he used his walker to perambulate that 40 miles. His wife was the Peter pilot- she’d had a horrendous auto accident a decade earlier and wasn’t going to be in the command seat again in this lifetime.

B cell hairy leukemia is another story. You can’t ignore something metastasizing faster than popcorn in a popper. The Raters did actually grant the Leukemia at 100% and the  second A&A for about 24 hours… until the Senior DRO added it up and discovered this would result in a SMC O and R1. The speed brakes popped out and the rating evaporated into thin air from VBMS. In its stead was one of those ‘everything but the kitchen sink’ A&A ratings. All of a sudden he was SMC M because he had another 100% rating for the cancer. I pointed that change order out in an email to the DRO and never heard back. Crickets. I asked my CMA and she, a former SVSR no less, politely informed me that the rating was correct because she knows this shit. Two SMC Ls for A&A? Are you mad? It’s forbidden. That’s like M 21 Introductory  Knowledge. Why, that would be pyramiding to grant two A&As. What have you been smoking? I thought you knew how to do this, Alex.

Kudos to Robert Chisholm of CCK for teaching me how to win this victory. I spotted it in the BVA decisions site from about 20 years ago. You just need a perfect candidate for it. So, being a thorn in VA’s side, I filed a 10182 asking them to restore the imaginary rating  shortly after they cut the paper. I argued they had already rated him for it just before they didn’t.  Evidence is not a luxury in this business. It’s a necessity. If it isn’t in VBMS, your arguments are a nonstarter. Unlike VACOLs, where it’s sealed up like a deposit box in a bank vault, VBMS is rather porous and things come and go like bumps in the night. I like to print them when I see them so I can spring them on the raters later and say “But you said right here in the Code rating sheet dated  February 25, he’s been granted 2 SMC Ls. What gives? Where did the second one go? ” Well, Mr. Graham, it metamorphosed into  SMC M which is the higher award. You just don’t bother your pretty head, son. We used the official VBMS SMC Calculator. It’s foolproof.”

Acting VLJ Martin Peters seems to be on my dance card a lot lately, too. Or vice versa. I did a videoconference with him for my Multiple Sclerosis Vet Lori on May 4th for R1. No decision yet but he as much as said ‘you understand I can’t make a decision today on this’ which to me implies he would if he could. P.S. He did.

Anyway, raise you glasses in a toast to a valiant Marine that didn’t have the right calibre bullets to kill cancer. His wife can sure use the bucks and I can put his folder in the done files. As I’m fond of saying, “If the shoe was on the other foot, John would have done it for me.  Oorah. Win or Die never had so much meaning as it does in this adventure.

John doing what he loved most

Posted in Aid and Attendance, All about Veterans, BvA Decisions, SMC, Tips and Tricks, VA Agents | Tagged , , , , , , , , , | 5 Comments