FED CIR–CHANDLER v.SHINSEKI

This decision has absolutely no bearing on HCV jurisprudence. I simply attach it here for the sole purpose of showing the readership what we have in store for us soon. At the top of the decision is the list of appellant’s leagle beagles. Prominently displayed is the name of Meg Bartley. Ms. Bartley is slated to become a new judge at the CAVC soon-Congress willing.

Chandler

Meg has been kicking around over at the National Veterans Legal Services, a consortium of like-minded law dogs with the Veterans’ best interests at heart. They are, for the most part pro bono and dearly beloved to all who seek an ear before the Courts. One can imagine how refreshing this will be when she ascends to the Bench soon. Judge Mary Schoelen, who is another strong advocate of ours, will find herself in good company soon. I do not advocate for an unfair advantage for Vets. I simply beg for an even playing surface. Considering that we get such shoddy justice and surly lip service below, this addition to the Court gives us one more valuable tool with which to curb the excesses of the VASEC.

Vets should find it incongruous that they get such disparate justice in the lower venues. One can readily excuse the lowest echelon (VAROs) as being constrained by a benefits manual that all but guarantees none but the most patently obvious claims will ever reach fruition. Nevertheless, this shouldn’t be perpetuated at the BVA via some blind march in lockstep with the flawed decision from below.

We are seeing more reasoned opinions emanating from the BVA only because they are beginning to recognize a trend coming from above that refuses to go along with the Gomer logic presented. Face it. Most judges would be appalled to have their decisions rent asunder based on false premises or improper analysis of the available evidentiary record. The BVA, being minions of the VASEC and dependent on him for their livelihood, often stick their licked finger up to see which way the legal wind is blowing. Arguably, there are some members whose altruism has not become a casualty to the party line. I commend those souls. We know by reading decisions that some are poorly contrived and pointedly slanted against the Vet. This is why Congress decided to give us a better shot at justice than the rump form we endured for a century and a half.

Nod predicts:

We’ll attain true, unadulterated, meaningful jurisprudence only when the VLJ system mirrors the ALJ one incorporated by the Social Security Administration. That is, a truly independent judiciary that cannot be swayed by their paycheck cum blind allegiance. That’s the rub in a nutshell, isn’t it? The CAVC more closely resembles what true justice could be but obviously can be subtly told to rein in by the 3rd Circus.

We at the Nod factory joyously look forward to the coronation of  Ms. Bartley the sooner the better. In case anyone hadn’t noticed, the CAVC has unceremoniously shut its doors in protest and is waiting for our fearless Commander in Chief  and the Senate to get off their derrieres and restock the Judge pond. Even with the investiture of Bartley and Wong, we’ll still be short one judge. How soon that will be rectified is a mystery. I have heard nothing from Sen. Sneakers-not even a discouraging word about this deficiency. Considering her umbrage with the Army’s PTSD imbroglio, one would think this might rise to the level of a news conference, too.

Come on, Patty. You have the ear of the President. Let’s get with the program or are Vets a lower priority that getting reelected for the umpteenth time?

Posted in All about Veterans, Fed. Cir. & Supreme Ct., vA news, Veterans Law | Tagged , , , , , | Leave a comment

FED CIR–TYRUES V. SHINSEKI–GOING DOWN?

This is a wonderful thing. Larry G. Tyrues filed an Appeal with the Court back in 2009. Unfortunately he was a little bit late with the NOA. The Court, as is their wont on all matters tardy, declined to hear it. Larry appealed up to the Fed. Circus and was rewarded, indirectly, by a decision at the SCOTUS (Henderson v. Shinseki) that ruled VA was being too harsh in their interpretation.

Henderson–Fed Cir.

Henderson–SCOTUS

Actually, with the wall that separates the two, the Court has their own set of rules as to jurisdictional jurisprudence timelines. The VBA does too, but their authority extends from 38 USC.

The Court has always held that if you were late- more than 120 sunrises and sunsets- in getting your Notice of Appeal to them, then you were SOL. It’s been that way since the dawn of the Court. SCOTUS turned that notion on its head. Remember all the admonitions we are given about how we inhabit a “veteran friendly” judicial system whose aim is a “non-adversarial venue” to present claims where the benefit of the doubt and other valuable considerations are accorded us? The Supremes decided that meant a little more where we are consigned to sub par legal help (VSOs or pro se) until we lose.

We encounter these time constraints throughout our claims process. Following the inevitable denial, we are given a 12 month window in which to file a NOD. Similarly, when filing our substantive appeals to the BVA (Form 9) following the issuance of the SOC, we are constrained to perform within the 60 day window, submit new and material evidence for de novo review or risk watching the claim die. It follows that the onus of 120 days to accomplish this at the Court would be equally unequivocal.

Dave Henderson got the same treatment when he was 15 days late. He decided to take it up the ladder and got a sympathetic ear up at the Big House. They correctly reasoned that the CAVC is a Article I Court and not an Article III. In addition, they correctly interpreted Congress’ intent as creating what can be politely be described as a “closed system” that protects us as a privileged minority. As such, we are accorded  special dispensations that other citizens are not. The practice of laying  a punji pit in our path vis a vis the timeline constraints serves no purpose other than to punish and penalize Vets for their tardiness. It does nothing to contribute to the orderly progression of VA business. In short, it is an unreasonable obstacle to what is rightfully ours. A stiff, unbending doctrine that has no useful purpose is pointless. SCOTUS recognized that-finally. The DVA, in turn, was shocked to learn that Veterans would consider them to be adversarial or defriend them on Facebook.

Larry is going to be the next recipient of this new largesse after Dave Henderson. I find it interesting that this hasn’t been appealed successfully sooner. What’s even more exciting is the prospect that this may have  trickle-down implications at the BVA and the RO. Why not? Explain to a Vet that his claim is dead one day past a sixty day deadline because “that’s the way it is written”. Where, pray tell, is the non-adversarial, veteran friendly nature in that? What can be gained from it? Who wins and who loses? Is the VA in some way harmed or made to go to greater lengths to accommodate a Vet who files late? Is the Vet cheating the system and his fellow claimants somehow?

We are on the cusp, finally, of being given due process in a Colosseum-like environment. No more will the scoreboard read Lions-5, Christians-0. Without the perspicacity of the Hendersons and  Tyrues of the Veterans world, we’d be up Paddle creek without any bathroom tissue.

Larry does the 3rd Circus

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Incredible Viewpoint

While I am ambivalent about religion and do not force mine down anyone’s throat, I received this from someone who is not terribly religious. What he did point out is that this is the dogged determination needed to pick yourself back up when your claim fails and have the fortitude to see it through. I agree wholeheartedly. Pursuing a claim with the VA is not for the weak of heart or the easily disappointed. It takes the patience of Job and the farsightedness of Noah to prevail. VA knows this and at some point will concede defeat. The man you will meet in this video has a harder row to hoe than me and he has managed to overcome insurmountable hardship.

Enjoy.

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The Boy Who Cried Wolf

I’m sure you’re all familiar with that instructional bit of wisdom. Now supplant VASEC (the VA Secretary) as the young boy and VA’s interminable backlog as the putative wolf.  Our “boy” keeps  crying that the backlog will subside like the tide going out; that a new, smooth, streamlined high-speed ratings system is on the horizon-why! Look up in the sky! It’s an incredibly large bird! No, it’s a plane! Jez, it’s…

Speedupmyclaim@va.gov!

Soon you’ll be able to go online or to a kiosk in your own home town and insert your claim electronically and out pops your rating. Just like that! What could be simpler? All this is just around the corner-possibly by 2011!. We’ve been busy hiring and training new personnel to deal with this unfortunate delay, but soon all that will be a thing of the past. Please bear with us during this trying time. By 2012 we’ll look back on all this and see how it made us stronger, smarter and far more receptive to you, the Veteran.

Member Joe Vet from the eastern part of the U.S. sends us all these delish tidbits so we can rewrite our history books to comport with Big Brother’s recollections. Having made the rounds to all the different Veterans’ web sites, I find a tone of awe at some with regards to the VA. In fact, every Service Officer I’ve ever had verbally capitalized  anything of, or having to do, with VA. VA-friendly sites advocate we all take our protein pills,  hold hands and sing Kumbaya for several years. Asknod. org doesn’t subscibe to the pablum. We, and Joe here, have had a slightly jaded experience and tend to hold their feet to the fire.  Always remember Janis Joplin’s plaint in Me and Bobby MacGee- Freedom’s just another word for nothin’ left to lose. What are they going to do? Infect me with some incurable disease that’s bound to kill me for complaining?

I wonder how many people will come to this most recent of

VASEC’s “wolf calls”…where he made promises he did not keep.

Here are a few unfulfilled promises:

2009:http://federalsoup.federaldaily.com/forum_posts.asp?TID=12997&title=shinseki-promises-to-cut-va-backlog-hire-staff

Shinseki will “break the backlog” this year…( August 31st, 2010)

http://www.legion.org/veteransbenefits/90664/shinseki-backlog-will-end-year

Also in 2010, Vasec was “whittling down” the backlog:

http://www.upi.com/Top_News/US/2010/08/31/VA-says-its-whittling-down-claims-backlog/UPI-68171283295800/

However, the backlog continues to get worse under Shinseki. Must be due to Bush/Cheney (April 10, 2012).

http://www.goerie.com/apps/pbcs.dll/article?AID=/20120410/APN/1204101006

The truth is that it is worse, and now, more promises (March 15th, 2012):http://www.military.com/news/article/va-tackling-mountainous-claims-backlog.html

I have heard the cries of wolf long enough..The VA didnt “break the Backlog” in 2008, 2009, 2010, 2011, and I dont see it happening in 2012 or 2013 either, at least not according to the morning workload reports which continue to worsen. (member Joe)

If you buy these explanations from Uncle Eric and his Merry Band, you’re the eternal optimist. If you complain too loudly and threaten to involve the OIG when you’ve waited 10 years, you’ll discover the OIG involved in you. I complain subtly by repeating the same thing over and over until they read it and actually see it. An occasional  Congressional Inquiry or a Mandamus filing are sometimes another way of voicing your displeasure and being heard loudly.

P.S. I have received three private emails telling me that speedupmyclaim@va.gov only leads to the VA site. Jez, guys. It was a joke. I had no idea the link would lead anywhere!  Please don’t bug VA if you feel the link is defective. People tell me my brand of humor is defective. I apologize.

Posted in All about Veterans, Complaints Department, vA news | Tagged , , , , , , | 2 Comments

BVA–NO AO IN THAILAND

This is an unfortunate decision for the Vet. He should have done some research on his claim before filing. The fact that he had the MOPH repping him is not going to help. Hell, they should have known better. Cellulitis isn’t even listed in 38 CFR § 3.309(e).

http://www.law.cornell.edu/cfr/text/38/3.309

(e) Disease associated with exposure to certain herbicide agents. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied.

AL amyloidosis

Chloracne or other acneform disease consistent with chloracne

Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes)

Hodgkin’s disease

Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina)

All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)

Multiple myeloma

Non-Hodgkin’s lymphoma

Parkinson’s disease

Acute and subacute peripheral neuropathy

Porphyria cutanea tarda

Prostate cancer

Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)

Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma)

Note 1: The term “soft-tissue sarcoma” includes the following: Adult fibrosarcomaDermatofibrosarcoma protuberans Malignant fibrous histiocytoma LiposarcomaLeiomyosarcoma Epithelioid leiomyosarcoma (malignant leiomyoblastoma)Rhabdomyosarcoma Ectomesenchymoma Angiosarcoma (hemangiosarcoma and lymphangiosarcoma) Proliferating (systemic) angioendotheliomatosis Malignant glomus tumor Malignant hemangiopericytoma Synovial sarcoma (malignant synovioma) Malignant giant cell tumor of tendon sheath Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas Malignant mesenchymoma Malignant granular cell tumor Alveolar soft part sarcoma Epithelioid sarcoma Clear cell sarcoma of tendons and aponeuroses Extraskeletal Ewing’s sarcoma Congenital and infantile fibrosarcomaMalignant ganglioneuroma

Note 2: For purposes of this section, the term acute and subacute peripheral neuropathymeans transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset.

Note 3: For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.

Without that, the whole claim falls flat on its face. It makes no difference even if they were spraying it on his food.

The second problem is far more nuanced. The VA is finally beginning to cave in on this but it will be years before a good case pops up at the CAVC-let alone one we’ll be able to use for precedence. This gentleman was in reciprocating engines of which there were a lot of at NKP.  Virtually everything on the flightline was.  VA is only going to give a pass if you were a perimeter guard or had regular business there. What I have a hard time comprehending is how AO stops at the edge of the runway or parking revetment areas and never pollutes further in. If anyone who got RVN red clay on their boots for 30 minutes is a candidate, why not Vets from Thailand? Better yet, how about us disadvantaged Vets who were precluded from even talking about where we were? More AO and AB was used in Laos than any other country over there-and a lot longer.

Make sure it’s on the list and your contemporary medrecs support it:

No AO in Thailand

Just for shits and grin, check out these shots of NKP also called Naked Fanny. Notice the dearth of vegetation inside the perimeter? In fact, note the utter lack of vegetation in some places. It was the same at all bases-be they in Thailand, Vietnam or over the fence.  

The lower picture is  much more recent but the grass still seems to be recalcitrant after so many years.

Posted in AO, BvA Decisions, Nexus Information, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , | Leave a comment

BVA –CHLORACNE WIN

This is the only win I’ve ever seen on Chloracne. It, like PCT and subacute peripheral neuropathy are those rare items you hear about like extraschedular ratings. You know they exist on paper in 3.309(e)  but have never actually met a walking, talking rated Vet. I’ve never met another Vet rated for PCT although I’ve read a lot of decisions on it. The problem is the documentation in the records. Since chloracne presented as a rash, extensive blackheads and/or pimples, it was impossible to diagnose in the 70s. It was frequently classified as acne vulgaris and pooh-poohed as nothing. I have residual sebaceous cysts behind my ears that started over there but never went to sick call for a zit.

This Vet is going to get the big banana when the claim is rated at the Nashville RO. I’m guessing 10% max and the stronger possibility of a 0% goose egg after the C&P show.

I always find it humorous to see the explanation for subacute neuropathy that manifests and then goes away after several years. Why claim it? You had to come down with it within a year of leaving (last call was May 5th, 1976) and it had to resolve within two years to be considered subacute. Ergo no disease to claim after May 5th, 1978.  Does that clear things up?

Chloracne Win

Posted in AO, BvA Decisions, Vietnam Disease Issues | Tagged , , , , , | 9 Comments

Vote With Your Wallet.

This came in today. I knew about the Salvation Army gig. but was unaware of the rest of the story. Fortunately, there are other sundries stores that are far more receptive to all walks of life and not the almighty Euro.

Wasn’t it last Christmas that Target refused to let the Salvation Army ring their bells in front of their stores?


Dick Forrey of the Vietnam Veterans Association wrote.

‘Recently we asked the local TARGET store to be a proud
sponsor of the Vietnam Veterans Memorial Wall during our
spring recognition event.

We received the following reply
from the local TARGET management:


‘
 Veterans do not meet our
area of giving. We only donate to the arts, social action
groups, gay & lesbian causes, and education.’

So I’m thinking, if the Vietnam Veterans Memorial Wall and
veterans in general, do not meet their donation criteria,
then something is really wrong at this TARGET store.
We were
not asking for thousands of dollars, not even hundreds, just
a small sponsorship for a memorial remembrance.

As a follow-up, I, E-mailed the TARGET U.S. Corporate
Headquarters and their response was the same…

That’s their
national policy!!!

Then I looked into the company further..

They will not allow
the Marines to collect for ‘Toys for Tots’at any of their 
stores. And during the recent Iraq deployment,they would
not allow families of employees who were called up for
active duty to continue their insurance coverage while
they were on military service.
Then as I dig further,
TARGET
is a French-owned corporation.

Now, I’m thinking again..
If TARGET cannot support American (or Canadian) Veterans, then why should my family and I support their
stores by spending our hard earned American (or Canadian) dollars in their stores??? 

And,
have their profits sent to France.

Without the American (and Canadian)
Vets, where would France be today?

‘They, most likely would be speaking German and trading in Deutsch Marks’

Sincerely,
Dick Forrey
Veterans Helping Veterans

Posted in All about Veterans, Complaints Department, General Messages | Tagged , , , , | 2 Comments

BRAINWASH- PITTSBURG SPIN CYCLE

Now we know where all the money goes. There’s simply none left for VA comp. payments…

VA PR

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BRAINWASHING-VA STYLE

I read this this morning and blew coffee through my nose. Then I read through the comments. Nine comments document what I write about to a T and every tenth one looks like it was ghost-written by a VA employee.  The comments tell the true story. There just aren’t enough Vets out there who could be malingerers willing to post diatribes this detailed. Where there’s smoke, there’s fire. When the smoke is all the same color and it being blown up your ass, it means something

http://www.blogs.va.gov/VAntage/958/how-a-claim-is-processed-a-trip-to-the-nashville-regional-office/

Posted in All about Veterans, C&P exams, Complaints Department, Gulf War Issues, vA news, vARO Decisions, Veterans Law | Tagged , , , , , , , , | 6 Comments

True Love–Kitty Style

I have written of my new found mouser who rolled in last Labor Day. Ambush is now a dog as she only has dogs for friends and role models. This hasn’t dissuaded her from her cat roots. In an effort to show her gratitude to me for adopting her, she has taken to giving me the lion’s share of her catch each day. She conveniently deposits them in front of the office door for my convenience and dining pleasure. I have to put them in the trash so as  not to hurt her feelings. Growing kitties have been known to become mentally damaged or feel inadequate if their presents are not acknowledged.

Obviously, she doesn’t give them all to me. As you can see, she shortchanged me on the head and tail of the one to the far left.  As to how long this will continue, I dare not venture a guess. Cupcake’s standard Poodle is rapidly becoming her BFF.

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