Snappy Answers to Stupid Questions

Posted on April 3, 2012 by asknod

We have all come to know and love Stormin’ Norman Schwarzkopf. I read about this recently and was remiss in not posting it sooner.

In an recent interview, General Norman Schwarzkopf was asked if he thought there was room for forgiveness toward the people who have harbored and abetted the terrorists who perpetrated the 9/11 attacks on America.

The answer was classic Schwarzkopf.

The General said, “I believe that forgiving them is God’s function… OUR job is to arrange the meeting.“

Norm was hornswoggled into joining the Army. His friends got him drunk and convinced him to sign up. His father forced him to go to West Point  even though it is widely known he preferred Norwich.  It is widely rumored that he was actually slated to  join the Air Force until this unfortunate fate befell him.  We forgive him and feel sorry as he would have undoubtedly gone further there. His affinity with the air is documented by his love of Air Cav and a desire to emulate bird shit and jump out of airplanes. Hence his master parachutist wings.  My favorite quote is still:

“The truth of the matter is that you always know the right thing to do. The hard part is doing it.” An inspirational Vet then and now and a rarity among those we served with.

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

Who Speaks for the Tuna?

Posted on April 3, 2012 by asknod

There are many voices in America and the world. The SPCA, PAWS, The Sierra Club, Greenpeace and more. I could go on forever. There are specialized groups who advocate for Dolphins, Sea Turtles, HIV and people with six fingers.

Until 2004, there was no specific group who advocated for Vets with HCV. We have Patricia Lupole and her husband to thank for that. Similarly, we had no voice after an adverse decision at the BVA until 1989. Strangely, having been given a voice, we still find one foot on our necks preventing us from standing up. That is the prohibition that we are not entitled to professional legal help at the VA until we have effectively been shut out. Congress, in its infinite wisdom, decided that was somehow apropos for you and me.

With all the freedom in America to litigate, the ultimate defenders who have protected the right to litigate are precluded from access to same. How strange is that? Which breeds my plaint “Who speaks for the Tuna?” Remember the early Greenpeace protesters who blockaded and harassed tuna fishermen until they eventually produced Dolphin-friendly nets? Why did they stop there with just dolphins? What about the other denizens trapped in the nets? Are dolphins cuter because we became acclimated to Flipper?  I wager to say someone could take a young up and coming Albacore or Ahi to Hollywood and train him to be adorable. That’s beside the point.

The problem is us Veterans-that pesky 8% of society. Somehow we Tuna were disconnected from the legal system and left to fend for ourselves. Having a VSO is like taking your sister to the prom. It’s just not the same. She’s a loyal fan and would defend your good name, but is basically powerless in an argument. Her knowledge of you and your circumstances is ephemeral. Her verve for your cause is unwavering, but she has no legal skills that might aid you in your plight. In short, your VSO is valuable for little more than holding your coat and hat while you and VA engage in fisticuffs. Until you lose, you are caught in this VSO/Pro Se net. You have no advocate with measurable skills. It’s either you with what skills you can bring to the claim pro se, or you (again) with a glorified mailman who will file your motions, suggest other motions, and generally babysit you for the next 6 years. They have nothing else to do but fill in 4138s and 4142s, file F-9s and occasionally peek in and see if the claim is done. Some will have you believe that you cannot possibly hope to navigate this maze without them. They universally have a much higher opinion of themselves and the VA than we do.

What prompts this tirade today is our supreme leader in the Free World. Senator Sneakers from my home state, has suddenly become enamoured of the disparity in justice accorded PTSD and personality-challenged Veterans. Patty has been on the Vets Affairs Committee for years so she isn’t a flash in the pan. I find it incongruous that she should get het up about the PTSD imbroglio but yet take no umbrage with the high error rate producing the phenomenal backlogs. If you as a Senator were facing an angry electorate and wanted to cement a new term, what  better way to lock in an important voting bloc like us? It seems like such a valuable tool to leave unused in the shed.  I’d be banging the drums and threatening to sub it all out to contractors if they didn’t get it together. She’s already thrown money and more personnel at it to no avail. And like the proverbial junkie, VA promises to reform but just needs one more fix before going on the wagon.

Absent a voice in that forum, we turn to the higher tribunals. With the possible exception of the CAVC and the Fed. Circuit, we see some weird decisions like the Schoenweiss one escape notice for decades. When they finally reach the Courts, they are unraveled in what seems to be mundane fact finding and rudimentary accounting methods. We have the occasional aberration such as the Roberts miscarriage, but our ability to make our voices heard substantially seems to take an inordinately long time. and is only successful in the higher venues.

We have witnessed, and continue to, the practice of testing us surreptitiously for HIV/HCV and purposefully not apprising us or the County Health Department of  positive results. Why are they exempt from this reporting requirement or are they? What is to be gained from silence other than the suppression of one more statistic with bad PR? I won’t recite the mantra “Big Brother is watching” but I reserve the right to say it at some time in the future.

We are unique in that we have a cabinet level outfit to ourselves that looks out for our best interests and supposedly was inaugurated to protect us from the voracious appetites of the rest of Congress’ pork barrel proclivities. All good ideas are not well thought out. As with any political animal, it must be fed. They all start out small and then consume an ever larger amount of samoles. Did you know that in 1994, with a stroke of the pen, the twenty Board panels were freed to adjudicate as single VLJs? Wouldn’t you thing that would increase decisional output at the Board by 66 2/3%? That was the idea from what I gather. Data shows there was a minor improvement in the decision rate versus time for a while. In the interim, more Acting VLJs (about 30-36) are allowed to dabble in the art for up to 90 days at a stretch thus enlarging the pool to 90ish. Nevertheless, the timeline has increased and the backlog grows.

Due to the recalcitrance of an overworked system to upgrade to an efficient electronic database, an archaic and barbaric legal system depriving us of rudimentary rights accorded our civilian counterparts and a legislative branch steeped in indifference, we and future Vets who haven’t even arrived yet are put on hold for a decade or more in a futile attempt to attain what we were promised. We really have no advocate other than ourselves until we have lost the most important battle in our own back yards. Who pray tell, decided that was a good idea for 8% of America and no others? More importantly, why hasn’t Patty noticed this 85% error rate discrepancy and pitched one of her famous bitches  about it? Occasionally Pro-Veteran but full time anti-military?

Twenty three years ago Congress promised us a New Deal. It looked good and sounded fair. It still does and if we ever experience it as it was conceived, we’ll be in high cotton. I look forward to the day when we  Tuna  gain a voice, too.

 

 

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

Veterans And veterans

Posted on April 3, 2012 by asknod

Regardless what any of the readership might think, this is not a political statement. It is merely the compendium of pictures of our Presidents in uniform. It was sent to me by member Jim of the NW Patriot Riders. He felt it was germane to the April Fool’s Day nature of  humor here. Not being one to censor for censoring’s sake, I leave it to you decide if it is in poor taste. Personally, all I see is Presidents in uniform and refuse to read any more than that into it.

Posted in All about Veterans, General Messages, Humor | Tagged , , , , | 1 Comment

The Vietnam Veterans Memorial

Posted on April 3, 2012 by asknod

The Wall, the sad truth

A little history most people never knew.

Interesting Veterans Statistics off the Vietnam Memorial Wall

There are 58,267 names now listed on that polished black wall, including those added in 2010.

The names are arranged in the order in which they were taken from us by date and within each date the names are alphabetized. It is hard to believe it is 36 years since the last casualties.

The first known casualty was Richard B. Fitzgibbon, of North Weymouth , Mass. Listed by the U.S. Department of Defense as having been killed on June 8, 1956. His name is listed on the Wall with that of his son, Marine Corps Lance Cpl. Richard B. Fitzgibbon III, who was killed on Sept. 7, 1965.

There are three sets of fathers and sons on the Wall.

39,996 on the Wall were just 22 or younger.

8,283 were just 19 years old.

The largest age group, 33,103 were 18 years old.

12 soldiers on the Wall were 17 years old.

5 soldiers on the Wall were 16 years old.

One soldier, PFC Dan Bullock was 15 years old.

997 soldiers were killed on their first day in Vietnam ..

1,448 soldiers were killed on their last day in Vietnam ..

31 sets of brothers are on the Wall.

Thirty one sets of parents lost two of their sons.

54 soldiers attended Thomas Edison High School in Philadelphia . I wonder why so many from one school.

8 Women are on the Wall. Nursing the wounded.

244 soldiers were awarded the Medal of Honor during the Vietnam War; 153 of them are on the Wall.

Beallsville, Ohio with a population of 475 lost 6 of her sons.

West Virginia had the highest casualty rate per capita in the nation. There are 711 West Virginians on the Wall.

The Marines of Morenci – They led some of the scrappiest high school football and basketball teams that the little Arizona copper town of Morenci (pop. 5,058) had ever known and cheered. They enjoyed roaring beer busts. In quieter moments, they rode horses along the Coronado Trail, stalked deer in the Apache National Forest. And in the patriotic camaraderie typical of Morenci’s mining families, the nine graduates of Morenci High enlisted as a group in the Marine Corps. Their service began on Independence Day, 1966. Only 3 returned home.

The Buddies of Midvale – LeRoy Tafoya, Jimmy Martinez, Tom Gonzales were all boyhood friends and lived on three consecutive streets in Midvale, Utah on Fifth, Sixth and Seventh avenues. They lived only a few yards apart. They played ball at the adjacent sandlot ball field. And they all went to Vietnam. In a span of 16 dark days in late 1967, all three would be killed. LeRoy was killed on Wednesday, Nov. 22, the fourth anniversary of John F. Kennedy’s assassination. Jimmy died less than 24 hours later on Thanksgiving Day. Tom was shot dead assaulting the enemy on Dec. 7, Pearl Harbor Remembrance Day.

The most casualty deaths for a single day was on January 31, 1968 ~ 245 deaths.

The most casualty deaths for a single month was May 1968 – 2,415 casualties were incurred.

For most Americans who read this they will only see the numbers that the Vietnam War created. To those  who survived the war, and to the families of those who did not, we see the faces, we feel the pain that these numbers created. We are, until we too pass away, haunted with these numbers, because they were our friends, fathers, husbands, wives, sons and daughters. There are no noble wars, just noble warriors.

   

  

Posted in All about Veterans, Milestones | Tagged , , , , | 3 Comments

BVA–Shoenweiss v Shinseki (2011)

Posted on April 2, 2012 by asknod

This is one of those rare cases where you can see the CAVC ruling that started this ball rolling back to Dollar Drive for a judicial “adjustment”. We see many decisions headed up the ladder, but rarely see them descend for their remand action, and in this case, a quick “we’re on it, sir!” via VLJ Jacqueline Monroe. At first glance, when brought to my attention, it looked for all the world like a Christmas present from Jackie. Once you read the whole story and realize the 42 year history of this, you suddenly get that gut-wrenching sensation that VA does this-frequently. This isn’t some new technique or recent ploy to make sure we don’t prevail from the get go. It even has the same style of fingerprint on it as mine but was perpetrated in St. Petersburg, not Seattle. It’s really irrelevant. They both operate with the same set of crooked rules-the M-21 Gutenberg that says whatever they say it says.

Richard W. Schoenweiss v. Shinseki, while not a panel precedence, is still a hair raiser. Let’s see just how bad it was. Right out the door, we see the tenor of what is about to come down. Reversal as a judicial tool is rarely wielded. Most times the action is to vacate and remand for a new decision. While this new decision could theoretically go either way, most are in the Vet’s favor. We know this because we don’t see them again. Here, the BVA decision clearly tells us where to find the recent Court decision by it’s date. Enter a few identifiers in the search bar with the date and out pops Schoenweiss.

Mr. Schoenweiss  was in the Air Force. While serving from 1966-69, he incurred a little hemorrhoid issue and had a minor operation. He  filed for it in September 1969 and was granted a 0% rating for it in December 1970.  VA seems to think the backlog in 2012 is a new phenomenon. This 0%er took 15 months in 1970. Doesn’t seem like much has changed, huh?

Fast forward to 1978 and his request for an increase. He stepped on his necktie and forgot to go to the Dog and Pony show. VA obliged him by denying because it is standard procedure. He dissed them and this was their little way of expressing their displeasure with the middle finger up. This took three months and they also said his private medical records didn’t support the hemorrhoid increase. Richard didn’t appeal. Welcome to the club, Richard.

Deja vu began in 1981 with identical results. He contended he was rated for Ulcerative Colitis (UC) and VA said hemorrhoids. Again, he walked away frustrated.

Ditto for his 1986 filing. Once again, VA ignored the fact that his large bowel was rotting and focused entirely on the hemorrhoids.  0% increase and thank you for your service to America, sir.

Finally in April 2005, he reopened his old hemorrhoid claim  calling it hemorrhagic proctitis this time. He wasn’t a doctor. He simply parroted what he’d been hearing the doctors say all these years. To him his hemorrhoids had simply gotten worse. He arrived in smart form-wearing a colostomy bag. He had an excellent nexus from his private doctor and nailed it. The VA examiner simply said  he “could have had it” in 69 because no one gave him a colonoscopy until 1972. That exam clearly showed the UC in his large intestines. this of course sails right over all the times he tried to claim UC from 1978 to 2005.

You have to almost laugh. Here we see what I just described yesterday in my write up of Squidly’s rating. The man is clearly not healthy and they hand him a whopping 10% and only back to the most recent filing in April 05. No insurance company would ever attempt this. VA does it all the time.

The holidays began and Mr. Schoenweiss filed his NOD explaining what was needed under the tree and in the stocking. He carefully paraphrased the history and explained the earliest date back in 1970 when he filed for all this. With the UC diagnosed in 1972,  there was very little the VA could say in their defense, but then, you don’t know these guys.

VA reasoned that the very first mention of UC was in 1986 when he asked for SC for it and an increase in the hemorrhoids. That was easy to see and they granted the 86 date using the rubric of 3.156(c). The other claims before it were “silent” for any complaints of UC and therefore 1986 was the magic moment. Now, most Vets would just shut up and be glad they got a rump settlement. Not so Mr. Schoenweiss. He was adamant that his effective date should be the date of surgery in 1968 and a rating effective from discharge. This will blow you away. He’s pro se on this and he’s no dummy. He’s got AMLEG repping him but they didn’t dream all this up. Without Richard, they’d still be looking for a Form 9 and filing it late.

So, with the BVA refusing to budge, Richard filed the NOA and  packed his bags for his future hearing before Judge Moorman. I’m sure VLJ Jackie Monroe was convinced this was wasted paper. Perhaps she’s new and hasn’t had much truck with Court. Even though she has a  staff of 12 or so leagle beagles in waiting doing the rough work, she still has to sign the bottom line on the decisions. Perhaps she’ll be more careful next time.

I like CAVC decisions. They use much nicer print and finer vellum paper. BVA decisions always look like they were hammered out on an Olivetti-Underwood  typewriter circa 1970. They also are much more concise in their language.

Here’s one of the best parts of CAVC decisions where everyone lays down their cards and we finally get to see why VA acted the way they did. They don’t tell you much in BVA decisions so you continue to wonder what happened even when you get here. My personal theory is the VA doesn’t even begin to get their shit together until they arrive at this point. Post hoc rationalizations are often quickly assembled and run up the flagpole for the first time. Tortured rationalizations never before mentioned suddenly appear here. I refer to the Appellee (VASEC), not the Appellant (Mr. Schoenweiss).

B. The Parties’ Arguments

On appeal, the appellant first argues that his first claim in December 1968 was for stomach pains since the 1968 operation and that VA mistakenly categorized this as a claim for hemorrhoids. Appellant’s (App.) Informal Brief (Br.) at 1-3. The appellant also argues that he submitted a claim for ulcerative colitis in March 1978 and again in November 1981. App. Informal Br. at 2. The appellant next argues that VA failed to assist him by not gathering all available medical records and by providing an inadequate medical examination. App. Informal Br. at 3-4. Moreover, the appellant alleges that VA failed to notify him of a diagnosis of hemorrhagic proctitis following surgery in September 1968 and believes that if this diagnosis had been properly recorded, he would have received more timely medical treatment. App. Informal Br. at 6. Finally, the appellant believes that the Board failed to account for medical evidence in the record, namely the opinions of private physicians. App. Informal Br. at 6.

The Secretary argues first that the appellant has not demonstrated that he filed a claim for entitlement to service connection for ulcerative colitis before July 15, 1986. Secretary’s (Sec’y) Br. at 3-10. Next, with regard to the appellant’s arguments that VA did not satisfy its duty to assist, the Secretary argues that this is not relevant because the effective date would nevertheless be the date on which the appellant filed the claim. Sec’y Br. at 10-11. Finally, the Secretary argues that the appellant is barred from asserting at the Court that an earlier rating decision contains clear and unmistakable error (CUE). Sec’y Br. at 11.

The judge did a long take on all the different aspects of 38 CFR §3.156(c) and concluded this.

In this case, the appellant, a “non-expert, self-represented claimant,” described his claim’s procedural posture inaccurately in his filing, but clearly and expressly indicated an intention to apply for benefits for his ulcerative colitis. Id. at 5. Instead, the RO and the Board construed this submission as a claim for an increased rating for service-connected hemorrhoids. The RO’s interpretation of the appellant’s claim may have been reasonable in the absence of other evidence. However, the record shows that the RO possessed or, at the appellant’s request, had access to records showing that the appellant suffered from ulcerative colitis. Medical records submitted to the RO dated May 30, 1979, revealed that the appellant had been diagnosed as having ulcerative colitis, noting that the appellant’s “[g]eneral physical examination was negative but a sigmoidoscopy reveals the presence of a mucous colitis with small area of ulceration of the descending and sigmoid colon.” R. at 217 (emphasis added). Also, as the Board notes, “[a] report of hospitalization at the Gainesville VA Medical Center (VAMC) from November 1981 reflects that a colonoscopy revealed ulcerative colitis.” R. at 10. Thus, the combination of the appellant’s stated claim and medical records submitted at the time clearly show that the appellant claimed entitlement to service connection for ulcerative colitis in November, which the RO failed to properly adjudicate. Accordingly, the Court will reverse the Board’s decision and direct assignment of an effective date in November 1981.

You will notice in the decision if you read it, that the judge is leaving open an avenue for the BVA judge to fix this properly and grant back to 1970, but he can only rule initially on it and make the VA grant SC back to 81 from 86. Since the issue of who knew what when hasn’t really been adjudicated yet, we have to pack up the cameras and book a hotel closer down near Vermont Ave. NW. That’s the end of this  so I’ll leave the actual CAVC decision here:

Due to CAVC’s propensity to assign links on single judge decisions for about 30 minutes, the only way to bring this up every time is thus:

Go to  http://search.uscourts.cavc.gov/

Enter  09-0484 in the search bar and hit search

click on download in the upper left for easier viewing

Now we go remanding at Vermont Ave.,VLJ  J.E. Monroe presiding. Jackie doesn’t want any part of this tar baby. She quickly does the whole summary of the history of the claim and then blames the RO. I would.

The Court has held that VA has a special obligation to read pro se filings in a liberal manner. See Ingram v. Nicholson, 21 Vet. App. 232, 238 (2007) (stating that VA has a duty to sympathetically read a pro se veteran’s filings to determine whether a claim has been raised). See also Robinson v. Shinseki, 557 F.3d 1355, 1358-59 (Fed. Cir. 2009), citing, e.g., Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009). Additionally, consideration should be given to the fact that most veteran-claimants lack medical expertise. Therefore, any claim for benefits should be construed based on the reasonable expectations of the non-expert, self-represented claimant as well as the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In other words, VA should focus on the claimant’s description of history and symptomatology when evaluating the breadth and scope of a claim. See id. at 4-5.

So there’s the excuse. It’s not her fault and she is going to wash this claim right out of her hair. She rightfully goes back to the date of claim (1969) giving Mr. Schoenweiss more benefit of the doubt than I believe I’ve ever seen.  She pulls up short of rating him with a specific percentage and Fenderson staging. That is rightfully the domain of the munchkins down at the RO.

Mr. Schoenweiss has no clue what’s next, or maybe he does considering all that he’s been through over the last 42 years.  For the uninitiated reader, he is getting ready to play the Fenderson staged ratings game. VA is going to take every bit of evidence in the file and any they can rustle up elsewhere and try to create a fluid rating that will gradually culminate in a 100% disability in 2005. The will use every bit of subterfuge and deceit imaginable to declare that he was only marginally ill since his discharge. The smart money says the hemorrhoids are going to be like Squidly’s Rheumatoid Arthritis and stay at 0%. It was a mistake and they’re going to leave it there. The UC will be paid from 72 only because that’s the first time  it’s mentioned in the records. VA will stick with the lowest number they can get away with.

 7323 Ulcerative Colitis

Pronounced; resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess–100%

Severe; with numerous attacks a year and malnutrition, the health only fair during remissions—60%

Moderately severe; with frequent exacerbations–30%

Moderate; with infrequent exacerbations–10%

Now, VA may not have had this Diagnostic Code in 1969, so by law they will have to rate by analogy if not. One thing we can bet on is that they will start out with 10% just like Squidly. After another NOD, they will begrudgingly go to  30% and stay there until 2005 and the 100%. Richard will file for reconsiderations about three more times with new and material explanations and even earnings reports from the SSI to establish a higher rating. This will go on for several years until and unless VA just throws the towel in and gives him something substantial.

Even when admonished by the Court and the VLJ, they just cannot bring themselves to give a rating that is commensurate with the degree of illness exhibited by the records and the claimant.  This claim is a wonderful example of “Gee, what else could go wrong?” With the VA? Fasten your seatbelt, Kimosabe.

Richard’s 1969 Fenderson-ready rating  

Somehow, I doubt we’ll see this in front of  Moorman or Monroe again. Rest assured that it will be a long, drawn out Fenderson. These 40 year old ones are always a donnybrook.

Posted in BvA Decisions, Important CAVC/COVA Ruling, Tips and Tricks, Veterans Law | Tagged , , , , , , , | 4 Comments

VAMC Bribery Case

Posted on April 2, 2012 by asknod

Alert member Loyal always gets the perfect wine for the dinner. And he seems rather adroit at finding juicy tidbits about our old Alma Mater-VA. This has to be one of the finer “No comments” I’ve seen from them.

Tampering in Tampa

Posted in Complaints Department, General Messages, Medical News, vA news | Tagged , , , | Leave a comment

More Paperwork= Speedier Claims Process?

Posted on April 2, 2012 by asknod

What have they been smoking down if Foggy Bottom? Since when did a new alphabet Cabinet level outfit like the VA ever speed anything up. This is the height of hypocrisy. Here’s a really good site and an interesting take on this.

63 new DBQs

Posted in C&P exams, General Messages, Medical News, Nexus Information, Uncategorized, vA news | Tagged , , , , , , , | 1 Comment

White Plains Police 1–Vets 0

Posted on April 1, 2012 by asknod

This is disgusting and it happens too frequently. Cops sometimes get a disease when too many congregate in the same place.

Dead Marine Vet

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

Squidley’s RO Rating

Posted on April 1, 2012 by asknod

Now that Squidlyone has partially prevailed at the VARO without having to go to D.C., let’s take a peak under the curtain and see what’s up. As we all know, vA usually goes through the motions of telling you what a valuable service your have performed for your country just before they slam the door shut in your face. That’s right. The very Administration erected and created specifically for 8% of its “special needs citizens” spends an inordinate amount of time disenfranchising the very ones they are employed to help. You can almost hear Gomer Pyle’s Surprise, surprise, surprise.

vA is renowned for handing out NSC pensions to those who have fought in wars and have medical woes unrelated to their service. This is a substitute for SSI/SSD. One cannot collect both. While the pension is generally more lucrative than the SSI, the fact remains  its either one or the other, but not both. Therefore, in truth, the government is not exhibiting largesse but just a different paycheck from the same pile of money-your taxes.

On the other hand is compensation. This is the Holy Grail that eludes so many. It is the reason for this site. Were it fair and balanced as claimed, there wouldn’t be so much dissension. Veterans with legitimate medical conditions, or risks from service, are entitled to compensation for same. It should not take a lifetime of litigation to get there but it does. Interestingly, the veterans Administration takes the position that you are the problem-i.e. you haven’t provided the proper documentation or worse, it’s been lost. But what of the bitch slap that Squid received?

Squid filed over twenty years ago for Rheumatoid Arthritis. It’s not his diagnosis. It’s the moniker that vA hung on him. He had no medical training. He simply walked in and said “Yo. It hurts here and here.” I’m sure they tried their damnest to find a way to deny. There must have been (and we know this from him) a substantive body of evidence to support his contentions. It was clearly documented in his SMRs. Hold on to your hats-its the reason he was discharged! Unfortunately its now 2012 and those records “have been misplaced”. But. But because he really doesn’t suffer from RA, it’s no big deal because its moot.

Squid filed for an increase on this plus a few neck issues like falling down when you turn your head to the left, and becoming so dizzy as to be unable to function. He also filed for Hepatitis C which brought him to us. We’ve been yacking it up and partying on a fairly regular basis just like all druggie heppers do ever since. vA recognizes this and promptly denied him on the hep. They deferred on these other items for a while in hopes that the hep would run it’s course and Squid would turn room temperature. He didn’t. He came close but he’s tougher than three year old bubblegum up under a school desk. Suddenly Squid pops up with the EMG records. vA promptly circled the wagons.

Squid wisely kept plodding along with and without the help of a dysfunctional VSO system that gave him little or no support. He filed his NOD when it appeared there was no chance in Hell of getting anything other than the standard “Thank you so much for your service to America”. He indicated in no uncertain terms that he was not one of those who were going to go quietly into the night and give up.

vA looked at the 40% that Squid had already racked up and wondered how to strip him of it. By losing his records, if that’s what happened, they had artificially deprived themselves of the opportunity to do so. Imagine everyone”s C-files at the RO having one of those pop-up doomoflotchies like the ones on Butterball Turkeys. They pop out right before ten years goes by and automatically schedule a C&P to determine if your conditions have improved. By extension, if you were accidentally rated under the wrong DC, they can remove it for that reason, too. In it’s place they usually rerate and low ball you requiring a new litigation process followed by years of appeals to regain that percentage which you used to have. Here, Squid was bulletproof but that didn’t stop them from eyeing it from every angle for some flaw-even fraud- in an attempt to dislodge it.

With the new evidence he had showing the EMG tests, vA was hardly in a position to deny for the rest of the back disorders. Hell, the medrecs were dispositive in that regard. What is disgusting is that vA would search high and low for a way to, in essence, toss out the RA and substitute the new ratings in their place. They waited too long. There’s a statute of limitations for vA necktie parties and vA blew it. This says it all:

During you vA examination, your examiner opined that it is less likely that you have RA and was unable to provide a diagnosis due to your absence of physical findings and negative testing…

Less likely is a finding as in ” you do not have RA”.  Now, stay with our bottle rocket scientist:

Since you have been service connected for this condition for over twenty years, we are unable to sever or reduce your current evaluation for this disability. However, based on the findings of your vA examination, the assigned 40% evaluation for this disability is the maximum schedular evaluation that can be assigned.

What is this? Squid doesn’t have RA, and we can’t take it away, but 40% is all we can give you for this based on the DC and Part 4 of 38CFR. We’d dearly love to jerk it out from underneath him, but the damn laws have tied our hands. It’s unfair, but that’s what Congress has foolishly allowed.

I have communicated for over a year with this man and he is not one to game the system. His symptoms of back pain and the like have increased exponentially over this time and vA still treats him like an interloper. If you turned your head to the right too far and it caused you to lose your balance and fall flat on your ass, causing injury, wouldn’t that be a little more than “mild incomplete paralysis of the minor extremity”? We won’t even talk about pain and weakness. VA did not address  38 CFR §§ 4.40 and 4.45, or, as vA chose to  say, “having considered it and deciding that you’re ready to run the Boise to Portland Triathelon, it is not for application.” That’s not much of a analysis.

This is standard fair for vA. They read medical records slightly differently from the way we do. A doctor reading the Squidly file would come to the conclusion that he’s 100% disabled due to near constant debilitating symptoms of HCV with an ALT over 500 and the AST just a whoop and a holler less. In addition, he has major back and neck problems that also render him unable to work . All in all, Squidly diddley is beginning to resemble Humpty Dumpty and there’s not enough Gorilla® glue in the universe to fix this.

On the other hand, we have a vA “examiner”. If you walked into  an RO and shouted at the top of your lungs: “Will the vA examiners here please raise your hands?” do you think you’d see any? No sir. I’ve never been able to see or talk to one. I’m sure they exist like Bigfoot but I just haven’t seen one. Examiner may be in the plural, too.  This mythological examiner will examine the pile of evidence in reverse. Starting with the assumption that you are 100% in body and mind, he/she (they?) proceed apace. The twenty year old 40% thingie is tossed out. That’s an aberration and they are stuck with it. He doesn’t have it so it is not a true debility.So, you now have the lowest possible rating  they can get for the cervical bummer without appearing to be too harsh. “Hey! Yoo-hoo? Hello? He walked in here , he didn’t crawl. He wasn’t in a wheel chair and as far as we know this may be acute.” They don’t give away the farm on the first hand of vA Poker. Same for the nerve impingement thing. 20% is all they’re going to ante with.

Now, what about the HCV? Pretty grim prognosis with Stage 4 in sight. Well, that’s the problem and because he isn’t rated for that, he does not, in vA’s eyes, “have” it in the sense that vA owns it. Therefore it has nothing to do with this conversation or rating. Unless… you also ask to make this a claim for vA pension as well. If you get the pension, you’ll die before you ever get the thing rated. Squid didn’t. Therefore they cannot and will not talk about TDIU because they have carefully contrived the combined percentages to arrive at 60 rather than 70%. That’s rude, crude and unattractive, not to mention boorish. It shows a poor upbringing  or a pattern of biased vA rating and deceit. Either way, there’s no polite name for people who do that.

So, with there being no reason for a TDIU discusion, they must put paid to the extraschedular possibilities. Since all extraschedular exceptions must be granted by one guy at the Compensation & Pension Services, you can kiss that puppy goodnight. That’s  just for show anyway. I’ve never seen one granted. But what’s this? After searching high and low on the whole rating there is no mention of extraschedular or TDIU either. The law is very precise on this and vA is purposefully ignoring it. By omitting this, vA has left open a reason for remand to consider these two items at the AOJ in the future. Slippery raters  examiners.

The door is left open for Squid to go through about another 6 months of hell until vA caves in and does this:

CFR398—-http://www.law.cornell.edu/cfr/text/38/4/71a

Addditionally a higher evaluation of 40% is not warranted unless there is invertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the last six months. 

Well, what do we have here? Sound familiar? You notice right off the bat they aren’t volunteering what Diagnostic Code they’re using so that Squid could even know what 60% entails. I’m going out on a limb and guess they’re using the same formulary as the  hepatitis progression-i.e. 60% for incapacitating episodes having a total duration of six weeks or more but not  near constant.  And voilá. Done:

DC 5243  Intervertebral disc syndrome

Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25 .

With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months—————60

With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months——-40

With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months—–20

With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months—10

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

Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment

Squid is rated under DC 5025 Fibromyalgia for the old 40% protected rating. That’s maxed out using that code. They don’t go any higher. I wonder if that’s a coincidence. That means they effectively condemned him 20 or more years ago to a dead end rating. He could ask for increases for the rest of his life if he did have it and they would never give him more. I’m willing to bet nobody at the vA gave him a briefing on that in 88. A grateful Nation thanks he who shall have borne the battle…

http://www.law.cornell.edu/cfr/text/38/4/71a

5025    Fibromyalgia (fibrositis, primary fibromyalgia syndrome)

With widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms:

>That are constant, or nearly so, and refractory to therapy—40

>That are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time——-30

>That require continuous medication for control———–10

Note: Widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities

This comes from DC 5235-5243 and seems to be the exact same wording verbatim for Squid’s degenerative cervical disc disease-wait! It is:

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis——————-20

What vA has once again failed to do is inform Squid that this is another Monopoly®-style, Shortline Railroad to nowhere. Look at the next higher (and last) rating for this DC:

Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine—————————30

That’s following the Fibromyalgia DC. These examiners are so lazy they’re letting the M-21 do this. In fact, all these ratings are on the same table-DC 4.71.

In sum, Squidly stands a good chance of maxing out at 40(protected and max) 3o for the root (max)and 60 (max)for the cervical disc deal. He could get IU but he’ll never see 100% for it. Oddly, there is no discussion of these limitations. You, like me and Squid, are left to search Part 4 and see if we can adduce what it is they are ouijing with.

vA has adroitly compartmentalized this one and I’m betting they think old Squidly isn’t going to cotton to it. Twenty years ago I would have believed they were bending over backwards for him. Now I can see through the scam.

If it looks too good to be true, it is. Fortunately for the Squidster, he has one of my famous Claims Flow Computers (the CFC 360©  Windows 7) with onboard GPS navigation https://asknod.wordpress.com/2012/02/12/cfc-360-c-by-noodledude/ so he knows exactly where his claim is heading. With all this info, it’s not likely he’ll get hornswoggled or Shanghai’d. His new NOD is going to drip sure knowledge of what he’s doing. This will send a chill up vA’s spine.

With the internet, this just isn’t fun for the raters anymore. We can see what they’re doing. There’s no Wizard of Oz moment. Toto ate the curtain. 38 CFR is available to every Tom, Dick and Harry that comes along. If you enjoy really boring fare, I suppose I could give you the link to M-21, but its written like the tax code. You need a computer to assimilate the data. That’s why the raters are in error 85% of the time.

Here’s Squid’s rating – one of many to come. This is round one. I feel sorry for them. They have no idea who they’re dealing with. Squidly can take these guys to the cleaners with one hand tied behind his back.

Even though this part is a back claim, it shows the RO methodology. A HCV claim is no different when it comes to how they think/act.

Posted in Nexus Information, vARO Decisions, Veterans Law | Tagged , , , , , , , | 2 Comments

Wag the Dog, Army-style

Posted on March 31, 2012 by asknod

If you haven’t watched the movie Wag the Dog with Robert De Niro and  Willy Nelson, this might not have so much resonance with you. If you have, the similarities are priceless.

The PTSD thing has become a giant hairball and the Army, no matter how many times they clear their throat, find it lodged firmly with no help in sight. To make this worse, Sen. Sneakers is breathing down their neck and preparing to do her own investigation.

With each new admission of tainted diagnoses, they have to rearrange the crime scene. Once it’s obvious that another doctor is preparing to jump ship, the numbers change again in hopes of appeasing the beast. We now have virtually every big wig in the Medical arm of the Army shucking and jiving, bobbing and weaving and doing their best imitation of “Nobody told me”. Heads have rolled and more will do so. This will be news until they come clean-but they can’t. It’s like Malcom McDowell in Clockwork Orange being forced against his will to watch porno until he eschews it for normal fare. The Army is being  subjected to a movie of their own making and now must watch it play out.

As the plot thickens, more collateral damage ensues. What most find entertaining is the number fudging. Remember back when? This was just about 14 guys. They were all shipped off to Walter Reed and Poof! Some were ill! then it became a review of 280 since 2009 or maybe it was 2007 and 1640? Since no one seems to be on the same page, somebody has to reassign problem personnel with the Chatty Cathy doll syndrome. The shrinks see this coming and stampede en masse. Nobody wants to be in this game of musical chairs and still be standing when the music stops.

There is a loyal cadre of Wag the Doggie personnel who are tasked with changing written history behind the scenes. Every new revelation has to have a supporting set of facts and a logical explanation to present to the loyal media. Each new News conference by succeedingly higher ranked apologists is followed by a “we won’t sleep until we get to the bottom of this.” It did look for all the world like they might have pulled it off until last Wednesday.

Sen. Sneakers is going to use this as the springboard for her seventh stint as Senator. It makes for good free press without squandering valuable  reelection shekels. Whether it will result in any real reform in the long run is debatable. The fallout from Vietnam is still on the floor  and is beginning to crop up, too. This is worse than getting dog poo on the shoe and then tracking it in on the carpet. It’s going to stink for quite some time and the Army gomers don’t get it. This is no time to retreat. It’s simply time to advance in a different direction away from it-anywhere.

We will see a lot of careers wrecked- and rightfully so. You cannot screw with Vets even if it’s in the best financial interests of the country. Now that it has been uncovered, the Brass will call forward the loyal to fall on their swords. Some will, some won’t. Since they have always had loyal kool-aid drinkers, this problem has never arisen. Unfortunately for the Army, we are in a new world. This one consists of civic-minded chuckleheads willing to divulge just about anything.  Witness the Wiki-leaks imbroglio.

When the dust settles, Omerta as a way of life will be an anachronism- a footnote in history that marked a transition from smoky, backroom horsetrading to mea culpas on the stand. The Army can’t or won’t see this. Now we see the contamination starting to spread sideways to the Air Force and elsewhere. Denial will eventually culminate in “new rules and safeguards which will prevent this from ever, ever happening in the future”. That phrase is already being employed profusely but has no takers because of the ever -widening revelations.

Watch this story unfold. It will become a “Who’s the Vet’s best friend?” before November with plenty of finger pointing and “My record speaks for itself.” What I can’t wait for is the day all this begins at the VA when Deepthroat comes forward and spills the beans on how they have been screwing us for years. Perhaps this PTSD ratings fiasco will crop up there as well during the investigation. After all, these “clinicians” are all part and parcel of the process. 

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