COVA–ARCHBOLD v WEST–WHEN A F-9= A NOD

Posted on May 3, 2012 by asknod

Imagine getting screwed by VA in 1953, filing for increase in 1990, and during the course of the claim for increase, discovering you should have had the rating all along.

Poor Mr. Emerson E. Archbold. What tangled webs the vA weaves. In 1989, the Emster filed for an increase of his service connected burn injuries from the Korean Boundary Disagreement. He asked for an increase from 10% bilaterally to 20% and a compensable percentage for his facial burn scars which vA had decided in 1953 were 0%.  Sound familiar? Being pro se, he had  neglected to bring in any evidence. I’m guessing that he somehow came into possession of the ratings % requirements from someone who was wise to it or he finally read the military rating where it described how he was going to get 40%. vA told him in the denial that he didn’t have anything.

Now here is where everything goes haywire. Embo filed the NOD correctly to appeal the denial of the hands increase and a compensable for his face. They gave him the wave off without so much as a Dog and Pony show in January of 1991. Baaaaad idea, vA! Come March, Emerson sent them the original 1953 decision saying he was entitled to the 40%. On National Tax Day in 1991, vA wrote him back and said “You screwed up in 1953 because you had one year back then to pitch a bitch. You didn’t so it’s a done deal. And, to add insult to injury, your present claims sucks too and it’s denied as well..” There oddly was no mention of the CUE cure.

June 6th, 1991 seemed like a good day to start the repair order and Mr. Archbold proceeded to try to enlighten these poor heathen yet again. I don’t have a copy of the record on appeal, but my guess is he removed all the polysyllabic words and got it down to grunt conversation like ” Ugh. Archbold have burn owwie. Both hands. vA say 40% long time ago. Me no get. Want 40% now. Both owwies. Face owwie money too. vA give 40% to 53 too.” Well, actually he said like this:

The main point I would like to make is noted on page 3 of [the] proceedings of the [MPEB]. [Block] #28 [of the form used by MPBE noted:] “Such unfitness is 40% disabling, in accordance with the standard schedule of . . . rating disabilities in current use by the VA.” [Block] #29[:] Such unfitness is permanent. [Block] #32[:] Recommendations and remarks “Plastic surgery can be accomplished. . . .[” Block] #28[:] States very clearly that 40% disability was based on ratings in use by [ ] VA. [Block] #29[:] States clearly that this is permanent. [Block] #32[:] [A]llows for the fact that plastic surgery can be accomplished at a later date.

My point is #1, 40% is the lowest rating [that my disability] should have ever gone, based on VA rating[ ] practices. #2[.] This is rated permanent. #3[.] This allowed for surgery at a later date.

…

In summary[,] I feel that the 40% rating based on VA standards established October 9, 1952[,] should be honored, and that the amount paid since September 1, 1953[,] to present should be corrected, that is a 20% correction for four hundred thirty nine months.

Some idiot at the RO made the mistake of penciling in a note that this was being accepted as a Form 1-9 (the precursor to what we call a Form 9). Nevertheless, a month later they wrote him back (July 10th) and said “You don’t get it, bozo. The Army screwed you in 52 and we just write up what they do. If you want more money you have to prove you’re worse off.” Still no offer of a C&P or relief via a CUE filing. vA was keeping this one in the Mummy file-all wrapped up.

Emerson called his congressman. vA repeated the scenario and reiterated that he had accomplished his 1-9 and was headed to D.C. for an independent review. Well, around the vA, that’s called a non sequitur. The word independent cannot occupy the space immediately before any judicial action. That would be misfeasance.

Emerson must have been a Boy Scout. Reading up on vA rules, he decided to send in an official 1-9 to cover his ass on August 5th. This time, in no uncertain terms, he stated the CUE and asked for interest on the back pay of 400 months! Ho-hah. On August 8th his brand new AMLEG rep. said the same thing to be safe. Continuing in the Boy Scout mode, on the 5th of November he wrote a letter to the VLJs hearing his appeal that he was arguing CUE for 40 to 1953. The hearing was scheduled for the 15th of that month and old Emerson must have figured these guys were as dense as my goat. I suppose in normal circles. if you keep repeating something long enough, most get it. That applies everywhere except the vA triangle where meanings disappear.

I won’t impugn the Board panel. They actually got it in January 1992. They did the proper thing and remanded it back to the RO for a de novo decision on the CUE claim. If things weren’t haywire enough yet , they were getting ready to become exponentially worse down at the local Puzzle Palace. The remand instructions were clear to everyone but the RO. This was no more complicated than boiling water but they managed to burn it.

Eight months later they denied it all again. This time they specifically included the CUE assertion but considered it a new claim that needed it’s own Form 9 to go back up to the BVA. Keep in mind the BVA owned this. They remanded it back for a decision, but it didn’t require a whole new F-9 and recertification back up the ladder. The correct procedure would have been to simply deny and send him the SSOC. No other action was necessary, but they fumigated his ass and told him he needed to do the F-9 dance. They sent another letter a month later to him to make sure he got it. What they neglected to do was tell his Veterans service officer from AMLEG ( who was now from DAV).  This is haywire on a rather grand scale.

For lack of a F-9,  the BVA was not given anything to look at re the CUE appeal so they didn’t rule on it. How could they? The RO never sent it up. Thus July 1993 passed and Emerson Archbold must have really been concerned. By now he had writer’s cramp from telling these guys how to do their job. All he had to show for it was a non-decision, an appeal, a remand, a denial and another non-decision. He must have been overjoyed at the prospect of going up to Indiana Ave. NW and having saner minds prevail.

March 1994 and spring  on the Potomac. I love D. C. I was born there. Dogwoods and cheery trees are in bloom except for the ones George chopped down in his youth. Emerson once again ploddingly laid out his theory of what was amiss. I’m sure he owned his own chart display easel and a nice laser pointer by now. After listening to all this, the Court had to write it down for themselves to follow the maze…

The fundamental procedural deficiencies that are controlling here, as discussed below, are the failure of VA to inform the veteran of his appellate rights in connection with the July 1991 RO decision which initially denied his CUE claim, to issue an SOC after he filed his July 1991 NOD on the CUE claim, and to return the CUE claim automatically to the Board pursuant to 38 C.F.R. § 19.38 for its review, after the RO’s September 1992 decision on remand from the Board. Because the disposition of this case turns on these deficiencies, the Court need not address the following two issues also raised by the facts in this case: (1) Whether the veteran’s representative, the DAV, was required to be furnished a copy of the October 21, 1992, and November 3, 1992, SSOCs, based on the veteran’s power of attorney (dated October 20, 1992 — one day prior to the mailing of the October 21, 1992, SSOC — but containing an acknowledgment date by VA of January 28, 1993) in favor of that service organization; and (2) which party bears the burden of submitting evidence that such power of attorney was received by the RO, pursuant to 38 C.F.R. § 20.602 (1995), before the issuance of the SSOCs.

Okay, got that so far? The procedural deficiencies, without even touching on the legality of these shenanigans were enough to send this back to square one. The Court,  being a humorous bunch much inclined to pulling good jokes on April Fool’s Day (see Heino v. Shinseki),  had to sit VASEC West down and explain it to him. By now he was hopelessly lost and had no clue where this thing stood…

In this case, the veteran filed an NOD in September 1990 as to a July 1990 RO denial of an increased rating for burn scars of his hands and face. R. at 251. This NOD, contrary to the assertion of the Secretary, did not initiate an appeal as to a CUE claim because no such claim had yet been made. (Archbold v. West 1996)

The law says there can only be one (1) NOD filed with respect to any claim. Concurrently, there can only be one F-9 filed that represents itself as such. This whole concept is called a claim stream. Some of our cohorts (former vA employees, no less) on other veterans help sites are unfamiliar with this legal term. Remember it. A claim stream has components that must occur in a formal order. Emerson had done this haphazardly, but it was recognizable if vA had made an attempt to understand it. They never do. His claim stream for the CUE had begun at the BVA who remanded it properly back to the RO. However, it was a different facet of the same claim stream for the increased rating on his hands. vA insisted- nay- persevered grossly in misidentifying it-as an attempt to open a brand new claim in the middle of the old claim stream. Thus they demanded a new Form 9 and refused to certify it back up to the BVA for readjudication.

I know you are having a hard time wrapping your noggin around this. It happens on a slightly less convoluted scale all the time to our claims. vA purposefully “misconstrues” what it is we’re up to and comes to the only possible conclusion that is wrong. Why is that?

Here Mr. Archbold was, finally at the Court and the VASEC was trying anew to obfuscate and cloud the waters with this inane attempt to convince a bunch of intelligent judges that downside was up. The Court wasn’t having it:

The Court holds that the veteran specifically raised the CUE claim (that the RO in 1953 was bound by the Army’s 40% “permanent” rating) in his June 1991 letter; that in July 1991 the RO specifically responded to that letter, evaluated the claim, and disallowed it; and that the July 1991 statement of the veteran on the Form 1-9 constitutes an NOD as to the RO’s July 1991 decision disallowing the CUE claim and is sufficient to give this Court jurisdiction over that claim…

The veteran’s July 1991 statement meets the requirements of § 20.201 and was filed well within one year after the RO’s mailing of notice of its July 1991 decision pursuant to section 7105(b)(1). This statement was received in August 1991 by the RO, “the activity which entered the determination with which disagreement is expressed” … (claim stream)

Although this statement was not expressly construed as an NOD by the Secretary, the Secretary’s construction does not bind this Court. Whether a document is an NOD is a question of law for the Court to determine de novo…

At the November 1991 hearing before the Board, the veteran submitted, and the Board accepted, a written document which sought to clarify his claims…

The Court notes that the Board was obligated under 38 C.F.R. § 20.203 (1995) to notify the veteran if it was concerned about the adequacy of this 1-9 Appeal, and to allow him a period of 60 days within which “to present written argument or to request a hearing to present oral argument on this [procedural] question”. The Board did not do so…

The veteran was not required to respond to the October 1992 SSOC in order to have his CUE claim returned to the Board for completion of its appellate review of that claim because he had filed a Substantive Appeal as to that claim prior to the Board remand.

Archbold supra

Does it amaze you that anything gets done correctly without the Court looking over VASEC’s shoulder? This is about as convoluted as it gets and it only took six years back then. Now, I’d be inclined to believe it might go ten with the backlog. I suspect my claim is going to end up here too. It has many similarities. That’s why I’m well-versed on this decision.

Keep a piece of scrap paper beside you to draw a picture of this or get out the trusty  CFC-360 w/ onboard GPS. This thing has more legs than a centipede.

Meet Mr. Archbold…         Archbold_93-903

Posted in CUE, Important CAVC/COVA Ruling, Uncategorized, Veterans Law | Tagged , , , , , , | Leave a comment

COVA– EF v. DERWINSKI–HOW ABOUT A C&P?

Posted on May 3, 2012 by asknod

Few cases are heard where a Veteran wants to retain his or her anonymity. I have  seen only two before the CAVC/COVA that were precedental. Here, I can understand the desire for not publicizing the name. Our Vet had genital warts and wished to remain nameless. I guess that implies that there is social opprobrium associated with the disease but no more so than how most of us are treated upon divulging our HCV infections. Watch the shiver that goes through someone up at the lab drawing your blood when you tell them to be careful not to poke themselves.

Enough of this macabre humor and back to Mr. EF. Having filed several claims and getting his C&P for them, he then filed two additional ones (the genital warts and “anxiety disorder”) . vA granted on the former claims for  low back strain, hypertension, deviated nasal septum, varicocele (left), and condyloma acuminata. By way of explanation, varicocele is http://en.wikipedia.org/wiki/Varicocele . The  condyloma acuminata was the genital present from some earlier sexual congress. The RO did not, however, grant on the anxiety disorder. Mr. F filed a NOD on that and amended his claim to schizo-affective disorder, depressed including a swell nexus letter from his private shrink. The RO continued the denial and in good form, the BVA seconded the motion. Using that stunning insight and cutting edge logic for which they are renowned, they stated

1. Atypical depression is initially confirmed on statement from the veteran’s private physician dated May 17, 1989. This is a date too remote from the veteran’s period of active duty to warrant service connection on any basis.

Promptly contradicting themselves, they said

2. Chronic schizo-affective disorder is not shown by the evidence of record.

Remember the divide and conquer technique I’ve described before? Here they strip the depression off the filing and address it first then blithely eviscerate the schizo biz as being absent from the EOR.  This would be permissible if Mr. F had been seen by a qualified psychiatrist in a C&P setting. He wasn’t.

Back in these early days of the Court, the Judges were busy 24/7 creating jurisprudence for the ages. They were new at this and needed to set precedent.  If you’re from Chicago, that’s called setting a president. Industrious doesn’t even begin to describe what these old boys were up to. Mr. F’s decision was June 6th, 1991. They had decided Murphy seven months before (Nov.8th, 1990), Littke  six months prior (Dec. 6th 1990) and lastly Myers and Green on Jan.18th, 1991 (less than six months) . All these cases had similar circumstances and dealt with the selfsame proposition that it would far more fair to the Vet if he were accorded a Dog and Pony Show for the record before being shown the door. With that much brand new precedent staring him in the face, somehow the VASEC managed to overlook it. Such is pell mell justice. The Court has a subtle sense of humor:

In Myers v. Derwinski, U.S. Vet. App. No. 90-221, slip op. at 4 (Jan. 18, 1991), this Court stated that “it is the claimant’s statements on the VA Form 1-9 which often frame[] the nature of the appeal to the BVA. . . . Therefore upon receipt of a VA Form 1-9, the BVA must review all issues which are reasonably raised from a liberal reading of the appellant’s substantive appeal.” However, there is nothing magical about the statements actually on the 1-9 form, given the VA’s nonadversarial process. The VA’s statutory “duty to assist” must extend this liberal reading to include issues raised in all documents or oral testimony submitted prior to the BVA decision. EF v. Derwinski (1991)

Nothing magical indeed. In fact, there is nothing magical about the ex parte form of vA justice at all unless you are in their employ.  Then justice becomes horribly and inextricably intertwined with concepts like shall and must. The result at the RO and the BVA is one of “Well, I don’t see where it says we have to do that in the M-21. Just because those Gomers up at 625 Indiana Ave. NW came up with some fancy precedent doesn’t mean we all have to bow down. Screw it.”

This warfare between the new Court and the old BVA went on for years and years and still causes strife for Veterans caught in between today. One need look no further than the cavalier attitude that the VASEC evinces day in and day out at the Court. The phrases have evolved over time but the thrust certainly hasn’t. Why it is that vA can approach the bench with the same tired phrases like “The Secretary read this to mean…” and ” It was felt that the claimant was trying to ask for… but failed to specify that it was …” and “Nobody told us or if they did, we misplaced/forgot/never got around to it.”

Something most Vets know is that 38 USC, the precepts upon which 38 CFR rest, are written by Congress.  What they are appalled to learn later when they are deep in adjudication is that the VASEC writes 38CFR and can rewrite it at any time he wants. What’s more, VA has been caught issuing VAOPGCPREC’s- General Counsel precedental opinions- during litigation to support a particularly egregious denial. As an analogy, I like the one I heard once. Imagine getting pulled over for speeding. When you point out to the officer that you were doing 55 in a 55, he says “Take it up with the judge.” You arrive in court two weeks later and the judge says “Yeah, but we changed the speed limit there to 45  yesterday so you’re still guilty”.

I suspect the VASEC hums “It’s Joe Veteran’s Supermarket but the CFR department is Mine” fairly regularly judging by the number of GCPRECs that are overturned or found deficient. Of course, issuing them after the decision to defend said decision is a bozo no-no in all 50 states now. VASECs must feel they are a legend in their own mind and not bound by the rules mortal men are required to adhere to.

Mr. EF’s vacation back to the BVA… Ef_91-533

For your reading pleasure here are Murphy, Littke, Green and Myers

Murphy–Murphy_90-107

Littke–Littke_89-68

Green–Green_89-108

Myers–Myers_90-221

Posted in Important CAVC/COVA Ruling, Veterans Law | Tagged , , , , , , , | Leave a comment

82% CURE IN NON-IFN ORAL HCV TRIALS

Posted on May 3, 2012 by asknod

This just in from Rocky Mountain High member Randy. This is the best news I have read in decades about the HCV “cure“. Finally, a way to put paid to this bug in spades. I don’t get my hopes up very high about any new regimen but this sounds promising. They are a little coy about relinquishing the info on which genotypes are affected, but I’m sure that will come out in time. I, for one, would gladly trade in my P&T for a reprieve of my death sentence. The fact that it is not an interferon -based cure is the best news of all. Thank you for this contribution Randy. VA will probably incorporate it into the mix of treatment before 2020.

As if that one isn’t reason to pop a cold IPA, this one is even better in its discussion of genotypes. It may be that we are going to see the end of this website if this comes to fruition. What intrigues me is the 91% probaility of kicking my 3a in the ass.

In the Bristol-Gilead study, all 44 of the patients who had the most common and difficult to treat Genotype 1 version of the disease had undetectable levels of the virus in their blood four weeks after completing treatment, while 40 of 44 patients with Genotypes 2 or 3 had undetectable levels of virus at four weeks following treatment for a 91 percent response rate.

This is absolutely too cool for school.

Posted in General Messages, HCV Health, Medical News | Tagged , , , , , , , , , | 5 Comments

Independent Living Program Results

Posted on May 3, 2012 by asknod

As you may know, the VA granted my ILP request for a computer and the peripherals. As rarely as this may happen, and from what I can gather, it’s becoming increasingly so. Oddly, the VA did not put any strictures on the amount of funds or machinery I can purchase. This may have been an oversight on their part.

I read up on this during the course of the claim and saw many cases from a decade or more ago when it was more lenient. Almost all demanded specific parameters to the request and concrete ideas on what was needed. For instance, if you wanted a John Deere Tractor, so be it. If you didn’t ask for the snow plow and rototiller at the same time,  you were out of luck. In other words, if the request was granted, you got what you asked for and no more. As we know now in 2012, if you ask for a Deere, you get grab bars, ADA approved toilet tissue dispensers and a tub/shower make over by Bathroom Crashers. You don’t need a snow plow. If you run out of food in winter and starve, dial 911. The medics will find a way to get in. They have plenty of snow plows so there’s no need to buy more.

This is why I was a little nonplussed when I put this request in. Being a computer novitiate, and when asked what I wanted, I was at a loss for words. I made no specific choices and even asked if I should provide specifics and the approximate costs. VA told me nothing and never answered my queries. They apparently had made a decision to deny and didn’t need any more information.  As the king of the NODs, I took my case worker by surprise by being polite and asking him to hurry up with the denial so I could begin my appeals process.

The ILP as a benefits grab bag is falling into disuse. I’m sure if vA could find a way to rescind Congress’ statute on this, they would. In the interim, they are doing what they always do which is to pay lip service to the theory and deny or ameliorate the requests. Hence grab bars in lieu of a photography studio with all the bells and whistles. Another bait and switch was a cordless phone in lieu of ham radio gear. How’s that for “independence in every-day living”? It gives more resonance to the jingle “Reach out and touch someone”.

In sum, fifteen months from request to fruition. Result: a complete computer with all in one printer/scanner/ fax. Software includes all the usuals including Dragon Naturally Speaking 11.5, Adobe Acrobat and Photoshop. web camera, vertical mouse and a headset for the Dragon.

I was never actually required to divulge the name of this site and the ILP IT technician who came out to ascertain my needs never wrote it up in the supporting paperwork or final report. I inadvertently included it in my NOD, though. It may be that I’ll continue in splendid isolation and be able to harass and harangue as before with no worries of vA’s gestapo trying to find something in my past to disqualify me. The government rarely needs provocation to silence its citizens.  If they wanted to make my life miserable, they know where to find me.

I hope this emboldens each and every one of you with extensive disabilities to file for ILP. The program is falling into disuse because they keep moving the goalposts. Their recent history of denials is not news to Vets. I have had many a query about this and the consensus is “Why bother?”  Vets need to file and then pursue the denial until they relent as they did with me. A new wave of these claims will eventually draw attention to them and the underlying program. Face it. vA hates to spend good money on things that might help you while away the sunset hours of your life. This money is desperately needed for bonuses for deserving VA examiners who toil tirelessly trying to approve vA claims. They are the real workhorse here and deserve the lion’s share. Given a proper financial incentive, they might even start doing it correctly!

One thing that concerns me is the plethora of Afghan/Iraqi Vets with PTSD returning to the community. Many are inclined to keep to themselves as virtual recluses. Large numbers will not survive this self-imposed isolation if the Vets from Vietnam are any indicator. More severe mental disorders, suicide and homelessness will be the fallout. vA needs to become VA soon and head off this impending storm. How they handle this will show either their resolve to become a valuable resource or just the desire to be another alphabet organization consumed with increasing their already bloated budget. The ILP is a valuable tool for Vets of this stripe. The independence it can engender is untapped because vA is so dead set on burying it.

As with any entitlement,  the operable term is use it or lose it.  Employ the Chicago style of ILP-file early and often. If you cannot impress them with your needs, baffle them with your bullshit. They never cease to remind us that we are full of it.

Accordingly, attached below is a sample guideline of what to use when denied. It worked for me. Remember, they live by regulations. They are at somewhat of a loss for words when you actually read them back what they wrote.

How’s this for a finale. vA still hasn’t  mailed me a letter confirming my grant. It’s all verbal to date. This just doesn’t sound like the vA we’ve all come to know and love.

Posted in General Messages, Independent Living Program, vA news, VR&E | Tagged , , , , , , , | 7 Comments

VA–A NEW CULTURE OF TRANSPARENCY

Posted on May 2, 2012 by asknod

I always get a bang out of vA press releases. In this instance, it sounds so noble and altruistic. Always the the jerk who looks at the underbelly of the beast, I examine it from the pre-transparency era. In other words, if the President has directed that VA and other federal agencies write up policies that dictate all the below, does that mean they are going to model it on his campaign promises for a more transparent administration where everything is exposed to the light of day?  I only say this because in spite of what we were promised, it seems a lot of it is rather opaque. An example in my mind was the new Health Care Act that no one was allowed to read until after it was passed.

In the same vein, does this admission imply that the vA was anything but forthcoming and transparent in the past?

vA Publishes Draft on Scientific Integrity for Public Comment

At the direction of the President, VA and other federal agencies have drafted policies to foster a culture of transparency, integrity, and ethical behavior and to protect researchers from inappropriate influence in the development and application of scientific and technological findings.
Read the draft policy and comment.

We look forward to a transparent ex parte process. Ideally, the vA will keep us abreast of our claims as they do them rather that summarily open the bomb bay doors and drop it on us after the fact several years after filing. Few Vets know that our judicial process is supposed to be interactive. The Court has lamented often that the veterans Administration is remarkably recalcitrant about engaging the Vet, choosing  instead to marginalize him, holding him and his representative at arm’s length until the adjudication is over and done with.

As an example, a VLJ and his/her staff are encouraged to contact Vets and clarify what they meant by certain testimony. Similarly, they or the RO should come back and ask you if you have your SMRs when they don’t. No one wants to read about it 20 months later. A case in point is mine. I informed the vA at my DRO hearing on July 11, 1990 that there were far more medical records than what they were basing their denial decision on. I informed the hearing officer , one D.L. Peterson, that they were located at a civilian hospital in Thailand and gave him everything but the street address. When they continued the denial in my SSOC, I voiced my displeasure again. In desperation, I wrote the hospital and obtained  part of the records and submitted them. The BvA decided they weren’t going to be bothered either, and denied without obtaining them.

In this day and age, that would be legal (Caffrey v. Brown 1994). The duty to assist is only violated if you complain before the fat lady sings. I did, but by not going up to the Court, I allowed an incomplete record to stand as an incorrect record. What they did to me was CUE in 1992, but subsequently made legal in 1994 via Caffrey.

What I found most risible was this:

 and to protect researchers from inappropriate influence in the development and application of scientific and technological findings.

Huh? Would that be the same researchers who refuse to investigate whether bugs can be transmitted via jetguns? Yes, I hear you say “Well, gee Nod dude, they don’t use these guns anymore so the research would be wasted effort.” Tell that to the 1,600 Vets whose claims came up before the BVA in 2011. They are still getting the bum’s rush with the “speculative and plausible” argument. Transparency seems to be in the eye of the beholder.  Research is as research does would sum it up in Forrest Gump’s vernacular.

The appearance of propriety will continue as before until the political nature of the vA is subsumed by a meaningful process. As a Veteran and accomplished armchair quarterback, it is my opinion that an independent vASEC be appointed who has no political bent. He should not be hand picked by the party in power, but run for it as an elective office. Veterans might at least have more say in the choosing of the Head Bozo In Charge that way. To make it even more above board, I’d insist that only Veterans be allowed to vote in this elective process. What a concept. I realize this is heresy and antithetical to the concept of a true democracy, but what we have now is a far cry from what President Lincoln envisaged when he inaugurated the vA.

We haven’t come a long way yet, baby.

Hopefully, if and when my grandson chooses to follow this avocation, he will find the aftermath easier to navigate and more “Veteran friendly”.

Posted in All about Veterans, General Messages, vA news | Tagged , , , , , | Leave a comment

VARO DETROIT–THE MARCH TOWARDS 2 MILLION CLAIMS

Posted on May 1, 2012 by asknod

Member Bob sent us this from the city that manufactures  Binford Tools and motor vehicles. It is a classic example of what I call divide and conquer. The Veteran has been asked to be honest. This he does. VA immediately drags out the credibility Powerpoint Presentation and dissects his answers in such a way as to make it sound like he’s making it up as he goes along. This allows them to deny it for several years and then force him to head to D.C. By denigrating the perfectly good nexus information from not one, but two doctors, they are violating the whole process of VA jurisprudence (Colvin v. Derwinski 1991). Here a VA examiner-a  ratings “specialist” if you will- has donned the Ben Casey stethoscope and opined that the two doctors are wrong. What makes this delicious is that one of the two is a VA psychiatrist. Mix in a little mish mash about too many stressors  and not identifying them with proper documentation or timeliness, and you have what appears on its face to be Vincent Vet malingering and looking for a VA handout. Voila! Claim denied. Remember divide and conquer.

Remember the old movie sets with the crew called “continuity”? Everything had to remain in its place or be returned to where it was at the start of shooting a scene to prevent cars from jumping or silverware from disappearing. Likewise, your claim has to have continuity. Don’t allow it to be unstructured. Everything must occur the same way each time in the retelling. “My mental state is due to this: A)_____________; B)__________; and C)__________. It happened 2/3/1968. I was in Qui Nhon and they were shooting at me. I swear that the above is true and correct to the best of my knowledge and belief. Signed Vincent Vet. SSN 123-45-6789. ”

Like my pilot used to say: “If we’re shot down, give them your name, rank, airspeed and tail number. And pass the Scotch and be quick about it.”

If you’re blind like me, click on these jpegs and then click on them a second time to get good magnification.

This is why we are condemned to wait forever for a decision. These VA Examiners were imported from IOWA- Idiots Out Walking Around.

P.S. In deference to Gail from Iowa (the 29th State), I apologize for the slight. I tried to divorce it from yours by capitalizing all the letters. It appears I failed. No offense intended. Just my warped sense of humor. I’m sure Iowa is a beautiful state with many intelligent souls. I hear they grow corn there.

Posted in Nexus Information, PTSD, Tips and Tricks, vARO Decisions, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , | 2 Comments

VA–FREE MONEY-COME AND GET IT

Posted on April 30, 2012 by asknod

Member Randy sends us this post today.

This was on the Veterans Report Website. Almost choked on dinner laughing at the naivete.

Compensation for Vietnam Veterans

Week of April 30, 2012

Nearly 2.6 million Americans who served in Vietnam are eligible for compensation if they suffer from one of 16 ailments. Some are fairly common, like Type II diabetes, ischemic heart disease, and prostate cancer. The Agent Orange law, passed in 1991, states that a military person who was in Vietnam between Jan. 9, 1962 and May 7, 1975 and has been diagnosed with one of the named conditions qualifies for disability benefits. These payments can range up to $2,673 a month for 100 percent disability. There is no need for proof of actual exposure to Agent Orange or other poisons. For more information, visit VA’s Agent Orange webpage or contact your local or state office of the Department of Veterans Affairs.

Gee, the 2.6 million Veterans of the Vietnamese Boundary Dispute have begun evaporating. Last count was 859,000 left. That’s right. 66% of us came down with ischemic heart problems, DM2, hairy cell leukemia, and a host of those 16 other problems and died from it. There are no longer 2.6 million of us to file. What’s more, they aren’t giving away money in case anybody bothered to check. And so much for presumptive connections. I had to fight for years to get SC for Porphyria Cutanea Tarda. They gave it to me-but by virtue of it being secondary to HCV. If you didn’t exhibit symptoms of it by May 7th, 1976 (or within a year of leaving RVN) you were plumb out of luck. Same for Chloracne. VA gives with the left hand and takes with the right.

Thanks Randy. Should I file it in vA news or humor?

Posted in General Messages, Humor, Medical News, vA news, Vietnam Disease Issues | Tagged , , , , , | 5 Comments

CAVC–CAVAZOS v SHINSEKI

Posted on April 30, 2012 by asknod

These are the decisions we love and hate. We love them because its always nice to see the underdog go up against Goliath pro se. We hate it because of the inordinate time wasted pursuing something that can never be attained.

Jose Cavazos has come before Judge Holdaway and asked to be given sc for HCV and cirrhosis. The problem is the rationale for the insinuation. Jose says he went to Germany TDY and got shots. And???? Jose also says he drank his weight in German beer and schnapps and that is why he has cirrhosis of the liver…

This is also why Jose should have had a good attorney. Better yet, the BVA VLJ should have taken some time out,  sat down with Jose and explained the concept of willful misconduct and conclusive proof.  I’m sure it was discussed somewhere but Jose may have had a few beers while reading over his BVA decision and missed that.

However he has managed to find his way up to the Court and finally run afoul of logic. Vets would do well to research more and blame others less for their problems. He may well have contracted HCV from jetguns, but the proof was absent. As for blaming the cirrhosis on booze? Well, VA took that off the table back in 1990.  No way,  Jose.

Posted in CAvC HCV Ruling, Frivolous Filings | Tagged , , , , , , , , , , , , , | 1 Comment

VA–NO LIVER BX = NO HEP DAMAGE

Posted on April 30, 2012 by asknod

VA’s VHA, the medical arm, is always learning new tricks from their big brother, the VBA. If you don’t know something and make no effort to find out about it, then it doesn’t exist. It’s plausible, but not confirmed. Likewise, if you do a liver biopsy on a Vet, you can ascertain the level of damage and based on that, the etiology of when it was contracted. On the other hand, if you choose not to investigate, you can say with some certainty that there is no evidence to prove the contention.

Which  leads us to this amazing revelation.

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

VA’s ability to fix problems needs improvement

Posted on April 30, 2012 by joeaveragevet

The VA’s method of fixing problems:  Wait until the Veteran complains to his or her Senator.  Only then, will anything be done about it.

Veterans with “paperwork glitches” don’t have a good way to call someone up and say, “Gee, there is a mistake here. Can’t you correct this?”

Instead, the ultimate answer is always, “No, sir. There is no way to fix your problem”.

Case in point:

http://www.local10.com/news/Veteran-receives-documentation-that-he-s-dead/-/1717324/11981178/-/1481o8f/-/index.html

As long as stuff like this continues, the backlog will grow longer.  That is just Joe Average Vet’s opinion.

Posted in All about Veterans, Complaints Department, General Messages, Guest authors, Uncategorized, vA news | Tagged , , , , , , , | Leave a comment