SMC–THE PLASTIC FANTASTIC LOVER

Posted on September 12, 2021 by asknod

I see from the asknod statistics that the most viewed items seem to be articles about Special Monthly Compensation- or SMC in VA parlance. I think, to VA, it is an inconvenient truth; an entitlement that has to be granted but the failure to grant can be (and will be) excused as an innocuous  administrative oversight. Well, that’s what the VAOIG is for. Errr, right?

Well, as they say down at Rentawreck®, “Not exactly.” About the only thing the IG will ever do is note the RO was in need of remedial training on the applicability of ancillary SMC entitlements and the VARO Director and VSCM sign a memorandum agreeing shit happens and never to get caught doing it again. Keep in mind, this isn’t the equivalent of a USAF ORI (Operational Readiness Inspection) where a 130 sets down unannounced at your airpatch and disgorges 20 officers with orders to implement a Defcon 1 test of readiness. You don’t get any warning. If the Base Commander is out duck hunting off base and incommunicado, say bye bye to that first star.  The OIG, on the other hand, telegraphs its intentions weeks in advance.  In Seattle, they call the RO travel coordinator to book rooms at the Alexis Hotel across the street. I’m sure the rhetorical question on everyone’s’ lips is ‘Gorsh. I wonder why they’re in town?’

My mantra is far more direct. I prefer to go on the warpath. Fine. Administratively oversight me once, shame on me.  Administratively oversight me twice and I call malfeasance and sharpen up the class action punji sticks for similarly situated SMC Veterans. If I have 25 cases of this proclivity to underrate Veterans on the proper SMC rate, then to me its not an innocuous oversight but a conscientious, perennial effort to ignore procedural due process under §3.103(a):

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

The VBA gomers drive by this procedural due process guarantee every day pretty much the same way they did §3.303(b) until Walker v. Shinseki (2014). Pretty soon it’s just a blur and they begin to ignore it. You do not see the word “may” in there. The operable phrase is the “It is the obligation”. As many times as you remind them of it and get it corrected in Phoenix, you’re playing Whack-A-Mole a week later in Roanoke.

Our Recently Emasculated Plastic Fantastic Lover

Bow your heads in prayer for poor Mr. Potato Head™. He was recently gender-neutralized to satisfy some offended soul. I used him back in 2013 (with free advertizing for Hasbro Toys) as a perfect example of the essence of the building blocks of SMC. Once you attain 100%/TDIU, the SMCs from L to N are applicable.

SMC (SPECIAL MONTHLY COMPENSATION)-WHAT IS IT?

Something I think many Veterans fail to grasp are the intricacies and nuances of phraseology used in §3.350 that confuse rather than illuminate. Take the VA’s unique way to describe loss of use of the lower extremities. §3.350(a)(2)(i) summarizes this in VAspeak:

(i) Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis;

 

First you have to go back to §4.10 to grasp functional loss. What VA will studiously avoid telling you is that, just as in PTSD/MDD c&ps, VA gets first right of denial. In other words, it would be futile to obtain and submit a beautiful IMO (Independent Medical Opinion) from your neurologist stating your fall danger is so great that you are almost guaranteed to get a cerebrovascular accident (CVA as in concussion) with resultant permanent brain damage if you insist on perambulating unattended. By all means, get the IMO but hold on to it until VA denies you.  You never play (M) 21 and show your cards to the dealer at the beginning. Here’s why:

The responsibility for determining whether there is loss of use rests with the adjudicator; the Board may not ask a clinician to determine whether there is “loss of use.”  See VBA Live Manual M21-1, IV.ii.2.H.1.b.

I’ve had raters who wrote that “no doctor has, as yet, declared that the Veteran has elected that his leg should be amputated below the knee with use of suitable prosthesis so the claim for loss of use of the lower extremity remains denied.” One has to wonder where they found that phrase in the M 21. Even worse. Obviously they tried it on Mr. Dempsey W. Tucker in Tucker v. West (1998) and here I was fighting it twenty years later in 2018:

 

The relevant inquiry concerning an SMC award is not whether amputation is warranted but whether the appellant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. See 38 C.F.R. §3.350(a)(2), § 4.63. The Board concluded that because his situation did “not warrant amputation,” the appellant was not eligible for SMC. Tucker v. West, 11 Vet.App. 369, 374 (1998).

One of the intricacies of SMC is to understand it is an entitlement awarded based on quality of life issues above and beyond what any 100% rating can provide. Many people qualify for the concept of unemployability due to a 100% rating or a TDIU comprised of a single disability. Once you pass through this qualifying portal, your entitlement to any of the higher SMCs (S, L,M,N,O,R1,R2,T) begins, assuming the disabilities are independently ratable, service connected and you qualify. The more serious the loss or combination of losses, the higher the rating.  SMC ratings are based almost entirely on an increasing degree of severity as enumerated under SMC P in §3.350(f). However, there isn’t enough paper to cover every conceivable combination of SMC. Being able to argue two entitlements for A&A is just one avenue of many. Unfortunately, very few attorney websites delve into these discussions. Meaningful, boots on the ground SMC intelligence discussions on the Internet are in short supply. Most Vet Attorneys and agents don’t have time to discuss the matter. Their paralegals are trained to do intake and VSOs have never heard of it. I have great respect for Hadit.com but here again, people with little or no hands-on litigation experience try to convey their stories as the ‘how-to’. Sherpas they ain’t. What’s sauce for the goose is most definitely not sauce for the gander in SMC.

As usual, VA gets to be the arbiter and determine the definition of ‘qualify’. I can’t think of how many Vets who go for SMC S and discover that their TDIU is based on §4.16(b) and not (a). Bingo. You don’t qualify. Your IU was based on multiple disabilities-not one single, independently ratable disease or injury. Considering my argument above about §3.103(a) and the holding in Buie v. Shinseki (2010), VA is required by law to maximize your entitlement(s) as high as they can. VA interprets that to mean if you beg for it, they have to consider it- but not a moment before you begin begging, mind you. That is not how this is supposed to work. Granted, VA is not renowned for being self-starters, but the moment you qualify for SMC L, there should be an in-depth review to see what else is behind Door number 2.

Therefore, if you are doing this yourself pro se, I suggest  you be anally specific when filing for the higher SMCs. Be sure to point out the date the first doctor stated your disability arose to a compensable SMC level. Cite to the regulation that supports your authority. Below is an example.

redact 526 for LOU and highest SMC 2

One of the most clever SMC traps VA employs is to award SMC L under §3.350(b)(3) for Aid and Attendance and throw everything but the kitchen sink into the rationale. Trying to extricate a single one (interstitial disease in the example above) and expand it to merit a separate A&A entitlement to  SMC L  thus becomes an art form. Once again your biggest and best cite to precedence will always be the Buie holding requiring VA to obey §3.103’s codicil to maximize what you should get short of pyramiding under §4.14. A 100% schedular rating for it is essential to even begin the argument for entitlement. Here’s the authority in M 21ese:

The M21 suggests that SMC(l) has a schedular/extraschedular requirement.  See M21-1, Part IV, Subpart ii., Chapter 2, Section H, Topic 8, Subtopics a-c.  Specifically, the M21 indicates that a single disability evaluated at 100 percent disabling may be required for a grant of aid and attendance, and that without such a total disability, referral to the Director of Compensation may be warranted for extraschedular consideration.

In addition to the above, the VA ADJUDICATION MANUAL, M21-1MR, Part IV(ii), Ch. 2, § I(58)(e) notes “veterans entitled to SMC at the [(o) rate or (r) rate] are, by definition, very seriously disabled” and the rater should “apply a liberal interpretation of the law in determining the need for A&A”. (emphasis added).

Winning SMC claims is not for the faint of heart. It takes a long time to fathom some of the various routes you can take to get where you should be. It hinges in great part on how much you have already muddied up the waters before you begin your quest for higher SMCs in earnest. Half of my battles for my SMC clients are navigating around the cards my client was dealt before I got there. Fortunately for us, VA’s finest no more comprehend SMC than they do the Unified Field Theory so we’re relatively safe once we escape the the local yokels’ jurisdictions and proceed to appeal. Well, almost. I’ve seen some pretty lopsided BVA SMC decisions that were so obviously bogus that we were able to resolve them at the Rule 33 conference. The worst one was the VLJ granted LOU for two (2) losses of use of left and right lower extremity under SMC K but refused to combine them into one SMC L Loss of use of BOTH lower extremities. This, of course, fenced him out of his rightful SMC R1 entitlement. I guess what’s scary is to think of how many Veterans with VSOs who might have walked away from this thinking the BVA gomer was right in his interpretation. What am I saying. They don’t teach SMC to VSO service officers. It’s like the flat earth society. The world ends here. Do not attempt to exit the reservation.

Thank you to all the cartoon contributors. Please remember that although we do not share the same politics, the humor is still indisputable. I can’t wait for my neighbor Gary Larson to amass a new collection. After an extended hiatus, he’s back in the cockpit again. How cool is that? ”Neighbor’ meaning he lives on Fox Island which is about a .30 ’06 round to the east of me. Hey, in this day and age where Mr. Potato Head© can be divested of his gender-affirmative prefix noun-let alone have his personal pronouns redefined- I should be able to claim BFF status with whomever I choose.

Lastly, if you should choose to do battle with VA over the higher SMCs, you would be well-advised to seek counsel to do so. I’ve been doing it since 2012 but I still enjoy walking point and learning new ways to spank these chuckleheads. As quickly as VA comes up with a denial band aid, we have to learn how to counterattack. I’m sure it’s been that way since the War of 1812.

Posted in 100% ratings, Aid and Attendance, Duty to Assist, Humor, Lawyering Up, R1/R2, SMC, Tips and Tricks, VA Agents, VA Attorneys, Veterans Law | Tagged , , , , , , , , , , , , , , | 2 Comments

9/11/2021–THE MOBIUS LOOP OF LIFE

Posted on September 11, 2021 by asknod

Alternate 5/10/1975

A solemn day today, yes but, give or take 50 years, America finds itself on almost the exact same footing as it did May 10th, 1975. Uncounted numbers of Hmong tribesmen, our trusted sworn allies against the Pathet Lao, were being left behind on the runway at Alternate (LS 20A at Long Tieng) as the last 130 climbed out to the east crammed to the seams with humanity. The loadmaster ended up sitting on the top step on the floor of the cockpit above the cargo bay. 

Just as nobody wants to be the last to die in one of these affairs, so, too, does one not want to be left behind to face the wrath of the new landlords. Interestingly, we learned nothing from this teaching moment-right down to leaving the hardware on the PSP again. The present debacle outlasted our Southeast Asian boondoggle by six years albeit only gobbling up 2,448 folks trying to be all they could be. Vietnam was insatiable like the maws of Hell by comparison. Uncounted in all these shindigs is the cost in what we now antiseptically address as “U.S. Contractors” or, in the instant war, 3,846 mostly ex- military types we used to refer to as mercenaries… or pilots for Air America/ Southern Air Transport- or my personal favorite- Consolidated International Airlines. Six of one, half a dozen of another. Few know that every pilot who flew the Long Tieng Airlift was a civilian. Seems our Air Force was AWOL for this gig, too. Sound familiar?

Flying your Flag at Half-Staff

Being inquisitive once as a child, I asked my father about the history of flying the flag at half-staff. He felt it should be reserved for military servicemen or extremely high ranking members of the Executive branch-i.e., the President or the Vice-President. You should be accorded this honor once individually. In some locales, such as Pearl Harbor, the flag is flown at half-staff on the anniversary of the attack there- as it should be. That was a huge tragedy. Dad was a 33-year career Air Force fighter pilot with three NDSMs and didn’t have much use for politicians unless they could procure him a faster fighter. About this time (1954) President Eisenhower codified the rules. Here’s the latest regulation but it seems the current President is ordering up half staff treatment more and more frequently. What changed?

Based on this conversation about etiquette, I note I tend to see the flag at half staff far more frequently. I’m not some Karen making a mountain out of a mole hill but it would seem we cheapen the significance of the act if we overdo it nationally. The flying of it at half staff on today’s anniversary is more than appropriate- don’t misunderstand me-but simply because it, too, signifies the anniversary of a group event. I think it should be called for less and certainly not for victims of every extreme weather event to come down the pike. Less is more.

One morning down in California back in February 2020 on the cusp of the Corona Constellation, I arrived at my friend Sam’s house to find he’d passed about ten minutes after I left to go back to the motel late the night before. We had come down to be with his wife on death watch but I was still saddened to learn I missed the moment. I immediately turned and went out front to lower their flag. I believe Kathi left it there until the funeral a week or so later. When Cupcake’s dad passed, we did so, too until his ashes were spread. Ours is lit and flown 24 hrs. a day. It goes without saying that any reported loss of servicemen is cause for lowering our flag.  To me, Dad’s explanation is more congruent. Veterans serve under the country’s flag and the flag is spread on their coffins as testimonial to their service. I have a hard time putting a congressman or a Senator in the same boat with Veterans.

But now it’s time to cast away stones as the Byrds sang.  We will pray flags flying at half staff will once more become an anomaly. Knowing Fort Five Sides, they’re already running missions across the border to resupply the holdouts up north. SOSDD. It would be just like them ADHD generals to argue they need to keep their fingers on the pulse over there. That can only generate more candidates for VA benefits. Here’s hoping the next country to attempt to drag these Neanderthals kicking and screaming into the 21st Century will be the Chinese who break their spears on these cavemen/poppy growers. Historically, records show it’s currently  Goat Ranchers 7, Invaders 0. In the era of HIND choppers and Stinger missiles, that’s pretty impressive. No less than Alexander the Great and Atilla the Hun pissed on that fire and went home empty handed. I wonder if they left their spears, bows and arrows there, too?

THE GREAT BIG BOAT VACATION

But I digress. I wished to share Cupcake’s and my most excellent mini four-day boating vacation with our kids and the newest Graham- granddaughter Penelope. Pardon me, we included Pickles, Widget (Minpin) and Missy the Yorkie. Taking Widget anywhere these days is a pain. He had a stroke last winter and appears to have lost his hearing. To get his attention now, you have to wave both hands wildly. That doesn’t play well in public. People call 911 when you start doing that. The EMTs show up and put you in those suits that button up in the back. I hate that when that happens. I can’t scratch my nose when it itches.

We picked up the boat at Seven Bays Marina about mid-lake on the east side on Sunday the 26th and returned Thursday morning at 0930. They send their own pilot out to exit the harbor and to bring you back in upon your return. They take all your gear and pack it from the car to the boat for you and vice versa afterwards. It’s like the Below Deck show without the servants and the big tip.  We chose to sail south as that is the more unadulterated, prehistoric stretch.  Being the week before Labor Day, the river was a ghost town.

The smallmouth bass fishing was absolutely incredible. We had to triage our catch almost immediately to nothing less than 2+ pounds and sacrifice the cocktail ice until we put in at Keller’s Ferry. By the second day it was up to a 3 lb. minimum. Look on a map and you’ll see Lake Roosevelt is like a wide spot in the Columbia River. The reason is Grand Coulee Dam. It’s like an inland ocean. And, unlike all those California reservoirs/lakes, it never goes down unless they open the gates…which they did on Day two. We woke up 2 feet lower and really had to crank the dual 110s to get off the beach.

If you’re old like us, and have to wear a mask, isolate or observe a 6-foot clearance horizontally outdoors, this is the glamping ticket. You’re miles from anything or anyone-no cell service, no internet. nothing. Your vessel’s a fifty five foot mobile island.  You can put in to shore anywhere and tie up for as long as you want. From Seven Bays, it’s only 30 miles or so down river to the buoys that keep you out of the turbines.

These houseboat rigs are slower than the seven year itch but can probably make fifteen miles a day in a push. They have dual controls up on the flying deck. I recommend adding a small skiff and a 5 hp OBM if you like to fish. That and a shit ton of #2 and 3 Mepps spinners. The rocks underwater are unforgiving. Maybe a 2 ½ ” Rapala and a Tiny Torpedo. We saw one area with lots of cattails so I expect having a weedless frog would be a good idea as well.

The boats have everything you’d find at home except a king size bed. They’re all Queens. You’ll need the onboard generator to run the AC and the microwave and recharge the batteries but it was never over 80° so we didn’t use it. The microwave only got a workout as the autoclave for the baby bottles and associated paraphernalia. You have onboard potable water as well as unlimited direct lake water for dishwashing or bathing. The mean water temperature is about 10 degrees colder than a polar bear’s nose. Next year, we’re renting the one with the hot tub on the top deck.

Pickles has officially “dog-tested and dog-approved” this vacation and has given her complete concurrence on any future event. This must have felt like some kind of mega-supersized swimming pool to her. Widget and Missy avoided the water like Wicked Witches of the East.

Cupcake insisted on getting life preservers for the dogs “just in case”. When I put Pickles’ on, she seized up and refused to move an inch until I removed it. It was great for photography though. In fact, none of them were enchanted with the idea of wearing them-ever again judging by the looks we got. Taking the Three Dog Night picture was a piece of cake.

A lovely, uninterrupted four-day floating vacation with your new granddaughter? About $5,000. The memories? Priceless. There are some things money cannot buy. For everything else, there’s plastic.

Posted in Food for thought, Humor, VA Agents | Tagged , , , , , , , , , | 4 Comments

The Costs of War Project at Brown University’s Watson Institute for International Studies

Posted on September 4, 2021 by Laura

An article in the Burlington Free Press, Afghanistan veteran honored in Randolph after losing his battle with post-traumatic stress (Link), about young Cory Green, only 31, raises a lot of emotions. There is the utter sadness of his death, and feelings of gratefulness for the kindness of the Vermonters who showed their respect for him and his family.

Cory Green was transported to the cemetery in Randolph for burial with military honors.

Green’s caravan, which traveled along Interstate 89 from Colchester to Randolph, included a police escort as well as fellow veterans traveling on motorcycles and in buses. Firefighters lined the overpasses between Colchester and Burlington with trucks, flashing their red lights.

A small group also gathered on a bridge and waived flags in support. Heartbreaking.

In the sensitive article by Dan D’ Ambrosia, I learned about the Watson Institute of International and Public Affairs at Brown University. Their Costs of War Project released a report with devastating estimated suicide stats:

The study finds that at least four times as many active duty personnel and war veterans of post-9/11 conflicts have died of suicide than in combat, as an estimated 30,177 have died by suicide as compared with the 7,057 killed in post-9/11 war operations. 

Summary (Link)

Full text (Link)

VA 2019 National Veteran Suicide Prevention Annual
Report

Click to access 2020-National-Veteran-Suicide-Prevention-Annual-Report-11-2020-508.pdf

Given the lousy way the DoD handled the Afg. withdrawal, and 9/11 coming up soon, I’m worried about veterans of this, and all wars. My veteran Airman son, was at Dover, bringing the fallen home, during the Obama Administration. We talked about that sad event last week.

Waiting for the federal government to take care of people, or assets promptly–although sometimes they move fast when forced to–isn’t wise. Strong local communities are the best option for solving most problems.

Conflicts–we reap what we sow. My sense is that Americans are fed up with the “costs of war.” And with our endless domestic wars.

Peace, security, beauty, liberty, restfulness, and a refined culture of life is possible for our descendants. Maybe even for the oldies among us.

Laura (Guest author)

Posted in All about Veterans, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, Gulf War Issues, Inspirational Veterans, Military Madness, suicide, Uncategorized, VA Health Care, VA statistics | Tagged , , | 1 Comment

FORT FUMBLE, NEBRASKA–HELTER SKELTER

Posted on September 4, 2021 by asknod

Only in the corndog capital of the United States could you have a VA adjudicatory mishap of such epic proportions presented with a straight face. Nah. Just kidding. In this day and age, with the VA’s National Work Queue (NWQ), your decision is destined to be sent all over Hell’s half-acre before the final promulgation is complete and closed. No less than 20 VA “technicians” (insert eye roll here) will develop, search, research, approve for denial and finally decide your case. Some of them are even reputed to have IQs over 100. 

A large majority of  Vets  think they personally have the most dynamite Regional Office of all the 57 across our fruited plains. A lot of these folks will also say they get the most awesome medical care at their own VAMC and feel sorry for the chumps in Phoenix. Why, waiting for 4 months for an x ray to check for cancer is just a minor inconvenience when you opt out of Medicare B and go totally free to the VA. So what if they still take your temperature anally? I hear it’s more accurate than those newfangled digital things.

This is the VA saga of Andy-not to be confused with the more famous  Andy -aka Howard. Andy and his wife came to me via Hadit.com waaaay back in 2018 and asked why he was having such a hard time getting Special Monthly Compensation (SMC) for Aid and Attendance. Hey, this isn’t like Mardi Gras and the VA Krewe throwing out SMC necklaces. When you cross over into SMC land, the knives come out. I have a MS client who goes in to get infusions every two weeks. I get to see her medical notes sent over to the raters from the VAMC nurses. Deena (not her real name) has total loss of use of right upper and lower extremities. I’m trying to obtain R1 and have been as long as I’ve been fighting this one for Andy.  She often uses a “knee scooter” when her husband is walking while holding her up on the left. The RN decided she had arrived “ambulatory”-i.e., on her own two feet or on crutches. No mention of said knee scooter. No mention of the better half holding her up, either. I’ll bet you didn’t know but every time you go to see a VA doctor and he sends you up to the lab for a blood draw and a urinalysis, they automatically check your pee for 5 different drugs-including pot and disco biscuits. Spooky shit, huh? These guys are shopping for negative evidence 24/7 so be aware of that.

I don’t know what Andy did to piss off them boys and girls down In Houston but they do not like him and make no bones about it. He tried everything. He filed for each and every disease or injury that came down the pike. VA dutifully granted them at 0%. He circled back and filed for increases and gradually got them. When the COPD got so bad he was winded just trying to make it to the bathroom and went on oxygen, they gave him another 10%. Eventually, the lack of O² impaired his mind like Sleep Apnea does. All the drugs began to make him obese. Then the Diabetes Mellitus and the peripheral neuropathy began. He filed some more and got denied or low-balled some more and  on and on it went. He was rated at about 590% but could not get his foot in the door for a&a. Then he almost burned the house down. He left the sprinkler on for a week out back and almost flooded the basement.

Finally, Andy asked me to fix it. I began the process with what should have been a slam dunk filing. No dice. VA was adamant he was Boston Marathon material… or faking it. After the usual plea for reconsideration (which was decided at the Andrew M. Cuomo Memorial Regional Office in Buffaloed,  NY), I filed the 10182 and NOD’d it to the Board.

Fortunately, saner heads prevailed and the good judge granted on February 4, 2020. On the 25th, Houston wrote it up but, as usual, their SMC Ratings computer, which they insist is infallible as are all VA artifices, failed to pick up all the ancillary entitlements. After all the grief I had already received from these chuckleheads, I felt I could just send them a polite letter pointing out the overlooked bump under §3.350(f)(3) and (4). Bad idea. They sent it up to the Board and told them Mr. Andy was unhappy with the BVA grant of a&a and wanted more.

So, I refiled a 995 and asked for the bump locally. VA tossed it in the circular file. Again and again. So, what the hey. I had plenty of time left to file a new NOD at the BVA and have them fix it. On April 29 of this year, the BVA decided it was defective and did not have a timely denial below at the Samuel Houston Memorial Regional Office. That appeal went into the trashcan too. The reason was the decision to shitcan it occurred about a month past one year from the original VA adjudication implementing the a&a. Are you following this?

So, I armored up on July 17th and shotgunned a 526 and a 995 at them simultaneously with no legal brief asking for SMC (p) under subsection §3.350(f)(4) (the bump from L  to M). The reason for two was if you just send in the 526, they say you already have been denied for SMC M so you have to use the Supplemental claims form. Of course, if you just send in the 995, they say this is a new claim and say you used the wrong form. VA couldn’t decide which one to shitcan so Fort Lincoln took the 526 and Houston took the 995 (and shitcanned it). I got this back in VBMS almost immediately:

Redact 8.23.21 RD denial

It was pathetic. I’ve had VA “misconstrue” a lot of claims I’ve filed for on behalf of not only myself but my clients over the last decade or two. This one was absolutely over the top. The rejoinder was basically “Oh. You want SMC M? Okay, fine Andy. Suck on this lollipop. The VA examiner says you don’t have any of the below:

1) LOU of upper extremities; or,

2)LOU of lower extremities above the knees; or,

3)Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place; or,

4)Blindness in both eyes having only light perception; or,

5)Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance.

They didn’t mention permanently bedridden until they got to the Rating decision. It appeared this was going to be all she wrote short of an Ex Writ to the Court.

That’s when I got out the M 79 and began walking the HE into their TOC. I fired off an email to Acting Under Secretary Tom Murphy, the Coach who reviewed the file before the decision, the RVSR supervising the GS-10 VSR “author”, every Tom Dick and Harry who had even left a note in VBMS or touched it in Lincoln, cc:’d it to Denis “the Menace” McDonough, the Lincoln RO director and his Veterans Service Center Manager (VSCM) castigating them for their ignorance on the subject of SMC. Shoot. I might have even cc:’d Micky Mantle’s mom I was so pissed. I allowed as Mojo, Homer Simpson’s famous trained monkey might be able to do it correctly.

Silence ensued over the weekend and then the Lincoln Change Management Agent (CMA) contacted me and said I had created a shitstorm and the Raters were running around like a Chinese Fire Drill. Oops. That might be racist to bring in the Chinese. Sorry if I offended anyone. Nevertheless, the fire drill produced results. I was watching it in real time last Friday on VBMS TV and then… Bingo. At 1547 Hrs the initial rating decision, now revamped to comport with §3.350(f)(4), appeared in the documents queue. At 1659 Hrs the two signatures popped up in the file and the game was over. Or was it?

VA tried hard to appease the Grand Poohbahs back east and prove they weren’t descended from, or raised by, wolves. They took a very vaguely worded 4138 to construe Andy had actually been asking for a&a as early as February 12, 2018-almost six months before I refiled him for it. But by granting that earlier effective date, they opened up a whole new can of worms. He was now entitled to a half-step bump under §3.350(f)(3) but they neglected to use their trusty SMC computer to determine if he was entitled. Not that it would have prognosticated the L 1/2.  So, now I have to file a NOD and ask for 6 months of SMC L 1/2 worth $1,339.23. Idiot’s delight. These dickwits couldn’t find their asses with both hands or a methane detector while defecating. It’s a wonder they even get their underwear on facing the right direction in the morning. So here’s Act II.

Redacted CUE on SMC M & EED

redact 2nd sig. 8.27.2021

That’s the problem with litigating  SMC for your clients. You’re dealing with people who are allowed to procreate and make more idiots. Let us fervently pray their offspring do not find their way into VA employ. They might grow up to be like the guttersnipe in the video below…

Amen. Well, almost. You didn’t think I was going to rest on my laurels. No way, dude. I’m pissed and going for SMC R1 on the premise that his 100% for Major Neurocognitive disorder requires a&a in its own right. Right. Tally Ho! God sends the Right!

P.S. Have a safe, disease-free Happy Labor Day weekend.

Posted in 100% ratings, Aid and Attendance, All about Veterans, Appeals Modernization Act, BvA Decisions, Duty to Assist, Earlier Effective dates, Humor, SMC, Tips and Tricks, VA Agents, VA Motions for Reconsideration, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 3 Comments

PAWS for Veterans Therapy Act, H.R.1448 – Puppies Assisting Wounded Servicemembers for Veterans Therapy Act

Posted on August 29, 2021 by Laura

Arooo! President Biden signed this bill on 8/25/21 and it had 312 co-sponsors.

Summary (Link):

This bill implements a program and a policy related to service dog therapy for veterans. Specifically, the bill requires the Department of Veterans Affairs (VA) to implement a five-year pilot program to provide canine training to eligible veterans diagnosed with post-traumatic stress disorder as an element of a complementary and integrative health program. Eligible veterans are those who are enrolled in the VA health care system and have been recommended for participation by a qualified mental health care provider or clinical team.

The VA must seek to enter agreements containing specified elements with accredited nongovernmental entities that have demonstrated ability to provide canine training.

The Government Accountability Office must brief Congress and submit a report on the program.

The bill also authorizes the VA to provide service dogs to veterans with mental illnesses, regardless of whether they have a mobility impairment.

Two Stars and Stripes stories (Link & Link)

K9s for Warriors is one service provider. I love the fact that they rescue and train former shelter dogs or owner-surrendered pets:

“The caliber of K9s For Warriors Service Dogs is extremely high, and the procurement team spends a majority of their time communicating and traveling to shelters scouring for suitable program candidates.

The Florida-based procurement team currently travels between Florida, Georgia, and South Carolina, and the Texas team at the Petco Love K9 Center pulls dogs from local San Antonio shelters.”

Image source: K9s for Warriors. Note: They have K9 Job Apprentice opening in San Antonio.

The VA was not eager for this bill to pass; they have about 6 months to begin the five-year pilot.

Because it takes time to pair a veteran with a trained service dog, do share this positive news with anyone in your VISN that might have an interest–providers, veterans, their families and local media. Many lives will be saved if this pilot is successful.

Laura (Guest author)

Posted in Food for the soul, Food for thought, General Messages, Guest authors, Inspirational Veterans, Legislation, Medical News, PTSD, Service dogs, Uncategorized, VA Health Care, vA news | Tagged , , | 2 Comments

Covid-19 vaccines come in multi-dose vials

Posted on August 22, 2021 by Laura

Veterans and civilians remember seeing the multi-dose vials that sat on top of the jet injectors that delivered mass vaccinations into their arms. Or that were used with unclean syringes or needles.

Were there early indications that jet injectors could spread pathogens? Sure. One example: JAMA published a 1988 account of a nasty bacteria transmission, by jet injector, in a podiatry practice.

The CDC author wrote,

” A jet injector used to administer lidocaine was held between procedures in a mixture of the distilled water and a disinfectant as recommended by the manufacturer. Inoculation of patients with mycobacteria by the jet injector may have only occurred early in the day due to slow killing of the bacteria by the disinfectant. The outbreak emphasizes the pathogenicity of this water-associated organism and the need for high-level disinfection of jet injectors.

Outbreak of Mycobacterium chelonae infection associated with use of jet injectors, https://pubmed.ncbi.nlm.nih.gov/2362334/

Believe the science, brothers and sisters! Amen, amen?

Sure. Okay, then don’t suppress the results of experiments and studies whose results/conclusions the funders don’t like.

One can only resist reality for so long and Covid-19 is reviving safe injection issues. CDC knows that even with single-use disposable syringes, infection accidents are likely to occur during the Covid-era. The CDC is stepping up instructions of multi-dose vial hazards for providers who missed the class when they were in school.

https://www.cdc.gov/infectioncontrol/projectfirstline/resources/videos.html

The following excerpts are from recent CDC teaching materials: Click to access PFL-T6-SessionPlans-508.pdf

Sample Script
“One of the other key messages that we heard from Dr. Carlson is that
contaminated vaccines cannot be used. If a needle or syringe is reused or dirty
and goes into the vial, anything that’s on the needle or syringe will get into the
vial and contaminate the rest of the vaccine inside. If the vaccine is contaminated,
it can’t be used anymore, and it has to be thrown away. Why does this matter?”
(Pause for responses.)
“That’s right. If a multi-dose vial is contaminated by a used needle or syringe,
every patient who gets an injection from that vial after the contamination occurs
could get a disease like hepatitis or HIV. Some patients have even died from
hepatitis after getting a contaminated injection. If a contaminated vial is used,
public health authorities need to be notified right away. That’s because everyone
who got a dose from that vial has to be contacted and followed so that they
get the information about what happened and so they can be tested to find out
whether they got infected.

“Let’s review some of these actions. First, where should multi-dose vials be
prepared?” (Pause for responses. Trigger animation.) “That’s right. Always prepare
a multi-dose vial in a space that is clean and away from patients where you can
safely draw up the doses and prepare the vaccine. Never bring multi-dose vaccine
vials into patient care spaces, like a vaccination station where the patient is getting the shot or into a patient room.

“Remember that, before you touch any vials, clean your hands with alcohol-based
hand into the vial, especially the top area where or soap and water. This keeps the germs on your hands from getting into the vial you’re going to stick the needle in.”

Today, the CDC or VA has not, to my knowledge, done any tracking and testing for HIV, HCV or HBV based on the total lack of infection control for recruits who received dirty vaccinations in the past. The ability exists but political pressure around compensation, and other influences are much stronger than public health providers who have families to support.

by Laura (Guest author)

Posted in All about Veterans, Congressional HCV info, Corona pandemic, Food for thought, Future Veterans, General Messages, Guest authors, HBV, HCV Epidemiology, HCV Risks (documented), hepatitis, Jetgun BvA Decisions, Jetgun Claims evidence, Jetgun Manual, Legislation, medical injections, Medical News, research, Uncategorized, Vietnam Disease Issues | Tagged | 7 Comments

LZ GRAMBO-THE DOG DAYS OF SUMMER

Posted on August 22, 2021 by asknod

I reckon everyone knows nothing gives me greater pleasure than massaging Mother Earth and coaxing Her to grow fruits and vegetables for us. Well, there’s also torturing the VA on behalf of my Veterans to obtain that which is their due. I also get a big bang out of all the “Hints from Heloise”s across the fruited plains which pop up in my Google News Feed every day. Some suggestions are spot on like the 5-gallon bucket mouse trap with the roly-poly stick and the come-and-get-it cheese out over the “moat”. Ahh. Mouse waterboarding. Only in America. So, without further ado, let’s talk about the dog days of Summer. Sure, the shit is hitting the fan in Afstan but you can read about that somewhere else. 

First off, any good dog day story around here will invariably involve Pickles who is two. This summer, as she’s become more familiar with the pool, she’s taken to sitting half-submerged to stay cool in between ball throws. I’ve even seen her lie down completely on the tanning ledge until needed for retrieval duties. Such is my Labradog’s love of water. Our neighbor dog Jackson comes over the moment he hears the pool cover being retracted. That’s good. Dogs need play friends, too. Of course, any thoughts of camaraderie fly out the window when the ball comes out.

 

PickleWorld

Touch it and you die….

On the subject of fruit, Gaea has been berry berry good to us this summer. I’d attribute it to chemtrails  if I believed in them. They’ve been painting up the sky pretty regularly every day. That would be some kind of powerful fertilizer they’re spraying if it were true. It would also be landing in Montana given the prevailing winds if they spray it directly overhead. But then I have to ask myself- “When has the government ever given me anything besides a pain in the ass?” So my faith in aerial fertilizing is now shot. Besides, just for argument, if they were spraying mind control shit, seems everyone would be walking around in a Zombie-like state and chanting the same doxology like “Praise Trump Biden from whom all blessing flow.” I sure don’t hear anything like that. Fact is, all I hear is dissention on where America is heading-both pro and con. But let’s get back to real fruit-not the fruits (and nuts) currently indigenous to DC.

I had to cross-tie my peach trees to themselves to prevent the branches from calving off like icebergs this year. We averaged about 250 peaches per tree. Cupcake finally got involved in the production and read up on when to harvest. In the past she complained the fruit was stringy, granular and not overly sweet. I was accused of planting bogus trees with inferior fruit. Mea culpas are in order here. It was my fault. I was waiting too long to harvest. There’s absolutely nothing wrong with the peach varieties we grow-just the short circuit between the grower’s ears. This year was the to-die-for harvest. Below is one morning’s pickings. Multiply that every day times two weeks. Our neighbors began locking their doors and shuttering the blinds when we pulled up. They do that a lot when I show up with baseball bat-sized Zucchini, too.

One day’s harvest

 

Our Gravenstein apple tree is at one end of the orchard closest to the sun. It got toasted during heat week when we were hit with the 112º Sunocalypse-or “heat dome” as the weather service named it. It cooked one side of any apples directly exposed that afternoon. We lost quite a few. Fortunately for us, our horses are real troopers and volunteered to eat them despite the burns. Nevertheless, the tree still produced 9 five-gallon buckets of record monsters. We still have over 3 more buckets growing that are not quite ripe. We’ve never grown any this big. I’m not kidding you when I say many were as large as a softball.

Here’s a funny one. We saw a lot of these abnormalities in our fruit back in 2013  coincidentally the summer after the Fukushima Daiichi Nuclear disaster. Just for shits and grins, I wrote blogs about my strawberries and corn back in 2013 –

CHILDREN OF THE FUKUSHIMA CORN

https://asknod.org/2013/06/24/strawberries-with-downs-syndrome/

 

Sure, it was bullshit but I love a good joke. I’m an April Fool. What I was not aware of was the power of the Internet. Google Search and every other information engine dialed in on that reference to Fukushima and radioactive strawberries/corn and it caused a lot of consternation. Folks emailed me to ascertain they weren’t also in the path of the prevailing winds that led to my being bombarded by the radiation. Others wanted to know if I’d considered co-contamination with the chemtrails as well. The problem with that is our government want to keep us alive so we can keep paying taxes to buy their Perrier Jouet Champagne and caviar with Morel mushrooms on toast points. You never poison the well from which you drink. That’s Government 101 regardless of whether it’s Capitalism or Socialism.

The best part about this blog is those Internet Search Engines are going to glom on to this article and prove conclusively that lo, all these years Fukushima radiation is still roaming loose downwind and has now infiltrated Washington’s corn crops. Well, that or chemtrails. Take your pick. How about 5-10-10 and five-year-old composted horse manure? How about Cupcake planted the corn late and you always get some retards, err, physically-challenged ears in every crop. For the most part, they were exceptional.

Here’s another anomaly I think was the product of the Sunocalypse- a blood birthmark on a Gravenstein. Of course Fukushima could be the culprit if you’re into Mel Gibson conspiracy shit. Hell- how about Global Warming?  I’ve never seen anything like it. It ran from the stem all the way to the base. We ate it anyway.

Speaking of hints from Heloise, I saw a Google article about the proper way to prepare an ear of corn for consumption. The picture showed an ear exactly like the below. I took my trusty box cutter/knife and carefully sliced the lengths down one of my ears and across the base perfectly replicating the gal’s presentation.

Okay. I give up. If this is indeed how it’s going to be presented at the table for consumption, it must be a New Age vegetarian thing. If so, it’s going to need to be served with a side of about 6 feet of dental floss. We cook our corn naked Kansas style. Bring the water to a rolling boil. Insert corn for 3 minutes. Remove and eat. After 4 minutes the corn sugar begins to convert to cornstarch anyway. I don’t reckon there’s any sugar left after 10 minutes. Do yourself a favor and take a page from Monty Python’s Holy Grail– the counting of the Holy Corn shall be three minutes. Neither shall thou count two nor shalt thou count four. Three is the number of the counting and the number of the counting shall be three. Five is right out.

Now here’s a kicker. Who knew there were different colors of cauliflower? Well, not me pilgrim. Cupcake started growing weird shit this year due to my being so busy. Is this a hoot or what?

Purple Heart cauliflower

Cupcake with “Ol’ Yeller”

That pretty much wraps up the summer report. Fall will bring the plums, the artichokes, the Brussel sprouts and the Johnny-come-lately Liberty and Fuji apples. And, hopefully a return to the health of the Nation and the end of this infernal disease.  Be safe. Be fruitful and multiply. B. Good.

Posted in Corona pandemic, Corona virus, Food for the soul, Humor, Independent Living Program, KP Veterans, Pickles, VA Agents | Tagged , , , , , , , , , , , | 3 Comments

LRRP HUMOR–ON THE SUBJECT OF COLONOSCOPIES

Posted on August 18, 2021 by asknod

You may have read this one before by Dave Barry. It’s a newer update that breaks untrodden ground on the subject. Nevertheless, I can concur with his findings. Having lost about 95 centimeters of my small bowel over the course of five operations, I don’t think they need as long a scope for me-nor as much MoviPrep. I got away with not getting one for almost a decade by using the excuse that I’d been completely replumbed and I doubted cancer shows up that quickly. My LRRP client Ed, with a Silver Star sent me this. I discarded all his political observations on who might need one in Washington DC this morning because that isn’t germane to the discussion. Enjoy. 

Colonoscopy Journal:

I called my friend Andy Sable, a gastroenterologist, to make an appointment for a colonoscopy.

A few days later, in his office, Andy showed me a color diagram of the colon, a lengthy organ that appears to go all over the place, at one point passing briefly through Minneapolis.

Then Andy explained the colonoscopy procedure to me in a thorough, reassuring and patient manner.

I nodded thoughtfully, but I didn’t really hear anything he said, because my brain was shrieking, ‘HE’S GOING TO STICK A TUBE 17,000 FEET UP YOUR BEHIND!’

I left Andy’s office with some written instructions, and a prescription for a product called ‘MoviPrep,’ which comes in a box large enough to hold a microwave oven. I will discuss MoviPrep in detail later; for now suffice it to say that we must never allow it to fall into the hands of America’s enemies.

I spent the next several days productively sitting around being nervous.

Then, on the day before my colonoscopy, I began my preparation. In accordance with my instructions, I didn’t eat any solid food that day; all I had was chicken broth, which is basically water, only with less flavor.

Then, in the evening, I took the MoviPrep. You mix two packets of powder together in a one-litre plastic jug, then you fill it with lukewarm water. (For those unfamiliar with the metric system, a litre is about 32 gallons). Then you have to drink the whole jug. This takes about an hour, because MoviPrep tastes – and here I am being kind – like a mixture of goat spit and urinal cleanser, with just a hint of lemon.

The instructions for MoviPrep, clearly written by somebody with a great sense of humor, state that after you drink it, ‘a loose, watery bowel movement may result.’

This is kind of like saying that after you jump off your roof, you may experience contact with the ground.

MoviPrep is a nuclear laxative. I don’t want to be too graphic, here, but, have you ever seen a space-shuttle launch? This is pretty much the MoviPrep experience, with you as the shuttle. There are times when you wish the commode had a seat belt. You spend several hours pretty much confined to the bathroom, spurting violently.  You eliminate everything. And then, when you figure you must be totally empty, you have to drink another litre of MoviPrep, at which point, as far as I can tell, your bowels travel into the future and start eliminating food that you have not even eaten yet.

After an action-packed evening, I finally got to sleep.

The next morning my wife drove me to the clinic. I was very nervous. Not only was I worried about the procedure, but I had been experiencing occasional return bouts of MoviPrep spurtage. I was thinking, ‘What if I spurt on Andy?’ How do you apologize to a friend for something like that? Flowers would not be enough.

At the clinic I had to sign many forms acknowledging that I understood and totally agreed with whatever the heck the forms said. Then they led me to a room full of other colonoscopy people, where I went inside a little curtained space and took off my clothes and put on one of those hospital garments designed by sadist perverts, the kind that, when you put it on, makes you feel even more naked than when you are actually naked.

Then a nurse named Eddie put a little needle in a vein in my left hand. Ordinarily I would have fainted, but Eddie was very good, and I was already lying down. Eddie also told me that some people put vodka in their MoviPrep.

At first I was ticked off that I hadn’t thought of this, but then I pondered what would happen if you got yourself too tipsy to make it to the bathroom, so you were staggering around in full Fire Hose Mode. You would have no choice but to burn your house.

When everything was ready, Eddie wheeled me into the procedure room, where Andy was waiting with a nurse and an anesthesiologist. I did not see the 17,000-foot tube, but I knew Andy had it hidden around there somewhere. I was seriously nervous at this point.

Andy had me roll over on my left side, and the anesthesiologist began hooking something up to the needle in my hand.

There was music playing in the room, and I realized that the song was ‘Dancing Queen’ by ABBA. I remarked to Andy that, of all the songs that could be playing during this particular procedure, ‘Dancing Queen’ had to be the least appropriate.

‘You want me to turn it up?’ said Andy, from somewhere behind me…

‘Ha ha,’ I said. And then it was time, the moment I had been dreading for more than a decade. If you are squeamish, prepare yourself, because I am going to tell you, in explicit detail, exactly what it was like.

I have no idea. Really. I slept through it. One moment, ABBA was yelling ‘Dancing Queen, feel the beat of the tambourine,’ and the next moment, I was back in the other room, waking up in a very mellow mood.

Andy was looking down at me and asking me how I felt. I felt excellent. I felt even more excellent when Andy told me that It was all over, and that my colon had passed with flying colors. I have never been prouder of an internal organ.

On the subject of Colonoscopies…

Colonoscopies are no joke, but these comments during the exam were quite humorous. A physician claimed that the following are actual comments made by his patients (predominately male) while he was performing their colonoscopies:

Take it easy Doc. You’re boldly going where no man has gone before.

‘Find Amelia Earhart yet?’

‘Can you hear me NOW?’

‘Are we there yet? Are we there yet? Are we there yet?’

 ‘You know, in Arkansas, we’re now legally married.’

‘Any sign of the trapped miners, Chief?’

‘You put your left hand in, you take your left hand out…’

‘Hey! Now I know how a Muppet feels!’

‘If your hand doesn’t fit, you must quit!’

‘Hey Doc, let me know if you find my dignity.’

‘You used to be an executive at Enron, didn’t you?’

And the best one of all:

‘Could you write a note for my wife saying that my head is not up there?’

Posted in FACE HUMOR, Humor | Tagged , , , , , , , , , | 3 Comments

THE LIFE LOTTO–WHO WANTS TO BE IN WIKIPEDIA?

Posted on August 16, 2021 by asknod

History has an interesting habit of repeating itself. No matter how bizarre the event, be it the beginning or the end of a war, there will always be one-or in the instant case- two macabre facts that nobody wants to own. That may change in the ensuing days although we pray it doesn’t. I don’t have a morbid imagination but I remember trying to make sure I wasn’t ‘it’ during my two tours in sunny Southeast Asia.

Here, history and its inevitable finality reign supreme. The image that was seared into my brain back then was the immortal scene of an Air Am Huey grossly overloaded trying to pull pitch off the roof of the Air America Hostel several blocks down from the U.S. Embassy. Very few of you will remember the souls clinging to the skids who fell back on the roof. On that very same April 29, 1975, a mere 8 days before we would officially call in the dogs and piss on the fire of RVN, two Marines were struck and killed by a B 40 out at Tan Son Nhut. They will always be known as the the last servicemen to die for their country in Vietnam. Meet Corporal Charles McMahon Jr. and Lance Corporal Darwin Lee Judge. They share the unenviable perch in history of being tied for first place as the last to die-but at that point- for what, really? Another country’s Civil War?

Air Am Hostel 22 Gia Long Street 4/29/1975

Corporal William McMahon, Jr.

Lance Corporal Darwin L. Judge

It’s thus disturbing to me to see the same history being replayed out in Kabul yesterday. I was taught to pronounce it Ka-bool. Trust someone important to change it to Cobble. Sound like the same folks who came out with the recent revisions of the English language of ‘birth person’ and ‘chestfeeding’ to replace perfectly good existing terms. Of course, if  this will save even one gender-disphoriated person lacking lactatable mammary glands from suffering PTSD henceforth, then it was well worth it. Right?

Fast forward 44 years. Same Batshit war mentality. Different Bat Country full of Batshit-crazy prehistoric Stone Age Sand Ranchers. As it stands now, the last two to die, again, on the same day -February 8th, 2020 in this latest shitshow-were Sergeants 1st Class Javier J. Gutierrez and Antonio R. Rodriguez…

Sgt. 1st Class Javier J. Gutierrez

Sgt. 1C Antonio R. Rodriguez

As for the déjà vu moment of Chinooks landing on the roof of the U.S. Embassy, it  could not have been more a propos had it been a contrived photo op for the occasion. I’m sure this isn’t lost on any of my Vietnam brethren. It merely affirms the ages-old observation of George Santayana about being condemned to repeat history every 50 or so years in order to remember how stupid we are. In the instant case, it recurred in only 46 years. That still beats the 21-year difference between World War One and Two or the five years from WW II until Korea so we have that going for us.

As we don’t do politics here, I leave it to my readership to try to comprehend the enormity of how inept we appear to the rest of the world. Our English cousins across the pond showed far more aplomb at Dunkirk. We left the Montagnards behind. We left the Hmong behind. Now we leave the Pashtun interpreters and their families to the wrath of the taliban. It makes no difference in the end how we arrived at today. It makes no difference who is responsible or who will (or should) shoulder the blame. The tragedy is we have all been here before. We know better than to try to convert other countries into mirror images of ourselves and our politics. Everyone marches to the beat of a different drummer. This should have been a Grenada/Panama Canal Zone dry cleaners caper-in by ten and out by three.

Considering the likes of no less than Alexander the Great, the British (twice), the Russians and finally America that have broken our spears against these goat herders, it stands to reason we probably should have stood off at Angels 35 and carpet bombed them with CBUs, Willie Peter and Nape. Here, a mere 2,371 brave Americans were sacrificed on the altar of  political correctness. I suppose that’s a vast improvement over the 58,220 who bought the farm in ‘Nam. Gold Star mothers don’t see it that way. They no more wanted  their sons and daughters to be Wikipedia statistics in 1975 than they do now-and most certainly not the last ones this time around.

The downstream effect after the bad press, as we all know, will be the ungodly number of brand new disabled American Veterans we will have to take care of in the aftermath. I severely doubt the VA will be spending anywhere close to a trillion dollars on their needs. How many times must a cannon ball fly before they’re forever banned?

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

 

It is with great sorrow I write, on August 26, that more US servicemen were killed while guarding the Kabul airport. The actual number is uncertain but that is irrelevant.

Posted in All about Veterans, Future Veterans, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , | 5 Comments

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