BVA–Bare Conclusory Statements

Posted on May 12, 2012 by asknod

From the  Honorable Gen. William

Tecumseh Sherman RO in Atlanta

(ATRO)

In what United States judicial forum is it permissible to make broad, sweeping conclusions with nary a supporting argument to buttress the statement? Correct, Padewans. None. Well, “not exactly” as they say down at Avis® Rentacar. At Regional Offices and the Board of Veterans Appeals in Washington this is considered de rigeur-   prescribed by etiquette or custom.  I look at an inordinately large number of cases that readers send in and also while doing research on a particular subject or quandary. One thing that jumps out is the miscarriage of justice that regularly occurs and then is compounded with interest measured in years when it arrives at the BVA.

Every case that is remanded from DC, whether it goes directly back to the RO or to the black hole of the 57th RO (the AMC), is deficient in some respect. That’s the primary reason for the remand in the first place. What is less apparent is the most frequent reason for the remand. I speak of cases denied based on the one-legged approach. A VA examiner and his/her crew deny the claim for the most specious of reasons and give no supporting rationale for the action. Hence, it cannot stand on its own two legs. Many feel that this is just a delaying ploy to deflect justice and allow ROs more breathing room in this backlog we are currently experiencing. Yes and no. I certainly think the idea has plenty of evidence to support it but I also am loathe to go down the conspiracy path. Suffice it to say that this has become an ingrained, de facto method of gladly paying next Thursday for a defective decision today.  Call it the Wimpy option in honor of Popeye’s erstwhile, penniless hamburger aficionado.

Here’s a case in point. http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files3/1126175.txt

With regard to erectile dysfunction, the examiner who conducted the March 2008 VA genitourinary examination provided the following impression: “erectile dysfunction – secondary to normal aging process, not due to any physical/mental disability. No residuals.” The examiner further opined, “I find no association/correlation between [the Veteran’s] hepatitis C, physical/mental disability. His erectile dysfunction is not due to his service connected Hepatitis C. His conditions of erectile dysfunction and BPH are due to normal aging process and not any physical or mental disability.” In the Joint Motion, the parties pointed out that the examiner provided no rationale for his conclusion that erectile dysfunction was due to aging rather than hepatitis C. Therefore, a remand is required so that the examiner can provide a basis for his conclusion. 

This has become another way of pawning off the decision on the BVA or the Court only to be fought another day. We are by now more familiar with the “speculatory” conclusion as in ” It would be pure speculation to associate the disease with his SC HCV as there is no evidence to connect the two.” That’s the latest default VAspeak for “We’re too lazy to go out and see if there’s a correlation so we’ll just make no decision at all”. This usually results in the remand to the AMC for an”independent” VHA opinion from an OB/GYN wearing a gastroenterologist’s hat.

In the same remand, the VLJ has to remind the RO folks that an incomplete record has always been and will continue to be an incorrect record:

The RO should also obtain and associate with the claims file all outstanding VA treatment records. The claims file includes VA outpatient treatment records from the Atlanta VA Medical Center (VAMC) dated through April 2004. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain any records of treatment for the Veteran from the Atlanta VAMC since April 2004, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

Veterans can arrive at two conclusion from this and the plethora of similar decisions that regularly crop up at the BVA and the Court. Either the quality control firewall function  has been turned off or the ROs are incredibly undereducated in the art form of claims adjudication. That the BVA is continually tasked with reminding these bozos on how to do their jobs shows that something isn’t being memorized.

vA uses the M-21 manual at the RO level. They do not speak Bell v. Derwinski or its ilk. They need a M-21 to CFR dictionary, much like an French to English one, to translate the M-21 concepts into denial language that the Veteran and higher judicial forums can comprehend. This is how you end up with such off the wall denials. A noted computer guru once summarized it as ‘Garbage in-garbage out”. If you hamburger the known facts as you enter them into this Orwellian device, or worse, slant them in such a way as to denigrate the Veteran’s claim from the outset, the outcome is almost a given. The VA examiner is free to shrug his or her shoulders and say that the regulations are such that they preclude granting benefits. He is simply at the mercy of whatever the M-21 computer regurgitates.

This is the inherent flaw in any mechanical device constructed to magically discern truth and fiction. There is no human logic in the process that would weed out  patently ridiculous outcomes. Thus a Vietnam Veteran with DM2 can be denied all the way up to the BVA repeatedly until it dawns on someone that he gets the presumptive on it without having to prove he incurred it in service.  The M-21 is supposed to catch these things but they rarely do. We hear from former VA ratings personnel on other sites similar to this that there is a three step quality control procedure that prevents these things from happening. In the alternative, they say it does happen rarely but that the error, more often than not, is in favor of the Vet. Perhaps this occurs in RO faeryland. We in the real world seem to be subject to the “less often than not” side of the coin.

The unfortunate repercussions of these errors is that the RO personnel don the mantle of Pontius Pilate. Once the decision is arrived at, the ceremonial washing of the hands ensues and there is no more talk of error. Error, should there be any, will have to be determined by a higher Court or, God forbid, the Decision Review Officer sitting as a “new” judge.   In a DRO review, all the evidence used to arrive at the first defective decision is now rehashed and the M-21 is trotted out as the final arbiter again. How can there be a different outcome? The definition of insanity has been described as performing the same function repeatedly and expecting a different outcome.

vA lives by “findings”. Once a finding is arrived at, nothing short of a Presidential pardon at the RO level is going to change the outcome. Often, even going to the Court can be an arduous undertaking if the VASEC vociferously defends it. Witness this tasty morsel from our real world analog version of M-21 (The CAVC). This from Gilbert v. Derwinski:

A “[m]aterial fact is one upon which [the] outcome of litigation depends.” Black’s Law Dictionary, 881 (5th ed. 1979). Under § 4061(a)(4), in order for a finding of material fact made by the BVA to be set aside, this Court must conclude that the finding is “clearly erroneous.” The Supreme Court has defined the “clearly erroneous” standard as follows: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

The above in red is why you and I are almost forced to go to the BVA and beyond to obtain rudimentary justice. Clearly erroneous  findings are almost a given at the RO. It’s their hallmark as evidenced by the horrific number of remands and vacated decisions that emanate from higher Courts back to the RO. Oddly, no one is chastised. There is no collective chorus of mea culpas. No one “mans up” and shoulders the responsibility for the error. It’s nobody’s fault. The “system” caused it.

One must then question the premise of spending untold millions training raters for three or more years only to have results with a 65% error rate. Do we blame the rater or the rating machine? If the M-21 yields such an inordinately high error rate, might it not be advisable to retreat to the “analog” mode of yore and involve cognitive brain functions such as “If…, then…”?

Until vA learns their trade through and through, the current situation will continue. This has been a thorn in our side since the War of Northern Aggression ended in 1865. The vA , and its predecessors have always been afflicted with a disease akin to myopia. They cannot see that which is right before them. On the off chance they do, they quite purposefully misconstrue it to your detriment. They do this with little or no inductive logic processes and even less in their conclusory deductive methods. This has always been the case even before the inception of the gargantuan automated M-21 claim destroyer.

We are blessed with this method to “speed things up”. vA’s playbook is filled with phrases like “claims adjudication procedures to streamline and accurize the process and provide to the veteran any benefits deserved.” vA’s “paybook” is rife, on the other hand, with phrases like ” Unfortunately, the veteran has not provided evidence sufficient to invoke the benefit of the doubt and therefore the claim must fail. However, the claimant is free to submit new evidence at any time and the vA will be more than accommodating in trying to find a path to service connection”.

Who said “No good deed  goes unpunished”? Perhaps they never ran afoul of the vA adjudications procedure. vA is convinced their methods are flawless and until that misconception is unmasked, we will be subject to conclusory statements, rank speculation (or the fear of it), incomplete records and evidence and post hoc reinterpretations of the existing evidence years after the original decision.

Poor Johnny Reb. He began this quest in 2003.  Nine years later he finds himself in the remand jungle for the fourth time. Will this one be the proverbial charm? If vA jurisprudence of old is any harbinger, he’s going to die before he gets any satisfaction. He enlisted in 1961. I make him out to be about 69 or 70 now. Somehow I don’t see this ending in the mandated 125 day window.  Maybe I’m just a little pessimistic. What the Hell? I’ve only been waiting since 1994 so I’m somewhat of a FNG.

Posted in BvA HCV decisions, DRO and BVA Hearings, Tips and Tricks | Tagged , , , , , , , , , | 1 Comment

A WOMAN SCORNED

Posted on May 11, 2012 by asknod

Did you ever have to finally decide?

Say yes to one and let the other walk by

Its not often easy and not often kind

Did you ever have to make up your mind?

(Lovin’ Spoonful)

She could have paid less if she had used proper English and said “Scott Kelly has a small dick”. but why detract from her happiness and joy?

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

Military Humor

Posted on May 10, 2012 by asknod

This is what a majority of us thought but could never voice during our time in service. I want one.

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

BVA–WHY AM I PAYING THIS ATTORNEY?

Posted on May 10, 2012 by asknod

 MORE COUNTRY WATER

Here’s another one of those Nashville Cats via the Jackson, Mississippi RO-JACKRO if you will. Even with an attorney repping him. this Vet still manages to snatch defeat from the jaws of victory. He has everything he needs and then starts adding to it after the denial. Jetguns are a risk. We all know that and vA is adamantly deaf on the subject. As I always counsel, file all of your claim risks at the same time for a claim. There are rare reasons where you might not, but this case isn’t one of them. Mr. Nashville has medical worker risk, sexually transmitted diseases in service and nary a nexus on this.

He does have an ARNP sister who claims he looked jaundiced when he came home from service and probably had HCV. Layno v. Brown allows her to say medically that he had some of the symptoms associated w/ HAV, HBV and HCV. Period. She has no lab tests for AST/ALT to prove it so its just her opinion. We have a Vet reporting history of “viral hep ” in service with no SMRs corroborating it. His wife has HCV and vA chooses to blame her.

What are we missing? How long has he been married to his current, HCV-positive spouse? By proven CT-guided Liver Biopsy, what is the stage and grade of the disease progression? This determines the age of the infection to within 5-8 years, so who sent out for the test? The lawyer, the vA or the Veteran? What’s that? Nobody did?

vA chooses to accept rank speculation from a VHA “expert” yet a simple test will remove all doubt? What if the spouse has only been around for 10 years and the infection, by biopsy, reflects a long-standing 35 year old Stage 3, Grade 3?

Beware this ploy with vA. Asking for a biopsy from vA is doable- or was when they answered your calls back before the recession started. Getting one is almost a prerequisite for this situation. Without it, a good MRI will suffice, but a core biopsy is the gold standard. When faced with these circumstances, it can mean the difference between winning and losing.

One last note, there is not much talk of the degree of disability the Vet currently exhibits. Were he ill over a long term, we would hear of some medical records  supporting his contentions. Where is the discussion of his MOS? The whole decision comes down to one contention that his wife is the culprit. Oddly, science and VHA experts most often discount this vector of infection when denying these claims based on it being statistically insignificant. The CDC vehemently disputes that theory pointing to the high co-infection rate with HIV. Everything in this decision points to a “deny and make up any story you think fits”. The BVA buys it hook, line and sinker and VLJ Michelle L. Kane (no relation to Erica) puts her imprimatur on it. The testimony of the Veteran’s sister, a trained medical nurse, is quickly eviscerated to destroy any credibility. No, the smart money says the fix was in on this one. Not all of them are, but this was. It’s ripe for a CAVC remand if he appealed it.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files2/1118107.txt

Posted in BvA HCV decisions, Jetgun BvA Decisions, Nexus Information, Tips and Tricks | Tagged , , , , , , , , , , | 1 Comment

FED.CIR.–CADORET V. SHINSEKI–11 DAYS= SCHIZOPHRENIA

Posted on May 10, 2012 by asknod

I know there are many of you who will eventually file claims with the vA who are reading this. I always ask Vets I help to do the mirror test. That is, look in the mirror and tell yourself that what you are filing for is predicated on sound science and that you, yourself, believe it is true. Not merely plausible, mind you. I mean true as in you sincerely believe that what you are preparing to do battle over is the reason for your ills.

I have had guys show up and say “Gee. I have DM2 and I was in Nam. I get the presumptive so please show me how to file. ” Others come to me and say “I got blasted with a jetgun and that’s how I got HCV.”  To the former, who are sometimes grossly obese, I ask them to do the mirror test and if they still believe it, to file. Some see my point and don’t file. I’d still help you one way or another regardless if you were a 400 lb. door stop or a reformed junkie. My job is not to be judgmental but to be a friendly ear and a font of information on what is decidedly a slippery judicial slope.

Which brings us to George  P. Cadoret and his brush with military service. George enlisted in the Air Force in March 1977. His entrance physical in January of 77 indicated he had some “mental” issues the summer before that appeared to have been resolved.  Upon arrival at Lackland AFB, the AF medical examiner voiced some misgivings about his suitability for service but he was overruled.  Eleven days later, on March 19, 1977, George was admitted for emergency medical treatment after he was restrained for vandalizing a candy machine and reported that he had been talking to God.  This is so judgmental. God could reasonably be assumed to hang out around or inside candy machines and for the AF to rule otherwise shows their religious inflexibility, not to mention insensitivity.

George was diagnosed with schizophrenia  plus a bunch of other Klingon medical issues and the AF decided it was time to part ways. Mr. Cadoret surmised that the reason he was now in this schizophrenic state had everything to do with the vast amount of  stress associated with Basic Training and candy machines. He promptly filed for  compensation at his local RO in August. vA just as promptly denied his claim  in the same month. No backlog issues then, that’s for sure.

In March 1997 the Georgester refiled for the same issue as a reopening of the old claim. His RO, still backlog-free, denied again three months later in May. Things started to slow down when he appealed and he got little traction until October 2003 when the Board remanded it back to his RO for more testing to see if it was due to that horrific Basic Training experience. Bummer, huh? Things were going along so smoothly and then wham!- a 5 year delay in getting a docket and justice.

As an aside, I will say that I went through the rigors of Lackland in October 1969 and training instructors were often in the habit of engaging in wall to wall counseling of new recruits where there was some question of who was in charge. We were encouraged to watch, too. When the stripes came off, we were all equal. That practice ceased shortly after I left so I doubt George was the recipient of any extracurricular counseling in 1977.

George was measured for his new , highly accessorized jacket in November of 2004. The vA examiner opined that the schizophrenia, now undebatable, increased in severity during his eleven-day whirlwind basic experience but that it was indubitably due to the natural progression of the disease. In other words, George had many problems before arriving in San Antonio but his new-found ability to communicate with God in the presence of Peter Paul and Almond Joy had no bearing on it. Unfortunately, the vA examiner forgot to mention that one thing needed to nail the coffin shut- the mention of reviewing the C-file. Always remember, Vets, they cannot call it a “probative” analysis of the evidence if they don’t mention that they looked at the whole record. That’s the ploy used to eviscerate your nexus letters.

In order to waste more time and money, the BVA remanded yet again for another bent brain report. They enlisted a Dr. Avery Lawrence who had reviewed the matter in 2002 and yet again in Sept  2005. He initially indicated he, too had not reviewed the file, but felt nobody could get that twisted in eleven days. Somebody noticed the discrepency and he had to go back in and “modify” the record to make it legally sufficient to deny Georgie several months later in March 2006.

Finally, after a year of ping pong, the case made it back to D.C. and the Board put the fork in it  October 2006. I think we can safely say that the beginnings of what we call the current backlog were coming into play during this claim. Mr. Cadoret was given summary justice in both 1977 and 1997 in a timely fashion. During the course of his appeal, the wheels of justice began to slow down. He now had 9 years into his appeal. Granted, the claim had no legs, but that ordinarily should have given it wings rather than a boat anchor.

The CAVC, in February 2008, granted a JMR for George to have another bite of this rotten apple. Surprise! Another denial  in January 2009 and here he was in D.C. again. The Court, in a single judge decision, summarized what everyone but George had figured out. God was addressing the guy behind him in line to buy candy and he just happened to overhear to conversation. All the shrinks who had interviewed him were right. He was toast before he arrive in San Antonio and he still was. Eleven days does not a psychosis make.

This all occurred March 4th, 2011. Judge Mary Schoelen is a pro-Vet judge. Her father was Reg AF. If there had been one redeeming smidgen of evidence in his favor, Mr. Cadoret would have gotten a bye and a remand. The fact that he was as loony as the Tasmanian devil of cartoon fame was patently evident. End of story? Negatory. I spotted Mr. Cadoret’s  Federal Circuit hearing on VLL yesterday. It appears this saga isn’t over until the fat lady sings. Listen to George’s sad tale of woe here.

To view his travails since 1977 in detail, click this. A word to the wise. The CAVC seems to take great pleasure in shuffling single judge decisions around in such a way that they all get link rot in a day or two. If this happens, the repair order is simple:

Go here:  http://www.uscourts.cavc.gov/

Look down the left side to “Case information”  Put your pointer on it and choose “Decision and Opinions”

Click on “Search the ISYS system for decisions and opinions.”

Enter Cadoret v. Shinseki and  click on search.

Only one decision comes up under that one and you can view it there. To do so normally, click on the blue “Download” in the upper left and it will convert it to old growth format which is easier to read and more tree-friendly. You can do this  for any Court decision all the way back to the dawn of time and it is easy to use.

So, once again, if you were wondering why there’s a backlog, don’t blame it on the vA. It’s obvious from frivolous filings like this tying the Court’s hands, that we find ourselves in this sticky wicket. While every dog must have it’s day, it appears the tail is now wagging same.

Posted in Fed. Cir. & Supreme Ct., Frivolous Filings, Important CAVC/COVA Ruling, VA BACKLOG, Veterans Law | Tagged , , , , , | 1 Comment

GREEN DOLLARS

Posted on May 9, 2012 by asknod

Member Tom spotted this and, being a Marine through and through, felt it belonged here. I agree:

Think about these……

As you open your pockets for the next caller pleading for your donation, please keep these facts in mind:

· The American Red Cross President and CEO Marsha J. Evans salary for the year was $651,957 plus expenses

· The United Way President Brian Gallagher receives a $375,000 base salary along with numerous expense benefits.

· UNICEF CEO Caryl M. Stern receives $1,200,000 per year (100k per month) plus all expenses including a ROLLS ROYCE . Less than 5 cents of your donated dollar goes to the cause.

GO “GREEN” INSTEAD AND PUT YOUR MONEY WHERE IT WILL DO SOME GOOD:

· The Salvation Army’s Commissioner Todd Bassett receives a small salary of only $13,000 per year (plus housing) for managing this $2 billion dollar organization. 96 percent of donated dollars go to the cause.

· The American Legion National Commander receives a $0.00 zero salary. Your donations go to help Veterans and their families and youth!

· The Veterans of Foreign Wars National Commander receives a $0.00 zero salary. Your donations go to help Veterans and their
families and youth!

· The Disabled American Veterans National Commander receives a $0.00 zero salary. Your donations go to help Veterans and their families and youth!

· The Military Order of Purple Hearts National Commander receives a $0.00 zero salary. Your donations go to help Veterans and their families and youth!

· The Vietnam Veterans Association National Commander receives a $0.00 zero salary. Your donations go to help Veterans and their families and youth!

Posted in All about Veterans, General Messages, vA news | Tagged , , , | 3 Comments

K-Vet Shoots Intruder

Posted on May 9, 2012 by asknod

Eighty four year old Fred Ricciutti from Elizabeth, Pennsylvania never figured he’d be punching holes in anybody with his service issue weapon again. Nevertheless the other morning in the wee hours, he had occasion to do just that.

It seems one Raymond Hiles was out and about early Tuesday morning and found himself trying his hand at fenestration rearrangement (breaking a window) at Mr. Ricciutti’s residence. Fred, unaccustomed to being awakened early under these circumstances, opted to take a pot shot at Raymond. Grazed in the neck, Raymond took this to mean that he wasn’t welcome there and departed.

Police found Mr. Hiles several blocks away bleeding profusely from a neck wound. They elected to make him a guest of the county until the matter of a small bail amount ($100 K ) could be negotiated. Mr. Hiles was unable to account for why he had a screwdriver and stun gun in his possession at the time of his being granted free room and board by the city’s finest. His injuries were determined to be non life-threatening and he is expected to recover his hearing soon.

Fortunately, Mr. Ricciutti didn’t manage to kill or permanently maim Mr. Hiles so he is not expected to be charged with a crime. Which is where I have to ask Gilligan to back the  boat back up to the dock for a minute. Why, pray tell, would Veteran Fred be charged with anything? Do they have special dispensations for burglars in Pennsylvania that preclude harming them in the pursuit of their crimes? Are Veterans so untrustworthy as to not be allowed to possess firearms after separation?

There are more insults and innuendo here than meet the eye. We sincerely hope the writer(s) of the article (AP) and the television station reporting it ( WPXI-TV, http://www.wpxi.com) have a clearer explanation of why he might have been charged with a crime but is expected not to be. I’d say Mr. Hiles can count his lucky stars that he’s not room temperature at the morgue right now. It seems Fred didn’t have time to don his glasses before shooting.

Posted in All about Veterans, General Messages, Humor, Inspirational Veterans | Tagged , , , , | Leave a comment

Judge: ” unchecked VA incompetence” is the Fault of Congress

Posted on May 9, 2012 by joeaveragevet

I didn’t make it up.  The court reversed itself.

http://www.military.com/news/article/judge-va-mental-health-system-requires-govt-fix.html?ESRC=eb.nl

In 2008, the judges said,

“The VA’s unchecked incompetence has gone on long enough; no more veterans should be compelled to agonize or perish while the government fails to perform its obligations.”

However, according to the report,

“ The Obama administration appealed, persuading the 9th Circuit to overturn that decision. Only 9th Circuit Judge Mary Schroeder dissented, expressing concern it leaves veterans in a “Catch-22″ position because they can’t turn to the courts if the VA fails to respond to their cases.”

An attorney representing Veterans said the government’s position “gives the VA carte blanche to do anything it wants to veterans.”

Funny, I thought Lincoln’s promise was for the VA to do things FOR Vets, not “to” them.

Now, Veterans are left wondering whose fault it is that Veterans are unable to obtain neither their benefits nor mental health care timely contrary to Lincoln’s promise to care for the Veteran and his widow.

The VA has thought of this, too.  The VA says its Veterans fault, because too many of us applied for benefits at once, with the VA often citing the large number of Veterans seeking benefits when trying to “explain away” their failure to address either the claims backlog or mental health care backlog.       I’m speculating that is also because the VA thinks the requirement they hire Vets is also why Vets are the problem.

I dont know..Im just a “Joe Average Vet” but I smell something very fishy at VACO and  Washington, DC.

Posted in Guest authors, Gulf War Issues, PTSD, Uncategorized, VA BACKLOG, Veterans Law | Tagged , , , , , , , , , | Leave a comment

OSAMA SAID TO HAVE ATTEMPTED SURRENDER

Posted on May 8, 2012 by asknod

This just in. Apparently leaked by someone on the SEAL Team who did the dynamic no-knock entry,  it was confirmed today that  Osama himself called in the location of his hideout. After having been holed up with three wives in excess of five years, he was hoping to retire to Guantanamo and a peaceful tropical place to write his memoirs. Due to peripheral neuropathy associated with his DM2 and failing liver difficulties, he was unable to keep his arms above his head and was inadvertantly shot when he lowered them.

Posted in Humor | Tagged , , , , | 4 Comments

WRITS OF MANDAMUS–USEFUL?

Posted on May 8, 2012 by asknod

Several times in the past year I have been queried about using a writ for extraordinary relief. The CAVC has this power and exercises it infrequently, preferring to see the VA  somehow muddle through at their snail’s pace. This is no panacea to Vets who have been patiently waiting as I have for 18 years. I wrote up  the first one about Mr. Erspamer that arrived at the Court back in the early 90s

https://asknod.wordpress.com/2012/02/26/cavc-erspamer-v-derwinski-writ-of-mandamus/

This is good for an overview but doesn’t cut to our chase. We are seeing a definite deterioration in service on VA’s part, due in no small measure to the incredible backlog they have and continue to amass. I won’t assign any blame here. There’s plenty to go around but none of it accrues at our doorstep. What then,  to do when you cannot even get them to answer your request for a simple update? Ebenefits is not the answer. It’s even less accurate than their 800 dial a smile number.

The simple but nuclear option is a Writ. This requires no lawyer or special expertise. I may be thrown in jail for increasing the workload of the CAVC, but I will do my time with great aplomb. Nothing gives me more pleasure than bearding the lion in his own den. If this is the only option left in light of the vA’s recent win at the 9th Circuit, then so be it. The waiting rooms are not big enough and remodeling them to accommodate more Vets isn’t an option.

You, VA’s great unwashed, malingerers all-have at your disposal one of the greatest legal tools of anyone. Congress invested the Court with the power to receive and hear pleas from her huddled Veteran masses. They further gave them a simple set of rules that, when fulfilled, allowed them to right the wrongs of the VASEC. Writs are rarely granted as I have mentioned before but that is beside the point. The mere threat of the issuance of said Writ is the big stick.

Once you file for this, the wheels of justice slow in their inevitable grind and the record is brought forth. It makes no difference where it is. If it can’t be found, Heaven and Earth will be rearranged until it is. Certain tenets will be  extracted from it and questions will be answered. Detailed excuses will be crafted and apologies will ensue. Promises of a speedy resolution will be tendered and the Vet will usually be castigated (politely, of course) for not being more helpful or forthright. Blame will accrue at the Vet’s doorstep for being recalcitrant in not speedily submitting some inane form authorizing vA to search for his/her records.  Soon, the  reason for why the Writ was requested will be rent asunder. It will appear on paper to be little more than a gross misunderstanding and that vA is moving as fast as their little Nikes® will carry them to deliver on their promises.

This will not result in a grant of the Writ. What it will do is give you instant answers on why they are dawdling and lollygagging around on it. vA will go to inordinate lengths to recharacterize the complaint as something it isn’t to deflect blame away from themselves. This means you have to be horribly specific to keep the conversation concentrated on the subject you complain of. If you have multiple claims as I did and ask for a Writ, you’ll find them discussing Tinnitus where you expected the focus to be on the Hep. They’re lawyers, people. This is their forte. Legal prestidigitation for the Court’s edification is their stock in trade.

You’re mad. You filed in 02 and some jerk in a backwater RO has taken your claim and sent it to God knows where. Hell, it might be in Cleveland undergoing one of their special renditions known as a Tiger Team Remand. This torture includes claws to shred it up. They “waterboard” the claim until they torture the denial out of it.

You have posted queries on IRIS to no avail. The twit at  Dial a Prayer is a charter member in the “Lost in Space Club” and playfully suggests you write the RO a letter. Meanwhile vA has conveniently “unlisted ” all the direct numbers to Fort Fumbles across the fruited plain.  You discover your CFC 36© is inoperable due to no signal. Repair order? Why Mr. Mandamus! Faster than a speeding bullet. More powerful than a locomotive. Able to leap to D.C. in minutes via (drumroll please)…

esubmission@uscourts.cavc.gov.

If you are indigent and have a flexible zip code, this costs nothing. If you are upside down on the mortgage but still have a few assets, this will cost you $50 dollars U.S. The important thing is what ensues. A Chinese Fire Drill is a good analogy. The vA will be forced to get someone to babysit this and report back to the General Counsel with their findings. Someone will miss lunch and Happy Hour in their quest to discover the holdup. In short order (two to three weeks after your filing, the Court will start asking questions. vA’s leagle beagles will quickly put their noses to the ground and seek the answers. Post hoc rationalizations will be crafted to fit the error and a suitable answer exonerating the guilty party (vA) will be proffered. The judge will turn it over in his hands and if dissatisfied with the explanation, begin yet anew and ask you and them for more concise information. This is where you must prepare for mistruths and mischaracterizations to surface. vA doen’t mind doing a shoddy, slow job. They do, however, take umbrage when accused of sloth and indifference. Surely they are guilty of it but no one likes to have their shortcomings pointed out for all to see.

Make your arguments simple and short. Make your accusations clear and concise as to  which particular item or items you are protesting. General, non-specific complaints about it taking too long will be thrown out as “bitching”. To get traction, it helps if your claim is getting long,  gray hair. Carefully explain that there is no quid pro quo and queries go unanswered for months, if not years. There is no secret to this. If you do not have a good command of the English language, it does not disqualify you. Reread it when you are done and see if you can figure it out. If the Court has questions, they’ll get back to you-something the vA doesn’t do.

You can be long winded or short and sweet. I wouldn’t send anything in as evidence unless it’s a letter dated in 1995 that says “We’ll get back to you soon with a new decision.”  like this one.

When I filed to complain, witness how fast it went off track. Unfortunately, I ended up in the hospital again and became so ill, I was late in filing a rejoinder, so I lost in my effort. Control the subject. Do not allow this bait and switch technique or you will discover they are talking hemorrhoids while you are still on the subject of dying from HCV. vA is famous for this. Yes, I did file for Tinnitus and yes, it’s on appeal. That was not the subject of the Writ and vA knows it. They artfully turned the whole conversation into a discussion of Tinnitus and then abruptly sidelined the HCV/PCT contentions as a subject for another day. Once you learn of vA’s proclivity to resort to this little trick, you can practice getting redundant on your Writ. Refocus the subject in each paragraph back to the specific disease/injury you are attempting to get relief for or you will find yourself in a windy predicament with urine on your face.

So, bait and switch, If that doesn’t work, go for post hoc rationalizations. If that slime refuses to adhere to the wall, pretend the Vet is mentally challenged and give the judge a wink and a nod. When all else fails, keep him locked up at the VAMC , refuse him access to a computer and paper and up his pain medication. That  usually does the trick.  It’s a dirty job at the vA but someone has to do it.

vA has no defense against a Writ. The Court is not a part of the vA  and thus does not march to the beat of their drum. Thank God for small favors.

Posted in CAvC HCV Ruling, Important CAVC/COVA Ruling, Tips and Tricks, Veterans Law | Tagged , , , , , , , | 2 Comments