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

Delphi Website–Personality Disorders

Posted on March 30, 2012 by asknod

Member Fuzzy Jim posted this on the HCV’s Delphi Forum:

Came across this article today in the VVA newsletter.

IMMEDIATE RELEASE

Press Release

March 22, 2012

No. 12-07

Contact:

Mokie Porter, VVA
301-996-0901
Rob Cuthbert, Yale VLSC
203-436-4982
Zachary Strassburger, Yale VLSC
203-436-8025

Newly Disclosed Records Reveal Hundreds More Illegal Personality Disorder Discharges; VVA Finds Navy and Air Force Worst Offenders
(Washington, D.C.)– Since 2008, the Department of Defense (DoD) has illegally discharged hundreds of veterans on the alleged basis of personality disorder (PD), denying them veterans’ benefits, according to a Vietnam Veterans of America (VVA) analysis of newly disclosed records released today. The analysis further concludes that since Fiscal Year (FY) 2002, the Navy has discharged the most service members on this basis in absolute terms (7735), and in FY 2006 the Air Force set a military record for the Afghanistan and Iraq era when PD discharges accounted for 3.7 percent of all airmen being discharged (1114 of 29,498 service members).

The VVA report, Casting Troops Aside: The United States Military’s Illegal Personality Disorder Discharge Problem, is based on records obtained by VVA in federal Freedom of Information Act litigation. The report found that, since 2008, internal DoD reviews discovered hundreds of illegal PD discharges, and since FY 2001, the military has discharged over 31,000 service members on the alleged basis of PD.

PD can be used as the illegal basis for incorrectly discharging veterans suffering from Post-traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI). The DoD considers PD a preexisting condition, and a PD diagnosis renders veterans ineligible for several benefits.

“On a veteran’s discharge paperwork it states clearly, ‘discharged for personality disorder,’ and not only does it keep veterans from benefits they may have earned, but it is one of the first things that prospective employers see. Anyone who sees the veteran’s DD-214 can determine the reason for discharge. ” said Paul Barry, President of VVA Chapter 120, Hartford, Connecticut.

“Shame on the Department of Defense,” said Dr. Thomas J. Berger, VVA Executive Director for the Veterans Health Council. “It acknowledged the widespread illegality of these discharges and changed its rules going forward but has left 31,000 wounded warriors alone to fend for themselves, denied even basic medical care for their injuries.”

In 2008, Congress directed the Government Accountability Office (GAO) to investigate illegal personality discharges. The Congressional pressure prompted new DoD regulations, but VVA has found that illegal personality disorders continued through FY 2010, and that since 2007, the total number of PD discharges has increased at least 20 percent, according to documents released under one of two pending VVA Freedom of Information Act (FOIA) lawsuits.

In a document obtained by the FOIA lawsuit, a Navy report on 2008-2009 PD discharges noted that only “8.9 percent [of PD discharges] were processed properly. …This does not paint a pretty picture.”

Additionally, VVA analysis of DoD documents uncovered a two-fold rise in Adjustment Disorder (AD) discharges in the United States Air Force from FY 2008 to FY 2010 that may signal that AD discharges have now become a surrogate for PD discharges.

“Everyone agrees that illegal personality disorder discharges occurred,” said Robert Cuthbert, Jr., a student intern with the Veterans Legal Services Clinic at Yale Law School representing VVA in the FOIA litigation. “Some of these veterans may suffer from undiagnosed PSTD or TBI. The Department of Defense must act justly, responsibly, and promptly to help them heal.”

The report is available online at: http://www.vva.org/ppd-whitepaper.html

Vietnam Veterans of America (VVA) is the nation’s only congressionally chartered veterans service organization dedicated to the needs of Vietnam-era veterans and their families.  VVA’s founding principle is “Never again will one generation of veterans abandon another.” The report was prepared for VVA by Melissa Ader, Robert Cuthbert Jr., Kendall Hoechst, Eliza H. Simon, Zachary Strassburger, and Prof. Michael Wishnie of the Veterans Legal Services Clinic at Yale Law School.
Vietnam Veterans of America (VVA) is the nation’s only congressionally chartered veterans service organization dedicated to the needs of Vietnam-era veterans and their families.  VVA’s founding principle is “Never again will one generation of veterans abandon another.”

Jim

Don’t let the Bastards wear you down.

 

 
Posted in General Messages, Gulf War Issues, Medical News, PTSD, vA news | Tagged , , , , | 4 Comments

RUSSIAN SEAL TEAM 5

Posted on March 30, 2012 by asknod

Russians Capture Somalian Pirates

NO POLITICAL CORRECTNESS BS HERE! This video shows Russian Navy commandos on a Somalian pirate ship shortly after the pirates had captured a Russian oil tanker. The Euro Union navy that patrols these waters would not interfere “because it was feared there could be casualties.”

All explanations are in Russian with a single exception of when a wounded pirate says something in English and the Russian soldier says “This is not a fishing boat”. All conversations between the commandos are in Russian. If you don’t understand Russian, the pictures speak for themselves.

The soldiers freed their compatriots and the tanker. The Russian Navy Commandos moved the pirates back to their own (pirate) ship, searched the pirate ship for weapons and explosives and then they left the ship and exploded it with all remaining pirates hand-cuffed to it.

 They used the anti-piracy laws of the 18th and 19th centuries where the captain of the rescuing ship has the right to decide what to do with the pirates.  Russian ships will probably be safer in the future in these waters.

click on link below

 http://true-turtle.livejournal.com/85315.html

 Has anyone called the ACLU yet?

The only thing dumber than a Somali Pirate… that’s my Wally.

Posted in All about Veterans, Humor, Uncategorized | Tagged , , , , | 1 Comment

RYE BREAD

Posted on March 30, 2012 by asknod

Rye Bread is the Secret

Two old guys, one 80 and one 87, were sitting on their usual park
bench one morning.

The 87 year old had just finished his morning jog and wasn’t even
short of breath. The 80 year old was amazed at his friend’s stamina
and asked him what he did to have so much energy.

The 87 year old said, “Well, I eat rye bread every day. It keeps
your energy level high and you’ll have great stamina with the ladies.

So, on the way home, the 80 year old stops at the bakery. As he was
looking around, the lady asked if he needed any help.

He said “Do you have any rye bread. She said, “Yes, there’s a whole
shelf of it. Would you like some?” He said, “I want 5 loaves.”

She said, “My goodness, 5 loaves … by the time you get to the 3rd
loaf, it’ll be hard”

The old boy looks down and shakes his head …”Jez. What gives?  Everybody knows about this shit but me.”

 

    

Posted in Humor, Medical News | Tagged , , , , | Leave a comment

VARO–SQUIDLY DOES SIOUX FALLS

Posted on March 30, 2012 by asknod

Everyone needs some sunshine on Friday and so we are glad to announce that member SquidlyOne, who has been hard at it for years, finally got another piece of the vA pie today. Squdly, for the uninitiated, has been up against  against a set of nasty circumstances. He filed about 20 years ago in San Diego when he got out and won a 40% rating. Several years ago he discovered the bug.  Everything went south except Squid and his trusty dog.

He filed anew for this and an increase on the neck. vA went into paralysis. Nobody could locate his C-file. It’s almost as if it had been…shredded. Gone. Sayonara. Mawt lao. Il est passé. Nobody had any ideas on how to solve this dilemma except the Squid. He still had a handful of  80s medrecs about his EMG tests and we know what they are. Long skanky, dirty needles that didn’t get sterilized very much, properly or maybe ever. vA doesn’t seem to think that’s much of a risk factor. This is an interesting concept considering needles full of drugs seem to be the primary cause in their mind. Since these EMG needles didn’t involve drugs, they are not willful misconduct. Denial is an automatic given under these circumstances.

Well, you know those funny guys down at the VARO . They took one look at this and started scratching their heads. They shredded all this once. Where was he getting this stuff? With very little to go on, they started a new C-file and tried to squander as much time as possible hoping the Squid’s liver would blow out first. It didn’t. He’s sicker than a dog and ten steps from homelessness, but he hung in there.

Today the vA saw fit to award our Vet hero a whopping 20% more for Degenerative Cervical Disc Disease, 20% for nerve root impingement, and bemoaned the fact that his 40% rating is over twenty years old so they are unable to take that away from him. Damn it!  So, did they use the EMG records for the hep claim? Hell, no. They only used them for the spinal ratings. Dense. Very dense.

As an aside, last year in an attempt to get in to see a doctor, which is a little harder than it seems these day at vA, he journeyed south to Nevada and the Las Vegas VAMC. They blew him off and refused him.  Over thirty percent (or a Purple Heart) is Priority 3.  It doesn’t make any difference where you are. a VAMC in EBE is still your VA entitlement. Squid meekly beat feet back to the Dakotas and froze his ass off last winter. VA is going to try to buy him off with this and prays he drinks himself to death or gets lost in the forest. He’s 10% away from TDIU and if he’s not careful, vA will keep him there. Fortunately, he’s been to the asknod academy and doesn’t have a VSO “minder” to misguide him. He knows the drill.

I suspect we’ll be seeing some kind of resolution to this during the coming months. He’ll have a good nexus based on the EMGs and a 2B genotype (Japan) in his new, paper- thin C-file. vA can hardly claim there’s no evidence now. They’re the chowderheads that almost succeeded in fixing that. If not for the Squidster’s footlocker prowess, he’d be up broken paddle creek. What a great story. Destroy records. Apologize for being unable to rate you, no C&P and now this. The smart money says Pony Express will soon ride in from SDRO with the old C-file in desperate hopes of finding some UCMJ violation to ice the hep denial.

Squidly’s inside the wire now and chances are the RO is going to settle this without a big DC production. We all know the only thing that saved his bacon is the old 40% rating. That proved there was a C-file somewhere at some time in the past.  They know its time to piss on the fire and call in the dogs.  The sad thing is this just didn’t have to happen, yet the same scenario plays out in one iteration or another every day in ROs across America. We look forward to welcoming him into the ranks of the 100% soon. He’s long overdue-but then aren’t a lot of you?

 

Perhaps he should send in a picture of these hummers. Maybe vA would “get” it. They look exactly like the willful misconduct version.

Posted in Tips and Tricks, vARO Decisions | Tagged , , , , , , , , , , , , , , , , , | 2 Comments

BVA– MAKING THE HAJJ TO ST. PETE

Posted on March 29, 2012 by asknod

As  near as I can tell there must be a sweet spot in the Force around Tampa that lends itself to successful claims. Here’s another one. Capt. Courageous has one private doctor’s nexus on board saying he got it from IVDU. Great. I thought private Docs   wrote the winner. Not. He files in 07 and finally get a VA C&P. Again, no dice. This time its because he can’t prove the transfusion.

Now, in spite of the AmLeg representation, he manages to get a five star private gastrodoc’s nexus saying conclusively that it was the knock down, drag out fight where he got kicked in the face following his Tequila-chugging contest. The good captain has been visiting Veterans’ help sites or has friends at the VA coaching him. The 2008 VA Dog and pony doctor makes a crucial error. He can see the private doc’s nasty nexus and so he figures he’ll do the “too speculative to figure it out” ploy. This backfires when the VLJ throws them both out.

Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). 

The Board is inclined to place less probative value on the January 2002 private medical opinion and the September 2008 VA medical opinion. The January 2002 private physician noted that the Veteran had a history of intravenous drug abuse and multiple blood transfusions but opined that the probable mode of hepatitis C infection was intravenous drug use. The Board finds that the January 2002 medical opinion is not supported by adequate rationale, as the physician did not explain why he thought that the probable mode of hepatitis C was intravenous drug use rather than a blood transfusion. If the examiner does not provide a rationale for the opinion, this weighs against the probative value of the opinion. Sklar v. Brown, 5 Vet. App. 140 (1993).

The September 2008 VA examiner stated that he was unable to attribute the Veteran’s hepatitis C to events that occurred during service without resorting to speculation because although the Veteran reported receiving a transfusion during his first surgery after being assaulted in service, there were no operative reports to review from Jackson Memorial Hospital. Because the VA examiner was unable to provide any opinion on the etiology of the Veteran’s hepatitis C without resorting to speculation, that examination amounts to nonevidence, neither for nor against the Veteran’s claim because service connection may not be based on speculation or remote possibility. Bloom v. West, 12 Vet. App. 185 (1999) (medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); 38 C.F.R. § 3.102 (reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Additionally, the Board finds that in rendering the opinion, the September 2008 VA examiner failed to consider the Veteran’s lay statements regarding in-service exposure to his disease from a blood transfusion and instead stated that there were no operative reports to review from Jackson Memorial Hospital. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). 

Capt. Pete scores big on his nexus because he did the homework and got it just right. Private gastrodoc read his SMRs,  confirmed he he did, read his chicken bones and then said this is why it’s SC.

The Board instead assigns greater weight to the April 2011 private medical opinion relating the Veteran’s hepatitis C to his period of active service. In placing greater weight on the April 2011 medical opinion, the Board notes that in rendering the opinion, the Veteran’s treating private physician explained that the Veteran’s injury in service had required a blood transfusion, which was the most likely source of the hepatitis C exposure. The Board therefore finds that the opinion is probative and persuasive based on the physician’s familiarity with the Veteran’s medical history, adequate rationale, and consideration of the Veteran’s lay statements in regards to his disability. 

The GC must be apoplectic that this one got away from them. They truly had it in the bag 2-1,  only to see the DQ flag on the last turn. Its a great teaching tool about nexus DOs and DON”Ts, isn’t it? The law says there shall be no deference given to a Vet’s personal doctor’s nexus. That’s often referred to the Treating Physician Rule. Here, as you can see, the judge ignored it and focused on the fact that Cappy’s doc was far more familiar with the case and willing to go out on that limb about the transfusion.  Result ? Vet 1-vA 0. One small step for Vets…

Pop the top on an  icy IPA and get out the Wheat Thins and Gouda.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files4/1135812.txt

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

Daffodils and Dishwater

Posted on March 29, 2012 by asknod

Hey. Every once in a while you see another blog site and you say Hmm, I remember that  4 or 5 years ago. Dude I got 4 hits this week. Awesome. What I didn’t have was this brand of humor on display early. It was stilted to begin with, too. No pictures. Blah. Dry Hepatitis law crap. So along comes Miss Sunshine and says Eww! I liked that post! This is better than Rodney Dangerfield’s self-deprecating humor. If you never read anything else she writes, this will be her finest hour. WordPress is our parent host  for these websites and its absolutely free. How do they do that?

Ladies and gentlemen Vets, I give you Britney Spears’ cousin… maybe

http://daffodilsanddishwater.wordpress.com/2012/03/07/what-now-wordpress/

Posted in General Messages, Humor | Tagged , , | 2 Comments

VA HEARING IN SENATE TODAY

Posted on March 29, 2012 by asknod

Well hooooo, doggies. Sen. Patty finally had her hearing for a couple of new judges at the Court this morning. Margaret Bartley and Coral Wong Pietsch finally got their Dog and Pony Show at the Bigtop. This was long overdue. But what of Margaret’s middle name? Why does Coral get hers up in lights? Can it be Coral was formerly a Wong, but now a Pietsch? Names are tricky. If I ran the world I would have thrown in another one (potential judge, not middle name) for the hearing so we could fill the Court out to 9 as it should be. Why wait for someone to show up? What’s the President up to? This isn’t even bottle rocket scientist stuff. We’re trying to save money so let’s get the program moving. Look up milk run in the dictionary and you’ll find a picture of  show today.

http://veterans.senate.gov/hearings.cfm?action=release.display&release_id=81c3211e-56d7-453e-9964-d10a1dbd38d1

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

DRO AND BOARD HEARINGS

Posted on March 29, 2012 by asknod

I have received a query from member Joel who asks several questions which are of interest to us all. Here is what I do know on the subject. I would ask any with additional knowledge on this subject to please contribute their own observations for everyone’s benefit.  I have done one of each. In 1990, after my denial, I requested an opportunity to present my case before a Decision Review Officer. They were not specifically called that then but it’s immaterial. The hearing was taped and I had my DAV representative with me. Being naive, I had no idea that trying to submit what would be viewed now as testimony I was unqualified to, was going to be futile. Remember, this was the dawn of the new VA . Espiritu v. Derwinski was two years in the future. I was on new turf that had no judicial precedent.

VA had for years existed in what Sen. Alan Cranston called “splendid isolation” with no Congressional oversight and no venue to appeal higher than the BVA level. With the advent of the 1988 VJRA, all this changed. Unfortunately, the VA was less than joyous about this. Having cabinet rank was all well and fine. Having a new Article One Court overseeing them wasn’t. The animosity was like electricity in the air. Everything was new and untested. I stumbled into this July 9th, 1990.

The hearing was conducted informally and my representative, Ron Ampe, did what he could to put this in the best light. This was before nexus letters. Everything hinged on 38 CFR § 3.303(b) which dictated the principles of continuity of chronicity. I had no copy of my SMRs and no one even told me I had the right to them. When the hearing officer made some comment about a note on my back, I asked to see them. I felt like a one-legged man in an ass-kicking contest. I presented testimony from my diary I kept from those years and much head-bobbing was accomplished. What was absent was all the civilian hospital records from my remote/isolated duty where the injury occurred. We had no military medical facilities and used a civilian hospital in town. They had one Dutch doctor who spoke English. It was obvious that without any documentation, this was a one-way trip to nowhere. Mr. Ampe leaped into the void and ably coached a cohesive lay testimony from me to fill in the record of what transpired those many years ago. This was supposed to fix it. In addition, I gave sufficient information short of a zip code of the name and location of the hospital. Helen Keller could have found it by the time we concluded the hearing.

In spite of this, VA made absolutely no move to obtain these records and denied me yet again. I promptly called long distance and obtained a small sample of the medical file relating to the back/hip injury proving my contentions. VA denied again. This set the stage for the Form 1-9 (now a Form 9) and the official substantive appeal to DC.

The BVA didn’t make any effort to remand for them either and proceeded to deny on the existing records over my prior objections. This was a clear failure of the duty to assist. Unfortunately, VA saw that yawning hole as a future problem and closed it in a CUE regulation (See my write-up on Caffrey v.Brown). https://asknod.wordpress.com/2012/01/15/cue-failure-in-duty-to-assist/

Since Ron didn’t tell me I could appeal this to the CAVC, and I was dumb, my Andy Warhol fame in 1993 escaped and I went down in flames. The theory is loosely “An incomplete decision is not an incorrect decision”. The remedy for my predicament was simple. If I had appealed it to the Court, they would have remanded it for failure of the duty to assist and all would have been made right. By failing to appeal, I let stand an incomplete record. See how that works? They cheat by not helping you, in spite of precedence telling them to, and you lose.  It’s perfectly legal until they get caught. They can then apologize and “fix” it. Pro se Vets would do well to note this habit of the VA and prepare for or expect it.

My second encounter was last year before a Veterans Law Judge (VLJ). This hearing method is available in several different possibilities. You may elect to have a hearing before a VLJ by videoconference  from the VARO with the judge sitting in DC. You may also request a hearing before one sitting in front of you at the RO live. The third alternative, if you are close to DC or well-heeled, is to request one there. You do this by checking off the box on your Form 9 when you submit it.

I chose the face to face method because I do not think a video camera can convey your honesty and earnestness. Being able to look into a judge’s eyes and allow him to do likewise is an unnerving experience that is not an option for all of us. Some are uncomfortable in this venue and it can backfire if you do not present yourself suitably.

In the case of a DRO hearing, you will be face to face with the hearing officer  and you will be dealing with a GS-13  who feels he/she has seen everything. They are not a judge and do not have a legal background that would give them insight into this process. They work from their bible, the M-21 Adjudication manual. This is a simple If…Then manual. There is no weighing of one’s character and demeanor. It’s strictly by the facts.  Absent any new facts developed and presented to the DRO, you case will belly flop again. When I say new evidence, I mean something cogent from your contemporary records that might change things. Simply bringing in new medrecs showing you are getting sicker is not going to change the basis for the denial.

This is what I tried to convey to Joel. You need to view the evidence used to deny you carefully. Take each item and find the key to unlocking why it was used against you. This is called rebutting the evidence. If you can prove with existing, incorrectly interpreted evidence, that they erred, you may win. You have to have a silver tongue to do this. Lay testimony is not going to float your boat all by itself. Cold, hard facts that change the way the evidence was viewed is what carries the day. New evidence from service is often hard to come by. Buddy letters are often employed and carry a lot of weight if the VA can’t sink their can opener into them. DRO reviews have an abysmal record of success for one simple reason. Rehashing the facts, even in front of the DRO, doesn’t change why they denied you. If they did something wrong legally, they are not inclined to admit it and will let a VLJ sort it out in D.C. This is the sad truth. Joel also asked if a Vet may bring his own recording gear in and tape the session. As far as I know, it’s legal. They’ll have to run the machine through the bomb checker and make sure you don’t plan on sabotaging the hearing. I got a transcribe (written) record from Ron after the DRO denial in 1990. With the new digital age, I suppose it would be possible to obtain an audio version within a year or so after the denial. VA is really backed up now so you see that dilemma.  What good it would do is my question. It may give you some niche to use in an appeal but it will be part and parcel of the appeal record in D.C. anyway. A written transcript is actually better and they don’t charge for the service. Getting it in a timely manner may prove the problem.  I think it’s an excellent question for an IRIS query.

The jury is out on whether I will win or if my hearing will change things. I am arguing legal tenets after a win, for an effective date of 1994. That is far different that trying to sway a judge into overturning an adverse DRO ruling. My arguments hinge on a simple reading of 38 CFR § 3.156(b). I submitted new evidence and they never made a decision on it. Period. Is my claim still open? Did it die for lack of pursuing it on my part? We’ll soon find out.

Posted in DRO and BVA Hearings, Tips and Tricks, vARO Decisions, Veterans Law | Tagged , , , , , | Leave a comment