Military Sexual Trauma

Posted on July 30, 2012 by Laura

ASKNOD forwarded a recent article from another member to me for comment.   The article, by Jamie Goldberg, is entitled Military sexual assault victims’ PTSD claims are neglected, a House panel told. 

After doing some research, I learned that there is an epidemic of rape and sexual assault taking place in every branch of military service.  Few predators are punished.  And to add insult to injury, victims have been labeled with “personality disorders,” terminated from the military and billed to repay their sign-up bonuses.

Groups like the Service Women’s Action Network are doing their part to help victims but men are also victims of military sexual trauma (MST).

A documentary called The Invisible War is raising awareness about these crimes.   Thousands of  indecent and violent assaults are bad enough but the callous treatment of victims by their superiors makes the official DOD position of zero tolerance for MST ring hollow.

Hundreds of cases reach the BVA each year (search term “rape”);  you will find them very painful to read.

How is this permissible in institutions pledged to protect human civil rights and freedoms?  It’s hard not to adopt a dystopian view of the future when reading about these violent crimes.  Shedding light on wrongdoing helps our country.  As Anne Frank said,

“How wonderful it is that nobody need wait a single moment before starting to improve the world.”

Resources:

DOD: http://www.sapr.mil/

Civilian resource: http://www.rainn.org/

 

Posted in All about Veterans, MST, PTSD | Tagged , , , , , , , , | Leave a comment

Smile: Big Brother is watching you

Posted on July 28, 2012 by joeaveragevet

Many of us have heard of “Candid Camera”, where they play practical jokes on people, and then, with their permission, the video tape is aired on TV.

Well, the VA also has their “Candid Cameras”.   I wonder WHAT they are using them for?

And, it sounds like THIS candid camera, is not the  VA’s only one, either because we have learned over and over, if it happens in one Regional Office (or VAMC) it is probably happening in many more.

This is a new one, however.  First the VA Admits to the “covert camera“, then denies it was installed without the family’s knowledge.    Usually, the VA is just the opposite.  They first “deny”, then, later, when confronted with irrefutable evidence, they admit to it, as in shreddergate 1.

Once again this reeks of the VA’s lack of accountability, with a capital “A”.   Isnt it time the VA be responsible to “SOMEONE” other than their own VAOIG?

P.S. I have to admit this is a strange one. This post simply disappeared back into draft mode after I published it this morning. There are several comments attached so I will attempt to reconstruct those as well. Perhaps vA isn’t enchanted with our news efforts.

Posted in Medical News, vA news | Tagged , , , , | 3 Comments

MEET YOUR NEW FRIENDS AT THE VETERANS SERVICE CENTER

Posted on July 27, 2012 by asknod

I love it when government puts catchy, happy phrases or names to things in hopes a new coat of paint will hide the rust. This is pretty much what happened at VAROs across the country in the late 90s. In order to get in touch with their inner self, they decided to become more accessible to Vets. Taking a page from the Goodyear Tire company, they came up with Veterans Service Centers (VSC). They still haven’t changed the stationary so you’ll  still see VARO #346 to describe the Seattle Center.

Time was they used to have two sections. One was for all the mundane stuff like insurance, vA loans, burial benefits etc. and the other was for the serious compensations game. With the advent of the VSC, all this was rolled into one game. And of course if you change the name of the castle, everyone has to get a new moniker. Out went the Adjudications Officer and in came the “VSC Manager”. The two former Section Chiefs became one and his new appellation became “Coach”. Unit chiefs, much like the Section chiefs, smacked of racism towards Native Americans so they, too, were renamed “Team Leaders”. In order to keep it from sounding like the University of Pennsylvania Football team roster, they did include some job titles that actually resemble what the fellows do. Hence we are graced with:

–Rating Veterans Service Representative(RVSR)

–Senior Veterans Service Representative (Sr, VSR)

–Veterans Service Representative (VSR)

–Veterans Claims Assistant (VCA)

–File/Program Clerk

These are you new friends. Let’s get to know them. When you are going to get the shaft, its always nice to know the cast of characters arrayed against you. The fact that they now have happy names in no way ensures your claim will fare better.

A brief history. When they rearranged the furniture in 1998, they adopted a team approach. You kicked your claim to them and they took a knee in the endzone and out to the 20 it came. Everyone busily assembled parts and pieces without talking to each other, and when all was said and done, a decision was produced rife with errors. It took them about 4 years to see the problem. vA has now moved on to a new version called the Claims Process Improvement (CPI) version. Same pig. New lipstick. This is the Detroit version where your claim travels down the assembly line with each of the “team” adding parts to it.  The mere fact that a bright red quarter panel gets welded onto a blue car is immaterial if it fits the model. All the seats don’t have to match as long as they are the correct ones for that model. When it rolls off the line into the denial notification stage, nobody comments on the obvious disparity of the unit. That’s not their job.

So, let’s meet the six teams who are doing these CPIs and find what the problem is. In this new version no single team “owns” your claim. Each one performs a function and then they are done with it. If an error occurs early on, there is no self-check machinery that kicks it back as defective. The error moves forward and is incorporated into the finished product because no one views the claim as a whole. The term “very convenient ” comes to mind but remember I will not entertain the word conspiracy on this web site. I may think it but I do not voice it. That’s your subjective judgement and I don’t want to color you thinking processes with my beliefs.

The six teams are:

1) The Triage Team

2) The Pre-Determination Team

3) The Rating Team

4) The Post-Determination Team

5) The Appeals Team

6) the Public Contact Team

Team #1 does exactly what it implies. Your claim arrives and the Triage dudes begin with a huddle. New claim= new folder. If you’re terminally ill, you go to the Rule 900 line and get served first. Rule 900 treatment only insures they may accomplish it before you die (the claim-not your appeal). If you’re the President’s son/daughter or a close relative, you will also get the top drawer treatment. A Purple Nurple or a CMOH is good for a Starbucks coffee next door but won’t advance anything unless a Congressman bitches and the media catches wind of it.

Team #2 is where a majority of the errors occur. Remember that this has been fed into the computer now and is being dissected into it’s component parts. What is it you want? Are you eligible? Do you qualify? Were you there? Do you really have this injury/disease or is it  a fig newton of your imagination? Can they misinterpret what it is you want and thus deny it on other grounds? Now, who would you expect to be on the Pre-D team? Dick Tracy and Sherlock Holmes come to mind but you are going to be at the mercy of GS-7s and 8s. This may be why there are so many errors. The most important part of your claim-the actual decision on what is needed to prove it- is compromised by poor training and lack of experience. In vAspeak this is called “Goodtogo,bro”. In English it’s “Does anyone here know how to do this?”

Team #3 is the backfield. This is where the quarterback, his halfbacks and the rest of the wide receivers hang out. They huddle and analyze all the Pre-D stuff. As I said, due to the poor legal/medical acumen of the Pre-Ds, the Ratings game is going to be at their mercy. This is where the red door gets installed on the blue car. Implicit trust in a system, be it a team of assemblers or a computer, leads to some interesting results. We see many of them and we always wonder “What were they smoking?” No one will notice the dichotomy of an error if everything leading to it was done according to Hoyle. Thus, blind adherence to the M-21 Procedures Manual will inevitably provoke glaring mistakes that no one sees. Witness the Macklem decision or Sellers. Being a “team” production, no single person views it in context with its component parts. “I don’t do the doors” is  the operable mantra here. The flip side is “I do doors but the manual says install this door so I did”.

Team #4 implements what the ratings team decides. Thus if you are determined to have had your feet in red clay in 1968 and have DM2, you get the AO presumptive. The Post-Determination Team kicks in and analyzes the SMRs, the post-SMRs and anything involving medical. They then assign the proper percentage and the effective date. This is virtually always incorrect based on the belief that you will be appealing the lowball % they assign. Why give you all the apples on the first try? They make you work for them usually. The Post-Ds do a lot of other functions like competency, dependents, pensions, etc. but we are focusing on compensation issues here.

Team #5 is Appeals. They do a lot of the legal footwork including SOCs, SSOCs, DRO hearing scheduling, etc. They’re also the bozos who sit on your appeal for about a year before sending it to DC. Most Vets don’t understand this. There are so many claims in the system that they have to have a lot of big in-baskets to stack them in. Slowing the system down and calling it “processing” allows them to pace the files through. If the files were all packed up and sent to DC as soon as they were completed and certified with the Form 8, 810 Vermont Ave. NW would sink below the pavement with the weight of all the paper. There simply is no room for it all there. The repair order is to to store it at the RO and delay transmittal by using the ploy of “It hasn’t been properly certified yet and we cannot transmit it until that is accomplished.” Have you ever wondered why it takes a year for them to take a NOD and generate a SOC from it when the SOC says exactly what the denial decision says? If they just pushed “print” on those SOCs as soon as they got the NOD, the place would be overwhelmed in a week with old growth paper and F-9s.

Team #6 is the Contacts Team. This is the headquarters of the Dog and Pony Show. Any Congressional Interest queries go here. Any hot potatoes from the media land on this desk. All the IRIS inquiries come here. Cold call walk-ins off the street are met here. Excuses are generated here on any subject needing an excuse. This is where they send the new-hire FNGs. They are taught obfuscation and passive aggressiveness in this office. This is usually the first stop in the training and brainwashing of many a vA employee. Instruction in vAspeak is instilled with lots of positive reinforcement. Rudeness 101 is taught via instructional videos on work-study days. Very little of importance is generated here. It’s a cool job if you’re a slacker.

So that’s it in a nutshell. Six layers of bureaucracy ensconced in one Federal building we pay for. Six different facets of a process flawed on its face. A compendium of confusion created to prevent Veterans from collecting on their Nation’s promise. I got a migraine from writing this.

VA

WE WILL DECIDE NO CLAIM

BEFORE ITS TIME

Time is subjective, too.

Posted in vARO Decisions, Veterans Law | Tagged , , , , , , , , , , | 2 Comments

UNDERSTANDING THE FEMALE DEMERIT SYSTEM

Posted on July 27, 2012 by asknod

In our continuing series on the care and feeding of the female psyche, we come across many cutting edge technologies for assessing our progress out of our cave man past and into the modern era. Due to testosterone poisoning, we are actually condemned to making the same host of errors over and over. Nevertheless we strive to escape our stereotyped existence.

For those of you who are truly challenged, member Cal has sent me a new tool to help those incorrigible few who seem compelled to making the same mistakes over and over. If this helps even one of you fellow Vets, then it will have been time well-spent typing this up.

Female Demerit System

In the world of romance, one single rule applies:

*        Make Cupcake happy.

*        Do something she likes and you get points.

*        Do something she dislikes and points are subtracted.

*        You don’t get any points for doing something she expects.

*        Sorry, that’s the way the game is played.

Here is a guide to the point system:

SIMPLE DUTIES

*      You make the bed (+1)

*      You make the bed, but forget the decorative pillow (0)

*      You throw the bedspread over rumpled sheets (-1)

*      You go out to buy her what she wants (+5) in the rain (+8)

*      But also return with Beer (-5)

*      You check out a suspicious noise at night (+1)

*      You check out a suspicious noise, and it is nothing (0)

*      You check out a suspicious noise and it is something (+5)

*      You pummel it damaging your favorite Big Bertha driver (+10)

*      It’s her pet (-20)

SOCIAL ENGAGEMENTS

*      You stay by her side the entire party (0)

*      You stay by her side for a while, then leave to chat with an

old school friend (-2)

*      Named Tina (-10)

*      Tina is a dancer (-20)

*      Tina has silicone implants (-80)

HER BIRTHDAY

*        You take her out to dinner (+2)

*        You take her out to dinner and it’s not a sports bar (+3)

*        Okay, it’s a sports bar (-2)

*        And it’s all-you-can-eat night (-3)

*        It’s a sports bar, it’s all-you-can-eat night, and your

face is painted the colors of your favorite team (-10)

A NIGHT OUT

*        You take her to a movie (+1)

*        You take her to a movie she likes (+3)

*        You take her to a chick flick you hate (+6)

*        You cry at the chick flick and pretend to

hide it from her (+20)

*        You take her to a movie you like (-2)

*        It’s called ‘Death Cop’ (-3)

*        You lied and said it was a foreign film about orphans (-15)

YOUR PHYSIQUE

*        You develop a noticeable potbelly (-15)

*        You develop a noticeable potbelly and exercise to get rid

of it (+10)

*        You develop a noticeable potbelly and resort to baggy jeans

and baggy Hawaiian shirts (-30)

*        You say, “It doesn’t matter, you have one too.” (-8000)

THE BIG QUESTION

*        She asks, “Do I look fat?” (-5) (Yes, you lose points no

matter what)

*        You hesitate in responding (-10)

*        You reply, “Where?” (-35)

*        Any other response (-20)

COMMUNICATION

*        When she wants to talk about a problem, you listen,

displaying a concerned expression (0)

*        You listen, for over 30 minutes (+50)

*        You listen for more than 30 minutes without looking at the

TV (+500)

*        She realizes this is because you have fallen asleep (-4000)

While this is partial list, newer installments to cover other contingencies will be forthcoming as they are developed or recognized.

Posted in Humor | Tagged , , , | 5 Comments

VAOIG DOES LITTLEROCK

Posted on July 27, 2012 by asknod

As expected, the OIG review of the Little Rock Arkansas VARO didn’t fare any better than others sampled this past year. A sixty percent error rate on TDIU and a 22 percent one on some of the most difficult claims illustrates vA still doesn’t know what it is they were hired to do. Fortunately this will all be cleared up in 2015 when they just deny everything and eliminate error as we know it.

Sadly, the rush to appease Congress will result in another hernia in the vA adjudication process. This bulge is predicted at the BvA level when all these newly denied claims start arriving on appeal in 2013-16. As most know, vA has not increased the number of Veterans Law Judges appreciably over the years to keep up with the onslaught. What they have done is grant provisional authority to some of the munchkins and allow them to play dress-up Judge for a day on some of the more mundane rulings that were never in the running for controversy.

How the excuse will be formulated and sold to the Veterans and the American public is still up in the air. The ‘We didn’t see it coming” excuse is wearing thin even now as we speak. Since the BvA and the RO system is all part and parcel of the same DvA, it will be hard on the one hand to say they couldn’t foresee the glut of denied claims at the ROs metastasizing into a glut of appeals at the BvA.

It’s becoming more and more apparent that Veterans are actually taking the vA up on their promise to aid those who bore the battle and their dependents. It is also axiomatic that when unjustly denied, these same souls are not going quietly into the night like we did in the 70s when we discovered how hollow the promise was. Veterans today are empowered and are not impressed with smoke and mirrors. In fact, these new Veterans are in this for more than a vA home loan and a burial flag. No more can vA get away with giving you a new place to lay your head for eternity and calling it good to go.

Today’s Veterans are becoming a chore and a bore for vA. In past wars we filed for several claims-not the 7-15 ailments the new breed demands remuneration for. Simply ginning up the denial mill and cranking out the “Dear John” letters isn’t dissuading them from filing appeals in record numbers. Where once ten NODs would eventually result in one appeal at the BvA, this number is rising at a fast and furious pace. As Rome catches fire,  Nero continues to observe with nonchalance and an air of indifference. The culture of “We’ll deal with it when it gets here” is everywhere in sight with nary a plan for the impending catastrophe in the making. Sound familiar? It should. This has been the modus operandi since the sixties.

As hidebound as vA is about this, one thing is certain. When the tsunami of claims appeals finally inundates Vermont Avenue NW, everyone there will look up from  their desks and collective gasp “What’s this? Did anyone see it building? What will we do? Will this impact our bonuses? Will the vA hire my brother-in-law? Where will we put all the extra desks?”

As short-sighted as we are about our government and a propensity to disremember history, it strikes me that the Vets are not going to give the BvA a by on this. We have 9 judges authorized up at the Court now. They are the future recipients of the next lump in the python when this leaves the BvA. If POTUS sees fit to give them the ninth judge. they’ll still be underwater for decades trying to dispense with the backlog. Kicking the can down the road on the National Debt didn’t work any better than doing it with Social Security. What makes them think the vA’s impending backlog at the next two levels is no less a disaster in the making? A reckoning is coming on this even if myopic thinking fails to envision it. Sadly, once again Veterans will be left holding the bag and told to be patient.

 

Been there. Done that. Thanks for the flag, the loan, the memories and the haven of eternal rest. Now, about the compensation…

Posted in Gulf War Issues, VA BACKLOG, vA news | Tagged , , , , , | 1 Comment

USPS 3817/IRIS UPDATE

Posted on July 26, 2012 by asknod

God I love playing with the vA. It’s like talking to an ADD-afflicted twelve year old. They leave themselves open to it. Witness here that I have asked for a”Motion for Revision” of a determination to reduce my scarring rating from 10% to 0% without any examination. First of all, in order to reduce the rating, they are required to follow certain protocols before summarily reducing it. One of the big ones is to announce it will happen in six months if I do nothing about it. They violated that one right out of the gate.

Witness here also how vA attempts to change the subject and send me on a wild goose chase either up to the BvA or  back to the RO for an “increase” on an existing rating. Apparently they believe they do not have an apparatus to revise prior decisions that were in error. We call this CUE or a Motion to Revise. In any case, this is a vain attempt to derail the process and ignore the lost filing. Thus my reference to ADD. Since they have no explanation for why they don’t have my filing, they present a host of other options except for the one I request. Interesting, isn’t it? vA calls this “construing what it is the claimant wants or is asking for”.

 

 Discussion Thread
 Response via Email Via Email (Department of Veterans Affairs) 07/26/2012 09:53 AM
Dear Mr. NOD:

This is in response to your inquiry to the Department of Veterans Affairs (VA) dated July 25, 2012.

Thank you for your reply.

We are forwarding your inquiry to the Seattle Regional Office for assistance and to check if the documentation you mailed on October 10, 2011, was received. Once we receive a reply to our request, we will contact you via this inquiry system and provide you with an update.

We apologize we are unable to provide you with an immediate answer to your question, and appreciate your patience as we research this matter.

VA Claim and Appeal Procedures

Mr. NOD, you have stated you filed a Motion for Revision for the decision on your porphyria rating. VA records indicate the appeal (the Notice of Disagreement) was received on October 9, 2008, and the Statement of the Case (SOC) was mailed to you on March 26, 2010. The next step in the appeals process (which would have been included with the SOC) is for the Veteran to file a VA Form 9, Appeal to the Board of Veterans Affairs (BVA), if he disagrees with the decision made and stated in the SOC. This must be done within 60 days of the SOC.

You have stated you mailed your Motion for Revision to VA on October 10, 2011. VA procedures (for the filing of claims and appeals) are to either file a VA Form 9 within the 60-day time frame stated above, which would allow the appeal to be advanced to the BVA, or to reopen the claim at the regional office if outside the 60-day period. VA does not have a Motion for Revision option. 

VA does have a VA Form 4597, which is Your Rights to Appeal our Decision, and is located at the following web site: http://www.va.gov/vaforms/va/pdf/VA4597.pdf This form is used by the Veteran if he receives a decision on his appeal by the BVA and is not satisfied with the Board’s decision on any or all of the issues allowed, denied, or dismissed. The Veteran then has the following options (using the above form), which are listed in no particular order of importance:

-Appeal to the United States Court of Appeals for Veterans Claims (Court)
-File with the Board a motion for reconsideration of this decision
-File with the Board a motion to vacate this decision
-File with the Board a motion for revision of this decision based on clear and unmistakable error.

You may choose to also: reopen your claim at the local VA office by submitting new and material evidence.

Please note: the regional offices are currently responding to a large volume of requests for assistance through our inquiry system, and are doing their best to answer these as quickly as possible. As each Veteran’s concerns are as important as the next, the regional offices respond to our requests generally in the order of receipt. It may be awhile before we receive communication from the regional office; however, we will contact you through this inquiry as soon as we do.

Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below.

Sincerely yours,

Donovan W. Thompson
National IRIS Response Center Manager
dlh

 

Here is my rather droll set of instructions for them to follow in case they have misplaced the M 21 1MR. A cite to 38 CFR is added in case they accidentally or inadvertently deleted that portion from their M 21.

Dear Sirs,

Since I failed to respond to the March 29th, 2010 rating decision due to my being in the Seattle VAMC after two surgeries, I was unable to perfect my appeal. The VBA has chosen not to grant me equitable tolling to file the Form 9 within a period of time suitable to my medical situation. This matter is on appeal to the Court of Appeals for Veterans claims. What isn’t on appeal is my right to challenge the Seattle Regional Office’s reduction of my Porphyria rating under Diagnostic Code 7815 from 10% to 0% (noncompensable). As the Seattle Regional Office is the Agency of Original Jurisdiction (AOJ), they are the appropriate legal entity to petition for a Motion For Revision based on clear and unmistakable error. Since this facet of my claim was not appealed to the Board Of Veterans Appeals, they do not have jurisdiction over it. The Seattle Regional Office must legally determine this error in the first instance because an appeal is not ripe yet.

To correct your statement, I sent my Motion for Revision based on CUE to the Seattle VARO on October 11th, 2011-not the 10th as is stated above. The Seattle RO mail room should have received it on the 13th of October, 2011 or thereabouts. Since I have a certificate of mailing from the USPS, the Presumption of Regularity attaches to my mailing and VA is legally assumed to have received it whether it actually did or did not. Since this is a Motion for Revision based on CUE, it is not time sensitive for a date of claim determination.

Please allow me to clarify this if you are still confused. This is not a new claim. This is not a request to reopen a claim. This is not a request for an increase of a rating. This is a motion to revise an unappealed decision whose time to appeal has expired. The VBA granted me a rating of 10% for scarring related to service-connected Porphyria Cutanea Tarda on October 1, 2008. The DRO review reduced this rating March 29th, 2010 to 0%. The VA cannot reduce this rating without a proper notification process and an opportunity to respond. As the time allowed to respond has expired, the only legal recourse I have is to file a Motion for Revision based on clear and unmistakable error contesting the reduction of my award. I am doing so. The VBA must prove that they were justified in this action. Please reinstate my Motion for Revision based on clear and unmistakable error and adjudicate it forewith. If you cannot find my claims submission I would be happy to supply you with another copy. I wish to preserve my October 11th, 2011 submission date in order to see this adjudicated sooner rather than later. I am aware of the backlog and do not feel that I should have to suffer a longer wait due to the inability of the Veterans Administration to properly associate my claims motion with my claims folder and act on it in a timely manner.

As I am sure the VA is more than aware, in an adversarial filing to revise an incorrect decision based on clear and unmistakable error, there can be no introduction of new and material evidence. The revision must be based on the evidence in the file at the time the decision was promulgated. Your communication states ” VA does not have a Motion for Revision option”. I refer you to 38 CFR  §3.105(a) and (e) for information that will illuminate you on VA regulations concerning this important facet of legal jurisprudence. Absent a finding that my scarring due to Porphyria is not greater than 5% but less than 20%, the decision is clearly erroneous and must be reversed. The onus of responsibility to refute this lies with the VA and not me. VA made this finding and it must prove that this decision was in error. A rating for phlebotomies (DC 7704) does not contemplate scarring. Conversely, a rating for scarring (DC 7815) does not comprehend phlebotomies. As they are two disparate disease processes, avoidance of pyramiding under 38 CFR §4.14 is not for consideration. Thus, the award of both ratings does not conflict with VA regulations.

I wonder what they will come up with next. “Sir,  since the scarring was due to alien abduction, that is beyond the purview of vA’s ability to remunerate. Nor was it in the line of duty. Thank you very much for your service to America. If there’s anything else we can do to blow you off, please do not hesitate to contact us. ” signed Donovan and the Gang.

Posted in SHREDDERGATE | Tagged , , , , , | 2 Comments

PS FORM 3817 TO THE RESCUE

Posted on July 25, 2012 by asknod

After waiting patiently for nigh on eight months waiting for acknowledgement of my filing of CUE for the reduction of my 10% rating on PCT, I took IRIS in hand and sent in a query. Here’s what I got back:

 Discussion Thread
 Response via Email Via Email (Department of Veterans Affairs) 07/24/2012 01:31 PM
Dear Mr.This is in response to your inquiry to the Department of Veterans Affairs (VA) dated July 16, 2012.We are grateful for your service to our country.

We apologize you have not received a response from your submission to VA made in October 2011.

VA records indicate a Statement of the Case was sent to you on March 26, 2010, in regard to your appeal for an increased rating for porphyria cutanea tarda associated with hepatitis C. Please note: this appeal was closed on June 1, 2010, as we did not receive a response from you (VA Form 9, Appeal to the Board of Veterans Appeals) within the 60 day time frame allowed for a response.

Claim for Increase

Please note: You are able to file a claim for increase several different ways. You can contact a representative via telephone at the number provided below or you can submit a written request to the regional office on VA Form 21-4138, Statement in Support of Claim which can be downloaded from this web link: http://www.vba.va.gov/pubs/forms/VBA-21-4138-ARE.pdf. A copy of this form has been attached to this reply for your convenience. You may then mail or fax this form to your VA regional office of jurisdiction. You may also use our online application system, VONAPP, to file a claim for increase. Please see: http://vabenefits.vba.va.gov/vonapp/main.asp.

Mr. , we can also initiate a claim on your behalf via this inquiry system. If you would like to file a claim for increase for this medical condition, please respond to this inquiry, and we will forward your information to the regional office for processing. The date of your inquiry will be used as the date of the claim, for retroactive payment purposes, if the benefit sought is granted.

We recommend you submit any evidence you may have to support your claim for consideration. Please include your name and claim number on each page of documentation, so as to ensure it is properly matched to your claims file. Please find the address and fax number for your regional office below.

Once the processing of your claim begins, you will be notified via U.S. mail, to advise if any additional information is needed to support the claim. You will also be notified if the regional office determines a VA exam is required to evaluate your conditions.

Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below.

Sincerely yours,

Donovan W. Thompson
National IRIS Response Center Manager
dlh

Enclosure: VA Form 21-4138

This is what I sent back:

In reply to this inquiry, I have located my USPS Form 3817 showing a Proof of Mailing to your Regional Office on October 11th, 2011 for a Motion for Revision of my March 29th, 2010 DRO decision. In that decision, the DVA VARO reduced my rating for Porphyria from DC 7815 –10% to 0%. This rating was for scars. The scars have not gone away. Please check with the VARO mail room and see where the Motion for Revision ended up. I have not filed for an increase. I have not filed for anything other than a Motion for Revision (Clear and Unmistakable Error) of one thing–the reduction of my rating for DC 7815 Porphyria from 10% to 0%. This is not pyramiding of ratings. If you have no copy of this filing, please so advise and I will send you new copies as well as my Proof Of Mailing from the Vaughn, Washington Office of the United States Postal Service at 3:45:06 PM on October 11th, 2011. I also have the actual cash register receipt if you require proof beyond the actual Form 3817. 

This should be entertaining to see. I’m trying to envision the looks when they realize just because I didn’t use the green card that they couldn’t send this to the circular file and thence to the shredder room. Ruh-oh Rorge!  I guess I can now join the ranks of the “shredded”. Of course they’ll miraculously find it after I send in the proof. It’s probably in someone else’s file. Relax. Proof of the perfidy of who you are dealing with.

USPS FORM 3817 Proof of Mailing

Here’s the October filing in case anyone wants to see how its done without a 21-4138:

Dept. of Veterans Affairs

Moving Party —-NOD

October 10th,  2011

 

 

CUE MOTION RE  MARCH 29TH, 2010 DRO REVIEW

 

Dear Sirs,

In going over my records, I observe the Regional Office ratings procedures incorporated into 38 CFR §§ 4.14, 4.20 and 4.118 DC 7815 were misinterpreted.  The DRO review of March 29th, 2010 reduced my primary rating for Porphyria Cutanea Tarda (Diagnostic Code 7815) rated at 10%. In its stead, the Review Officer substituted Diagnostic Code 7704 at 40% to comprehend the phlebotomies I receive monthly.

Two regulations are salient here with respect to this situation. 38 CFR

§ 4.14 clearly states that no rating shall be duplicative of another or overlap in symptomatology. However it does not rule out rating a condition under two different diagnostic codes if they are dissimilar manifestations and have no commonality.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

My 10% rating for PCT fell under 38 CFR § 4.118 DC 7815 Porphyria Cutanea Tarda for bullous pemphigoids and the scarring of the distal portions of my hands and forearms in addition to scars due to mechanical trauma associated with PCT (exposed areas). This constitutes five or more percent of the exposed portions of the skin. This warrants 10% as documented by my QTC Compensation and Pension exam of July 2008 and my award granted October 3nd, 2008. I reprint DC 7815 here:

7815 Bullous disorders (including pemphigus vulgaris, pemphigus foliaceous, bullous pemphigoid, dermatitis herpetiformis, epidermolysis bullosa acquisita, benign chronic familial pemphigus (Hailey-Hailey), and porphyria cutanea tarda):

At least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period

———–10%

The rating decision dated October 3rd, 2008 erroneously stated the following:

“While the condition is currently in remission and primarily only affects your hands, we are assigning this evaluation based on your intermittent need for phlebotomies.”

I would disagree with the examiner. My disease is active from April to October every year. My need for phlebotomies is currently once a month to reduce my hematocrit to 37%. It is currently 44% as of today’s phlebotomy (October 10th, 2011). A detailed dermatological exam will reveal extensive scarring on the distal portions of the forearms as well as the hands and mechanical trauma scars on the anterior aspect of both as well.  There is no provision for phlebotomies- intermittent or otherwise-anywhere to be found in Diagnostic Code 7815. This is clear and unmistakable error and provoked an outcome determinative error-to wit, attempting to rate the phlebotomies under DC 7815.

My NOD, dated October 8th, 2008 clearly pointed out a higher rating was in order for this as I receive regular phlebotomies and have almost continuously since 1992. The only diagnostic code referring to phlebotomies is DC 7704 Polycythemia Vera. It contemplates 40% for this condition. As such, it falls under §4.20 (analogous ratings). I reprint 38 CFR § 4.20 here:

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.

In no way, shape or form are there any overlapping conditions or manifestations of bullous pemphigoids (scarring) with phlebotomies. The two medical situations represent two entirely different concepts. Scarring is a static condition, whereas phlebotomies are an ongoing monthly medical procedure to remove excess blood and the iron therein. This provokes anemia. Because DC 7815 does not contemplate this procedure, DC 7704 must be used by analogy. This in no way constitutes pyramiding. Therefore the reduction of the rating for DC 7815 from 10% to 0% was unlawful and clearly and unmistakably erroneous.

Based on this, an outcome determinative error resulted in reducing my rating for scars from 10% to 0% where 10% is warranted by law and was indeed awarded lawfully on October 3rd, 2008. I believe 38 CFR §3.105(a) covers this contingency under clear and unmistakable error:

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply.

I respectively petition VA to restore the rating of 10% for my scarring  effective February 23rd, 2007 immediately based on clear and unmistakable error committed on the March 29th, 2010 Decision Review. If it comes to pass that my Substantive Appeal currently before the BVA grants me an earlier effective date of March 31, 1994, I would ask that the effective date for this rating comply with the 1994 decision. If this is unclear, let me reiterate it. My ratings for PCT, secondary to Hepatitis C (DC 7354) should reflect DC 7815 at 10% and DC 7704 at 40% respectively and should commence on March 31, 1994 if, and only if, the BVA Appeal grants that date as the effective date of my claim.

I certify that the above is true and correct to the best of my knowledge and belief.

Sincerely,   Noodle Dude
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SHREDDERGATE III–THE LAWSUIT

Posted on July 25, 2012 by asknod

Hard on the heels of JAVet’s last post I found this from Shawn in my mailbox. Don’t you people ever sleep? I find it interesting that vA could think, even for the most brief moment, that they could possibly tamper with our C-files and not expect discovery. Do they honestly take us for uneducated boobs with no common sense?

Veterans Today is an interesting web site which I subscribe to. I find it has the same perspectives we do here. To wit, the vA is not your friend. They are adversarial in the most milk and honey way possible.

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Words worth remembering: FDA public hearing on jet-guns (8/9/05)

Posted on July 25, 2012 by Laura

Revisit with me the picture Dr. Martin Friede (WHO) painted seven long years ago concerning jet-gun devices (emphasis mine):

CHAIRMAN EDMISTON: You represent sort of the pragmatic perspective here, Dr. Friede. You’re out there in the field. If industry met that benchmark of less than 10 picoliters, would that give you a sense of assurance that we’re moving in the right direction, especially if we evaluate the risk versus benefit component.

DR. FRIEDE: Okay. Let’s just imagine the situation. We have a device, again this famous device X, and it’s actually transmitting 5 picoliters per injection. That’s less than 10. And we know that we’re in a room with 50 percent chronic carriers, and they’re all looking very yellow. And we all have to stand up and we have to inject the person standing next to us and then inject ourselves.

How many people here are going to do that, especially if there was another device that was undetectable using the most sensitive assay, absolutely undetectable?
So for me putting a number and saying five or less than ten, this is not relevant. It must be undetectable using the most sensitive assays that we have.

Because if you can detect blood on it, then there is a risk. That risk might be, as Dr. Kane mentioned, you know I presented the worst case scenario and we should also be looking at the best case scenario. But we are going to have a recommendation to people to use a device. And if we know that that device, we say oh yes, use it, it does transmit blood but not a lot. Don’t worry about it. I’m not comfortable with that. I think we have to say there is no detectable —

[He’s interrupted.] Continue reading →

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Baltimore VA Medical Center, 168 patients, and Kwiatkowski?

Posted on July 25, 2012 by Laura

David Kwiatkowski, the man who is accused of infecting 30 patients with his strain of HCV at Exeter Hospital (NH), worked at the Baltimore VA Medical Center from May 2008 to November 2008, according a Boston.com article and the VA.   The Baltimore VA is notifying 168 patients that they might have been exposed to HCV from him, according to a VA press release. 

Kwiatkowski worked in hospitals in other states as well:  Kansas, Arizona, Georgia, New York and Michigan.  He even worked at John Hopkins  Hospital (MD).  He is known to have had HCV since “at least June, 2010,” according to the Boston.com article.

A lot more patients are going to be getting free HCV testing soon.  For example, Hays Medical Center in Kansas is sending notifications to 460 patients, according to Seacoastonline.com.   We should keep an eye on the Baltimore VA Medical Center’s press releases.  It’s good that they are being pro-active so far.

Update:  One patient tested with a similar strain.  (LINK)

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