CAVC–SELLERS v. SHINSEKI–MACKLEM II

Posted on June 28, 2012 by asknod

VetCourtAppealsPromoThis may be the best decision you’ll read in 2012. It’s a daisy. It just makes me giggle every time I go back over the analysis. It will remind you of Leroy Macklem’s high adventures in CUE land. What’s more, the Secretary’s vain attempts to argue his way back to a win are priceless. When apprised of his errors, he tries all the harder in a different direction. We get one shot at this and must have all the evidence in by decision time including theories on why we should win. Eric feels he should get a punch list and keeps tossing out “Okay, that won’t fly. How about this…”

You will see Ivan the Terrible dismiss his attorneys for incompetence after they mangle his evidence submission. It says he was going alone pro se but I see he has several rainmakers on site for the brief. Good deal. Take your protein pills and put your helmets on pilgrims. This is a wild ride with a great ending.

Let’s begin with Leroy. He won because vA cheated with the Extraordinary Awards Program. Ivan will win for similar reasons. He too got the “You won the Lotto!” call. It occurred two years before the EAP deal but that’s irrelevant. They were doing this without an official EAP even then and now the Court knows this. What’s more is that they probably still are. The Court doesn’t like it when you cheat. And when you get caught, it gets ugly. They don’t slap your hand and remand. They reverse. This little bozo is going to cost about $550,00.00 up front and then $2924.00 more every month unless he goes totally blind. If so, he’s going to be up in the SMC R range of about $8K a month. Baaaad vA. Let’s see what happened.

Ivan R. Sellers (no relation to Peter) was a groundpounder from 66-73. He wore glasses but snuck in under the presumption of soundness. Nine days after discharge, still in the golden window of presumption, he noticed some serious eye issues developing. As we all know how these things work, his eye could be falling out of the socket and they’d say “Hmm. You can still see out of it, right?” So he was good to go in their eyes (pun intended).

1982 rolled around and Ivan noticed his eyes were pooping out on him. By 1988, he knew he had to get help. Ta-da. File a vA claim. They’re the go-to agency, right? Trust them he did, yessss. vA raters disassembled and reassembled the denial and finally decided he had this all along. vA said it was genetic even though no one in his family ever had it. It was not a vA issue and he failed to appeal. End of the claim.

In February 2004, he filed a CUE claim based on his theory that they screwed up the 1988 adjudication. He had been reading a lot and finally figured it out. I’m sure his doctor said “Ivan, listen. Those chowderhead vA doctors at the RO are blowing smoke up your ass. Are you going to believe me or them? This thing started long ago when you were in the service.”

On June 14th of that year, one of vA’s finest- Cynthia Canady-called him up via landline and told him he’d struck gold. Yes, indeed. He was right all along. It had been CUE to deny him back in 1988 and vA, being a stand up organization, was going to step up to the plate and make it good with him. But not only had he won, they were throwing in a car allowance worth about $11 K more. Ivan was peeing in his pants with joy. I’m sure he sat down and roughed out what it would add up to. If not, he had a VSO who told him. Perhaps one of his drinking buddies down at the AMLEG bar. Who knows?

A week went by with no news. On the 21st, Cynthia emailed a note to the rep. asking where to mail the decision. At the same time she got Mrs. Sellers on the phone and asked about dependents and the requirements for it. We’ve all been there after we win. The mad scramble to the County courthouse to find the old divorce records? Been there. Done that. Twice.

After another week of no show, Ivan called Cynthia and asked what the holdup was. He was itching to get that new Dodge Magnum and we all know what MOPAR fever can do to you. Cynthia told him to sky down as these things take a little time. She did tell him that the settlement was going to be in the give or take column of $495.963.03. Ivan reasoned that since the cat was in the bag, he could chill for a while.

Late July rolled in. It was ski boat season and Ivan was itching to get out there on the water. He called Cynthia again and politely asked what was up. Still no baksheesh and Detroit was running low on Magnum color choices. Cynthia was a little nonplussed. She thought the rating would have been issued. She’d signed off on it and done the paperwork. The magic number now stood at $535,233.33 with a one-time $11K for the vehicle allowance.

About the second week into September, Ivan was becoming annoyed. How long could it possibly take? Another call to Cynthia revealed some troubling news. In spite of the fact that it already had two signatures, it was “back in ratings”. Ruh-oh, Rorge.  Just about this time Cynthia could smell something odiferous emanating from the claims room and abruptly said “Dude. I wish I could help but this is where my involvement ends. If you have any queshuns, call the 800 number. I’m outta here.” And so she was.

He started asking more questions towards the end of the week and they pawned him off on the blind mens’ clinic down the hall at the VHA. They said they’d look into it for him (no pun intended). They never did. Why am I less than shocked?

The blind men’s clinic turned out to be DRO Beverly Cole who was more confused than Cynthia. All she knew was this thing had come to a crashing halt and now was occupying her in basket. Being a smart cookie, Bev decided to punt to the vA Regional Counsel  (vARC)at the SquareBob Sponge Pants RO in that famous underwater city on October 28th, 2004. We can be pretty certain that this had everybody’s attention at the C&P desk up in D.C. They had the 10X90 binoculars trained on it daily.

After dawdling five weeks and hoping Bev would forget, the vARC at NORO finally and reluctantly tried to extricate herself out from under this rotten apple. She decided to do the “speculation” dance and skate away. The important thing was to make Bev do the dirty deed in case it exploded unexpectedly like an IED. Thus she just said she was available to consult but wasn’t going to make any legal decisions up or down. She did point out that there appeared to be a decision in the C-file though. I’m sure Bev was looking at that particular sheet of paper about 20 times a day.

November 14th the sun rose high in the sky and Ivanovich sent off a missive to the Houston RO. He wasn’t happy. The blind men’s clinic was notably silent and Bev wasn’t talking. He wanted some answers fast and Houston was playing deaf and dumb. He kept this up and finally was called by a Houston rater who lost the short straw contest and thus was elected to give Ivan the bad news. Yep. We hear you, Ivan but it’s in New Orleans getting fitted for what will turn into the EAP in a few years, dude. Sit tight. We’ll get back to you as soon as we can get three signatures that will stick. They were still playing him like a small mouth bass and keeping him away from the underwater logs. The short straw guy insisted they couldn’t decide on 1988 or 1989 for the award date but give them some more time. Hear? This was unadulterated bull shit but Ivan was still very naive.

Getting ever nervous, Ivan motored on down to the HOURO in person and got some disturbing news. It appeared he was going to get an effective date of February 2004, not the expected 1988 or 89. In the meantime, Bev got the raters to scare up another medical opinion to see if they could get out of both the 1988 and the 2004 gig. Nobody wanted to cough up $550 K to Ivan so they had to do some fancy footwork. The eyeball specialist wouldn’t play ball. He went with the service-connected choice and wouldn’t speculate any further whether it was actually aggravated by service. He rightly reasoned that Ivan didn’t have it before service and he sure as hell did afterwards.

The bait and switch occurred on January 31, 2005. The HOURO granted SC but only from the 2004 filing date. To sweeten the pot and make him feel better, they threw in a housebound (SMC S), an adaptive housing grant and a new automobile with adaptive technology. Ivan wasn’t buying. He’d won Monty’s Cookie Jar behind door #3 and saw what was inside. Now the RO was trying to pawn off an Earl Sheib $99.95 paint job and a week’s supply of gas.

Somehow, Ivan had come into possession of the original June 1, 2004 rating agreeing CUE had occurred. He waved this around a few times with the NOD. It contained the same thing they were trying to saddle him with except for the effective date. That rating said March 25, 1988 and Ivan was holding them to it. The decision was undated but had the three signatures needed to be valid. Good to go? Not exactly.

Just before Christmas of 2006, Ivan got his DRO hearing in front of DRO Marian Peters at the HOURO. Yep, it took 21 months to get it (the hearing). Ivan laid it all out and Marian allowed as how they really, really tried to get this through “but the front office said No!”. Who it was in the front office will remain a mystery forever. Nevertheless, Marian promised to walk this through with the hearing transcript and get these mythological front office people to change their minds. This is also known as the Good cop/Bad cop ploy to gain the trust of your mark. Marian had no intentions of trying to convince anyone of anything. The real McCoy would have been to get Cynthia back in there and let her run it by the front office. I’m sure she’d been promoted and was enjoying her new digs in the C&P office in D.C. by then so that wasn’t an option. Her new job description was probably Binocular Girl.

Six months later, a new DRO entered the picture and reaffirmed what Miriam had promised to try to overcome- a front office review. I find this rather telling that they can’t let one DRO mookwalk this through. Perhaps DRO Dexter Levitt was enlisted because he’s a man and he could talk mano a mano with Ivan. No dice. Ivan wasn’t biting.

So, a year from the original wave-off, Ivan does another hearing-this time the BvA one with his new VLJ who he’s going to try to convince.  Ivan doesn’t get it. All the dancing bears and trained zebras are not going to change the decision. His VLJ is operating under strict orders to wrap this up amicably and give him the shaft gently.  Sure enough, six months later he gets the Dear John letter but they don’t even discuss the magic June 2004 “You won” correspondence. Ivan was dumbfounded. He was beginning to get the big picture but it always comes as a blow to the solar plexus when you think you’ve made your case only to realize they were funning you. I know. I’ve been strung along by a VLJ who gave me knowing head bobs at just the right moment and agreed with me whole heartedly every time I pointed to the smoking gun evidence. I figured I’d won, too. It’s unsettling to say the least.

Ivan dutifully filed his NOA and got in line. The Court, in a single judge decision kicked him below the belt again in June of 2011. They focused, as the Board did, strictly on the denial not being CUE and ignored the June 2004 grant document. Ivan must have been thinking this was a bad dream. He promptly filed to get a panel review pro se, canned his useless legal beagle and filed the June rating as proof he’d already won. Remember, this document was strangely absent in all these decisions even though it was large as life and twice as natural. He filed it with the NOD but it mysteriously sank down to the bottom of the C-file never to be seen again.

The Court remanded it back to the BvA to decide whether the document was “real” or if perhaps Ivan had manufactured it. They were also to determine if this was some precursor to a EAP that disenfranchised Ivan. The Board, with same bozo as VLJ, determined that the June 2004 document was genuine. Next he held that there was no EAP-like process. The mere fact that the C-file was transhipped to the Squarebob Spongepants RO and was reviewed by a high up Leagle Beagle was apparently just a coincidence or overlooked entirely. Hell, maybe C-files migrate naturally every year of their own accord.  Geese do. Stranger things than this happen in ROs all over America every day.

The long and the short was that Ivan had been given a fair shake and he just didn’t understand the process. If the decision he’d received was valid, it would have had a date stamp on it. Furthermore, if it had been a real decision, he’d have gotten it a lot sooner. So there it was. One of those Fig Newtons of the imagination. Cynthia had been mistaken. Miriam had been mistaken. Everyone had signed the wrong document and it was too bad. The bright side was he’d actually won so he had that going for him. Right?

Ivan marched smartly back to the Court unimpressed with the explanation and determined to get a good legalzoom.com reading on this from the panel. And get it he did. After a lot of parsing and head scratching, Judges Kasold, Hagel and Schoelen came down in his court. As well they should have. It makes no difference how he got the decision. The three magic signatures were the VASEC’s downfall. The idiots also included the 21-4107 appeals form and the auto grant in the original decision. They not only stepped on their necktie- they did a royal face plant of epic proportions. It didn’t help that they were trying to disguise a prelude to the later outlawed EAP procedure. The decision was lousy with all their errors. What amazes me was that a single judge let this get by him and affirmed it. That is the crime that stands out.

So justice prevailed. Ivan will join the ranks of the Leroy MacKlem’s in CAVC history. The raters at the Houston RO will either get fired , go through extensive retraining or be promoted and transferred to Oakland. We already have plenty of Gomers here in Seattle so I doubt there are any openings. Ivan has passed Go! And will collect his $558K. The C&P office will pretend they were on Mars when all this occurred so they aren’t guilty of anything. The binoculars, as well as any incriminating emails, are on the shredder room floor. If you try to get in touch with the vA Regional Counsel in New Orleans, you will probably discover there is no such beast and never has been.

All in all, this is one of those decisions that will disappear up its own asshole never to be seen again. Could be that Uncle Eric is going to be soooo pissed off he’ll appeal it up to the Federal Circus. My guess is he’ll try to bury it and take back the SMC S and the automobile grant just to spite Ivan and show him who really wears the pants at vA. Ivan will spend the rest of his few years of life appealing to get that back, too. In sum, we congratulate Ivan on a well-fought battle that should have never had to be fought. This is the stuff of dreams for us. Ivan the Terrible prevails. Goliath slain!

On behalf of HCVets and Asknod, we thank you for having the stamina to fight this and see it through to fruition, Ivan. You are a testimonial to Vets everywhere. Enjoy your retirement, too.

Posted in CAVC/COVA Decision, CUE, Veterans Law | Tagged , , , , , , , | 1 Comment

vAOIG–EVERYTHING YOU WANTED TO KNOW ABOUT HOMELESS BUT WERE AFRAID TO ASK

Posted on June 27, 2012 by asknod

Here’s another OIG boondoggle that would make the Pope proud. Now that we know the how and why, we can cure the problem, right? Well…..not exactly. This far more complicated than we know and will require another $100,000.00 study and a trip to Maui to study the vA homeless contingent there and on Lanai.

Posted in HOMELESS VETERANS, vA news | Tagged , , , , | 1 Comment

VHA– WHY YOU MIGHT NOT BE GETTING THAT LIVER

Posted on June 27, 2012 by asknod

Member Mike is a wizard, as are all of you in my mind. With all the nasty disease processes and depression piled high, you still manage to find time to dig these nuggets up. This one is a daisy. I commend each and every one of you, including some who prefer to remain nameless. I can hardly thank all of you for what you do to make this a truly great website for HCV as well as other quandaries. This is a classic example of things I think bear examination because they impact many of the members’ lives. Now that I’ve blown enough smoke rings, I give you the latest vA boondoggle. $250,000.00 later, let’s just leave things the way they are. Idiot’s Delight.

Posted in HCV Health, Medical News, vA news | Tagged , , , , , , , | 2 Comments

vA–DOCTOR AND PONY SHOW

Posted on June 27, 2012 by asknod

Almost on the heels of all the PTSD (PTSI?) news, here come all the VAMC Medical schools  chiming in with a “study” about what they should expect and be looking for. Duh? The disease has been labeled since 1982 so why the sudden 1000 yd. stare like a deer in the headlights and a new briefing on how/who/when and why.  If this is what they’re spending VHA health dollars on, vA is in way big doo-doo.

Posted in Gulf War Issues, Medical News, PTSD | Tagged , , , , , , , , , | Leave a comment

BvA REBELLION

Posted on June 27, 2012 by asknod

As with all catastrophes, certain panaceas are regularly trotted out as the repair order. With the vA this isn’t so. They are, for the most part, hide-bound and stuck in the past. Witness their insane desire lo these last two decades to adhere to a paper file system. All the better to shred the C-files with, my pretty. Seriously. Can you think of one prominent reason to defend a paper file system?

We have had the dubious pleasure on our watch to witness a gradual meltdown in a system that all who are party to admit is dysfunctional. Nevertheless the vA Honchos at the top, in impeccable denial mode, continue to tout new reforms and innovations that will drastically change it. This isn’t a Thomas the Train moment of I think I can, I think I can. Daddy used to refer to this as talking through the top of your hat-as in holding your hat over your mouth and face so as to muffle the timbre and tone of the voice as well as to obscure the content of the statement.

We were greeted in the news last week of a meltdown of sorts finally boiling over amongst the employees of the Columbia, S.C. vARO. It seems they are disgruntled with the strictures being foisted upon them by management and an insane culture of perverse justice being served up for America’s Defenders (us).

What then to behold in my email this morning than yet another peasant uprising-this time at the Head Office down at Vermont Ave. Bill Preston, under the heading of Veterans w/HCV, sent me an advance copy of the letter sent out to all the usual suspects and witnesses to this travesty we call the vA judicial nightmare. It seems only fitting that the AFGE, a union some say is inconsequential and past its prime, should be the one to raise a hue and cry at the practices we all know are perpetrated against us. Veterans will note they (AFGE) were instrumental in the protest down in Columbia last weekend. That Mr. Preston would see fit to put this in our inbox too is an honor.

One of our sister sites ( Yuku’s VBN), when apprised of the Columbia vARO development, had an interesting observation. A moderator (who claims to be a former DRO) opined that this was much ado about nothing and that the AFGE is a toothless, inconsequential tiger at this point:

To be technically accurate we really don’t know how many rating personnel participated.  Folks here tend to erroneously refer to all Regional Office employees as “raters” and that isn’t accurate.

I read this article a couple of days ago and the first thing that struck me was that this event was organized by the American Federation of Government Employees (AFGE) labor union.   I can’t say for sure but I would bet that the union is trying to fan veteran indignation in an effort to secure some labor union goal.  I was a member of the AFGE for several years and don’t remember it ever concerning itself with the welfare of the veteran population.  The union was primarily concerned with obtaining employee benefits and promoting the political candidates it endorsed.

Most Regional Office employees aren’t even members of the AFGE and only  a few of those that are tend to pay any attention to union activities.  At my Regional Office a typical union meeting would have about 10-12 attendees out of 300 Regional Office employees.  http://vets.yuku.com/topic/79244/VA-Raters-up-in-Arms#.T-sx57UQvIM

That insightful comment was followed by another paternalistic ” Fortunately for you, I have the complete scoop.” Keep in mind that VBN’s stated goal is helping Vets.

It would be difficult to work 30 years at VA spending time in various offices, including Central Office in Washington, and not know a lot of people all over the Country.  I count among my friends VA folks from all walks from Central Office management and Regional Office Directors at the top to file clerks at the bottom, and everything in between.  More than a few of the young rookies that I trained down through the years have gone on to high positions at VA and it is with great pride that I can say that more than a few viewed me as their mentor during their formative years at VA.  These contacts often allow me to get the backstory behind what is put out for public consumption.

Apparently, former employees, including the one above, discount this as an aberration and  nothing more than a union spat for more wages/benefits. This head-in-the-sand defect is a hallmark of vA hierarchy.  Sadly, it appears it will be perpetuated by their retired minions as well. That philosophy seems embedded in many of the moderators there. It mirrors how we got into this situation closely. What does seem equally obvious is that some (current vA employees) are mad as hell and not going to take it anymore. I attach this which was posted today on an older, September 28th, 2011 blog. I was afraid it would never see the light of day if left there.

Veterans w/HCV says:

AFGE Local 17
Fighting for Justice
here at VA Central Office

June 26, 2012
The Honorable Eric K. Shinseki
Secretary of Veterans Affairs
810 Vermont Ave. NW
Washington, DC 20420
Dear Mr. Secretary:
The Chairman’s front office staff at the Board of Veterans’ Appeals (the Board) is responsible for unnecessarily delaying appeals filed by Veterans and their families. Employees at the Board, many of whom are Veterans, are troubled by these delays and have urged me to notify your office of this matter in the hope that you can rectify this ongoing problem. I am therefore bringing this matter to your attention. This letter is also being faxed to U.S. Senators Murray and Burr, and to Representatives Miller and Filner, the chairs and ranking members, respectively, of the Senate and House Veterans’ Affairs Committees.
The Board’s mission is to adjudicate Veterans’ claims for disability benefits expeditiously. Attorneys are under immense pressure to review cases and write decisions as quickly as possible. In an effort ostensibly to achieve its goals, the Board recently issued a new policy that cases must not be held by judges or attorneys for more than 30 days, and that failure to adhere may result in disciplinary action, negative performance appraisal, or removal. AFGE Local 17 fully supports resolving appeals in a timely manner and is sensitive to the fact that Veterans anxiously await decisions that may significantly impact their lives. Because of this, we find it incumbent upon us to bring to your attention the fact that members of the Chairman’s front office not only violate this 30-day policy but are the worst offenders, sometimes even holding cases for over a year. Many cases have tentative decisions already prepared and are merely waiting to be signed by a front office staff member in their capacity as a Veterans Law Judge (VLJ) or Acting VLJ. However, instead of being timely signed and dispatched, these cases sit on shelves collecting dust while Veterans wait for resolution.
I have attached a redacted list dated May 10, 2012, which provides a snapshot illustrating some of these unconscionable delays. As the list reflects, Principal Deputy Vice Chairman Laura Eskenazi held five cases well in excess of 100 days (227 days, 198 days, 177 days, 156 days, and 120 days). Also, Chief Counsel for Operations Donnie Hachey is one of the worst offenders, holding one case for over a year, for 415 days, and other cases for 357 days, 349 days, 233 days, 224 days, etc. Other offenders in the Chairman’s front office include Counsel Marti Hyland (399 days, 399 days, 210 days, 210 days, etc.) and Executive Assistant Bethany Buck (360 days, 343 days, 302 days, 237 days, etc.). Notably, none of these individuals is a Veteran. In addition, the Chairman’s relatively small staff has had more cases beyond the 30-day deadline than the over 350 attorneys and judges on the four decision teams combined. The number and extent of these delays by the Chairman’s office is disrespectful to the men and women who have honorably served our country.
What is more troubling, we’ve learned, is that when the Chairman’s front office became aware that our union local might have obtained data implicating its own personnel, the Chairman’s staff was directed to remove old cases from their dockets by assigning them to other attorneys and judges. The Chairman’s front office, it appears from what we have gathered, attempted to hide the information in order to escape further scrutiny and responsibility, rather than adjudicating these old cases so they could be dispatched immediately.
Employees at the Board demand to know why members of the Chairman’s front office are allowed to disrespect our nation’s Veterans by needlessly delaying appeals. It is apparent that the Chairman’s front office staff is unfortunately incapable of adhering to the Board’s mission statement of resolving appeals in a timely matter. The consequence is that benefits for disabled Veterans are being needlessly delayed. On behalf of Veterans, employees request that you intervene in this matter to ensure that these old cases are adjudicated as soon as possible and that members of the Chairman’s office are not allowed to play by a different set of rules.

Sincerely,
Bill Preston
President
AFGE Local 17

It seems all is not well at 810 Vermont Ave. NW. in spite of what the VBN DRO/moderator    believes. It would be interesting to hear his explanation for this latest outbreak.  By virtue of sheer numbers alone, it’s quite possible that Eskinazi, Hatchey, Hyland and Buck may be some of those he mentored. Perhaps Preston is just another one of those inflated union types fomenting a rebellion for higher wages but I severely doubt it. Where there’s continual smoke, there’s a fire afoot. When smoke starts emanating from vAROs (and now the Central Office), its safe to assume their collective house is afire. How soon will we see smoke curling up from Oakland and Seattle?

I know some of you will say this is the last vestige of a conspiracy that is collapsing under its own weight. Rubbish. It’s simply the sound of daylight crashing into dark corners vA would prefer to keep cloistered and far from the public domain. This is also the fallout from the information age that vA has so desperately tried to hold at arm’s length for decades. I see no union employees clambering for more and better wages and working conditions. What I do see are vA employees (who just happen to be union-affiliated) protesting the nefarious schemes we’ve known for decades to exist. Don’t lose sight of the significance. We’re talking about a sea change of employee sentiment. This is unheard of in our lifetime. In the past it would be grounds for instant dismissal. Their timing is eerily impeccable.

vA has been on a bender for nigh on a century with no appreciable change for the better. As their methodology falls into disrepair, they continue to have their high tea and crumpets every afternoon. Senator Alan Cranston phrased it very succinctly in floor debates on the VJRA in 1988-vA has been in “splendid isolation” for far too long. I submit that they have fallen back into the same predicament yet again if they ever indeed truly reformed after the VJRA’s passage.

vA is at a nadir in their existence with no way to dig themselves out. Everything they touch   turns into something smelly and it isn’t gold. The last straw is now a peasant revolt among those formerly entrusted to screw us. When you hear the employees voice displeasure with how we are being treated, you know one thing is certain- even they have no more stomach to do the bidding of their masters.

My attorney mentioned a month or more ago that the BvA has been under the gun to crank out a decision per day per judge for some time now. Apparently, some of these cases need more nuanced denials that require additional ammo. I suspect those are the problem cases Mr. Preston mentions. What better way than to pidgeonhole them somewhere and shop the perfect VHA “expert” willing to say whatever 30 pieces of silver will buy.

HERE I COME TO SAVE THE DAY

OGC IS ON THE WAY

(SOON)

Posted in BvA Decisions, Complaints Department, VA BACKLOG | Tagged , , , , , , | Leave a comment

VA: Fixing Fiduciary problems too costly

Posted on June 27, 2012 by joeaveragevet

No, I didn’t  make this stuff up.    When congress wanted to know why the VA does not have more oversight on things like convicts and gamblers having control over Veterans finances, ultimately stealing their money, the VA responded they can’t afford it?

Huh?  One of us does not “get” this.    How much does it cost to keep fraud out of the VA?  I manage to keep it out of my house and the cost is pretty much zero.    If a suspicious character knocks on my door wanting in, I simply decline the invitation.

Exactly why would it cost money to prevent  people from stealing Veterans benefits?  That makes it sound like the VA is “on the take” in this fiduciary fraud, and can not afford to lose the income generated from fraud.      Isnt that the whole idea of the VA “fiduciary program” to prevent thieves from stealing Veterans benefits?   Or, is the idea of the VA fiduciary program to enable  thieves to steal Veterans money?

What if the rest of government operated this way?:    Gee we cant afford to keep fraud out of congress, that just costs too much money.  

The VA’s idea of implementing fraud prevention from the inside is the “look the other way program”.

Posted in All about Veterans, Guest authors, vA news | Tagged , , , , , | Leave a comment

FACEBOOK VIGNETTES

Posted on June 26, 2012 by asknod

I love finding these gems and where else can you find a million?

Posted in Humor | Tagged , , , , | Leave a comment

WHAT’S IN A NAME?

Posted on June 25, 2012 by asknod

The military has finally decided that PTSD is misnamed. They think labeling it a disorder might drive away potential sufferers who are turned off by the term “disorder”. The newest idea seems to be PTSI as in “injury”. Well, there you go pilgrim. That’ll fix it. Trust those brain doctors to figure out what’s wrong and and get the process into counseling. What was wrong with battle fatigue or some of the other terms used in wars past? More importantly, who’s the Gomer who came up with  PTSD?

Now, how about some politically incorrect choices from the Peanut Gallery. I think I should be allowed to contribute. I’m unarguably one who escaped the magic suit all these years. My choices are

Bent Brain Syndrome– abbreviated as BBS.

Latent Stress Disease–”                       ” LSD

Loony Tunes Syndrome–”                   ” LTS

Stryker Traumatic Disease–”               ” STD

Brainf**ked (formerly used in Vietnam)

OEFD/OIFD-Operation Enduring Freedom Disease etc.

Afghanisbrain

OAFS– Operation Afghanistan Freedom Syndrome

IFTDS–Pronounced If-tids(I’m fixin’ to die syndrome) with apologies to Country Joe McDonald

Surely some of you readers have a contribution to this conversation worthy of being immortalized? Ideally, they should be pronounceable as in a trendy acronym. Feel free to throw your hat in the ring.

Posted in PTSD, vA news | Tagged , , , , , , , | 2 Comments

BVA–WEIGHT WATCHERS

Posted on June 25, 2012 by asknod

FROM THE CITY

OF RUST VARO

My home town vARO is a piece of work. I am 4/15 on claims there and 2/7 on appeals via D.C. Obviously I think my claims have merit or I wouldn’t bother pursuing them. Regardless of which vARO one uses, the M 21 adjudications manual predetermines the outcome. If A is greater than B and C is a multiple of 1 or indivisible by 2, then you’re screwed. When you file for increases, you evidence must support your contentions. Our Vet Bennie here is truth-challenged in this vignette. He probably is deserving for any number of reasons, but starts investigating what he’ll need to win rather late in the process.

Some have written me privately over the years asking what it will take to get to the next higher rating. I don’t think that’s cheating or gaming the system. Its common knowledge if you know where to look. Bennie didn’t or he might have padded the bill a little better or kept a diary that confirmed his contentions. What he ran afoul of ultimately was the weight codicil hidden in  38 CFR § 4.112. Weight determination has it’s own code and isn’t mentioned in DC 7354 other than to say minor versus major. It was up to Bennie to find that one and it appears he didn’t. Oddly, in the decision, you will see written that it is included in DC 7354, Note #2. It isn’t.

The Court has confirmed that you do not need a note from from your doctor prescribing bed rest for hep claims.  You are considered intelligent enough to observe this on your own. That phraseology is in the one on lower back ailments DCs specifically but not in the 7354 Diagnostic Code. This is a more recent interpretation by the Court. I went to look for it just now but as addled as my brain is, I didn’t find it. The decision held that a note from the doctor stating your symptoms of near-constant debilitating symptoms requiring bed rest must accompany the lower back diagnosis to support the rating (DC 5243– Note #1) see below:

Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

DC 7354, on the other hand, says:

Note (2): For purposes of evaluating conditions under diagnostic code 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.

Tricky little devils aren’t they? I wager it won’t be long before we look that up and notice a discreet, unannounced change to the 5243 language.

Looking at Bennie’s decision, we see many things. First, let’s look at what he’s attempting. He is currently rated at 40% and is trying to scale Mt. Sixty. It’s an arduous climb:

40% says

daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period warrants a 40 percent rating.

60% demands:

A 60 percent evaluation is indicative of daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12- month period, but not occurring constantly.

I highlighted the word “or” for a good reason. There are two sets of criteria. Either you qualify under one set or you rely on the subsequent assessment. In both cases, there is the clear requirement for a set number of days. Four weeks can be construed loosely to be 28-31 days. Six weeks will be viewed as 42-45 days.

Bennie said (under oath):

He related incapacitating episodes as often as three times per month, lasting for one day. Over the last year, he had 36 incidents of incapacitation for a total of 36 days. 

Bummer, Bennie. You stepped on your necktie. But that isn’t all…

In this regard, although there is a showing of weight loss, the more probative evidence is against a finding of substantial weight loss. Note (2) under Diagnostic Code 7354 defines “substantial weight loss” as a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. The appellant weighed 125 lbs during his pre-induction examination in December 1967. He weighed 140 lbs at his May 1969 separation examination.

This is untrue. Note 2 says nothing of the sort. Its stated in § 4.112 as I mentioned above.

§ 4.112 Weight loss.

For purposes of evaluating conditions in § 4.114, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer; and the term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “inability to gain weight” means that there has been substantial weight loss with inability to regain it despite appropriate therapy. “Baseline weight” means the average weight for the two-year-period preceding onset of the disease.

Regardless of where it is, you can see they are dredging up every one of Bennie’s weight measurement they can find to support their denial.

A weight of 145 lbs was recorded in August 1985.

 He weighed 158 lbs in October 1999.

The appellant weighed 151 lbs in January 2004 and 148.8 lbs in May 2004.

In an August 2005 examination, it was noted that he was diagnosed with Hepatitis C in 1968 and that there was a weight change from 175 lbs to 145 lbs in a 12 month duration. He weighed 150 lbs at that time.

 A weight of 159 was recorded in April 2008

 In the August 2009 examination conducted by Dr. B, it noted that the appellant’s weight was down from 155 lbs to 150.5 lbs with boots.

He weighed 147 lbs during the August 2009 VA examination. During that examination, he reported that he had lost 30 lbs over the past two years. 

Bennie, what were you thinking? You’re a guy!. You don’t have to lie about your weight. What you do have to be careful of is not to give the bozos ammunition to deny.

The Board has considered the appellant’s reports of weight loss. However, we find him to be an inaccurate historian and not credible. In this regard, we note that in the August 2009 VA compensation and pension examination, a 30 lb weight loss over a two year period was reported. However, when examined by Dr. B later that month, he did not report such weight loss but rather a 5 lbs weight loss. As such, we find that the appellant has been an inconsistent historian when reporting his weight loss. 

Clearly, the appellant is competent to weigh himself and report his weight…  However, we find it telling that when he reported his weight to Dr. B he reported a 5 lb weight loss rather than the 30 lbs weight loss that was reported to the VA examiner earlier that month. We find it wholly incredible that he would have not reported an accurate weight loss to his treating physician. Such histories reported by the appellant for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes.

VLJ H. N. Schwartz pounds the final nail into the coffin on the less than 6 weeks of incapacitation but still gets it wrong on requiring that he bring a note from Dr. Dude saying he’s on bed rest.

Furthermore, we note that while the appellant has reported having incapacitating episodes, his episodes fall short of the duration requirement and there is no indication that they require bed rest and treatment by a physician. In the August 2010 examination, the appellant related having had 36 incidents of incapacitation for a total of 36 days within the year. To meet the criteria for a higher rating six weeks of incapacitating episodes which require bed rest and treatment by a physician must be shown. At most, the record shows that the appellant has related having five weeks of incapacitating episodes within a 12 month period which is short of the six week requirement. More importantly, there is no showing that these episodes require bedrest and treatment by a physician. As such, the above does not meet the criteria set forth for a higher evaluation.

Bennie will, if he’s intelligent, go lick his wounds and fight another day. There’s no money in taking this up to the Big House. If DAV is true to form, they’ll counsel him to go home anyway. It’s too bad the service officer didn’t peruse the fine points of § 4.112 and the specific requirements of DC 7354 on 60%. Since he testified that he only had 36 bad hair days, he’s doomed. The SO should have dialed in on that one even if he overlooked the weight loss discrepancy.

Profit from this. Analyze your claim from the standpoint of the rater who is looking for the smoking gun to deny you. He didn’t have to look far here and chances are the denial language on the RO SOC was identical. Absent any clarifying testimony to the contrary, the bVA decision was a given. And if you use a VSO? Well, make sure they’re conversant in 38CFRspeak. Bennie’s certainly wasn’t. As an aside which has no relation to this, many Vets are unaware that Elton John wrote a really cool song called Bennie and the Vets. I’m not sure if this was the Bennie he was referring to though. There’s a lot of Vets named Bennie out there.

Posted in BvA HCV decisions, Veterans Law | Tagged , , , , , , , , , , , , | 1 Comment

THE UNDERWEAR GNOMES

Posted on June 24, 2012 by asknod

After a suitable amount of time to accumulate a body of emails that discussed their impressions of the brouhaha at the House hearing last Tuesday, I can say that it is apparent there is general consensus among Veterans at this site that all is not well in Hickeyville despite vA’s storied press releases to the contrary. This is not a personal attack on the Undersecretary, per se, but what she represents, says and who she represents.

Representative Bob Filner (D-CA.) is neither a Veteran nor a warhawk. Quite the contrary. He’s a liberal, level-headed fellow who believes the government should put its vA money where its mouth is. I applaud his candid assesment however pointed. I agree with one poster that he’d make a fine VASEC. After untold years of promising to fix a decidedly broken system, after several VASECs who promised they were “on it” and after hiring 12,000 new employees and boosting their budget from $95 Billion to $126 Billion, the problem has now metastasized into an even larger backlog that promises to delay Veterans’ claims for years. vA’s take on this (a la Honorable, Brig. General (ret.), Undersecretary for Veterans Benefits Allison A Hickey) was a decidedly rosier prognosis than what we have been reading about.

Ms. (Mrs.?) Hickey insists the problem is not of the vA’s making. vA apparently has been hit with, depending on what you believe, a) the perfect storm of claims; b) two completely unforeseen wars with their attendant casualties; c) an uncompromising Congress who heaped up 200,000 more Agent Orange claims on an already overburdened system and d) new initiatives that require retraining and revamping of vA adjudication procedures-including new gazillion-page DBQs for simplicity and speed.

In her labored testimony, continually interrupted by Rep. Filner, she appeared tempted to climb up on the table and demonstrate her prowess at moonwalking while giving her answers. Steadfastly clinging to the 125 days/2015 mantra which has become her trademark, she admirably resisted letting the dark side take over and say what was poised on her lips. You can generally see that wrinkle in the corner of woman’s mouth that presages a snarl. I commend her for her aplomb in the face of adversity attained from years in the military.

It is apparent that the culture of denial, both of our claims and their refusal to accept responsibility for this state of affairs, is getting us nowhere. Promising that success is just over the hill, around the next bend in the road or within sight is getting redundant. Much like the young man who cried wolf again and again, so too has Ms. Hickey exhausted her vast storehouse of excuses. This is sad on the one hand as it diminishes her credibility any time she opens her mouth and opines on matters vA.. Its sad from a personal perspective in that she has taken her thirty pieces of silver from VASEC and been his shill for the vA. Now, with egg on her face and 500-day claims becoming the norm, they send her up to Capitol Hill and expect her to assuage Filner and his merry krewe. Not. Some of those congressmen might have been born at night but their memory is longer than the proverbial elephant’s. They said as much and wanted new answers. They got none. I was hoping Allison would take Bob up on his bet that if she came back in a year to testify on this, that vA would still be up Paddle Creek with no water under the keel.

Most of the emails I received on this concluded that Ms. Hickey needs a new excuse book. She’s using the 2009 version which contains phrases which are no longer operable. Let’s look at some of the “new” repair orders she touted. STAR teams, vAOIG reports and two-year studies are good. Stakeholder input with positive, proven improvements designed to streamline the system-check.. Co-partnerships with VSOs to identify problem areas and facilitate Kumbaya-okay, I’ll buy. Polysyllabic word designed to smother and coat inefficiency or inertia and a professed desire to cope with the inability to change with the mission requirements-Whoa. Back the boat back up to the dock, Gilligan.

Do any of you remember an episode of the animated TV show called South Park? I refer to the one where two of the boys were theorizing on the underwear gnomes. Underwear was disappearing and there was no explanation for it. A side trip to the underwear gnomes’ warehouse revealed the complexity of the enterprise.  The three-step process was simple. On a grossly simplified flow chart it was no more than:

1) Steal underwear

2) ?

3) Get rich and take cash to bank.

Much like the underwear gnomes, UnderHickey advocates that we :

1) Sit tight and allow the new, paperless reforms to work their way through the system

2) ?

3) Enjoy the new 125-day, 98% accurate claims by 2015

The big problem the Honorable Mr. Filner pointed out was that there are only about ten pilot paperless VARO programs in place. Ruh oh, Rorge.

One thing we here at Asknod have been raising a ruckus about was the new batch of DBQs. Disability Benefits Questionnaires were supposed to be the panacea for speedy, accurate claims resolution. They were going to give wings to a broken system. Veterans could take these to their private physicians (or VHA PCPs) and have them filled out to take some of the evidentiary burden off the overworked vBA and the vAROs. One important consideration- the nexus-was completely ignored. The sine qua none of your claim-the most bedrock anchor to success-was glaringly absent. After eighteen years of insistence that Veterans supply three components (disease in service, current disease and nexus) following Caluza, suddenly our protectors provide us with a form that pointedly omits what we need to win. vA must think we’re mushrooms. Absent this nexus, vA can (and will) step into the void and provide their own for us. They do this anyway when we arrive without one, but this just formalizes the unfair practice. Mr. Richard Dumancas (from AMLEG) noted this discrepancy for the first time to the committee. We noted it about 30 seconds after the new website for the forms showed up. When cornered, Ms. Hickey allowed as that was an unfortunate side effect of an effort to get the document out there promptly to speed up adjudications. That’s akin to rolling out a new F-35 fighter with no engine and saying that you’re aware of it and working to improve it but that the important thing was to get the aircraft out of the hanger for all to see. Whether it flies or not is immaterial. This proves you’re hard at work and recognize the need for a new approach. It also proves you have no grasp of what you’re doing, too. A new concept complete with obvious flaws is not something your roll out half-baked. What of this talk of Stakeholder input? What, pray tell is a stakeholder? If VFW and its ilk are the stakeholders in question, why is it that they are now on record, in Washington, D.C. at least,  wondering why the DBQs are lacking a dialogue box for the nexus?  Gee. The next question to me is how come it took months for the VSOs to see this.

In summary, its obvious no one over at 810 Vermont Ave. NW is on the same page with the VSOs and vice versa. So much for Stakeholders. What’s more, Mr. Filner pointed out the obvious that we have been harping on for years. If there is no collusion between the vA and the 46 major VSOs, why does everyone smell like they’re wearing the same perfume/cologne and sharing quarters cheek and jowl with each other? Why is Hickey’s lipstick on  the VSOs’ collar? So many questions and so few cogent answers. If you really wanted to impress the committee with you independence and demonstrate that a wall exists between you and the vA, why is it that all the VSO arguments seemed to mirror Hickey’s chapter and verse?

My dad once said there were no conspiracies in America. What there were, though, were a shit ton of unexplained coincidences. I’d advance that one space on the Monopoly Board and say contrived coincidences or remarkable aberrations of what one might expect after all the effort and alphabet commissions enacted to solve this conundrum.

Amazing, isn’t it? Hand a claim to Allstate and presto- 3 weeks to a conclusion and check mailed out. Hand the same thing to a vARO and be mildly surprised if you see a  correct resolution in 16 months with the codicil that “the check’s in the mail”. I certainly do not fault vA employees. As one wrote us, when the raters can finally see the light at the end of the tunnel, their hierarchy adds two more miles to it. Their hands are tied and more than half of them are Veterans just like you and me. The fact is they’re down in Charleston, S.C pitching a collective bitch in front of their VARO this weekend.

We have spoken as well of producing a correct decision. The vA poohbahs who dictate the process are no longer consumed (if they ever were) in getting it right. Two things impede this. First is most obvious. The culture, as long as I’ve been dealing with them , is pure denial that eventually works its way back to a grant after a long process that inevitably entails an appeal or two. Second, in the inevitable rush to churn out decisions in volume, error is endemic and immaterial. The number of claims completed is a measure of production output. If every car coming off the line in Detroit was missing a steering wheel, they’d have to send them back to the station where it was omitted and install it. The auto manufacturer wouldn’t then count it rolling off a second time as another new car. It’s quite simply a “reaccomplished ” car and does not swell the ranks of automobiles headed out to dealerships for sale. vA, in their own inimitable way, would consider this a whole new claim and chalk it up as a production figure. Every remanded appeal is given the same treatment, too. Only a government entity can get away with this sleight of hand. Mr. Filner does not share their enthusiasm or interpretation. Apparently, neither do the majority of you.

It is my not so considered opinion that Ms. Hickey lie low for several months and get a designated hitter out there for press and committee appearances. With her credibility in tatters, she needs a makeover. I say go back to the red hair. That blonde thing just provokes endless jokes which she can ill afford at this juncture. It’s just a polite suggestion. I’m not a sexist pig in spite of what many may be thinking.

Posted in VA BACKLOG, vA news | Tagged , , , , , | 2 Comments