I often preach about CUE as the hardest thing to win. It can be challenging and dicey to eke out a win. Here’s a daisy. My Bluewater Vet got a rotten 19 year Fenderson look back. I knew he would. VA screwed him out of all his retro $ because they kept him below 50% and CRDP until he got his 100% and DEA for P&T. So… how to fix it became my fixation.
I cheated. I kept his MDD filing in 2002 on ice when I reopened this to see if they would give it to him without another filing. Fat Chance. They swatted him down with a new effective date of 12/2020 when I filed the CUE. In fact, they refused to call it a CUE and converted it into a request for a reopen of the 2002 denial. Shoo doggies, a Gook couldn’t have built a better a punji pit in my war. The DRO fell right into it.
Paying it forward for your bro.
Now, there weren’t a lot of medical records but I lucked out and got a bunch of old Cardio stuff which got him 100% back to 2014 but this (the MDD) was the 2002 icing on the cake I wanted to ensure. It makes for a good read. Ol’ Judge Parker was pretty polite in not actually querying the RVSR as to whether he was raised by wolves nor whether he had a like IQ to go with it.
Happy homecoming to all you V Vets. I see yesterday was the only day available to designate as Vietnam Olly-olly income free. What about 5/07/1975 when they were having the “how many Hueys can you toss over the side” contests on all the flattops off Saigon? Or 1/30/1968 on the cusp of Tet offensive? What in Sam Hill does March 29th have to do with anything that happened in the war? I guess we don’t get “equity” even 50 years later.
Kick back. Pop a cold one and enjoy some good, old-fashioned premeditated justice. I just love it when a plan comes together. I’m evil.
So, the teaching moment here is simple. Expect perfidy when you deal with VA. Expect to find a hollowed-out loaf of bread when you get your rating. If they gave you 10%, chances are you were due 50%. In this day and age, I expect my clients to get short-sheeted so I’m upping my game to stay abreast of the tomfoolery.
Mr. Stacy and Mr. Cook have cordially invited me to this week’s radio show conjunctively with my fellow VA Agent-Bethanie Spangenberg. Ms. Bethanie and I have discussed VA law in the context of SMC professionally on occasion so we are not strangers to one another. More importantly, we are both members of NOVA-the National Organization of Veterans Advocates.
More about that. NOVA began in 1992 when three attorneys Ken Carpenter, Hugh Cox and Keith Snyder) got together in a Baltimore motel room and incorporated for the benefit of us all. Think about this. Since 1865, if you defended a Veteran and won, the maximum you could collect was $10. That didn’t attract a lot of attorneys for obvious economical reasons. This didn’t change until June 14, 2007 when Congress relented and let us charge for representation in spite the vociferous opposition put up by the Big VSO outfits. Imagine ignorant folks wearing funny hats insisting their free representation and grasp of law was on a par or higher than that of an attorney. That’s like suggesting week-old 7-11 sushi is on a par with a Japanese restaurant’s specialty sushi bar wares.
One thing I hope to discuss on the show will be the new VA proclivity under the AMA to bifurcate, segregate, separate and then ignore or cancel your claims. I can’t think of a greater violation of due process. The days of the “well-grounded” claim ended in 2001 with the advent of the VCAA. Once you file a claim in this day and age, you are entitled to an up or down decision regardless of whether it’s legitimate, marginally viable, just plain hooey or totally far-fetched. I can’t count the times in recent memory since this confounded pandemic nonsense began last year that a VA “technician” (liberally employing the term)) unilaterally cancelled (PCAN’d in VAspeak) a legitimate CUE or other claim filing. Boy howdy. That’s against the law in 56 VAROs-57 if you count the AMC, AOC, ARC OAR. They must have sign painters on speed dial at 810 Vermin Ave. NW for all the changes on the office doors. Oh, and OAR stands for Office of Administrative Review. That’s the Ghostbusters number we call when VA screws something up so badly that Hogan’s famous goat can’t figure out which end to chew on first.
In my last show several weeks ago, I had hoped to dive into the intricacies of SMC. When to file for an SMC is often as important as what to file for and how to phrase it. If you don’t have your claims file or an advocate with access to VBMS, you may fall into a nasty punji pit. Let me give you an example.
When VA grants you aid and attendance of another for your disabilities, they list the exact ones that provoke the need on the Rating Decision “code sheet”. A Veteran never sees this unless he gets a copy of his claims file. They use a dust pan and a broom and sweep up everything you’re service connected for and call all of them the predicate for your A&A. So, using that as the yardstick, let’s say you filed for A&A due to your service connected Diabetes and IHD with a heapin’ helpin’ of PTSD because you forget to bathe, shoot up insulin and take your Paxil®. You need your wife/significant other to remind you to eat your Entresto® so you don’t have another myocardial infarction, to inject the Glipizide™ to avoid going into diabetic shock or try to kill the neighbor’s dog for shitting in your back yard every day because you’re overdue for your Happy pill. Without her, you’d be screwed.
Wait for it…
One day your peripheral neuropathy gets so bad they have to start amputating toes due to lack of circulation and gangrene. You can’t walk without falling down. You file for SMC L for loss of use of your lower extremities and VA says hold the phone, Ramone. You’re already getting paid for that in you A&A. Stay with me here; your PN is secondary to your Diabetes and you’re already getting A&A for Diabetes with PN so it’s covered. Got it?
VSOs, if they even understand the fact that you can actually get paid above and beyond 100% schedular or IU, are not taught the precedential “condition” holding in Breniser v. Shinseki. This info is a prerequisite on how to play high-stakes SMC poker with VA. In almost every case, the VA will default to the lesser award of SMC P using §3.350(f)(3),(4) and give you a bump up to L 1/2 for a 50% rating or SMC M for a 100% rating which isn’t included in the reason for the A&A award. Hence my discussion about the timing of the awardfor multiple SMCs leading to the Holy Grail of SMC R1 and R2.
Trying to untie an old A&A award that has everything but the kitchen sink listed is often a major claim unto itself before you can even proceed to R1. I’ve been repping a gal we’ll call Susie with Multiple Sclerosis (MS) since 2017. We’re trying to get her A&A up to SMC O and R1. Her 2007 A&A award was for MDD, neurogenic bladder and upper/lower body weakness/dressing/cooking/ bathing but- and this is a capital BUT- she didn’t have an award of SMC L loss of use of her upper or lower extremities. One day her PCP noted she was dragging her right foot (foot drop-aka loss of use of peroneal nerve). Sorry, kid. No SMC K for Loss of Use (LOU) of foot. Then her right hand went out. shortly thereafter, her right leg went totally south above the knee. VA finally read this as a case of LOU of hand and foot but it was just a “progression” of the MS-and besides, the LOU of the extremities is really just a part and parcel of the MS, right? Ergo, here’s your brand new SMC at the M rate, sugar. Sorry, no SMC O or R1. Next? Who’s next, please? Now serving numbah 251.
I am careful to prearrange the filing for R1 to encompass and isolate each “condition” that is the predicate for SMC L. There are only four conditions and the counting of the number of conditions shall be no more than four and no less than 4. Five is right out.
§3.350(b)
Loss of use of both lower extremities, or both upper extremities or one hand and one foot.
Totally blind in both eyes with 5/200 or less bilaterally.
So helpless as to be in need of the A&A of another
Permanently bedridden.
To get to SMC O, the portal and entry to SMC R1, you need two of the above “conditions”. I’m not going to explain how you can get to SMC N 1/2 with a SMC K to get to SMC R1. I teach the most logical path. If one of your two SMC Ls is for A&A, only then can you get promoted from SMC O to R1. The VA has insidiously inserted a codicil saying only they can make the medical pronuncement that you have lost the use of your lower or upper extremities. To get around that, you rope-a-dope them and let them deny you can’t walk or eat peas with a spoon. Then you go out and get your private IMO saying you’d be just as equally screwed trying to perambulate if they sawed off your legs at the ankles and strapped on prostheses. Or, conversely, you cannot insert your catheter with either hand as they don’t grasp much of anything anymore. Point out that buttoning things like blouses and employing toilet paper in a sanitary manner are also insurmountable problems.
We also see this prohibition of using your own private docs for IMOs at the VA now with PTSD. I file a claim for bent brain. My Vet goes in for a c&p and they say he has a shit ton of personality disorders but fortunately has no psychoses that qualify as PTSD or anything else. I get an IMO from a dynamite psych doctor saying the opposite and refile my supplemental claim. VA sends the Vet out for yet another new c&p (illegally) and denies again. They add that I’m not allowed to use a private psych because only VA”s hired psychs can make that call. This is clearly error. The only way to fix it is to go to the BVA and get a Veterans Law Judge to point out I can legally use my private psych, and, oh yeah, by the way service connection is granted for Bent Brain Syndrome.
Winning the big banana of R1 is getting to be an art form. Often, I have to deconstruct the claims to rearrange them properly. It can’t always be done. Your client has to come down with a separate distinct illness (read condition) requiring either a LOU determination or say, permanently bedridden. In Susie’s case above, it’s less clear cut. My argument is that she was awarded A&A for a subset of defined disabilities-none of which involved loss of use. The decision to grant A&A did not involve the condition of loss of use. Thus, the increase in disability of LOU of a hand and a foot was not covered in the A&A. It’s one thing to have a rating under §4.124a DC 8520 70% for PN of your right leg and a 70% under DC 8515 for your right hand. It’s another thing entirely to have a rating for §4.71a DC 5111 for LOU of hand and foot. The key to the conundrum is the definition of “condition” and “no condition counted twice”. With conditions like arthritis or Multiple Sclerosis, you can always fall back on §3.350(e)(3), too. Remember, the law says VA has to “to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.” VA tries to rephrase that as “Relax. We’re gonna give you everything you got coming, Bubba”.
If you get an award of A&A for the need of another due to being helpless, any new “condition” such as LOU of extremities on top of the A&A award can only be seen as entitlement to a new condition-i.e., one of the four specifically mentioned in §3.350(b). Think outside the box. If you come down with a bodacious case of Parkinson’s and suddenly start falling up the stairs like our illustrious President did last week, chances are you have lost the “effective” use of your lower extremities. You, yourself, might not think so but when you fall down (or up) a lot, you break things. That is a danger and you can no longer perambulate safely without risk. VA will deny LOU and say walk more slowly and stay away from stairs. You fix this by getting a private IMO from a neurologist that says you’re going to end up with a concussion and you have LOU by medical default.
Conversely, you can have an award of SMC L for LOU of your lower extremities but can still drive the car with the adaptive devices. Then you have a bodacious myocardial infarction that leaves you with an ejection fraction of less than 20%. When that Bat Signal appears in the sky, you can’t make it to the Batroom without someone helping you. You can’t cook or do dishes. You can’t fart or hiccup without arrhythmia or angina. You need A&A now where you didn’t before. VA is going to have a hard time saying your MI/IHD is related to the DM II with PN of the lower extremities causing loss of use. Don’t misunderstand me. VA will use that when they deny R1. It just won’t stick at the BVA if you argue it using Breniser.
Arguing SMC at the higher levels requires a hearing in most cases and an appeal. It’s not so much that VA raters don’t want to grant but they don’t know how to. Well, that and I’d allow as no one wants an R1 award on their ratings resume come promotion time. Actually, the M 21 is the culprit. It’s logic circuits all lead to 70% and 60% ratings under DCs 8515 and 8520. The argument against will also say you have been awarded the highest ratings available and they sure wished like all get out they could do more.
Thursday, we’ll be happy to talk about it. The show starts at 1900 Hrs on the East Coast and 1600 on the Leftmost side of our fruited plains. The Mayor has declared rioting in downtown Portland, Oregon will be postponed until after the show in case you’re worried about a scheduling conflict.
I keep getting really basic questions about law now from Vets who are filing Extraordinary Writs up at the Court or “CAV-ICK” (CAVC) as Chairman of the Board of Appeals pronounced it yesterday at the Spring NOVA conference. I liked the old, pre-1995 COVA (Court of Veterans Appeals) if you have to sound it out Phonics™-style it comes across as vaguely dismissive to address an Article I Federal Court approved by Congress this way. Especially coming from a SES approved only by the President. I won’t dwell on that. It’s not what I wanted to impart today.
If you want to get anal for a certain precedential Fed. Circus or CAVICK COVA cite, put quotes around the name or phrase. Don’t inundate the search feature by trying to look at all 28 years. Try to keep it down to the last 2-3 years unless you want to diddle around for days. I’ve found the COVA search engine, while breaking down for panel or single judge, and chronological order of decisions, is too broad and sweeps up a lot of decisions I can’t easily copy, are not on point, or not what I need.
If I’m doing a case on Camp LeJeune cancer due to contaminated water, I type it in with quotes and it kicks out all the recent decisions I need to read to get a feel for how to fight the appeal and win. So scroll back up to the top and click on the BVA Decisions Search Site. Now, erase Hepatitis C and type in “Camp Lejeune water”. Hit the SEARCH button in the lower right. Give it a minute. Hell, you can even use VA’s abbreviation of CLCW(Camp LeJeune Contaminated Water) too. Makes you wonder if Veterans Law Judges pronounce it “CLICKWUH” claims. VA calls their senior raters DROs. Not D-R-Os. DRO like drove into town. I guess that makes VSRs Veezers or Veesirs? So much to learn. So little time. So about a 1 on my give-a-shit meter regarding VA employee pronunciation proclivities.
You get 110 hits on CLCW just in 2020. Even though we’re a good three months into 2021, they haven’t added the new year yet. It sometimes takes three months for you to see your decisions here. I use it for all kinds of things. If I draw a certain BVA VLJ for a hearing, I like to go look at his/her decisions and get a feel for who I’m going to be trying to convince. If you draw some antique like Ursula “the Unmerciful” Powell who’s been there since 1994, then you better have some most excellent Juju going for you. She will not brook an undeveloped brief or slipshod attorneys/agents/VSOs. I read a hearing transcript of a good ol’ boy Georgia Dept. Of Vet. Affairs VSO rep. where he was telling Judge Powell how-and I quote from the transcript- “f****d up the Vet’s c&p exam was”. She didn’t cotton to the expletive and said so. Sayonara to that one.
Let’s dive in to #1. Let’s say you want to see which diseases are on VA’s list. You’ll spot §3.309(f) as the regulation with the CLCW list. So you go back to my basket of widgets up at the top and click on 38USC /38CFR Links. It takes you to the link for 38 CFR (https://www.law.cornell.edu/cfr/text/38/chapter-I). Then you click on Part 3 Adjudications and it takes you Part A or B. Choose Part A. Scroll down to 3.309 and click. Scroll down to (f) and Bingo. The magic 14 diseases are listed. Now, what a VSO would never tell you is that you can get dang near any cancer tied to CLCW if you can get a nexus saying so from a reputable oncologist. I did one with a glioblastoma of the brain and won-in front of… guess who? Ursula the Unmerciful. VA threw two IMEs at me and we still won.
WHAT AM I?
Let’s sort out who you are legally while we’re at it here. At the AOJ (Agency of Jurisdiction/Veterans Service Center/VARO/Fort Fumble), you are known as the Veteran or claimant. I prefer victim or hostage. When you get your polite denial and file a request for a higher level of review (HLR), you are still a claimant/victim. You have not left the local yokel level yet. If you die while fighting them, you are still the Veteran. Your wife becomes the claimant.
Car 54- can you give me a 10-36?
If (more like when) you decide to seek real justice, you file a VAF 10182. VA folks haven’t figured out a new term for this in the AMA yet so they use the old term (Notice of Disagreement or NOD pronounced just like Nod of the head). This is where asknod comes from. Ask + NOD. I didn’t pick that. I wanted WWVD-What would a Veteran Do? Cupcake felt that VD thing might irritate the Woke folks. VA folks call this new AMA form a 10-182 as in two different numbers. There must be a lot of old Car 54 or Adam 12 TV buffs at the BVA. At the BVA (Puzzle Palace/Oracle at Delphi) you graduate to become an “Appellant” with a capital A. The VLJ is called the Board or the Trier of Fact. If you file a Notice of Appeal to the Court, you are still an Appellant. The Secretary of Veterans Affairs is the Appellee. Ditto the Fed. Circus or the Supreme Court.
If you are filing a CUE claim aka a Motion to Revise, be it of an old AOJ or BVA decision, you are legally the Movant. I’m not sure if that makes VA the Movee…
Likewise, at Court when you file an Extraordinary Writ of Mandamus (Ex. Writ), you become a Petitioner rather than an Appellant. The VA Secretary is the Respondent. You are asking the Court (petitioning it) to make the Secretary fix some gross error in order to proceed legally as a claimant or Appellant in order to get your claim/appeal problem decided. The Secretary is given 30 days to answer the Court and explain the mystery of the holdup. Most Ex. Writs are dismissed or denied but they sure force the Secretary to get his poop in a group and they almost always fix the problem-but not always necessarily in your favor.
Not ready for Primetime Commandos
Legal Cites and §
I’m sure you all have seen regulations quoted in your 45-page SOCs or your 3-page Supplemental claim denials. They have the Section symbol (§) in front of the regulation. In most cases, you will see references to regulations in Part 3 adjudications or Part 4 (medical). If you want to put a § in your brief, use ALT +Insert 21.But what about them legal cites to a precedential case? Okay follow me.
At the Court (CAVC) a cite will state the name of the Appellant versus (v.) the reigning Secretary of VA at the time. Any decision right now would be Doe v. McDonough. When I do briefs, I like to bold and italicize these for the law clerk who reads my BVA legal brief. You’re required to at the CAVC if you use them in the body of the brief but not at the BVA. Perhaps bold/italics is not required on CAVC briefs if relegating them to footnotes at the bottom but do not quote me on that one.
Not a Blonde Joke
So let’s look at a cite I use a lot. Layno v. Brown. Benito Layno was a slippery dude and lost. Nobody called him a liar outright. They’re too polite and polished to be that rude up at the Big House. Judges say things like “the records fail to show…” rather than “Layno’s full of shit it’s coming out his ears”. He lost but he did do us all a wonderful service. Now we can say we have a headache and how bad it is on a scale of 1-10 without an MD after our name. The cite will look like this:
Layno v. Brown, 6 Vet. App. 465, 470 (1994)
6 Vet App. stands for 6 Veterans Appeal. It identifies the court (CAVC or COVA back then in 1994) and Volume 6 of the Veterans Appeals, starting on page 465. The pertinent cite you choose- in this case the prime reason for citing it- is the Court’s holding on page 470:
a Veteran is competent to report on that of which he or she has personal knowledge.
The CAVC/COVA was created by Congress in 1989. Thus, 1989 is Volume 1 of the CAVC tome of Appeals. 1990 was 2 Vet. App.; 1991 was 3 Vet. App. etc.
The page number, in this case 465, is where you will find the beginning of the decision if you look it up on Westlaw. Page 470 will contain the actual phrase you are going to quote from or cite to as “held that a Veteran is competent to report on that of which he or she has personal knowledge.
Sleepless in Seattle or a KrispyKreme™ Pandemic sales ploy?
A Federal Circuit Decision is written differently. Let’s look at Jandreau v. Nicholson which pretty much said the same thing as Mr. Layno’s disaster. The Court of Appeals for Federal Claims (CAFC), to which you would file a Notice of Appeal if you didn’t agree with the CAVC decision, is abbreviated thusly”
Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)
Once again, Jandreau identifies the name of the appellant which is not necessarily always the Veteran. If the VA secretary disagrees with the CAVC ‘s decision, he can appeal it up to the Federal Circuit and fight it up to the Supreme Court. In that case, the names would reverse and it would have become Nicholson v. Jandreau at the Fed. Circuit or the Supreme Court. 492 identifies the volume of the decision and F.3d identifies the location as recorded by the legal reporters who do this. Page 1372 is the beginning page of the Decision in Volume 492. Pages 1376-1377 are where you will find the desired notation to cite ((noting general competence of laypersons to testify as to symptoms but not medical diagnoses). I hear of a lot of attorneys (and probably agents too) who mis-cite. Remember, a cite has not only the starting page number to help you find it in the proper legal volume, but also the actual page(s) where the on-point cite is located. ThusRice v. Shinseki, 22 Vet. App. 447 (2009) is incomplete and would be kicked out at the CAVC and require a do over and a resubmit for legal insufficiency. The meat you want to cite to is on page 453.
I know a lot of you are taught by various Vet’s Help websites to cite to the M 21-1MR or the M 21-5. Some teach using 38 CFR exclusively. At the Court, you want the cites. The regulations are there to be disputed or supportive. Here’s what I know from my own limited 30 years of experience. Any really contentious case-as most of mine are- never are won at the AOJ. VA fights me to the BVA and sometimes beyond. Nobody wants a CUE payout back to 2002 on their resume when it comes time for the RVSR upgrade. So, your legal argument is going to fall on deaf ears. Or is it? You have to think of this as a house. You start building the foundation long before you frame it. Your legal arguments are going to pile up and accumulate. Eventually, a person, usually a staff attorney with a JD, is going to pick it up and say “Well, duh. Layno applies.” And they grant. Those cites were wasted on a VSR or DRO who can only speak M 21. But if you go up to the BVA with a mouthful of M21, they refuse to listen. Either you explain it to the VLJ speaking of 38 CFRese or 38 USC. Take your pick. The Court case you cite for support is simply your legal authority for why you believe you are right and the Secretary is wrong. M 21 is no more than the equivalent of the assembly instructions for an IKEA® bookshelf or couch. M 21 is right out. It might fly up at a HLR but you’ll get skunked at the BVA or the Courts above.
I have a folder of go-to cites I cut and paste from to cover the major subjects I argue such as SMC or CUE. If I see a new cite I really take a shine to, I copy and paste it into my Killer Cites folder for future use. You can pull these verbatim from CAVC published decisions because they aren’t .pdfs.
Male Chauvinist Pigs
So, you find something used in a BVA decision applicable to your circumstances and cut and paste it (your CAVC/CAFC cite) into your argument. But let’s say you also see something further into the Jandreau decision on a later page and want to cite to it, too. If it’s in the same paragraph of your legal brief, and there are no interim cites in between, use Id. at 1379. That means you are referring to Jandreau above on page 1379
When you file for a batch of diseases but are only appealing two or three-say, for example IHD, prostate cancer and DM II due to Agent Orange- you might discuss it as:
On 9/23/2002, Appellant filed for, inter alia, IHD, prostate Cancer and DM II. This way, you don’t have to list pes planus, patellofemoral dislocation, a liver disorder, and a shit ton of other items they either granted or you gave up on.
Inter alia is legal for “among other things”. It’s a Latin word so I italicize them. Pro se means you’re on your own. Void ab initio means a decision, conclusion of law or finding of fact was in error and therefore it never happened. Supra is used after a legal cite name of the Appellant if you are referring back to it in an earlier cite as in:
Thus, Appellant’s testimony on his VAF 21-4138 as to the severity of his headaches is credible, admissible and was ignored by the Board. Layno supra.
I like to use legal cites. Everybody is getting lazy these days in the litigation world. If my cite fits, I find the staff attorneys up at the BVA frequently just copy and paste it right back into my grant.
Spring 2021 NOVA Conference
We had our third-and I pray last-remote ZOOM NOVA conference this last week (10-12 March). It’s just like the Public School system. We still have to pay top dollar for our Continuing Legal Education (CLE) credits to maintain our accreditation but don’t get to hobnob with our friends and fellow litigators. It’s like an ice creme cone with no ice creme. You just have to “virtually” pretend you’re there. That’s like having a virtual TNT (Tanqueray® ‘n Tonic). Sorry. No new pictures of the Three Internet Amigos (Attig/Krause/Graham). No CAVC Judges to get a photo op with. No new cities to visit and scratch off my bucket list. Basically, it’s a long list of Nos. But, blessedly that includes no Corona Virus. Cupcake and I received our second vaccinations last Saturday. Whew. Just in time for the Equinox. Wait for it… TOGA PARTY next Saturday the 20th!!! Cocktail service begins at 1800 Hrs. Pool heater is set to 88°(maillot de bain optionelle pour les femmes). BYOB. Formal Toga Dress only. Scotch Pong begins at 1900 HRS sharp. RVSP only. Valet parking.
Folks, I have to tell you. Very rarely have I spent more time in a one-year period trying to ride herd on a bunch of VA cats. I had them squirting off left and right and cancelling claims like they used to back in 1994. Back then it took a while to sink in-like maybe a couple of years to recognize that you hadn’t heard from Fred at VFW or been asked to fill out some form or send some information in. Shoot, by then Fred had moved on to a new career at Lonnie’s Used Cars and the VFW “service officers” didn’t even know who you were. It was painful to start all over. Some of us beat our heads against that wall several times before we noticed the mental bruising.
Lookin’ out my back door….
Jimbo wasn’t that compulsive. He trucked with VA once in 2002 when he started getting sick from 20 yrs of asbestos and two tours of Agent Orange. He got the usual red carpet denials and tore up his VA medical card. Sayonara, baby. What the hey. He had TRICARE. I’m sure, being a retired Chief Petty Officer, he figured it out after his first BDA over the claims target.
When you consider how the Nehmer rules work ( §3.816(c)(2)(i)), if you were some kind of lucky to put in for Diabetes Melitus II or IHD back in the ’90s, you’d be incredibly rich if you had the smarts to refile in say… 3/2020. Call this a pandemic work project. Something for the bucket list. We filed about then for what I was told was his first filing ever. Not so. Memories fade and so did Jim’s. He forgot the 2002 filing for SHAD. He put in for a lot of serious shit including cancer (Myelodysplastic Syndrome), asbestosis, Diabetes II, IHD, bent brain and back issues. He lost them all. What? You thought I was going say he won? Shoo doggies. We’re talking VA here. You’d have a better chance of buying the correct numbers on a Power Ball Ticket with the $10 Million Enhancer option for an extra buck.
Fate works in strange ways. Jimbo’s daughter came to work for Cupcake back in 20-someteen as an admin asst. and progressed up to RE agent over time. Her dad made me a keen box with the Air Force seal carved into the lid in 2014. About then the IHD and the PN started to take him down. One day last spring I asked Pumpkin what Christine’s dad was up to. I’d remembered two things (apparently) that prove I haven’t lost my mind yet. I knew he’d been on a destroyer or two close enough to land for eyes-on artillery support in Vietnam and wondered if he had anything he could file for. After a few spits and wheezes, we got a POA together and filed.
Well, shit everything blew up. Here we are in the new VBMS and you send in a 526 only to have them say sorry Jim. Wrong form. No. You refile on a 995 and there’s still a 50 % chance they’ll tell you that one’s wrong. That’s where having access to the VA Regional Office’s Change Management Agent is essential. She can get it sorted in two days and everything settles back down. It’s about then you go rooting around in his VBMS e-claims file and discover he filed for the IHD and DM II waaaaaaaaaaaaaaaaay back in 9/2002. This is like having a Delorean and being able to go back to 2002 and bet $100 across to WPS on a 6-1 horse that isn’t even going to run until 2020. Of course, then you have to survive a few myocardial infarctions and dang near lose the use of the lower extremities to cash it in.
And, to add ice creme, boom chocolaka-laka and sprinkles, he forgot he also filed for mental depression secondary to the IHD. So, Procopio vs. Wilkie comes out and he’s some kind of big CRDP chicken dinner winner. Right? Not. Big chicken dinner winners are Vets VA doesn’t want to pay. I mean seriously-and in this case to the point of cancelling claims and shitcanning evidence or misidentifying it as a document it isn’t. In fact, they spent 9 months trying to prove he wasn’t inside the 12-mile limit. His STRS had been uploaded into the claims file back in 2003 which probably saved them from the Friday the 13th conflagration at the NPRC in St. Louis back in 1973. VA could have looked at them and seen he’d been inside the 12-mile limit.
VA gerrymandered his staged rating like a Philadelphia congressional district. He had enough for 70% in 2003 (until his heart got better temporarily) and they reduced it to 30% (in 2006). Oh, and the 10% bilateral Peripheral neuropathy of the feet which improved? It, too bilaterally went down to 0%. All of a sudden he was rated at 44% ( rounded down to 40%) and missed being able to collect both the Navy retirement and the VA disability comp. Screwed him they did. Yeeeeeeeeeeeeeeeeeeeeeeees.
But…. that MDD as a secondary would hamburger the staged rating all the way back in 2003. Jimbo would be entitled to that bodacious CRDP. VA decided it had to be cancelled. It was not CUE according to the VA Puzzle Palace Nehmer expert because a MDD isn’t on the disease list in §3.309(e). Right, it wasn’t CUE but nevertheless VA graciously begins a brand new claim with no 995 or 526 whatsoever and belatedly grants Jim 50% for MDD— but only to the date of filing (12/2020). That one was launched on appeal up to the big house this morning. But that’s not the end of the matter.
On 12/29/2020, having way too much time on my hands and fistfuls of medrecs that said Jimbo’s EF was below 30% waaaaaaay back in 2014, I filed a new 995. VA denied it 7 days later (including the National Holiday) on the 6th. No explanation. No favorable findings of fact. It was like I was blind and didn’t know how to read Braille. I had to call up my CMA Allison and have her call up Cris the CMA in Albuquerque to ask their Coach why in Sam Hill they denied. It took two days to get back to me with the reason.
Apparently our good cardiodoc did what every cardiodoc has done for decades. He stated the Left Ventricular Ejection Fraction (LVEF) of the Heart as “EF”. Mind you, every VA Bastion of Ignorance across our fruited plains employs a medical specialist- at least an ARNP usually. S/he is familiar with medical terms and would instantly be able to interpolate EF and understand it. But noooooooooooooooooooooo. S/he denied because they were unsure if it was the left or… wait for it….the right ventricle. Since you a) need to do an MRI to figure out what that right EF number is and b) know the Vet you are dealing with has a rating for a “left” ventricle, you can be almost 100% sure any reference to an EF would be… wait for it… to the left…except in Albuquerque. Sort of speaks volumes about the medical booth bitch in Albuquerque, huh?
Now, keep in mind the Secretary’s very own wording in his regulation, §4.104 DC 7005 says in haec verba
left ventricular dysfunction with an ejection fraction of less than X percent
So, undaunted, I reloaded on 2/11 with another 995 containing a signed letter from the good doctor and all the Jimster’s cardio records clean back to 2014. About then I discovered his EF would actually result in a much earlier 100% rating… well, everywhere but Seattle. Yep. The raters, with heels dug in, disconnected my legal brief from the claim and, in a fit of spite, ignored all the new supportive medrecs. Denied. Coincidence, you say? Whatever. Fortunately, I’m not easily deterred. I went the NOVA route and enlisted them to pester someone in Washington DC with an IQ higher than room temperature.
Faster than you can say lickityspit, the whole DROC came alive the next day like a yellow jacket nest on fire. Smokin’! I watched like a fly on the wall as it unfolded in VBMS. Every Ceslee, Kathryn and Song Yong from the Assistant Veterans Service Manager all the way down to Coaches, Assistant Coaches, Quality Control SRVSRs-shit oh dear all the King’s men were hard at it. More claims were opened, cancelled, reopened, administratively reviewed with three signatures than you could hit a cowpie with. And what should my wondering eyes behold come Tuesday morning? Why, a new screwed up decision but at least one that can be worked on up at the BVA. It gets a substantial amount of Baksheesh into the Vet’s bank account pronto which is what I’ve been working on for a year.
I’ve had it with these morons. I applied for TDIU in the 3/2020 filing. VA didn’t even mention it. Imagine granting 60% for IHD, then a 100% for three years, and then back to a 60% for 12 months before finally granting 100% P&T. And the Vet has been unemployed since the last big myocardial event back in 2005? What did they expect him to be capable of? Selling vacuum cleaners door-to-door? This, ladies and gentlemen, is what is called a Fenderson staged rating where they cast dem bones and read dem tea leaves and figure out how little they can give you back to when the old claim started. Frankly, it’s insulting.
Here’s the redacted docs. I did get him SMC S for two back months and forever into the future. What VA hasn’t even seen coming yet is to have to pay him about 70-80% all the way back to 2003. Kinda reminds me of Leggos. You just keep on building and building like a Progressive Slot down in Vegas. It pays out about the same, too when it hits.
Folks, I gotta tell you no matter how much caterwauling I do, this is more fun than fishing with hand grenades and a supersized Tanqueray and Tonic. If someone had showed me this gig in 2007 and turned me lose, I could have helped a gazillion more Vets.
In Jimbo’s case, I’m doing the frequent filer program for new claims and appeals just in case he punches out. Mrs. Jimbo can’t get anything on accrued unless it’s filed before he saddles up. I also like to file my clients for A&A these days the moment they catch a cold. That way, if it goes south and it’s discovered he has a SC cause, we get them a few extra shekels for the short period of the Hospice. Remember, you can’t file after they hit room temp. If I sound like some kind of VA ambulance chaser, it’s because they (VA) have been so rude and abusive to my Vets. What goes around comes around. Very few litigators are brave enough to call these jackwads out.
If you are otherwise unoccupied tomorrow evening 2/25/2021 at 1600 HRS on the Left Coast, tune in for some interesting discussions on the recent about face of the Veterans Administration on equitably deciding claims. This process, since shortly before the election, has been turned on its head. It’s so bad, you could get your hand blown off by a B 40 with 20 platoon members witnessing it, be awarded a PH and a CIB and still lose your VA claim. Folks, you may think I’ve been smoking some killer Mantanuska Funderthuck but I have the proof.
Better yet, in the same vein, I’m seeing a nefarious process where a Vet finally wins a claim back to 2002 and the VA Examiner carefully make sure he’ll somehow just barely miss being over 50% in order to be able to collect both his retirement pay as well as a VA disability compensation (CRDP). Or, how about finally acknowledging the Vet is entitled to SC back to 2004 but give him a 0% even though he couldn’t walk without a cane and a knee brace. I could go on and on but I’ll save it for the show.
SSgt. Famous Amos Weeks (KHA 8/1971 near Tango 11) guarding our incoming Vitamin B
I’ll give you all some tips on how to build your very own personalized punji pits for the VA raters to fall into when you get to the end of your claims fights. If I didn’t know any better, I’d think the Under Secretary for Benefits (USB) sent out an email saying “Holy shit. We’re out of money. Deny everything until further notice. Quit answering the phones. Turn off VBMS.” They didn’t send out any email that said it explicitly. They just lost that loving feeling.
I’m waiting for them to start putting blurbs in their denial letters like
“Please take a moment to share the denial with the Veteran and let him know we strive for equity in all our endeavors. Our motto to our frontline raters remains Grant if you can. Deny if you must. We encourage the claimant to refile in the future when he or she has further evidence that might support his claims. Please also thank him or her for their service.”
Unless I’m mistaken, the telephone number to reach this gig is
(515) 605-9764
If you just intend to listen, do not dial one to share your dog barking at the Amazon Delivery guy. Dial one only if you desire to talk to the person to whom you wish to speak.
1900HRS on the East Coast.
Radio Documents for Discussion of VA’s New Adversarial Adjudications Posture.
Redact Korea 10% Vet is 10% for residuals of encephalitis from 1953 to 2009 and then 100% for s/p encephalitis but VA says he he has nothing wrong with him. Okay. Then why give him the 10% from 53? the 100% from 2009? But not 80% from 1953 for 50%/DC 8100 headaches, 30% DC 9411 and 10% DC 6204 as individual ratings under §4.124a?
redact RD 2-10-21 Vet wins knee back to 2003 at 10% and then 20% from 1/2020 but he needed a knee brace and a cane to walk in 2003. So why the refusal to grant his initial claim at 30% under DC 5257 (2004) and 10% DC 5260 (DeLuca pain) back to 2003? SMC S from 2003 is a big chunk of change VA is not going to cough up without a fight.
This is a redo for a Blue Water Vet. He filed in 2003 for IHD, DM II and PN due to Shipboard Hazard and Defense (Shad) but lost. I refile in 2020 under Blue Water and it’s now retirement pay PLUS VA comp (concurrent receipt). VA gives him a Fenderson staged rating and dang if he missed that 50% by thaaaaaaaaaaaaaaaat much. But, VA forgot about the 2003 C&P where they connected his depression to the Coronary Artery Disease (CAD) but denied the CAD.
redact RD 2-19-21 Here I submitted 12 pages of medrecs showing a Ejection fraction of <20%= 100% for IHD. VA tosses the medrecs and says I submitted a §5103 saying I had nothing more to submit and dated it 2/11/2021-the day I filed it. They had to go find a §5103 dated 1/06//2021 and stick it into a claim filed 36 days later on 2/11. So how do you file a 995 with no N&R Evidence?
I refile the depressive disorder as a CUE of the redo on the 2003 §3.816 look back and they cancelled it twice. I called… well, I called someone in DC I know and today bingo- they reinstate a cancelled claim and grant it but not as a CUE. They feel it was raised on 12/02/2020-the day I filed the CUE. Make your own rules up if you want to. Any old rules that you think will do.
§3.310:
(a)General. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.
Here, we’re dealing with Harris v. Derwinski and inextricably intertwined claims. If they deny a claim in 2003 and then grant it due to AO updates, anything that was part of it then is part of it now. When you grant a CUE, you have to put the Veteran in the same position he was in before they committed the CUE. VA contends this isn’t a CUE but granted it without my filing a 995 or 526 to reopen it. Ergo, it’s a CUE grant with the wrong effective date.
VA is not only screwing up at a record pace. They are purposefully denying or granting in such a way as to give the Vet the very leastthey can and then see if he objects. They grandly state “This is a complete grant of the benefit sought.” Yeah, well percentage-wise but not effective date-wise. Granted, as the comments below imply, VA has always screwed up our claims. But why now, suddenly when a lot of Vets are in deep doo doo with the Coronacrap and lost jobs, decide to be extra speshull assholes? What internal memo was circulated? What FAST letter was dispatched to all HHCs for immediate dissemination? You have to have a very high SES rating to be instituting this level of havoc.
Both cases in this consolidated appeal involve the correct legal standard for assessing an increase in disability of a non-service-connected condition “proximately due to or the result of a service-connected disability” 2
The merits issue for panel consideration arises from Board instructions to VA examiners in both cases that “aggravation” of a non-service-connected condition required a “permanent worsening” of that secondary condition.
The Secretary apparently imported this requirement from law pertaining to the presumption of aggravation for conditions preexisting service.3 The Secretary has incorporated the “permanent worsening” requirement into the VA Adjudication Procedures Manual, effective November 30, 2017.4
The Court concludes that the Secretary’s imposition of the “permanent worsening” standard is animpermissible attempt to add requirements that appear in neither the enabling statute 5nor in the implementing regulation for secondary service connection.
Footnotes
2. See 38 C.F.R. § 3.310(b) (2018). Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.
6. See 38 C.F.R. § 3.310. Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.
It appears that VA wants to serve up some rule-revenge to the CAVC and Veterans for their ruling. They boldly say they want the rule to supercede the CAVA’s decision in Ward. Cancel culture–VBA canceling CAVC.
“The Ward case, which the VA attempts to overturn through this proposed rule, provides a case law. The decision also makes clear that the recitation of the history and application of the relevant provisions and language VA seeks to impose is not anchored in statute, thus it is unclear that these rules could survive a challenge under the Supreme Court’s recent clarifications on deference to agencies.”
Carl Blake Executive Director, Paralyzed Veterans of America
“…VA did not intend this divergence, and its proposed revisions to realign the two standards of “aggravation” will supersede the effect of the Veterans Court’s recent holding in Ward v. Wilkie based on a change in the underlying regulatory text.
Question: Is VA intentionally and publicly refusing to implement CAVC’s decisions?
There are about 32 comments in Response to RIN 2900-AQ80, Aggravation Definition, with excellent responses from NOVA, Paralyzed Veterans of America, Veterans of Foreign Wars, Legal Services Center of Harvard Law School & Chisholm Chisholm & Kilpatrick LTD, Disabled American Veterans, Fulton County Veterans Service Agency, National Law School Veterans Clinic Consortium and others. Find links to letters here:
VA must withdraw this insult to the Court. I would urge you email your Congress and state veterans agency. A comment can be posted to Sec. Denis McDonough:
27°. Boy howdy is it ever cold out today. The great big Snowmageddon going on across our fruitless plains finally arrived hereabouts yesterday. Pickles loves it. This wouldn’t be considered a real Snowstorm snowstorm unless you just moved here from California. I watched a dude pumping gas in a shorts-and-flipflops get-up this AM. It’s a hoot to watch in 11 inches of snow. Fugit. I’m retired. I’ve got time to stop and watch this. Your feet would go numb before you filled up. With all due Respect to former VP Albert Gore, global warming is taking it’s damn sweet time in settling in to Washington state for some of our newest arrivees. Since I’ve lived here almost since when I came home from Vietnam (4/74), I can rightfully don the mantle of 2nd generation immigrant. And since I wasn’t born and raised in California, I have even more cachet yet. So I’ve got that going for me. Which, apparently is more than the Department of Venomous Affairs has going for them. Seems in the last eight months I wasn’t too far off the mark about perceiving a real sea change in adjudications procedures and attitudes.
Nothing is Everything. That commercial jingle for a prescription pharmaceutical drug stuck in my head and I wondered if the VA had begun incorporating the sentiment into ratings procedures. It feels that way. All my decisions in the last 6 months seem to be 0%s in spite of the clients’ being at Death’s door. What gives? Are they broke? Is that new Electronic Health Records (EHR) computer starting to have a few “overruns” like the Denver VAMC? Like, in the tens of billions? Time to call Bill Gates.
We NOVA members have an “inwards-facing” Parler of our own where we can share knowledge, tradecraft or ask questions about how-to stuff. It’s very valuable and when someone finds a gem with a prologue of “Hold the phone Ramone. You’re just never going to believe what they did to my client today…” they feel compelled to share it. That’s a good thing. We begin to feel we aren’t pregnant and alone in this VA representation gig when we hear others’ laments. Shit, some of these attorneys are carrying quadruplets compared to me.
Everyone has their own technique or secret weapons on how to beat the VA in this 3-card Monte game. I have mine and freely share them here. As I’ve pointed out before, the moment VA begins doing something new or arcane and it results in a loss, you have to adapt and learn how to tie a better knot. Conversely, you also have to understand how to untie a VA Gordian knot. They’re famous for them.
I have a wonderful case study today of what I would refer to as VA’s proclivity to produce innovative, inventive, bullshit case law. Steve and I go waaaaaaay back to early Hadit.com days. Imagine your life becoming unraveled in 2003-2004. You file claims and ten seconds later the shit show begins. Next thing you know you’re homeless and MD 20 20 is your go-to beverage/food. Shit happens. You wake up 8 years later and someone helps you glue yourself together. You refile your claims which you forgot all about. You begin winning because they (the claims) were totally legitimate back in ’03.
Next thing you know, you’re TDIU for Bent Brain and a handful of other ratings adding up to 40%. Considering you’d gone homeless in 2003 and even told VA, you’d figure they’d a held off on the claims until you got your shit back together, right? Not. They had his ass denied in record time for everything-PTSD, asthma, residuals of a broken ankle, bum left knee 2ndy to the ankle, bad back and Grave’s disease. Steve emailed with me about 2012 and he started by getting a copy of his claims file. Sure enough, there was the smoking gun-well, actually three of them. They’d kept sending the denials to a Halfway house he’d checked out of months before. Fortunately, he’d left his new address with his psychiatrist and there it was safely and constructively in possession of the VHA. Now, I’m not going to make any judgement calls but Steve probably wasn’t in any condition to pursue his claims in 2003. It was actually a blessing in disguise in retrospect.
When this happens, everyone VA is supposed to take a time out and do a recon to find his location. VA didn’t. This put Stevie’s claim on ice judicially until he came back from MD 2020 land. The raters ignored the law and denied. No surprise there. Inventive case law. M21 on steroids. Mission creep. Take your pick on semantics. So, Steve is doing a dumpster dive in his c-file and see’s all the returned rating decisions and asks me if that could be CUE’d. Roger that… but better. You don’t have to prove CUE. You just prove you never got the original decision. This is called the presumption of regularity of the mail. If VA says they mailed it to you, it’s presumed they did it right and you lost it or blew it off. To call them out now, you have to have proof you told them you were homeless. In addition, you have to prove that they had a valid address and screwed up by not mailing it to the correct address. Without the claims file, he would have never known.
Steve kept appealing it up to the top and finally, in February 2018, he struck gold with VLJ Yvette White. I gave him all the ammo and he did it himself pro se. Half of winning these
complex claims or appeals postures is explaining it to an intelligent life form. You’re far more prone to encounter them up at the BVA. Judge White granted the earlier effective date of 2003 for all the claims he’d filed in ’03 and remanded it back to the RO for rating. Thus, by operation of law, all those 10%s and 30%s he’d won in 2012-2014 (but filed for first in 2003) were effective back to 2003, too. Well, almost. The VA had never granted service connection for his boogered up knee and his back needed a higher rating based on the degree of goniometer or whatever it’s called.
Being a gambler, I asked ol’ Steverino if he wanted to play some more 3-card Monte with VA. He was game. I took his POA and did a deep dive. Steve had filed for his bum knee due to all the pain his left ankle telegraphed up into it. His lower back disability was more intense than 10%. Some days it plumb wiped him out for doing anything. I thought he deserved to get this sorted but knew it would take some dough.
Being a betting man, I bought his Independent Medical Opinion(IMO) for a few K and sat on it. Because Steve’s 2003 claim was now in play again fifteen years later, I filed his NOD 21-0958 and asked them to reconsider the left knee service connection and increase in the low back… and SMC S back to 2003. When added up, all he needed to get SMC S was enough ratings to reach 60%. He had a 30 and two 10s= 43%. He needed 30% more to get it. I honestly figured he could get the increase from 10% to 20% for his back and a 10% for his knee minimum which would give him his 60% ( 30+20+10+10). At first, the San Diego VARO couldn’t wrap their heads around a 15-year old claim that was still kicking and refused to accept my 958 NOD. I had to sit down with a DRO and frog- walk him through VBMS to show him why he had to CEST it. CEST is a VA term meaning “Claim Established”. It took an hour of monosyllabic discourse but suddenly the lightbulb came on over his head. They quickly denied it and we sat around waiting for the SOC to be issued. That took 16 months. Meanwhile, Steve was having a new bad run of luck. They’d moved to Texas to escape California, bought a big house and now the Pandemic was screwing up their ability to pay the mortgage.
We’d launched a VA 9 torpedo using Legacy and tossed in the IMO in 3/2020. I finally filed a request for Advancement on the Docket for financial hardship for him. His wife was out of work because of the Coronacrap. Bingo. The AOD rating just came back with an incomprehensible decision. The new Judge, VLJ Laura E. Collins, granted the service connection for the knee and the 20% for the back increase. The big problem was she only granted the back increase to 2015. Aruuuuhh?
Worse, when the RO got this remand, they granted 10% for the knee in 2003 and another 20% for more left knee… in 2020. This, too, was the absolute last thing I expected. The carefully crafted (read gerrymandered) knee rating decision and BVA back increase grant only going back to 2015 effectively deprived us of the needed percentages at the right time (2003) for EED for SMC S. Or did it?
This is where it helps to know how to cut the knot. It isn’t difficult. The BVA gal is trying to employ Fenderson v. West and used a staged rating on an original claim. Sorry, Laura. You can’t do that. An initial, originalclaim will always grant you the highest and best rating effective the day you filed. Thus, even if VA screwed it up and thought they are keeping you out of the $, any rating they give you will be paid back to date of filing. So, by operation of law, Steve gets his 20% for lower back and the (brand new) 20% and 10% ratings for his knee all the way back to 11/20/2003. Game. Set. Match. Shooo doggies. You think VA was going to roll over and pay out without a fight?
VA would like to think they smoked us but they stepped on their necktie. They have now granted more than enough to get SMC S back to 2003 but smugly think they outsmarted us by throwing in that bogus Fenderson shit. Who’s the fool, fool? Fenderson is unequivocal and so is 38 USC §5110(a)(1). So, we rebut the SSOC with a brief but let it go back up to the Board (AOD) for them to see their error. This is a cross between res judicata and stare decisis with a side of due process. VA would prefer their innovative, inventive legal interpolation and try to camouflage the difference between an original claim and one for an increased rating. Make your own rules up if you want to. Any old rules that you think will do. Sort of like that old Traffic song.
116th Congress: It’s been one month since H.R.6395, the National Defense Authorization Act for Fiscal Year 2021, passed over a veto on 1/1/21 and became Public Law No: 116-283.
It includes an important AO amendment, pushed through by Sen. Tester of Montana, now also law. (Four years + AO advocacy)
TITLE XCI–VETERANS AFFAIRS MATTERS
Sec. 9109. Additional diseases associated with exposure to certain herbicide agents for which there is a presumption of service connection for veterans who served in the Republic of Vietnam.
SEC. 9109. ADDITIONAL DISEASES ASSOCIATED WITH EXPOSURE TO CERTAIN
HERBICIDE AGENTS FOR WHICH THERE IS A PRESUMPTION OF SERVICE CONNECTION
FOR VETERANS WHO SERVED IN THE REPUBLIC OF VIETNAM.
Section 1116(a)(2) of title 38, United States Code, is amended by
adding at the end the following new subparagraphs:
``(I) Parkinsonism.
``(J) Bladder cancer.
``(K) Hypothyroidism.''
Now what? Don’t see anything on the VA website, or the Federal Register yet. VSO’s quiet but I found this:
NY Vietnam Vets writes (1/8) :”Please note, once proposed legislation has been signed into law, the Executive Branch is responsible for implementing it. VVA will work with Congress and the Department of Veteran Affairs to ensure that these new bills are fully implemented.” More at VVA.
So the Biden Administration will implement this–but when? Robert Wilke is gone; Dat Tran is interim secretary. Denis McDonough has been nominated for VA Secretary.
The 2020 Agent Orange (AO) Newsletter, published irregularly by VA’s Public Health department, is the most recent.
Who to poke? Your local Environmental Exposures Co-ordinators by state or VISN have email and phone numbers listed. They may have some good information to share or can get it.
Unlike the Blue Water Navy Act, I don’t see a reference to any Effective Date of Award. Alex advises submitting a claim as soon as possible.
58,318 Americans died in Vietnam. Tens of thousands died after the war from Agent Orange; tens of thousands of oldies are still fighting AO. Only about 32% remain.
Without unbiased research, informed lawmakers, and fair-minded patriotic citizens, I think life for disabled or injured veterans and their families will not improve. Maybe term limits would help?
The 117th U. S. Congress has convened with over 65 new members. There is a new-old administration. One hopes for speedy reforms. Younger vets are experiencing the same delay and deny tactics that have been used in the past. They have seen elder vets suffer needlessly. On the streets. Fifty years to get welcomed home...(VFW).
And it’s 1, 2, 3, what’re we fighting for? Don’t ask me, I don’t give a damn
Next stop is vietnam And it’s 5, 6, 7, open up the pearly gates Well there ain’t no time to wonder why Whoopee! We’re all gonna die
Once upon a time in the mining hills of West Virginia there lived a young boy named Rocky-hold it. Wrong one. Gary and I met online somewhere back at the dawn of VA time after I got my license to litigate. He was a County Mountie VSO for Indiana or some place I disremember now. He took a shine to the idea of becoming a full-fledged VA Agent with all the concomitant authority it bestows upon you. Several others I have encouraged have done so, too. I commend them for helping Vets win their claims. Gary’s a computer whizbang. He delved into the intricacies of the VBMS and began roaming hither and yon seeking whatever he could turn up. Or, better yet, how far he could trespass before someone slammed the electronic door in his face and restricted his access to certain areas.
Being’s as I don’t have a) the electronic knowledge or; b) the balls to do this, I haven’t anything to show for having VBMS access for 4 years other than to discover I can see my own claims file (illegal) or access to VACOLS (Veterans Appeals Control and Locator System) (forbidden to VA attorneys and Agents). An interesting side note is that one of our more illustrious Veteran litigators- Gene Groves(one who has actually won an Extraordinary Writ)- discovered there is a “back door” to VACOLS allowing you to revise earlier entries in spite of VA’s insistence it is inviolate . I guess VA rolls with the Presidential definition of what “is” is.
Missed it by thaaaaat much
Being a VA Agent is too cool for school. First and foremost, you don’t begin your new job following graduation from law school after 7 years of preparation with a $200,000.00 student loan that will hound you to the Funeral Home. You have all the authority as an Agent to do anything an attorney can do in VA land. That’s pretty heady shit when you think about it. I try not to. I devote every waking moment to learning about Veterans law and how to bend it to my needs. I don’t have time to devote to chasing down a Hoodoo lane in VBMS. I really wish I did but I’m 70-not 35. I have horses and dogs- and a Cupcake.
Thus I wish to give credit to Gary for turning up some interesting documents that- on their face- tend to support that hackneyed “delay, deny- until we die” rag. Here’s an interesting peek behind the green curtain into the VA Land of Oz and how this all works.
Betty Crocker’s Adventures in Good Eating.
These are the first of many more “doc dumps” I hope to receive which shine a light on the “How to” in VA adjudications. Considering our job is Veterans and the VA is considered the Neutral Zone and nonadversarial, it strikes me as odd how these conversations and briefings/working papers arise.
The Presumption of Soundness at Entry
The Presumption of Soundness is one of those bedrock principles we rely on to show service connection. Certainly, there are going to be Vets who enlist and disremember to mention that bum knee or the raging GERD during the SF 88 Meet and Greet at AFEES. 60 days later at Basic in a wheelchair, they get shown the door as having problems which pre-existed service. You’ll find a lot of these folks also race off base to VSOs and file claims faster than you can say Jack Robinson. VA spends an inordinate amount of time searching to make sure they aren’t being dishonest. I get that. So… why an Office of Learning and Management article to teach VA raters how to get around Congress’ clear intent to give that Vet the benefit of the doubt? Well, duh. To teach them how to deny.
Moving along, here’s a treatise on Traumatic brain injury and how to studiously avoid inadvertently creating an inference as to the possibility of other, related injuries secondary to the primary service connected ailment (page 9).
Practice Tip: In finding that the criteria for a current disability are met, do not attempt to identify the residuals with precision, for the reasons stated in B.5 below. Instead, make a finding that is not limiting. For example, “The TBI the Veteran sustained in service resulted in chronic residuals such as X and Y.”
See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (noting that the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list).
See how they did that? No reason for us raters to go on an unguided safari in search of all that ol’ boy’s injuries. Give him tinnitus for 10% and see if he pitches a bitch about his headaches, dizziness and trouble remembering when to go potty.
Here’s an unknown tidbit-
The U.S. Army Medical Research and Materiel Command Joint
Trauma Analysis and Prevention of Injury in Combat (JTAPIC) has
developed a registry of service members who were within 50 feet of a blast since mid-2010. When existing DoD records, to include STRs, are not sufficient to verify exposure to a blast injury that occurred since mid-2010, verification may be requested from JTAPIC.
Interestingly, this was prepared by an OGC gal I tangled with up at the CAVC in Butch Long’s CAVC Appeal (Shereen Marcus). Small world, eh?
Here’s another How to for rating novices when denying ah, deciding TBI claims by April Maddox. She freely admits it’s not an official statement of policy or legal interpretation of VA law-just one of them “inward-facing” documents that someone who was incredibly bored decided to cobble together in their spare time for extra credits (read attaboy er, attagirl I mean attaperson bonus). Gotta be careful these days with this cancel culture dictionary shit.
A lot of times VA is trapped into having to acknowledge what they have actually written versus what they really meant to mansplain. Imagine writing §3.303(b) back in 1961 and glossing over that second half restricting it dramatically for 52 years. I’m surprised VA doesn’t go back and CUE themselves on the umpteen gazillion claims where they screwed it up. Thank God for the § 3.951 20-year rule huh?
On behalf of myself and the rest of the asknod menagerie, I wish you all a Happy Groundhog Day. I hear it’s one of VA’s favorite movies. Be good. Be safe. Be nice to one another even if you hold different views on how to run America. Rodney King, God rest his soul, actually summed it up quite well for us-“Can’t we all just get along?” Granted, that was a heapin’ helpin’ of Monday Morning quarterbacking after he’d just gotten the tar whupped out of him but still a noble statement nevertheless. We learn from history-but only if we listen.
Thank you Gary. I’ll be publishing some more gems from him here directly but I don’t want to drown you all in too many documents at one sitting. Enjoy.
(No pun intended re Rodney)
P.S. Edward Aloysius Murphy Jr.’s first law is inviolate. No good deed goes unpunished. By studying and becoming an Agent, Gary screwed himself right out of a job. Seems VSOs don’t cotton to their service representatives actually helping Vets. They fired his ass the same day he told them the good news.
Welcome to the New Year. It’s apparent we have a new metric afoot in the Veterans Service Centers across our fruited plains. Right. VAROs are now called VSCs and have been for a while. The boss of the “service” center is called the VSCM (manager). The Assistant manager is- you guessed it- the AVSCM. They run the Ratings show. There’s still a Director in the Senior Executive Service (SES) sector for each VSC except for North and South Dakota. He handles the PR. Used to be, and maybe still be, that if you called the Montana RO, they picked up in Salt Lick City. Ditto for Fargo, Cheyenne and Sioux Falls. They probably don’t have telephone lines out that far yet and rely on green firewood and wet blankets. Or Pony Express.
We no longer have raters. Public relations experts have determined America does better with terms like “associate” or “team member”. Hence the days of the old Decision Review Officers (DROs) are dwindling. They’re segueing into Coaches, Assistant Coaches, Ratings Quality Control Veterans Service Representatives and more. I appreciate they’ve given us agents and attorneys Change Management Agents (CMAs). Too bad we can’t get them to change anything. As for managing, they do manage to get it in front of the right Denial Coach. Check this out.
Cupcake has a lot of real estate agents working for her. Real estate agents have dads who are my age. Some of them were in the military and have disabilities. I inherit them because it’s the right thing to do-even if I’m utterly overwhelmed. Meet Jim- Blue Water Navy- or BWN. Yep. His daughter is her Agent
My BWN Vet
Jim (pseudonym) filed in 2002 for a bunch of things like IHD and DM II w/ PN. He’d had a couple of heart attacks and the ticker was heading south. Wonder of wonders, he lost. And then along came Joe Procopio and the revised BWN do over of Hasse v. Peake. I filed him for them under §3.816 and scored a home run- or thought I had. This is called a Fenderson Staged rating. It’s named after Joe Fenderson. Who else? Now, ever since 1999, when we win an old CUE claim, an antique §3.156(c) or one of these AO claims which the Vet filed for and lost previously, the VA has to perform a retrospective rating covering the past to the present. Most always, you get a Zero for the Hero rating up to magic moment in 2020 when you suddenly qualify for 100%. You can predict it.
VA sure couldn’t say Jimbo was Boston Marathon material. He was blowing less than 50% on the ejection fraction (EF). This gets you a 60% rating under DC 7005 for Ischemic Heart Disease. If your EF falls below 30%, you advance to Boardwalk and start erecting hotels. But what happens if you get better? Or more aptly put, what happens if VA says you got better during a Fenderson Staged rating 14 years ago?
Reducing a Veteran’s rating is a strange, difficult procedure. Look up §3.105(e) to begin with. Hellooooooo? I’d like a hearing, please? Due process must be observed. Reducing it in an eighteen year old retrospective Fenderson-style staged rating is a whole different animal. How can you inform the Vet you intend to reduce him from 60% to 40% beginning in June in 2006 in 2020? Rent a DeLorean with a ginormous Flux capacitor in the trunk? How can you reduce him for a cardiomyopathy issue with only one c&p? Ruh-oh, Rorge. Raters are oblivious to §3.344. It doesn’t exist to them. The short answer is you can’t reduce him. The long answer is Hell no, you can’t reduce him on one c&p. Well everywhere but at a VSC.
The Jimster’s a retiree so we’re talking about Concurrent Receipt of military and VA pay if he was over 50%. Much like the art of gerrymandering in congressional districts, VA prevented (as much as possible) any big retro based on Dual receipt. They gave him 10% out of the gate for the IHD- then 60% for a year or two combined with his DM II ratings. But then they whacked him down to 40% in ’06 to keep him out of the concurrent receipt column until 2019 when he had his septal infarction and sank below 20% EF. Then two things happened. I began reading volumes and volumes of his records and decided to go back to 2002 and the old denial to see if I’d missed anything. I had. Seems he’d filed for MDD secondary to his IHD and they’d denied it strictly based on his IHD denial. The VA shrink had generously stated he was more f****d up than Hogan’s goat and mildly to moderately depressed at his c&p-and it was all due to that nasty IHD. I’m sure Dr. Demento never thought Mr. Jim was ever going to catch air on the IHD so it was a safe diagnosis. Cool. Free Thorazine, right?
So I “re”filed him for MDD, 2ndy to the IHD as a CUE saying what the brain box expert said in 2002. I even reprinted his diagnosis and submitted it with the filing. VA was so sure they’d pole-axed my boy on concurrent receipt with the Fenderson screwing, they never did their homework. Jiminy Cricket will get that 30% for Bent Brain Syndrome. Maybe not at the VSC but §3.310 is far more respected at the BVA than the M 21. But that was not the end of the matter. No sir. Not by a long shot.
Due to this infernal Beer Virus, it took from our March filing until Christmas to get my hands on one of his doctor’s files. They were locked up in a storage area as the good doctor had retired back in ’18. Fortunately, he kept the records. They showed Jim had an EF of 25% beginning in June 2016. I promptly filed them on 12/29/2020 as a supplemental and saw him getting 100% for three more years using the Fenderson red carpet. Not.
Eight (8, badt, ocho, tám, huit) days later (over the New Year’s weekend, no less) on January 6th, 2021 VBMS (Honolulu) regurgitated the fact that the retired doctor had been too vague. The rater, in desperation, had stated they received nothing that would change their Fenderson rating. I called up Allison, my CMA here in Seattle and asked her to please find the chowderhead who authored this abortion and explain to me in DickandJanespeak why a 25% EF (or less) under DC 7005 would NOT warrant a 100% rating.
Seems the VA rater is perturbed that Jimster’s cardiologist had failed to specify which ejection fraction was 25%-right or left ventricle. VA was just not going to hand out some serious folding money for something this vague. Hoo doggies. If you want to measure the right ventricular EF, it takes an MRI with contrast as opposed to the way everyone else in the world (including VA cardiodocs) measure it (on the left with ultrasound). Since the EF on the right side is kinda immaterial to this ischemic heart gig, it’s presumed by anyone in the medical world that an EF would mean it was done on the left side. The right ventricle simply pushes blood into the lungs. VA is saying the doc’s failure to say “Left Ventricular Ejection Fraction” was going to cost my Vet $105,000.oo in retro on top of everything else so far. Or so VA thought. Thank you for your Service. Next?
Of course, they could have Googled ejection fraction:
Ejection fraction (EF) is a measurement, expressed as a percentage, of how much blood the left ventricle pumps out with each contraction. An ejection fraction of 60 percent means that 60 percent of the total amount of blood in the left ventricle is pushed out with each heartbeat.
I called up Jim’s wife and asked her if they could get a letter from Dr. Retired who was also a personal friend. I wanted him to clarify that the EF was done on the left side. Mrs. Jim proceeded to lay the following on me. Shoodoodle, Alex. Those records I sent you at Christmas were from his personal care physician. You want I should contact Franciscan Health Care and ask for his cardiacdoctor’s medical records from 2010 to now? You know, he’s still seeing the same doctor. His EF (on the left side) had been plumb nasty until 2019 when he had the septal infarction due to the infection after the defibrilator implant. It went to hell in a handbasket after that. They hit him so many times with the paddles he’s got burn marks. He’s blowing less than 20% right now and he’s on Entresto™.
Now, with all that said, Fenderson gives us some explicit rights. I summed it all up in my legal brief. Read all the records, not just the ones you cherry picked. But… when you do a Fenderson on someone like Jim, you already know the future. You can see he’s not going to get better. In fact, the village idiot could opine that the shit was going to hit the fan big time in the future. Duh? So, to reduce him in 2006 using §3.344 knowing full well he couldn’t go to the supermarket without packing an AED in a decade is error. To ignore §3.105 is fatal CUE.
It’s always lots of fun to be in the Catbird seat. Jim will one day see his whole CRDP come back to him. I also caught them trying to say he only got spousal dependency for his wife from the 2019 100% rating. Oddly, right in the old 2002 VA Form 21-526, he had submitted his wife’s birth certificate, SSN and their marriage certificate in hopes that St. Nick would soon be there when he won. 2002 was the effective date of dependency now. I had a hard time pounding that nail home until I sent them a copy of the 526… from VBMS.
Seems like the third time’s the charm.
The 3rd Time at the BVA
Hopefully that will occur on my Roberto claim below. This is the third BVA assault. It’s hard to admit CUE in a 1972 decision for financial reasons. VA has so many of these they have a hard time figuring out how much to ask for in Appropriations before Congress every year. VA folks I talk to always say “We never look at the potential payout. We’re objective. Our motto has and always will be Grant if you can. Deny if you must.” What in the hell do I look like? A turnip wagon driver? Do you see the Mayflower tied up to my front porch? If that’s so, why have all my hardest claims to win been ones involving an absolute shit ton of money for the client? Admitting CUE is admitting you screwed up bigtime. At VA, you’d think it was tantamount to admitting to your wife that you cheated on her with her best friend…on your honeymoon.
This one below isn’t too far off the mark considering what’s afoot these days on social media. Just think. They know every thing you’ve said and felt for all these years. Cupcake and I decided it’s just too weird these days to say anything in public for fear of offending someone. Thus, we no longer comment or Like so do not think we’re ignoring you.
That’s why I relegate all that nonsense to this blog. Who cares what asknod thinks?
I often preach about CUE as the hardest thing to win. It can be challenging and dicey to eke out a win. Here’s a daisy. My Bluewater Vet got a rotten 19 year Fenderson look back. I knew he would. VA screwed him out of all his retro $ because they kept him below 50% and CRDP until he got his 100% and DEA for P&T. So… how to fix it became my fixation. 
asknod
Bethanie Spangenberg
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Wesley McCauley
Veterans Claims Help 