FED. CIRCUS-TAYLOR v. DENIS THE MENACE–WHAT IT MEANS

Posted on July 7, 2021 by asknod

Boy howdy won’t it be fun to get more respect when you go up to the Big House (625 Native Americana Ave. NW) now? For decades- since 1989- we’ve been treated like the retarded aunt who lives upstairs in the spare bedroom. Face it. Veterans (both officers and enlisted) are considered somewhere above whaleshit and below respectable when they get to the higher echelons of VA jurisprudence. We’re considered Wallmarket® shoppers who live in run down trailer parks and fake falls at the local Piggly Wiggly Mart™. Seriously, our credibility is always called into question. Our motives are suspect and the only respect we get is from our fellow citizens. Rodney Dangerfield didn’t hold a candle to our tales of woe.

So imagine our surprise when Judges Newman, O’Malley and Wallach blew a hole in jurisprudence and held all these years-nay decades- the Court has had the power to grant Equitable Estoppel to Veterans and has eschewed  same. That’s a gross legal error that has been perpetuated by these jokers since 1989. Let me enunciate what all you Defenders of America have been entitled to lo these many years. But first, since I know there are a lot of nonlawyers out there who aren’t up to speed on all the Latin, let me tell you what you just won behind door number 3 in Vetspeak.

Taylor v McDonough-Eq. Estoppel

From the Law.com legal dictionary, I reprint in haec verba (preposition. Latin for “in these words,” which refers to stating the exact language of an agreement in a complaint or other pleading):

equitable estoppel

n. where a court will not grant a judgment or other legal relief to a party who has not acted fairly; for example, by having made false representations or concealing material facts from the other party. This illustrates the legal maxim: “he who seeks equity, must do equity.” Example: Larry Landlord rents space to Dora Dressmaker in his shopping center but falsely tells her a Sears store will be a tenant and will draw customers to the project. He does not tell her a new freeway is going to divert traffic from the center. When she fails to pay her rent due to lack of business, Landlord sues her for breach of lease. Dressmaker may claim he is equitably estopped.

See also: clean hands doctrine  estoppel 

Now, for years, the Court has always ruled they are not a “Court of Equity” -i.e., they did not have the power to amend an obvious wrong. Their judicial authority as a Title I court allowed them to rule up or down based solely on case or controversy. Veterans seeking  “equity” (and boy howdy has that word ever been bandied about recently), in VAspeak is a reference to 38 USC §503 wherein the VA Secretary can be petitioned for redress when you, the Vet, have been screwed out of your benefits for decades and finally get only a small, rump settlement. This is called petitioning for Equitable Relief and never to be confused with Equitable Estoppel.  It isn’t a claim and you can’t appeal a denial up to the BVA and the Court if the VASEC declines to pay out. Your chances of getting Eq. relief are the same as Powerball lottery odds.

Now how this plays out up at Saint Meg’s Fun House is simple in spite of the convoluted wording. When Secretary Denis “the Menace” McDonough and his merry band of OGC troglodytes show up to discredit you after you appeal your Texas Necktie party at the BVA , if they have committed unseemly acts of lying, ignoring the evidence or misconstruing what you want, the Court can legally hold that Denis cheated and they cannot in good conscience affirm an unholy, fusterclucked BVA decision written by a lawdog VLJ who graduated dead-last in his law school class.

In VA jurisprudence, we are a protected class of citizens. We’re unique and because we have borne the battle, we get special legal treatment that average folks don’t. Equitable Estoppel, as a tool to right a wrong, is pretty heady stuff. Considering that 74% of cases that come before the CAVC are reversed, vacated or set aside (and all remanded to be fixed below), this becomes what we used to call up on the Plain of Jars, in a country that rhymes with mouse, an extremely target-rich environment.

Sadly, the Court became infested in the last few years with some old JAGs and their ilk who consider us untermenschen. Their brand of UCMJ justice demands we not benefit financially and any who seek justice are undoubtedly charter members of the Slip-on-the-floor Club at Piggly Wiggly. It will be interesting to inventory those who are willing to grant us this new legal standard and those who are not. I’m guessing the fracture line is  Bartley, Pietsch, Greenberg and Allen being extremely amenable and Meredith, Laurer, Toth, Falvey and Jacquith loath to employ it under any circumstances. I pray I’m wrong. Judge Coral Wong Pietsch was at first unduly influenced by the Court’s “conservatives”  when she was anointed. Fortunately, she came to her senses quickly and became far more liberal in her dispensations of law. 

Which brings us to an interesting phone call; two actually. Bruce R. Taylor, of Taylor v. McDonough fame, called me Friday morning after the Exposed Vet radio show and wanted to know why I gave all the attaboys to Ken Carpenter and none to his swordbearer, Mark B. Jones, Esq. of Sandpoint Idaho. Truth be told, Mr. Jones’ name didn’t appear on the brief at the Fed. Circus. Mr. Jones is not admitted to the bar there. Ken is. When the Court panel of Judges Falvey, Meredith and Greenberg (Greenberg dissenting) affirmed the BVA decision to deny Mr. Taylor -who goes not by Bruce but by the patronym of his middle name of Robert (Bob).

Since Bob was so agitated about my lack of respect for Mr. Jones’ legal machinations, I gave him (Mark Jones) a call to find out how this all came down. Turns out Mark and Bob are old friends. Mark used to be a cop and chase the bad guys. Bob had tracking dogs so he and Mark were constantly out in the field chasing escaped prisoners or wanted felons-when they weren’t out in the field hunting or fishing together. Mark decided he was on the wrong side of the fence and went to college, matriculated to law school and became an attorney. Succeed he did, yessss.

So, when old Bob got the inevitable shaft from Denis the Menace, he naturally turned to Mark to defend him. Now Mark, as most all of us, knew the Court has never entertained proffering Equitable anything to Vets, so he didn’t bother couching his brief on that facet and instead went for the tried-and-true Phil Cushman due process violation argument. Judge Greenberg chided him at the oral brief on whether he thought  Eq. Estoppel might be a suitable remedy as relief. How in Sam Hill do you argue for something that isn’t on the menu? Why even waste your breath?

Ken Carpenter entered the picture when Bob arrived at the CAVC. He approached Mark and said “Hey, if you get bushwhacked, call me. I’ll take it up to the Fed Circus for you.” Ken, likewise, didn’t pursue the Eq. estoppel angle for the same reason Mark didn’t.  I’m all for novel concepts of VA justice and frequently try to reach for some things that legally appear unattainable. When you don’t have a J.D. after your name, you don’t know what you can’t do. I had a Vet who readily admitted he snorted the White Lady in ’88 but claimed the jetguns and gonorrhea were the cause of his Hep C in 1970. His appeal was dead on arrival but I argued in person in front of VLJ Matt Blackwelder that it was chronologically impossible to reach Stage IV cirrhosis with ascites in anything less than 40-50 years. 1988 to his diagnosis in 2012 would equal only 24 years. We won but I was highly doubtful that I was the silver-tongued devil who could pull it off.

Last, but not least, I received some comments on this “who should get the credit” game from a concerned reader. Her professed belief was that Judge Greenberg-not Ken or Mark- should get the credit for the win because he, in spite of being in the minority in his dissent, had insisted Eq. Estoppel was a tool available to the Court to right this obvious wrong. Well, ”not exactly’ as they say down at the rental car place. The problem with this misplaced accolade is that Judge Greenberg is not accredited by the VA and is not a practitioner. He’s the Judge. Duh? You can’t look in the NOVA directory and say Whoo doggies. That Greenberg-he’s the guy I want for my law dog. Actually, Mark Jones isn’t in the NOVA directory either. He was just good friends with  Bob. Bob would never have been lucky enough to knock on Mr. Carpenter’s door and obtain representation at the outset back in 2007. The confluence of events that led Mr. Carpenter to the Fed Circus was nebulous at best. So yes, in a roundabout fashion, Ken Carpenter did win this for Bob-not Judge Greenberg. It’s safe to say Greenberg put the bug in Wallach’s, O’Malley’s and Newman’s ear but nothing more. As the commenter stated, the Feds went out of their way to entertain sua sponte (another of those Latin hamburgers meaning they gave him a win via Eq. estoppel even though ol’ Kenny didn’t specifically beg for estoppel).

The win does have purse strings. Eq. Estoppel is only available to otherwise entitled Vets who have been deprived via a misreading of the clear meaning of a statute or regulation. How the evidence was evaluated is still not going to be a reason for this benefit.

Granted, the Feds were the angels who reversed decades of improper jurisprudence and enunciated the proper interpretation of the relief available to the Court. Ken didn’t argue this at oral as I mentioned. He labored under the same misunderstanding as Mark did- that  seeking Eq. estoppel was a pipedream and about as likely as getting hit by lightning in your basement or getting all the right numbers on a $500 million lottery ticket.

To me, it’s immaterial who the chicken dinner winner is. It also remains to be seen if Denis the Menace will allow this to pass like a painful kidney stone and move on or go up to the Supreme Court seeking certiorari. The obvious winners are us. We’ve just been given one more tool with which to put the thumb of justice on our side of the scales. The part that sticks in my craw is that it should have been available to us all these aeons and is only now being granted. It’s like finding out that Santa Claus is your second biological parent (or co-parent).  Think how many of us lost because of the perfidy of past VASECs and their toadies. Nah. That’s too depressing.

And that’s all I’m going to say about that.

P.S. About that country that rhymed with mouse. My Non-Disclosure Agreement, like Mr. Taylor’s, expired last fall on October 2, 2020 after fifty years. Unlike him, I didn’t get a letter from Air America saying Ollie Ollie In Come Free!. Bottom left, kneeling, you will find me at 19 years old. Here’s a few of the old Project 404 gang. I often wonder what became of all these folks. We made Terry and the Pirates look like rank amateurs.

Posted in CAFC Rulings, CAVC ruling, Exposed Veteran Radio Show, Humor, Tips and Tricks, VA Attorneys, Veterans Law | Tagged , , , , , , , , , , , | 5 Comments

MARRIAGE HUMOR

Posted on July 6, 2021 by asknod

A Prince’s Fairy Tale

Once upon a time, a Prince asked for the hand of a beautiful Princess.

“Will you marry me?”

The Princess immediately said, “No!”

The Prince decided to stay single and rode motorcycles, dated thin, long-legged, full-breasted women, hunted and fished, raced cars, went to titty bars, dated ladies half his age, drank whisky, beer, and Captain Morgan, never heard any bitching, never paid child support or alimony, dated cheerleaders, kept his house and guns, ate spam, potato chips and beans, blew enormous farts, never got cheated on while he was at work, and had lots of dogs that slept with him in his bed.

All his friends and family thought he was too cool for school; he had tons of money in the bank, left the toilet seat up, and lived happily ever after.

 

The End

Posted in Humor | Tagged | 10 Comments

7/4/2021–WHY NOT JUST BRING BACK JETGUNS?

Posted on July 5, 2021 by asknod

This morning, the glorious 245th birthday of America, I discovered the possibility/probability that the US Military intends to make the C19 vaccine mandatory rather than optional. Well, folks. To me that’s changing the rules after you volunteer to serve your country. Imagine having a protected pension, and, after putting in your 20(+) years of diligent labor as a beat cop, discover that a year or two post-retirement the guarantor of your pension says “We’re whacking your monthly retirement down from $1,700/mo. to $1,500/mo. because we misestimated how much we  were  supposed to withhold. Our bad! Sorry.”

Now, let’s illustrate this in a military context. Let’s say the Military and their medical Voodoo specialists were cognizant of how a needleless, compression-injected inoculation device operated (jetgun, Pedojet, Munji, etc.). Anyone remotely schooled in antiseptic principles would note the nozzle was going to touch as many as 600 individuals in one day before being disassembled and autoclaved. Imagine french kissing six hundred fellow Basic Trainees. The chances of transmission of disease were an acceptable risk…

The unprotected handling during production or the skin coming into contact during application with any of the seven “Rainbow” herbicides (Agents Pink, Purple, Green, White, Blue, Orange and Super Orange) was know as early as 1957 to cause Porphyria Cutanea Tarda (PCT) and chloracne. Indeed, an Agent Orange horror story alleged a directive to employees at the Monsanto Plant in Verona, Missouri (Hoffman-Taff Chemicals, Inc.) in mid-summer 1957 advised workers wear noncorrosive rubber gloves when handling the various ingredients and  required their mandatory use at any time after being combined and packaged in 50 gallon barrels. The workers complained because the safety gear (which now included the gloves) was simply too hot to wear in summer. The company relented and made it optional again- but only during the summer/fall months, mind you. The chances of contamination with cancer-causing chemicals was an acceptable risk…

If you’ve ever been in a hot spray zone, you know where not to stand after five hours or so. The monkeys start falling down out of trees and they hurt. Ditto the snakes.

Back at the sunset of the Century (1998), we went through something similar. See the below:

https://www.cidrap.umn.edu/news-perspective/2002/11/gao-military-anthrax-shots-caused-many-reactions-prompted-some-pilots-quit

The military was hell-bent on sticking everyone with the Anthrax vaccine thinking this was waaaay better than having to saddle up with gas masks in a future war. What the hey. If they threw VX at us, we could launch Anthrax right back with impunity knowing our troops were immune. The manufacturer, Michigan Biologic Products Institute (MBPI), had done a study and concluded the six-shot vaccine series only gave 30% of the test subjects adverse reactions. Jez, wait a minute. 30%? Shut the front door, Elinor.  The chances of an adverse reaction to a minimum of 30% of any recipients was an acceptable risk…

“The survey indicated that 85% of troops who received an anthrax shot had an adverse reaction, a rate far higher than the 30% claimed by the manufacturer in 2000, when the survey was conducted. Sixteen percent of the survey respondents had either left the military or changed their status, at least in part because of the vaccination program.”

Now, in the Brave new 21st Millenia, with the sure knowledge of science and a rather comprehensive survey of military post-vaccine medical mishaps, there is a marked 23% increase in Myocarditis. Mayhap there is something amiss with making it mandatory to receive the vaccine. Think of this like a gigantic revolver containing 100 rounds-23 of them containing deadly bullets. You’re getting paid diddly in the US Army as an E 2 and Major Pat Sajak has decided it’s now mandatory for you to spin that revolver like it was the Wheel of Fortune© and pray you don’t land on Deep Vein Thrombosis. I’m sorry. When you are in the military, you don’t get to be a stakeholder in your medical posture. If you object, you’ll eventually be awarded the Big Chicken Dinner for standing by your morals. It’s far different than being a salaried hospital nurse in Houston who refuses it. S/he  has the option to vote with her/his feet and seek employment elsewhere. So, our teaching moment here is that a 23% Myocarditis casualty rate is an acceptable risk…

Back in 1971 on a parking apron adjacent to the active runway one day at an airpatch in northwest Thailand (Operating Location Charlie), the paymasters landed along with the peckercheckers. We lined up in the shade of the Goonybird and collected our pay and then presented our  yellow shot books to determine if we were in need of any shots. I had just gotten out of the local civilian hospital there (McCormick Hospital) after a 6 week stay for viral hepatitis. The closest military hospital was 600 klics southwest of us at Udorn. As we all are quite aware by now, once you get the Corona bug (and survive), you gain immunity to it. Remember the Smallpox vaccine?  The need for a vaccine post-infection is superfluous. Well, ditto those ice-cold Gamma Globulin shots they were giving us to “protect” us from Hepatitis B. Once you contract hepatitis B and survive it, you’re bulletproof. Tell that to a couple of ignorant, armed peckercheckers. I was informed I could roll up my sleeve  and take the shot or surrender my weapons and put my hands behind my back. I guess they call that the Military Macarena now. Twenty five years later I found out I had Hep C and not to worry. Ten years later in 2007, civilians convinced me the new miracle drugs Interferon and Ribavirin would eradicate it with an 87% chance of success. The only problem with that was the documented cure rate was 38% with acceptible secondaries like your teeth falling out, coming down with a whopping killer case of Diabetes II, retinopathy, etc. Didn’t any of you wonder why they gave us a pre-Interferon eye exam to compare to what you had left a few years later? The chances of  life-threatening injuries and sickness were an acceptable risk…

Don’t read anything into this. I have received my vaccines and am grateful to have them. I didn’t think twice. Christ. I’m 70 years old. That Wheel of Fortune™ revolver I described above holds about 60 rounds in my age group. I would hope and wish any who hold moral objections or anti-vax beliefs would set them aside for the sake of humanity to rid us of this pox. But to make it mandatory? Aruuh? That smacks of the Nazis requiring Jewish people to wear a large yellow star on their left breast. It smacks of a country (Russia) who required everyone to register their guns after the 1917 revolution. Several years later, they arrived to confiscate them. Hell, in this day and age here in America, there are those who seek to do likewise and couch it as a grand, voluntary turn-in a la Australia with compensation at about 2¢ on the dollar. The chances of a life-threatening assault by a lunatic or felon in your own home are so low, banning private ownership of guns is an acceptable risk…

I’m not a conspiracy theorist. I liked the Mel Gibson/Julia Roberts gig but in reality, the only successful conspiracy is a conspiracy of one. The Mafia thought they had this sewn up with Omerta but look how that turned out. The FBI has a bigger wallet and a Witness Protection Program.  Thus, I do not subscribe to the chemtrail sniffers who suspect they’re injecting nanosized chip tracers into us to know where we are… you know… just in case.

What I do know is glaringly elementary. The military is purposefully creating new clients for the VA compensation program. Gee, do these upcoming Veterans  use §1151 claims when they fill out their 526s claiming the military purposefully gave them myocarditis? I can already see it now. The disease was acute and transitory and resolved before separation. In any case the degree of disability does not rise to the level of VA compensation under the (new) diagnostic code….yet. In ten years when you file to reopen, we can scream Maxon v. Gober, 230 F.3d 1330 (2000) and say it occurred post service and was normal for your age. Been there. Done that.

It almost has an aura of deja vu to read about this. Almost. I note that the Government has a way of not denying something by what they choose to say. Take, for instance, the following:

“A U.S. Army spokesperson told the Army Times that “we do not comment on leaked documents” and added that “the vaccine continues to be voluntary.”

What this means in Milspeak is  the story is true but classified at this moment because we have not announced it’s getting ready to be mandatory. Were it to be rank misinformation or conjecture, the spokesperson would have adamantly denied the rumor as categorically untrue and without merit.

It’s not a conspiracy. It’s merely a ploy to protect as many troops as possible. If they harm a few, it’s akin to Spock’s greatest one-liner: “The needs of the many outweigh the needs of the few.” That’s great for reactor meltdowns and falling on hand grenades. I think it’s too extreme for the troops and expect we’re going to see a disorderly rush to the exits akin to the recent spate of policemen retiring. I find that sad. But that’s just my opinion. I do hope I’m wrong.

Happy Fourth of July to you all. Live long and Prosper safely…with or without a mask… well, depending on your vaccination status.

 

Posted in 4th of July, Agent Orange, Corona virus, DM II, Future Veterans, Interferon claims, Jetgun Claims evidence, medical injections, Military Madness, Porphyria Cutanea Tarda, VA Agents, VA Attorneys, VA Conspiracies, VA Medical Mysteries Explained, Vietnam War history | Tagged , , , , , , , , , , , , , , | 3 Comments

EXPOSED VET RADIO SHOW TONIGHT-7/1/2021

Posted on July 1, 2021 by asknod

Greetings fellow VA campers. I guess I forgot to write this one down when Jerrel called on Sunday. I was immersed in the pool without a pen and paper. Amazingly, our latest heatwave hit 104 that day and 108 Monday. We’ve never seen anything like it. The corn grew a foot and the pool heated up to 96. Pickles wasn’t very enchanted with that development. We added 1000 gallons of cold water and it only dropped to 94. Yeah, I know. You probably don’t feel any sympathy for me but the pool is an important part of Pickles’ life. 

Anyway, here’s the link to the show.

https://www.blogtalkradio.com/jbasser/11965751/connect/b3f6075331bf2f087a16ebca13f1da1a322b1dd6

We’ll be talking about a lot of things. Feel free to call in and talk if you have a question. Certainly, we’ll be talking about the new Taylor v McDonough that just popped up yesterday. Ken Carpenter moved the goalposts of Vet claims forward about 30 yards with this one and it isn’t useful just for Vets with NDAs (nondisclosure agreements). This Fed Circus decision is a game changer. Read it here:

Taylor v McDonough-Eq. Estoppel

Of course, if you are out and about and wish to listen on your phone, try

(515) 605-9764

Dial 1 (one, uno, nung) to speak to the person you wish to speak to

Hope to see you folks there this evening.

Posted in Equitable Estoppel, Exposed Veteran Radio Show, Fed. Cir. & Supreme Ct. | Tagged , , , , , , , , , , , , | 9 Comments

§3.156(c)-THE ENIGMA OF HOW TO GET IT

Posted on June 25, 2021 by asknod

Greetings, fellow Veterans and Veteranettes alike. Since I’m still undergoing training on the proper use of pronouns, I’ll err on the side of political correctness and use “you”-e.g. Thank you for your service to America. I think that’s still permitted even if I think it is the absolute worst excuse for an apology to Vietnam Veterans. With that said, let’s proceed to today’s subject. How in Sam Hill do you get the VA rater(s) to actually do a reconsideration as promised in §3.156(c)(1)? Let’s break it down and analyze how to get there.

First, I’ll reprint the actual regulation in its entirety for those novitiates who are unschooled in this intriguing subsection.

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

Interestingly, the original concept for §3.156(c) was buried in §3.400 for aeons until 2006. At that time VA opted to excise it and reinsert it under §3.156. Technically, VA would have us believe the transfer was equitable and resulted in no one being left behind. However, a careful analysis would show the addition of some subtle featherbedding.  I have yet to see VA reduce the requirements for any entitlement that actually made it easier to gain service connection. Think what you may about the MST or PTSD fluff inserted into §3.304, but just remember the number of winners has not increased dramatically. I’ve had one where my client was raped out on maneuvers in Germany in 1986 and came up pregnant. Yeppers. The reg does state  “Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. I filed the claim (her third attempt at summitting) and they said the STRs reveal…”She said it’s probably her boyfriend. They got drunk last month and forgot to use protection.” Only problem is she doesn’t drink and never has. Somebody just put that in there. Notably, the birth certificate has no name listed for the father. Unswayed by this damning evidence, they denied. I obtained a killer IMO and now we sit on the Group W(ait) bench outside the BVA courtroom and wait. So don’t pound sand up my ass telling me §3.304(f)(5) is far less demanding when trying to prove your MST claim. How about my Purple Heart Vet wounded outside Quan Loi RVN in I Corps. We even had the pictures to prove it. Check it out.

That first little curl of smoke to the right is the tractor my Vet was riding shotgun in with a Pig and six cans of 7.62 when they hit the mine. He said it was like being in a washing machine with all the ammo and the Pig flying around. He woke up a while later and dragged his driver out away from the burning vehicle. Look at how far the explosion threw their rig off the road. No TBI/PTSD here, folks. Nothing to see. Move along.

The most important thing you have to grasp is that §3.156(c)(1) is not permissive. VA “shall” reconsider- not “may” or “choose to if they feel, like, super motivated, ya know.” All my expeditions into this claim style have resulted in little more than “No. Denied” to “We checked it out but it didn’t change our minds.” The regulation cited? Why, §3.156(a). The problem is obvious . VA raters have no conception of what or how to approach this. The Prime directive is deny but the  VA  M 21-1 Adobe 2.5 insertaphrase program has little or nothing in the library to use for these contigencies. Hence, they ad lib. This is where you have to bust them.

Are you missing a mouse trap?

Equally important is that if you intend to employ §3.156(c) to support an earlier effective date going back to your very first filing for your ills, your win will be hugely dependent on a period diagnosis. Thus, if you are claiming Bent Brain back to 1970, you will need a psychologist who stated as much back when you filed after separation. The records will need to be pertinent to the alleged injury if you hope to win. You can’t gain traction with §3.156(c) if you present records showing pes planus when you filed for tinnitus and ruptured eardrums.

I’m currently redoing Butch Long’s LZ Cork §3.156(c) claim with Kenneth Carpenter and am learning at the foot of a Master. No,  that’s not to say Ken has an unparalleled record of wins on §3.156(c) claims. I doubt anyone can claim that honor… yet. The point Ken shared with me is to hold their feet to the fire on the first part of the subsection-i.e. §3.156(c)(1)(i)- and make them prove they accomplished the reconsideration. With Butch, I laid this out like a punji pit. I submitted just the proof of the CIB and the PH to pull them in first to force a reconsideration under §3.304(d)/38 USC §1154B presumption as well. It fell flatter than a soufflé during recess in a daycare center but… notably they granted everything without so much as a whimper which invokes the follow-on subsections of §3.156(c)(3) and (4). I came back a second time with a bunch more period STRs and got the same nontreatment . Again,  there was no mention of the reconsideration criteria in (3) and (4) to discuss whether an earlier date was for application. Essentially, VA’s position was “Yeah, you sent in new shit but we don’t see anything that would roll our socks down and give you a million shekels.” That’s not how §3.156(c) works.

As I have written here about my new 2020 filing using yet again even more STRs I somehow overlooked and neglected to include back in 2017, VA has once again shitcanned the decision using the defective logic on how to employ the tenets of §3.156(c). Ken has evolved his thinking further on this subject since the January 2021 denial and suggested we ask for a (bleh) Higher Level of Review (HLR) to force them into actually proving they accomplished this required reconsideration rather than just saying they did so. As most of you know, a HLR is really nothing more than an informal DRO review and a token phone call to check off that box. The HLR has a two-fold purpose. First, it puts the VA on notice that they can’t just shuck and jive or do the Moonwalk and say they reconsidered. Secondly, it will show the Board – and perhaps the Court if we don’t prevail below- that we have crossed every t and dotted every i in our pursuit of justice. We want to give VA every opportunity to step on their necktie and kiss the curb on the way up the ladder. Everyone can see the 800 lb. gorilla sitting on the sofa by now. The specter of having to pay out a million dollars (or more) is anathema to them. Resorting to illegitimate legal ploys was de rigeur the last two times. Nothing leads me to believe they’ll change their tune. I’m convinced VA doesn’t have a Cliff Notes book on §3.156(c). They never needed one because no one had a textbook case that could be won.

Now let’s focus on §3.156(c)’s later subsections of (3) and (4). (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. VA fell into the punji pit in 2015 when they granted everything I asked for in my initial reopening. Nothing was said about the new proof of combat and the applicability of the regulation once they granted all this. Who is to say that they did not use the new records to grant? Why wasn’t that clearly stated in the rating decision? Where’s the VA’s independent medical opinion saying the new records were redundant or not probative? So, how is it I got Butch TDIU right out of the box for PTSD, tinnitus, blindness and a gazillion SFWs from head to thigh… but no discussion whatsoever of §3.156(c)? 

Following that, a new tranche of records in 2017 resulted in a TBI rating and headaches for 50%, a CUE back to 1970 for a separate 10% for the right upper shoulder SFW but nada on the applicability of  §3.15(c)(3) or (4). It appeared to me that they wanted 1970 to go away and the proper way to do it was to throw in SMC S and anything else they could grant without invoking the dreaded regulation and paying out. Old Butch has steadfastly averred he has blurry vision with a traumatic cataract since he woke up after the blast. There’s a “hole” in his vision and VA finally had to concede it with a 10% rating but we’ll hear no talk about 1970. Hear? Oh yeah, and we’ll throw in a year earlier for the tinnitus under $3.114 but it won’t result in any more $. That’s VA’s touchy-feely side. We want so badly to give you a shit ton of money but the regulations won’t permit us to.

Obviously, the village idiot can read between the lines and see how easy it is to grant all these disabilities now-in 2015 to 2018-and plausibly look you in the face while saying ” Oh Hell yeah, you’re screwed up, boy, but the old records you found didn’t provoke us to grant. Shoo doggies, there ain’t nothing in them that would support the new ratings we gave you just now.” So, how do we prove the old stuff we found was the trigger? Why, go get a retrospective IMO that says s/he ( IMO doctor) would have granted in 1970  based on what they are looking at in retrospect. The beauty is VA has already fallen into the punji pit by granting everything without so much as a “but… but”. It would be difficult now to come back and try to defend it (refusal to grant back to 1970) when they already have given away the farm.

One thing that sets Butch’s §3.156(c) claim apart from any others that have been litigated in the past is simple. Butch’s claim doesn’t depend on any Joint Services Records Research Center (JSRRC) records. All the big name cases like Blubaugh or Emerson which were litigated based on §3.156(c) are for PTSD. While their JSRRC records might have supported their alleged  stressor, they did not provide a medical diagnosis confirming they suffered PTSD. Butch’s  contentions, on the other hand, are residuals of eating a 60 mike mike and the resultant concussion blast injury. Admittedly, his claim also includes PTSD- but only as a secondary to being attacked and wounded by the gooks. He didn’t need the JSRRC to investigate and determine whether he had a valid stressor to support his bent brain diagnosis as both Emerson and Blubaugh did.

The presumption of regularity cannot paper over this error. Absent a doctor standing up and saying the treasure trove of old medical records had nothing to do with granting 160% of combined ratings for PTSD, tinnitus, TBI, headaches, right eye vision loss and a gazillion SFWs with retained metal fragments in eight muscle groups, VA is going to have to explain what fact or facts were instrumental in granting all these injuries. To date the cat seems to have their tongue on the subject.

Stay cool in the heat if you live out west. Stay out of high-rise apartments in Surfside, Florida. Be safe, too. I’ve now had two friends who are vaccinated come down with C19. One 40 and one 71 years old. Obviously, the product isn’t perfect yet so be careful. I’ve restricted my AO to the hacienda and the hospital since I came back from Sam’s go-to-heaven party last February in 2020. Nothing is as important as your health. We men usually don’t figure this out until we’re in trouble.

Posted in 3.156(c), All about Veterans, Humor, Independent Medical Opinions, Inspirational Veterans, SMC, TDIU, Tips and Tricks, VA Agents, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , | 6 Comments

DOUBLE HEADER WEEKEND

Posted on June 13, 2021 by asknod

Before I begin, let me relay a funny happening. Once upon a time back prior to Thanksgiving in 2016, I wrote a humorous article about cheating on c&p exams. I caught a lot of flak for it because some with reading comprehension deficits discerned it as truth rather than the humor it was intended as. Who would have thunk anyone would actually step outside, discharge a .357 Magnum not just six times in rapid succession, but reload and repeat, saddle up and proceed to the QTC c&p exam for an increase to his service connected hearing loss and that bodacious ringing in his ears? Surely not me. After two years in sunny Southeast Asia, I discovered I couldn’t hear myself think over the ringing.  I sure didn’t need to exacerbate it for a test. 

The body of the email was a thank you for the advice and how well it worked.  I presume “Manny” was relaying a true event. As an officer of the Court, I would never advocate for, nor condone, cheating or purposefully attempting subterfuge to obtain benefits illegally. Perish the thought. The Veterans Administration is my North Star; my guiding moral compass. As we know, they are above board and free of suspicion in everything they do and they would never resort to cheating to deny us our due.

DOUBLE HEADER #1

My firstborn grandson Conner graduated High School yesterday. We’ve immensely proud of him. In this day and age, the very act of graduating is no small feat. I can’t say I graduated without a few “Imperial Entanglements” in my résumé. For the record, it was only failure to heed a stop sign and 65 in a 25-peanuts in this day and age. We wish him success in all he attempts and I gave him a personal wave-off on any aspirations to serve his country. It’s not that I’m anti-military now. I’m not. I’m merely concerned over the recent “awakened” atmosphere and how that can detract/distract one from an otherwise  invaluable experience in character-building. He said he’d already managed to get a dose of it via Zoom in the last year. Enough said. He should go where his heart leads him and not be swayed by others with narrow, flat earth-style horizons.

Double Header #2

The long-awaited arrival of our first granddaughter is tomorrow. At 1000 Hrs precisely, Penelope Rose Graham will fashionably arrive, as all know, transported in Mr. Stork’s beak. This will be the first Graham to set foot in this world since Buckwheat Junior arrived in 1988. Three more granddaughter Grahams await future fertilization in cryogenic sleep. He’s going to need testosterone treatment and the patience of Job in a house of five women. Join hands and bow your heads with me now in prayer…

VA NEWS

Here’s an update from our Fearless NOVA leaders.

1. Travel Board hearings are set to resume in FY 2021[Legacy- not AMA] Q4. Note that the locations for these hearings will likely be in the smaller locations, with larger ROs being targeted in FY 2022. 

2. Just a reminder when you are submitting documents through Direct Upload for BVA to be sure you indicate on the drop down menu that they are intended for BVA. There is concern that some AOD motions are being missed because people are not specifying they need to go to BVA. Also note – checking the homelessness box on the 10182 does NOT trigger AOD treatment. This merely indicates to VA that the appellant has no fixed address; you still need a separate AOD motion. 

3. BVA has a goal of 50k hearings for this FY, by end of May has done 14,163, with 97% being virtual. 

4. Decision goal is 93,600, by end of May had reached 65,370. 

5. AMA inventory at end of May = 51,952 in hearing lane (57%); 22,005 (24%) in direct review lane; 16,706 (19%) in evidence only lane. 

6. BVA expects to be at “functional zero” for legacy appeals by the end of calendar year 2022 – this means every legacy appeal has gotten a decision – so still will be Court remands, etc. 

7. BVA currently has 93 judges and is authorized for 103; FY 2022 budget would authorize 138 judges.

——————————————-

Here’s another scary update from a fellow NOVA member

Summary: this will be a shitshow if its allowed to go forward…

“Beginning June 11, our Public Contact team will call Veterans to reschedule in-person C&P examinations. If you see an incoming call from 1-800-827-1000, please pick up.

What Are My Options? Let’s do this! I am ready to report for my Compensation and Pension examination. If you tell us you’re ready to report, we will tell the Medical Disability Examination vendor to schedule your exam. All exams are held in facilities that meet strict sanitization requirements just like your dentist or primary care doctor.

I’m scheduled! I already had contact with the exam vendor, and my appointment has been scheduled. Please follow the instructions provided by the Medical Disability Examination vendor that scheduled your examination.

Decide now! I do not want to report for my C&P examination. Please evaluate my claim based upon the evidence of record only. We will review your claim and use treatment records from your claims file including information from your service records, private doctors or VA hospitals and clinics to assess your disability.

Let’s wait! I am not ready to report for an examination yet. I will call VA or my Veteran Service Officer (VSO) or Accredited Representative when I am ready to report.

If you do not respond, we will continue to hold your claim for now. You will need to contact your Veteran Service Officer (VSO) or call us at 1-800-827-1000 when you are ready to attend your exam. If you prefer to call us to reschedule your in-person C&P examination, call agents are standing by to assist you at 1-800-827-1000. Alternatively, you may contact us via https://www.va.gov or https://iris.custhelp.com. Thank you for your service and we look forward to helping you.”

At the VA Women’s Clinic after a year of pandemic lockdown…

I always put an “Exclusive Contact Required” on all my VA 21-22a POAs I file. VA blithely ignores them all and regularly calls my Vets. I give them all the wave off briefing at the outset and tell them to ask the (800) 827-1000 technician to hang up and call my number. Period. No conversations. Just a ” Uh. Hold the phone, Ramone. The guy you want is at 253 313-5377. And hang up. Well, unless it’s VES/QTC/LMI. You have no idea how illegal it is in the real legal world to go behind your representative’s back and contact the client directly. They don’t have a clue what to say or do. They have no legal acumen that would make the hair stand up on the back of their neck. I’ve had VA RVSRs tell a gal that she had to pick between getting A&A or loss of use of two extremities. If she chose A&A, she’d lose her benefits when she had to be hospitalized. That happens to her every couple of years. Just imagine some VA Poohbah telling you this. Absent counsel, how can you answer these things? Why in Sam Hill should you have to? That’s what my folks hire me to do. VA knows most Vets are vulnerable and functionally ignorant of the claims process minutiae. Hell, they count on it. It’s like stealing from a blind Alzheimer’s patient.

————————————

Five minutes to pick.

My strawberries are officially back. I’m inherently lazy as all know so I used to just aim the grass chute over the side of the embankment and blow it there when I mowed. Eventually, the grass took over the strawberry patch below, and the plants ceased production. I had our tree and lawn service nuke it with Agent Orange and left a narrow swath at the top which we weeded out. After five years, the fruits have returned. Imagine. It all began when a bird pooped out the first seeds in 2004. Hell, if I plant a Filbert tree I could have both fruits and nuts in my front yard and pretend I lived in California… Not.

 

Another interesting development is brewing in the Butch Long/LZ Cork case. As many know, I have resuscitated the CAVC appeal and converted into the AMA to preserve the 2015 filing date. My first refile as a supplemental claim in AMA was predictably denied. Instead of just gallivanting up to the BVA, Mr. Carpenter is of the opinion this should be sent through the washing machine thoroughly before going up to the BVA.  Hence, I am asking for (don’t laugh) an HLR to get them to acknowledge the supplemental claim is indeed a §3.156(c) claim. I want the HLR reviewer to concede Butch’s new service department records have passed the initial hurtle of relevance as required of §3.156(c)(1) (i),(ii),(2) and now requires a detailed showing of compliance with the secondary requirements of §3.156(c)(3)(4). VA has given Butch everything he’s asked for shy of refusing to employ the tenets of  §3.156(c)(3)(4) and grant him his claims back to 1970. Granted, they came close and coughed up a 10% CUE back to then but I want the Big Banana-over 30% for all his four children and Barb.

And, to add a little napalm to the conflagration, since VA says the tranche of new relevant service department STRs they failed to go get in 2015 (which we graciously supplied in 2017) failed to convince them they would have granted in 1970, I came up with the idea of getting a killer retrospective IMO analysis from a Board Certified neurologist. Why not?Presto Mednick Magic. Their neurodoc is on it. Now that’s the kind of shit you want to present at the BVA. Wrap it all up with a nice IMO bowtie…

LZ Cork- 16 January 1969 (Courtesy of Bob Lockett)

“Tinnitus? Why yes. That’s fairly frequent in a concussion blast injury setting secondary to perforated eardrums. In fact, that would explain his getting a special Court Martial six months after he got back for being unable to hear and processing information incorrectly due to his TBI. I also agree with the VA’s psychologist that he suffers TBI as a comorbidity superimposed on his PTSD and without resorting to speculation, I’d say they are indistinguishable from one another. The extensive pepper spotting tattoo effect of the shrapnel on the right side of his body from head to toe is testimony to the proximity to the explosion as mere feet.”

PURPLE BOOK RECISION

Last but not least, BVA Board Chairman Cheryl Mason has officially announced the VA’s decision to rescind the Purple Book. As most know, an unidentified Deep Throat disgorged a copy that somehow ended up making its way to my door. I promptly published it  (above in my Widgets) and the BVA apparently just as rapidly began the process of rescinding it. I expect it’s time to get a copy of this new ” BVA Operations Handbook”. Sounds like nothing more than an M 21 dressed up in black judges’ robes. If you’re that ignorant of VA law, perhaps the panacea is to read up on CAVC/Fed. Cir precedence-not resort to BVA Cliff Notes™.

Pilgrims, it’s been a rainy, wet Sunday- the perfect recipe for my insane ruminations. Let’s conclude with a warm welcome to my latest Chicken Dinner Winners and brand new BWN members of the asknod Nehmer family-Doug and Judy. He just got his check for $250 K Friday and there’s more where that came from. Nothing makes you smile bigger than pulling out onto Baksheesh Boulevard and going for a cruise… after waiting since 2002…in your brand new Cadillac.

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

P.S. This just in off the wire. The VA’s BVA report. Sadly, it just illuminates nothing more than the fact the BVA hires FNG dolts with the JD IQ of 70 as staff attorneys. I can’t complain too loudly. They only make $60 K a mo. in DC and are fresh out of law school-i.e., broke and saddled with ungodly student debt/loans.

BVA2020AR

Posted in 3.156(c), Agent Orange, All about Veterans, Blue Water Navy, Corona pandemic, Corona virus, Higher Level of Review (HLR), Humor, Independent Medical Opinions, LZ Cork, TBI, Tips and Tricks, VA Agents, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , , | 3 Comments

MD 2021- A FORTIFIED NATIONAL HOLIDAY

Posted on June 1, 2021 by asknod

I always wondered why they made a wine especially for Memorial Day until someone clued me in recently. Just kidding. I never developed a taste for it-regardless the year of its vintage. I can’t say that about Strawberry Hill or Annie Green Springs. Theirs (when cold) were a fleeting 70’s friendship and one that was a refreshing difference from warm beer or warm T & Ts. Southeast Asia, in my time, was noticeably remiss on creature comforts  like electricity and refrigeration. Fortunately for all, Scotch did not require this treatment. 

This year I received lots of suggestions for subjects to write on but most have been lip-whipped to death by endless politicians who never saw the insides of a pair of boots-combat or otherwise. I take that back. Many of them are avid skiers.

Who woulda thunk Waterloo, as a place name, would ever become famous in America? Why, look no further than 53 years after Napoleon Bonaparte’s fustercluck than Waterloo, New York and the inception of celebrating the memory of our Civil War fallen rather than engaging actively in causing them to fall on the field of battle.

I was always told one of Plato’s axioms was “Only the dead have seen the end of war.”  Turns out it was another of George Santayana’s observations-he of the mind that all civilizations forget their heritage every fifty or so years. Boy howdy is that ever true now. I was born and raised in the south – very south I might add- of the Mason Dixon Line. None of us ever thought of ourselves as white or any other color-and certainly not with any capitalization either.¹ About 1965, when I was still 14, blacks were granted total freedom to move about the country. As I had not attained the age of majority, I cannot say I was party to any racism. I served alongside, and lived with blacks in SEA and never considered myself better (or worse).  While I regret what has befallen their lot over the centuries, I didn’t contribute to their misery. Why the 1619 Project? I’d blame the British for that business. We didn’t take over hereabouts until 1785 and sure didn’t write the statutes and regulations back then. Considering we fixed slavery with a Civil War less than 80 years after taking over upper  management actually speaks volumes considering it takes politicians years to bipartisanly agree to even put up a stop sign.

The pursuit of happiness on Memorial Day takes on an entirely unique meaning and not what you think. Those Vets who died defending America, either here or on foreign shores, had a hankering to maintain their right to life and liberty as well and a lot more. We have a wonderful country and are blessed. Sure, it has a few warts and wrinkles that need ironing out but this constant drum roll of denigration about how horribly racist we are suddenly is a bit much. If America was so horrible since 1619, how come nobody mentioned it until recently? Seems if something is that FUBAR, we would have litigated it to death and made it illegal.

America IS great and pretty much always has been- or attempted to be- ever since her creation. We’ve been more than willing to send our warrior class to foreign countries to defend inequities and promote democracy. Hell, we didn’t even charge like the Hessians and other mercenary types do. I do know my readership and I doubt even one of them thinks I’m inherently racist. Just because I’m white-ish colored doesn’t automatically signal political affiliation or affluence. I’m an American-and even more- I’m a Veteran. I’m not ashamed of anything I’ve ever done except throwing eggs at Officer Rohrbaugh’s cop car on June 4, 1969. I shook his hand afterwards through the bars of my cell door and let on I had no hard feelings. We’re good.

I admire anyone who joins the military and serves. Having done so, I know the ration of shit they go through. Military service may be getting a bit snowflakey in this day and age but they try.  As for offering sex change operations to fix what these soldiers discover after they sign up,  it’s a bit disingenuous if you ask me. It smacks of ulterior motives for why they joined.

My son just informed me I need to put something down at the bottom of my emails now that tells all the world of my identity and “preferred pronouns”. I, me, my and mine come to mind. I googled it and it sounds a bit schizophrenic. Who wants to be known as “we”, “Us” or “they”. It’s like a heapin’ helpin’ of Sybils to me. I’ve never thought of myself in the third person. Fact is I don’t know anyone who does. Seriously, can you see yourself telling your friends about your LGBTQRS dog and how “we” were overdue for “their” Parvo booster. In the obverse, can you imagine one of your friends doing it? Better yet, let’s back the boat back up to the dock, Gilligan, and spell it “Awake” or “awoke”. Merriam Webster is undoubtedly rolling over in his grave right now and everyone in Oxford is all atwitter (no pun intended).

But I wander afield. Memorial Day is certainly more than the sum of its Fallen. It’s the celebration of being able to celebrate; to celebrate with those of your own color or to mingle with many ethnicities who share one common trait- being Americans; perforce to celebrate with those who share your religion or-gasp- political affinity. America is a composite of well-meaning souls and total idiots. My father said we all have the right to remain stupid. We have the right to be QANON chuckleheads, chemtrail sniffers, white supremacists and Antifa miscreants. I do not advocate for these groups and would not associate with them but, like any openminded person, I certainly do not say they should be reduced to second class citizenship. If New York’s mayor thinks an attempted murderer should be let out on P.R. until his trial, then justice is defective. As the Forest Gump character opined in the movie, a box of chocolates representing life is full of intriguing possibilities.

American Ingenuity in the field

Those are my Memorial Day sentiments. Well, that and I think my Uncle Jay should have gotten more medals than a Bronze Star for the 67-kilometer Bataan Marathon and Fun Run. Or, as our new illustrious President declared last week,  a “Brown Star”. Who knew? They’re handing these out to guys who squared away the Burn Pits in Iraqistan? Awesome. Long overdue.

Ronald Reagan said it best:

“Some people live an entire lifetime and wonder if they have ever made a difference in the world. A Veteran doesn’t have that problem.”

Americans are unique. We are welcoming of strangers if they bear us no malice. Our military is rife with those who seek citizenship via their service. It’s almost like a cemetery-folks are dying to get inside our wire. But, if you piss off the citizenry, you’ll find we remain myopically dedicated to life, liberty and the pursuit of happiness. Don’t get between us and our BBQs.

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

¹ Based on the comments below, it behooves me to clarify that I was “pre-literate” inasmuch as I was still unskilled in the art of reading and writing in my formative years between 3 and 8 (1954-1959). Naturally, someone who is “woke” would feel compelled to come here to announce racism abounds among children three years old and older. Oddly, most who complain of rampant racism a) never set foot in the south during those years; b) never set eyes on a “whites-only” water fountain, and; c) are predominantly Caucasian like me. Go figure. As for my political leanings, I identify as “American”. The term “Trumpist” is a pejorative manufactured to describe anyone who hasn’t received their vaccinations, doesn’t plan to, and disagrees with the current, reigning political establishment.

Has anyone ever considered America has existed for over 200+ years and almost all of the perceived ills have only now been uncovered in the last 10? Who would ever think that Martin Luther King’s most famous immortal words (i.e., content of character versus color of their skin) would be rent asunder fifty years later by the very folks who aspire to lift them up? Shades of Mr. Santayana…

Lastly, I would point out that any art or videos presented here are sent in to me by you, the reader. I do not feel they express the beliefs of the readership as a whole. I offer them as entertainment only. I reiterate for the dense- this Day allows us all to celebrate the right to celebrate. Innumerable Veterans died to ensure that right. Any and all who disagree with what I write merely confirm the truth of this axiom. It’s an art form now lost in the rush to wokeism called freedom of thought. Its death was preceded by the death of free speech.

Posted in Humor, Memorial Day, VA Agents | Tagged , , , , , , , , , , , , | 6 Comments

BVA–ROCK BOTTOM AT THE CHOSIN RESERVOIR

Posted on May 23, 2021 by asknod

Good Sunday to you all. I have been AWOL for a few weeks due to losing a Vet client and being under the gun to write some bodacious legal briefs. Now, mind you, our highly gifted Attorneys at NOVA counsel us to write legal briefs which are…well, brief. Roger that. I get it. You don’t want to put them to sleep reading your Gutenberg Bible. But sometimes there aren’t enough trees for paper to express yourself to a Board chairman. Besides, I’d like to think my briefs are better than the average bear’s. I don’t mean that narcissistically. I’m lucky in that I had a good upbringing.  My parents  shipped me off to private schools to get rid of me. They didn’t say why and I didn’t inquire. I let them down. I graduated 59th in a class of 64- no small feat. Too bad my draft number was 39. 

So, without further ado, let us say a prayer for Leigh Burch, one of my oldest  acquaintances in the hepatitis C claims world and not quite 62. She came to me from our old HCVets site (HCVets.com). She and her husband fought long and hard to win her claim. All I did was point out that she needed a good nexus letter. That she promptly obtained and moved on to win.

Leigh Ann Burch 1958-2021

Paul E. Burch d. 2016

Her husband Paul and a Marine Vet, sadly passed in 2016. Leigh developed problems with her liver transplant last fall and it went downhill from there. She was denied a new organ this February due to her body being in full revolt against the ten yr. old transplanted liver. It was theorized her immune system would reject the new one out of hand. Seeing’s how livers are kinda hard to come by, she was given a death sentence. She passed April 28th with no one to be substituted in her claim. The kids are all over 21. I hate that when that happens.

But that isn’t why I began this missive today. It’s just part of my asknod story. My clients frequently become part of our ‘family’. Once you sign up with me, it’s for life-all the way to R2. I file for the spouse when they pass.  I have three multi-generational claimants-sons and daughters of clients I have served in the past.  They come to visit or pass through and have lunch. When Cupcake and I go to NOVA conferences, inevitably one of our family comes to see us or we travel to them. I know my Vets want  to share their stories because they give me written permission to write these articles. VA has strict rules about divulging person information. Last year, I lost four of you-but not a one to the Kung Flu virus oddly. It’s tough enough to lose a Vet for me but it is tenfold worse when he or she is the last heir in the chain of substitution. Finality is a bitch. It’s the ultimate VA bitchslap.

Elderly Veterans

Rarely do we (representatives) get to represent really old Veterans of World War II or Korea. I have been twice-blessed in this respect. One of my very first clients was a  94 yr old Marine who went ashore in New Georgia (first wave),  a second at another island and lastly at Okinawa. His MOS became Graves Registration after hostilities ceased and his duties as an Infantryman were no longer needed. Boy howdy will that give you a bent brain about a mile wide sashaying down the beach pushing a wheelbarrow  picking up pieces of humans like a Mr. Potatohead™ game. The problem is that fifty years later you’re still watching this movie every night from 2 to 5 AM in living color with Dolby® Sound.

My second one landed in my lap due purely to this infernal pandemic. Their VSO representative (and his office) were closed up tighter than a clam and they were desperate. I get that. When you’re 87 and VA is playing the delay and deny Badminton game with you,  you get antsy. Shit, you get waaaay past antsy. You get frantic. Ray had gotten his BVA remand in August 2020 and VA was looking to hire a proctologist to do a deep dive neuropsychiatric workup despite the VLJ specifying a top dog neurologist. Check it out.

https://www.va.gov/vetapp20/files8/a20013368.txt

I put them on notice via my CMA and via Outlook VA email to the Coach to read the remand instructions veeeery carefully. They ignored me. It must be a power trip thing-like who gets to hold the TV remote.

I called bullshit on the first doctor (an 85 yr. old retired anesthesiologist) who would take 30 pieces of silver from anyone to say whatever they wanted said. I noted in my brief he used my client’s wife’s testimony that Ray’s explosive anger and inability to hold a job was  due to his PTSD. Now shoot, I like Ray’s wife. She can read him pretty good after all these years but psychologist… like PsyD? Not. Fortunately, we have legal cites to point to that says we (both VA or us) can’t cheat and pull that Ben Casey-Dr. Kildare shit.

Doctor # 2 was a real neurodoc. He was also about ten years older than God and 5,000 miles away in Honolulu. So much for a real face-to-face c&p. Worse, both these jokers said Ray had nothing-NOTHING- wrong with him and certainly no lingering 68 year old status post encephalitis symptoms such as the subjective complaints he had been reciting for six decades. Uh-oh. The second dr. was insulted that he even had to put up with this upstart malingerer. He went so far as to say my boy might be a combat Veteran but he was a baldfaced liar. Baaaaaad idea. §1154b carries a lot of weight in front of a real Judge.  If you’re willing to die for your country, it kinda goes without saying you probably have good moral character and might be a credible witness. The regulation,  §1154b, says the Secretary can rebut your contentions with ‘clear and convincing evidence”. That, my friends, is a very high legal bar to surmount.

If the doctors had actually read the claims file (what survived the circular file catastrophe in 1953), they might have realized the Secretary had already granted 10% for the very same things they said he didn’t suffer from. Shoo doggies. That’s what happens when VA tries to cut IMO corners and hire drs. with Alzheimers. Maybe they just need a refresher course from the Evelyn Wood speedreading school. As near as I can tell, they depended entirely on the c file record right up to where they gave him SC back to 53. Whateeeever….(as 16 yr. olds say).

Here’s the CUE that opened up this claims Tsunami. It’s a daisy. In 2016, on his second trip to the BVA, a VLJ finally saw the light and granted the CUE back to 1953.   https://www.va.gov/vetapp16/files4/1629124.txt   VA promptly gave him 10% for “residuals” under §4.124a DC 8000. The problem is you have to rate all the subjective residuals like headaches, numb face, loss of smell, anxiety, nervousness, tinnitus and a host of other goodies like insomnia separately. VA was hoping Ray might not figure that out and ask for more baksheesh. 10% from 1953 up to 2009 sounds like a shit ton of a windfall. It wasn’t and Ray came to see me and ask if he got screwed. It felt good like being in one of those telephone booths at the Fair trying to grab all the dollar bills flying around in the windstorm but you discover you got about $26 bucks for a minute of grabbing.

It took my IMO outfit, Mednick Associates, a while to find a good neurodoc who was capable and willing to rebut this latest horseshit. It’s difficult when VA shitcans your original filing in 1953. But not impossible. Unfortunately for VA, they didn’t use a big enough eraser. They forgot to eradicate his brand new claims file number and other documents on dependency.

Redact filed 10182 5.21.2021

I explained  to Mr. and Mrs. Ray how Caluza/Hickson/ Shedden and all their progeny worked and set out to get the mother of Nexus letters. A note to the wise here. Never let your IMO author denigrate the VA’s IMO directly. Never use phrases like “the Doctor must have gotten his degree in medicine and practiced at Havana University…in the 1930s because medicine has advanced dramatically in the interim.”

A good nexus letter has to have several ingredients. Here, it was difficult due to the destruction of his c file. Fortunately for Ray though, they never went back to get his NPRC records. When they finally did in 1965, they did ol’ Ray a favor. They prevented them from going up in the  Friday the 13th of July Barbecue seven years later in St. Louis. From those records, everyone can see he was unconscious for over a month and shaking like a leaf on a tree with nonstop convulsions.

Now, if that isn’t enough to kick ass and take names, throw in that Ray was an invited guest to the 1950 Chosin Reservoir Christmas Party and, along with 16 of his 64 men in the platoon, managed to survive to talk about it. Somehow, even though they were all just lowly Negroes, they each managed to snag a Combat Infantryman Badge for their valor. Ray says his MOS was EOD- human minesweeper.

Ray was out of the action for nigh on to three months lounging around at the hospital. They finally sent him back to the front  July 15, 1951, with the ends of four toes (Right) still all messed up from frostbite. Blacks in the segregated Army back then were no deposit- no return items much like used toilet paper. Imagine being used as human minesweepers and ordered to march across a field line abreast while the officers (white) watched and laughed. Yeppers. We’ve come a long way, baby. I’m not banging the BLM drum here. I was born and raised in the South south. I  lived there until I left for the war in 1969. When we went to see The Sleeping Beauty in Albany, Georgia (Turner AFB) in Spring 1959, I asked my mom why there were two water fountains and one had a sign overhead saying  “Whites Only”. Truthfully, I don’t recall her answer. That was the south 6 years after they tore up Ray’s file. Ray was allowed to begin voting in 1965, too. That was mighty white of them, huh?

Ray’s choosing me is a special  honor. His treatment by the VA, not to mention America, resonates with me. I like helping the underdog and if you look up screwed Veteran in the Miriam Webster Dictionary there’s probably a picture of Ray. The Seattle Puzzle Palace has been screwing Ray over for a month of decades. This will be BVA Appeal #4. The last VLJ, God bless his soul (Mike Skaltsounis), recognized the three-card Monte aspect of his 68-year odyssey in search of  justice and how he kept drawing the Monopoly Chance card and getting whacked. He (the VLJ) wrote 6 pages of  very explicit c&p remand instructions.  VA’s two “doctors” who were asked to opine on hs subjective symptoms couldn’t even bring themselves to admit he had anything at all wrong with him o-let alone having to do with s/p encephalitis. Zip. Zero. Nada. No neuro, Pedro. Moat lao. Fini. Pai lao dude. Now that’s a hoot when the most recent rating code sheet says he’s been SMC S for 13 years running with 100% for DC 8000. That kinda pokes a gigantic black hole (no pun intended) in your probative VA c&p findings of fact. Worse, the fact that the VA examiners were willing to put their John Hancocks on them as well says a bit about VA’s benefit of the doubt being slanted crossways. But we knew that, right?

Since Ray is waaaay to hell and gone over 75, this will be advanced on the docket pronto.  I’d sorely like to see this go back to Judge Skaltsounis. I have a premonition like one of them willies that runs up your spine when you’re happy that he’d have afield day with it. And that’s all I’m gonna say about that.

Posted in 1154(b) combat presumptions, CUE, Humor, Independent Medical Opinions, Memorial Day, Nexus Information, Tips and Tricks, VA Agents, VA Medical Mysteries Explained, VARO Misfeasance, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 2 Comments

EXPOSED VET RADIO SHOW REDUX

Posted on May 19, 2021 by asknod

Call us

John and Jerrel have invited me back again to finish the  “Refile for SMC or CUE it” show from last week. We managed to delve through a simpler explanation of SMC and reduce it down to a more manageable concept to digest. Truth be told, after playing VA poker on this subject (SMC) now for about 5 years, there isn’t much for me to glean.  Notwithstanding that,  I know that the majority of Vets who discover this entitlement for the first time are stupefied to find out it’s been here all this time without so much as a peep from their VSO service officer. Boy howdy you don’t think that’s a little queer? It really isn’t. The Poohbahs don’t teach it. Remember who they all work for. Every Congressional charter issued to the 158 VSOs across our fruity plains clearly states

“We promise to help the VA adjudicate the Veteran’s claim(s).”

That’s like a guy t-boning you in an intersection after he runs a red light and saying he can get a red hot twofer from his attorney if both of you use him.

 

SMC is an “ancillary” or inferred entitlement. If you qualify, VA is required to take a gander. If they don’t- which is most often- you get screwed out of it. The best news is you qualify for it the day your medical records say so. No CUEs. No lost earlier effective dates. No “Shit oh dear! I was estoppeled.” You just go in and fix it with the correct evidence to prove your point and get your correct effective date. Well, that’s the way it’s supposed to work. Sometimes I buy a retrospective IMO to guarantee a win. All’s fair in VA War- as long as you don’t commit fraud of course.

Here’s the Mr. Potatohead beginner’s manual:

SMC (SPECIAL MONTHLY COMPENSATION)-WHAT IS IT?

But we’ll talk about that tomorrow. Pull up a sofa or a comfy office chair and set a spell. Pop a cold one or pour a good three-finger single malt with a TNT back. Take a listen and enjoy life for an hour. We’re not selling anything. Or at least I’m not.

Here’s the computer link:

https://www.blogtalkradio.com/jbasser/11944588/connect/a77067085cbd97498e4ee8483184bd0e10b36b9e

Or, you can call in to listen at

(515) 605-9764

P.S. See attached CUE filing for forgetting to award all the entitlements. I’ll be discussing this tonight.

redact CUE PRELIM 2021

P.S. Here’s a link to the show in case you missed it.

http://percolate.blogtalkradio.com/offsiteplayer?hostId=1494325&episodeId=11944588

 

Posted in CUE, Exposed Veteran Radio Show, SMC, VA Agents, vA news | Tagged , , , , , , , , , | 4 Comments

EXPOSED VET RADIO SHOW–CUE AND SMC

Posted on May 11, 2021 by asknod

I had a good Videoconference Hearing (if such a thing can be had) with Veterans Law Judge Martin Peters last week. Trust me when I say I find no joy in litigating with the village idiots at the local Fort Fumbles across our fruited plains. I’ll be discussing the interesting collision between filing a Motion to Revise an earlier SMC error versus the more lenient legal pathway to accomplish it without the onerous requirements of meeting all the CUE criteria. 

I look forward to explaining the conundrum this Thursday on the Exposed Vet radio show at 1600 on the left coast and 1900 Hrs on the easterly seaboard. Join us for a Veteran-centric view of how to litigate SMC errors without resorting to CUE limitations.

There’s two ways to listen in. The telephone method is still viable at:

(515) 605-9764

Dial “1” if you wish to enter the conversation and ask a question. Or, use this link to view it on your computer.  John and Jerrel haven’t come up with live video yet but I’d guess that isn’t too far down the road in this day and age.

https://www.blogtalkradio.com/jbasser/11941687/connect/528c43c6374cfb990350c0ad20ce98080c8580d9

And while you’re here, view why men have a shorter life span than their female counterparts.

I look forward to you folks joining us and learning how to kick VA ass and take names. As promised to Jerrel, here are a few screenshots of what the VA SMC Calculator looks like on VBMS. First, the view of VBMS showing an SMC calculator entry:

P.S. Here’s a link to the show in the event you were unable to listen live:
http://percolate.blogtalkradio.com/offsiteplayer?hostId=1494325&episodeId=11941687

Posted in CUE, Exposed Veteran Radio Show, SMC, Tips and Tricks, VA Agents, VBMS Tricks | Tagged , , , , , , , , , , , | 5 Comments