76.4% of BVA decisions are wrong (and not in the Veterans favor, either!)

Nope.  I did not make this up.  This is Bart Stichman’s testimony to Congress who said it.  For those of you who dont know Bart Stichman,  he is the Executive Director of the NVLSP, and the author of much of the Veterans Benefit Manual.     (VBM)   You could look far and wide and you are unlikely to find anyone more knowledgeable of VA law than Mr. Stichman.   This VBM is not to be confused with the vA’s Dick and Jane book on Veterans Benefits.    Bart is the author of “the good VBM” not the Dick and Jane benefit manual published by the VA.

Here is the quote from Bart’s testimony to congress:

For more than a decade, the Court’s annual report card of the BVA’s performance has been remarkably consistent.  The 14 annual report cards issued over the last 14 years yields the following startling fact: of the 23,173 Board decisions that the Court individually assessed over that period (that is, from FY 1995 to FY 2008), the Court set aside a whopping 76.4% of them (that is, 17,698 individual Board decisions).  In each of these 17,698 cases, the Court set aside the Board decision and either remanded the claim to the Board for further proceedings or ordered the Board to award the benefits it had previously denied.  In the overwhelming majority of these 17,698 cases, the Court took this action because it concluded that the Board decision contained one or more specific legal errors that prejudiced the rights of the VA claimant to a proper decision.”   End of Bart Stichman quote

I note these 76% wrong decisions are NOT in the Veterans favor, because Veterans are highly unlikely to appeal a fully favorable decision!

The question that begs to be answered here is that if 76 percent of BVA decisions are wrong, what percent of RO decisions are wrong?    Would the number not be even higher than 76%, reminding you that Board Decisions have already been decided by the RO, and, in many cases.  also by a DRO who is supposed to be an experienced decision maker.

Huh?  Do you realize many of these “wrong decisions” that go to the BVA went through a DRO and a “regular” decision maker first?  So 3 wrongs make a right, right?  Wrong.

After the (wrong decision) was made by the rater, it is repeated by the DRO, and repeated again by the BVA.  Finally, at the CAVC level the error is “noticed”…and fixed, right?  Nope.  Its on to the hamster wheel, of course!

Again quoting Stichman:

“There are at least three aspects of the BVA’s and CAVC’s decision-making process that contribute to the Hamster Wheel phenomenon: (1) the high error rate that exists in BVA decision-making, which delays the decision-making process by requiring disabled veterans to appeal to the CAVC to correct these errors, which, in turn, leads to further VA proceedings on remand; (2) the policy adopted by the CAVC in 2001 in Best v. Principi, 15 Vet.App. 18, 19-20 (2001) and Mahl v. Principi, 15 Vet.App. 37 (2001); and (3) the CAVC’s reluctance to reverse erroneous findings of fact made by the Board of Veterans’ Appeals”   end of Stichman quote.

And the last question?  Since this testimony to Congress was in 2009, why hasn’t congress fixed the broken hamster wheel?

Nod’s note:

Joseph, as usual, has discovered a horrible consequence of vA jurisprudence. By not  making a decision on all the errors and just vacating with a remand to cure all the deficiencies, the Court allows the BVA to run each error through a new decision cycle like washing a shirt again and again. Result? A twenty year adjudication before we win. Ugly and unnecessary. The Court is asinine in this respect.

Posted in BvA Decisions, CAVC/COVA Decision, Guest authors, Veterans Law | Tagged , , , , , , , , | 4 Comments

ULUZ@VA.GOV

In an exciting development, vA today proudly unveiled their latest addition to Ebenefits. When accessing the site, you can now click on their link in the upper right hand corner and find out in advance what your decision will be on your claim. This exciting addition is described in detail by Undersecretary Allison Hickey in her latest Hickeygram as she affectionately calls them.

By clicking on uluz@va.gov, you can instantly ascertain all the denial verbiage they will be using against you. This will give you added time to formulate your defense when you file your NOD. It is hoped that vA will be able to have this up and running within 125 days. Undersecretary Hickey points out that the denials will be 98 percent correct no later than 2015. The roll out date was tentatively set for 1996 but anonymous sources tell us this timetable has been pushed forward numerous times due to the backlog.

vA strives for accuracy in all their denials and this tool is just one of many that were put forward by stakeholders at sit down, Meet and Greets across the country when trying to come up with a better, fairer denial process. VSOs from all the major organizations are excited about the new streamlined denial process. It is rumored this will definitely help their golf handicaps.

Veterans service officer Thomas Twoface of the Veterans Of Foreign Debacles (VFD) had this to say in prepared remarks:

” We are very excited about this new tool. vA for years has vacillated back and forth when making decisions on service connection. This will simplify the process for Veterans and take the uncertainty of a win or loss off the table. Veterans need to know as soon as possible what their chances of winning are to make important financial considerations such as bankruptcy or homelessness. This is just one more valuable resource in the process of reducing the interminable wait for a decision up or down. Hickey is showing her leadership in this important area and her prior experiences in the military stand her in good stead. We at VFD consider this to be an important milestone on the road to speedier denials. We support vA wholeheartedly in their implementation of uluz and look forward to helping ever-increasing numbers of Vets get what is coming to them.”

Some Veterans present at the press conference saw this as a lose-lose proposition but Mr. Twoface argues to the contrary that indeed it’s a win-win for all concerned. We’ll keep you posted.

Posted in Humor | Tagged , , , , | 2 Comments

HCV FROM EMG NEEDLES

My apologies to member Squidley for not getting this up on the board sooner. It is an important risk that was never before presented to us by him and one that bears examination.

As we all know, vA will have us believe that medical personnel stuck us with all manner of needles, jetguns, and other subcutaneous incursions with nary a risk one. On the other hand, were a Veteran to use his own syringe and needle to illegally inject drugs, it somehow became the focus of the etiology for his HCV to the exclusion of any other risk.

When doing a risk assessment, any engineering firm would look at all risks as to why a bridge fell down. They wouldn’t narrowly focus on whether the bridge workers were drinking beer on the job at lunchtime. In the same vein (no pun intended), the vA is taking a stand against Squidley over percutaneous piercing ( acupuncture, pierced ears, nipples, etc). No, Squidley is not one of those who has pierced everything that can be punctured. He was injured aboard ship off Japan and taken ashore in Yokosuka for an EMG test or two. Here we are thirty years later and Squidude has the bug-bad I might add.

EMG (Electromyocariogram) tests using reusable, ostensibly sterilized needles to test for muscle or nerve disorders and injuries involve this percutaneous piercing. The needles are inserted in various afflicted parts of the body and a small current is sent in to stimulate the nerves and measure the results. This is Squid’s contention. If the gentleman or lady who was tested before him with those reusable needles had HCV, the odds of him picking this up go through the roof, statistically speaking. That would be the way I see it anyway.

Squid sent me a lovely dissertation on the subject of EMG and after careful perusal, I find an interesting note. The article, published in the prestigious Seminars in Neurology, Volume 23, Number 3, dated 2003 says this on page 338:

“Platinum single fiber electrodes are sterilized by gas or autoclave employing the same methods used for surgical instruments. In addition, special precautions, including the use of disposable NCS electrodes, are taken with patients known to be infected with agents such as Hepatitis, B virus, Hepatitis C virus, Creutzfeldt-Jakob disease, and human immunodeficiency virus”.

Now, stay with me here. Travel back in the mental DeLorean time machine and think about the early eighties. The autoclave was the only sterilization procedure in use then. EMG needles were reused until they were dull. According to the vA, HCV can be transmitted by needles. Hepatitis C virus, Genotype 2a was indigenous almost exclusively to the Japanese Archipelago and Okinawa in the early eighties. An IMO would only be able to conclude based on this, that it is at least as likely as not that if Squidley had an EMG done at a civilian hospital in Tokyo (Hell, even in Yokosuka for that matter), the odds of contracting HCV are excellent.

Now, based on the Court’s Layno holding in 1995, the Squidster can opine on all manner of subjects dear to his heart in his lay testimony. One of the things he is qualified to discuss is where he was geographically when he had this test. If everyone around you is speaking Japanese, you can generally assume that is where you are. If they were sticking EMG needles into you, you would notice because it hurts. Monsieur Squid might notice this too. If he were wearing one of those fancy Seiko® Day/Date chronographs on his wrist, he might even have ascertained the year it occurred. In addition, he had these same tests done when he returned to the States at the famous Balboa NAS Hospital in San Diego before his discharge. Another opportunity for infection in a new art little understood.

With the modern inception (after 1992) of what we consider the modicum of sterile procedures, disposable needles for EMGs are the norm as we can see in cases of nefarious germs. Any medical professional who could come down on the side of less likely than more likely that an infection could occur via this path prior to the aforementioned 1992 epiphany is in denial mode. Squidley is about to see if justice is truly blind or if the vA is going to blow soap bubbles and swear he got it from an unclean toilet seat. There is also the untested theory of immaculate conception which I had not considered before this morning . What the hey? The Virgin Mary claimed it. Why can’t the vA?

Here’s the PDF on the subject. I hope this helps someone because, although Squidley is the first, I doubt he will be the last.

EMG_Smith_2003

Posted in Medical News, Nexus Information | Tagged , , , , , , , , , , , | 5 Comments

SAVE THE PLANET–STOP THE WANTON DESTRUCTION OF VEGETATION

Posted in Humor | Tagged , , , , | 1 Comment

POLAR WARMING

Member Bob sends us the unbearable piece of humor.

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ONCE UPON A TIME

In the Beginning there was nothing.

Eventually something developed…

Once upon a time long, long ago in the land of Nod, there evolved a warrior class like no other. Mind you, this was centuries before Adam and Eve started playing house over in the Eden Acres subdivision. They became known by their leader’s name of Weeber. People came from miles around to watch the magic boys and pay obeisance . In turn, the Weeber  felt obliged to protect them and gave them sanctuary in time of need. Wandering hordes were all the rage back then. The Weeber had much higher morals and gradually other warlike tribes began to emulate them. They developed a camaraderie like none other seen in its time and a system of rank that genuinely reflected their abilities-unlike later armies. Colonol, Major, and indeed General, were titles earned with scars and true grit. Men wore these titles proudly and rightfully so. They were giants among men. The strongest from neighboring tribes sought membership in this army.  The concept of REMFs and girlymen would not develop for several thousand more years.

In the off years between wars, the Weeber would engage in reenactments of prior, famous  military engagements for entertainment and to bring in some beer and smokes money. They became so good at this that they were often hired as extras for big Bollywood plays over in New Dehli which was the entertainment capital of the known world back then.  In fact,  New Dehli still is but more for Asian chick flicks now. This is where the term “A cast of thousands ” is thought to have originated.

Weebers were known to go out and hunt large animals with low-calibre weapons such as spears, bows and arrows in order to give their prey a fair chance. This created a lot of injured Weebers too, I don’t mind telling you. Their barbecues were all the rage and the subject of endless talk  for their lavishness. Some of their affairs were known to last for a week or more or until the meat went rotten.

About this time, an adjacent agrarian tribe in a neighboring land became wise beyond their years in the production of all things vegetable. God saw this and blessed them with the Miracle of Fermentation. And He saw that it was good. Due to their great wisdom, they became known to all as the Whyser Tribe. Being a rather simple folk, they called each other Bud. As in “Hey Bud. How they hanging (referring to each others’ grapes drying into raisins)”? The Whyser clan grew exponentially after God’s introduction of the Magic Yeast. It seems there was much affection between the opposite sexes. The Whyser became more diluted by marriage in later centuries but their fermenting prowess has been handed down to the likes of the Coors Tribe and the later immigrants called the Pabst. Many of the Orthodox Whyser settled in what is now the city of Milwaukee. They still tout themselves to this day as being the finest. Orthodox Whyser adhere to the practice of only using a kiss of the hops.

Eventually the Whyser formed a compact of peace and brotherly love forever with the Weeber. They realized they had much in common and began bringing some of their vegetables and fermented products to the barbecues. This was the beginning of Toga parties, tailhook conventions and many an unwanted or unexpected pregnancy. The Magic Yeast had the added effect of greatly increasing the Weebers’ numbers too. God saw this was good. He’d already told them to go forth and multiply and Lordy boy were they complying.

As  small hamlets became more interlaced, the small nation-states evolved and a patriotic fervor would develop with the urge to preserve a way of life. This required leaders with clear heads, not Weebers who were considered too uncouth, emotional and party animals.  The Weeber were called ever more frequently on a case by case basis to defend this lifestyle against outside forces who would rend it asunder. They charged on a per-battle basis for the most part and were scrupulously honest. Eventually a compact was arrived at between these nation states and the Weeber. Thus evolved the modern concept of a paid, standing Army. This gradual move away from mercenaries to a professional army became the model for all  eventually.

As Weeber personnel grew old, rotated out from injuries or retired, they were cared for by their loyal brethren. As their numbers grew, a compact with society developed and they were able to negotiate for these older and injured Weeber. They came to be called Veterans which is a very old Weeber term for “he who has borne the battle”.  Since they never amounted to much more than 8 % of the population and were prone to die rather young from their injuries, they got a pretty good shake. Not great, mind you, but enough to live a good life by.

The Weeber pronunciation gradually changed over centuries into Wayber and in the late eighteenth century evolved into the modern day Weber. In fact, a company that handed down the concept of barbecues for many centuries named their product after these fierce warriors. But I digress. That is a story for another day.

Over succeeding centuries many a nation state rose to prominence on the backs of its military. As they grew larger, almost all became lazy and started padding the payroll with their own relatives. This put an added strain on the relationship between them and the Weeber. Lots of social expenditures always do. Because they tended to short sheet the Weeber Veterans with an ever-smaller cut of the vegetables, meat and fermented adult beverages, said Veterans gradually became homeless and unable to fend for themselves. Their fellow brethren gradually forsook them because they were having their own battles trying to get better quality swords that held their edge and didn’t rust.  Since all weapons were now supplied by the leaders of the nation states, there was much animosity afoot about shoddy workmanship and serviceable weapons being in short supply.

As for the Veterans, things would gradually come to a head. Every time, in a bid to appease the Veterans and keep in the good graces of the Weeber warrior class, the governments, as they came to be known, would renew lavish promises to care for them. Promises were made and gifts were exchanged. Solemn vows were incanted and 125-day incense was burned 98% of the time. Nevertheless the social spending for all the lazy city folk would eventually erode the treasury and the Veterans would once again  find themselves holding the smelly end of the punji stick.. Much like the later treaties with the American Indians, the governments reneged on their promises. Many of these Nation states then fell due to the anger engendered by their actions. The Weeber would rise up and hold coup parties with the  civilian bozos as the guests of honor for a Texas-style necktie party. The Whyser were always enlisted for these enterprises and the barbecues would begin again sans the do-nothing cityfolk.

History tends to repeat itself as if no one reads about it. Fast forward to 1776 and a disaffected immigrant Weeber and Whyser populace who were mad as hell and not inclined to take it anymore.

Our Fourth of July celebration is a remembrance of this propensity of humans everywhere to rise up and throw off the yoke of oppression and taxation. Once again, 1776 bred the need for a new class of Weeber made up of a melting pot of many different tribes.  This was the beginning of our modern day military and of the inception of its marriage with its Veterans-and America.. We still celebrate with barbecues on devices called Weber® in their honor.

In fact, if you survey the civilian populace closely, you will see this desire to emulate the military (and the original Weeber) in some of their endeavours. Witness the advent of Colonel Sanders chicken, major corporations and general contractors to name a few. The list is endless.  Did you ever wonder about the meaning of  “Weebers wobble but they don’t fall down”? It’s a reference to the indomitable spirit of Weebers. Again, I digress.

On this auspicious occasion, the 236th anniversary of the  birth of America, I would like to wish all of you a happy and safe Fourth of July. Thank you past and present Veterans and Weebers for the fact I am speaking English and am entrusted with the right to keep and bear arms. Amen. Gentlemen, start your Weebers®.

Posted in All about Veterans, Humor | Tagged , , , , , | 2 Comments

6 Key issues at your C and P exam

Most Vets know  better than to miss a C and P exam, or even to show up late.   Missing an exam is often cited as a  “reason for denial”, as the vA makes the assumption you have abandoned your claim.   Showing up late shows the examiner disrespect, puts him in a bad mood, and does nothing to promote your cause.   If you did miss the exam, and had a great reason, by all means contact the vA and try to get it rescheduled.  If you take the following 6 suggestions, the outcome will likely improve:

1.  Remember the 5 P’s, they will serve you well.  Proper Preperation Prevents Poor Performance.  Also remember this:  “If caught in a lie, you will be denied”.   Dont take a chance on getting caught, but instead be on the look out for when the VA lies to you, like Mr. Cushmanwhere the VA tried to alter the Veterans records in order to deny him.

2.  Know what you are going to say when the C and P exam doc says, “How are you?”   While many of us automatically respond, “fine”, to this question, you may have to do lots of backpedaling if you do this.    If you were thrown in jail last week for domestic violence due to PTSD, then dont tell him you are “fine” today.  You are not in the military any more, and your C and P exam is not the time to “suck it up” and pretend everything is ok.   To reiterate, do not lie or exaggerate as that will bite you later.  Instead, simply tell your doc about your worst day, as opposed to the day you felt fine.

It isnt the examiners fault if you failed to tell him about your “incidents” and instead told him you were “fine”. He reports to the VA there is nothing wrong with you and you get denied.

3.  Ask your examiners qualifications. While the examiner may not tell you, make sure you know the correct spelling of his/her full name and you can likely find out later.

4.  Bring your medical records with you.  Offer them to the examiner.   An incomplete or inaccurate exam is a time burner.

5.  Remember what the examiner stated, and write it down if necessary.  Review your C and P exam at your earliest convienence, and compare it to what he said, noting any discrepancies.

6.  There are obviously at least two possible results from your C and P exam:  Favorable or Unfavorable.

A favorable exam would be one where:

a) where the doc provided a nexus,

b) gave his medical rationale as to why he thinks your condition is related to military service

c) the doc had reviewed your records and so stated in his exam,

d) the doc was well qualified

e) the exam was accurate, complete (answering all the questions the VA had),   had all the necessary testing done, and the exam report was “Veteran friendly”.

If your C and P exam was  unfavorable, that is, it was lacking in one or more of the above, then you can first try to point this out to the doc, and ask him to change it.   However, since you probably wont be getting any benefits based on a highly unfavorable C and P exam, the sooner you get an IMO/IME to refute this exam, the sooner you can expect your benefits.    Waiting until AFTER a denial to refute an unfavorable C and P exam, will likely add another 4-5 years to your claim.

As a last rejoinder, Nod adds that a VA Medical Examiner is going to make the final decision regardless of what the C&P doctor states. This is because the C&P doc will not have the whole military file (and indeed the whole C-File) showing any possible UCMJ violations which were determined to be  not LOD (line of Duty). His pronouncement will focus only on what he can see medically and the possible age or etiology of it.

Posted in C&P exams, Guest authors, Tips and Tricks | Tagged , , , , , , , , | 4 Comments

IT’S A BERRY THING–YOU WOULDN’T UNDERSTAND

After the strawberry fiasco, you would think I’d learned my lesson. Not. My wife’s father, who passed in 2010, left me a legacy in raspberries. Just when the strawberries finally ceased production, I thought I’d get a reprieve. While puttering around out back yesterday, what to my horror appeared? At least these are easier to pick. Last, but not least will be the blueberries in the midst of their high season.. There will be no surcease until the blackberries are done at the end of August.

Many claim the raspberry as the king of berries. I think the strawberries are tastier with perhaps the blueberries running a close second. The raspberry jam is king in my book.

All you heppers should take note. Blueberries are chock full of resveratrol (like red wine) which is an excellent source of anti-oxidents. It makes your liver berry, berry happy.

Posted in Food for the soul, HCV Health | Tagged , , , , | 2 Comments

FLIGHT HAZARD

I suppose I’ll have to notify the FAA and inform them of a temporary hazard to air navigation for the summer. My tomato plants, which are safely ensconced in their own waterproof shelter this summer are threatening to become unruly and grow out of their confines.

Posted in Food for the soul | Tagged , , , , | 1 Comment

UPDATE TO SLEEPLESS IN PUEBLO

Member Randy sends us this update on his vigorous pursuit of homeless Vet knowledge in Pueblo from last week. To be honest, I was taken aback that there might be 120 Vets sleeping without a roof over their heads there. This is Pueblo. Gee, let’s interpolate these results with LA or San Diego. Spooky, huh?

Here’s the sanitized email interchange:

This is what I have found out so far.

1)I received your email response to my questions but never heard back from the management of the program. May I please request information once again? Thank you

From: Ada Clark <adaclark@pueblo.us>
To: “Anne (anne@posadapueblo.org)” <anne@posadapueblo.org>
Cc: “randy
Sent: Thursday, June 28, 2012 8:19 AM
Subject: FW: Housing for homeless Vets
Anne,
Please see below.
Ada Rivera Clark
Director
City of Pueblo
Dept. of Housing and Citizen Services
2631 E. 4 St.
Pueblo, CO.  81001
From: Anne Stattelman <stattelman@yahoo.com>
To: Ada Clark <adaclark@pueblo.us>; “Anne (anne@posadapueblo.org)” <anne@posadapueblo.org>
Cc: “randy_
Sent: Thursday, June 28, 2012 9:20 AM
Subject: Re: Housing for homeless Vets
Randy,
  Pueblo doesn’t have an exact count of homeless veterans.   In looking at our current HMIS numbers–we have 60 veterans in our program today. There are more that are out on the river and in camps.  A good estimate might be 120.    Pueblo has 116 vouchers through VASH and those vouchers really are meeting the need for those Veterans who want housing.   Another 16 units for Veterans are being rehabbed.  You can find more information about the homeless in Pueblo on our website.  I hope this answers your questions from Posada’s realm.   Posada won’t take ownership of the units on Hudson until this fall.
Anne
Anne Stattelman
Director
Posada
225 Colorado
Pueblo, Colorado 81004
From: randy nesbitt <randy 
To: Anne Stattelman <stattelman@yahoo.com>
Sent: Sunday, July 1, 2012 1:23 PM
Subject: Re: Housing for homeless Vets
I appreciate the information. I would hope that the Veteran population being homeless decides to take advantage  of the housing being made available. Are thesse units dormitory or single units? Thank you for helping oout our homeless Vets.
From: Anne Stattelman <stattelman@yahoo.com>
To: randy nesbitt <randy
Cc: Kim Bowman <kimbowman315@yahoo.com>; Ada Clark <adaclark@pueblo.us>
Sent: Sunday, July 1, 2012 1:48 PM
Subject: Re: Housing for homeless Vets
Randy–these units are all single units. Thank you, anne

And there you have it pilgrims. I need to refine my search on Posada in Vermont. Ignore any other posts to this effect.

Posted in All about Veterans, HOMELESS VETERANS | Tagged , , , , | 1 Comment