COVA–ERSPAMER v. DERWINSKI–WRIT OF MANDAMUS

Posted on February 26, 2012 by asknod

What is a Writ of Mandamus? Why is it only available at the Court of Veterans Appeals? So many questions about an arcane legal term come to mind. Let’ look at this item and figure out how it fits into the scheme of Veterans Law. First, the definition:

writ of mandamus – an extraordinary writ commanding an official to perform a ministerial act that the law recognizes as an absolute duty and not a matter for the official’s discretion; used only when all other judicial remedies fail

Mandamus emanates from the the verb to mandate. We have a judicial system for Veterans that seems to be in perpetual disconnect. If you try to get in touch with them (if you can), they take months or years to get back to you. If you file a claim and lose,  you can spend years (or decades, in Jean Erspamer’s and my case) trying to right the wrong.  Some get frustrated and attempt to rectify this via a Writ. History tells us this is futile in some respects. What it will do is get action.

Before filing my writ in January 2010, I studied the rules and discovered it might work for me. I was wrong. I underestimated the gusto the VASEC was willing to employ to throw this out. Then I got sick from the third and fourth operations and couldn’t respond quickly enough. The second error was realizing what it can and can’t do. Quite simply, a Writ can only force VA to do that which they are supposed to be doing or already have done for you. If you have not gone up the ladder to appeal and been denied, then you have not exhausted all your legal remedies. Forget that it may take 15 years to get justice. If you don’t do that first, you haven’t used every legal remedy at your fingertips. If you find VA has fallen asleep at the wheel as the Erspamers did, then there is some legal justification for it.

Here is the Court’s simplified checklist for issuing a Writ;

1) The petitioner must lack adequate alternative means to attain the desired relief, 
thus ensuring that the Writ is not used as a substitute for the appeals process

2) the petitioner must demonstrate a clear and indisputable right to the Writ

3) the Court must be convinced, given the circumstances, that the issuance of the Writ   is warranted. 

4) Moreover, when delay is alleged as the basis for a petition, the Court has held that a clear and indisputable right to the Writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.

Item #4 was what I used as a reason. I theorized that I had been waiting for 15 years for a decision on my claim. It was granted in 2008 but did not grant back to 1994. I had filed my request for a DRO review and waited a year. Nothing happened so I wrote a check for $50.00 and sent in my petition for extraordinary relief. I did some research insofar as making sure there was a good reason for it. I got the bum’s rush for one reason. The Court said I had not exhausted my appeal remedies and the VASEC artfully turned it into a discussion about my tinnitus claim and ignored the hepatitis/ PCT. This is a classic case of be careful what you write and don’t write.You have to put handcuffs on all the words so they don’t break free and move around. It also helps not to have surgery right in the middle of it and find yourself unable to respond.

After I filed for the Writ, I started doing research about it. If I knew now what I didn’t then, I’d be $50.00 richer. You can only get traction at the Court with a Writ if the VA  is being unnaturally intransigent and thumbing their nose at you. On the other hand, if you have an extra fifty bucks and just want to get the Secretary’s attention, believe you me, you will. A Writ shines a bright light on your claim. It draws attention to it as if you went downtown wearing your wife’s underwear and nothing else. The bitch for a Writ needs some substance  so the VASEC has to drop what he’s eating, put down the martini glass and run back up to Vermont Ave. NW to deal with this. If Sen. Tenny Runners is your state Senator, he  engages the Hyperdrive Motivator. Remember, she’s the head of Veterans Affairs in the Senate and controls the VA’s purse strings. You piss her off and risk jeopardizing next year’s budget. This is why Veterans from Washington State get more “attention” from the VA.

So, you file for a Writ and complain that Uncle Victor has been dogging this for 15 years and you want action now. The VASEC has to reply in a short period of time. This means he has to find out WTF is going on first. A frantic call goes out to your VARO to dredge up the files and whip up a report. This gets faxed back to D.C. on a DEFCON 1 setting. The General Counsel writes it up and files it with the Court. If it is short on answers, the Court will caution the Secretary that he’s on mighty thin judicial ice. Nine times out of ten, you will discover that VA actually accomplished what it was you were bitching about while you were filing and the decision or SOC just crossed paths in the mail is all.  It is just a remarkable coincidence according to the VA poobahs. This proves in my mind that even thought you will rarely win this game, you will set fire to someone’s ass. Typing in Mandamus and 2011 on the CAVC search bar brought up 189 hits. If you chose to sort them by date, this one comes up first.

Alvarez Writ

It’s a pro se filing by one Shirley R. Alvarez who is peeved about a few things. Since she is slightly verbally challenged, she “appropriates” another Mandamus filing she saw published somewhere and substitutes her name where appropriate. This is called plagiarism everywhere else you go. Vice President Joe Biden was caught doing this at Syracuse University in 1965. His parents probably put a wing on the Law Library and made it right. I don’t think the Court was impressed with Shirley’s ingenuity in crafting it, but they didn’t put her in jail for it. The VASEC, however,  was apoplectic over her appropriation of another’s legal filing and sought to have it thrown out on those grounds alone.

I searched high and low in 2010 for a winning Mandamus and found two old ones when I filed mine. Interestingly, the VASEC  fought the Court tooth and nail when the first Writ appeared and said the CAVC did not have the right to even entertain one. This was a tremendous waste of judicial resources. The score right now is Court 28,000- VA 0.

One of the earliest cases of a Writ occurred in 1990 when the COVA was still unpacking and setting up shop. Ernest G. Erspamer got a heavy dose of radiation from watching our government bend atoms down in the South Pacific (Bimini Atoll) in 1946. Considering they destroyed the place and made it glow in the dark, it would seem that they’d give his claim more than a cursory glance. Not. His claim was shot down in October of 1947 and that was the end of it for 32 years. Mr. Erspamer eventually came down with Chronic Myelogenous Leukemia and wasn’t long for this world.  He refiled in June of 1979  and waited as we all do. Sure enough, the cancer caught up with him and  he punched out in 1980. Unfortunately,  his claim left the cockpit with him.

Jean A. Erspamer was peeved to say the least and she refiled to take his place. What the hey? She had kids to feed and the military had fried her husband, To add insult to injury, they refused to take responsibility for it. This would breed anger in her son Gordon whom we will hear much about later in VA history. The RO made quick work of this and denied her in June of 1981. The battle lines were drawn and Mandamus history at the COVA was quietly brewing on the other side of the continent like the Perfect Storm.

Her appeal before a traveling BVA  Board Panel was a hearing  in Frisco in February of 1982. Remember that back then a panel Board (3 VLJs) consisted of one doctor who also was a judge. This arbitrary power was used extensively to deny Vets even in the presence of medical evidence supporting the claim. If the Board Doctor/Judge said it was inherently incredible or impossible, that was the end of it. The end of it was six months later on August 29th, 1982. Jean got the velvet hammer. I’m sure they wrote her one of those “Gee, Miz Erspamer. We really tried to grant this claim, but you know what? We just couldn’t in good conscience go out on a speculative limb and say an atom bomb caused this disease in your husband. Even though he was a mile away, that much ionizing radiation hasn’t been proven to kill anyone. Well, granted there was that Hiroshima thing, but they were a lot closer”. That’s how the VA worked in 1982. Things haven’t changed much for the better in 2012. They just learned how to moonwalk like Michael Jackson.

April 1983 arrived and Mrs. Erspamer decided she wasn’t finished. She file a MFR  and waited a year for another hearing. The BVA obliged her in March 1984 and also heard an alternative motion to reopen the claim for new and material evidence. Her Senator must have browbeat these turkeys into a remand and sure enough-down it went to the SFRO for a “dose reconstruction” of how much glow in the dark paint Ernest picked up over the years. This was the Dog and Pony show part of the process. VA will appear to be diligently going through the motions. The “discovery” crew in the RO set up the dartboard and labeled certain sections with percentages. They moved the throw line back twenty feet to make the process fairer for the government and less speculative.

On September 6th, 1986- having done no dose reconstruction and depending strictly on the dart board results, the RO issued a SSOC continuing the denial. Two months later they belatedly sent it back to D.C. and a final BVA decision. I guess we could predict what was going to happen next. What amazes me is the chutzpah of the RO. Did they think they were going to fake out the VLJ?  It was probably more like:

Fred ( VA examiner) : “Gee, Barney. How did you explain that Erspamer thing with no IMO on the dose?”

Barney (VA rater) : “Ne problemo, Fred.  I just said we stand by our original VA examiner’s findings after a complete review of all the EOR. Besides, I retire in five months, so I won’t even be here for the remand.”

At the end of April 1987, the BVA noticed the lack of a dose estimation and remanded it back to SF for the report. This time they ordered it to be an “independent expert” and put all number of codicils on it to make sure someone who could spell dosimeter actually reviewed the records. Alas, any admonition in the VA for “independent” review simply means the VA gets to choose who will be the “Designated Uninformed Dude Expert” (DUDE). This time it was some honcho at the National Institute Of Health. The BVA’s Chief Benefits Director was still allowed to “review” the findings (with an eraser) and then it was to be shipped back to the dart board crew in SF.

The BVA must have been getting undue Congressional Interest attention because this time the instructions for the remand came with a hurry up clause and an unheard of request to keep Mrs. Erspamer apprised of the latest dart board prognostications.

Three years later this was where matters stood when Mrs. Erspamer filed her petition for a Writ December 11th, 1989. In spite of the BVA’s plea for information on a timely basis and thirty letters to that effect from Mrs. E, the RO was steadfast. They marched to the beat of a different drummer. Mrs. Erspamer could just cool her heels and wait her turn like any other widow. Who did she think she was, anyway?

Jean Erspamer was fit to be tied. She laid out her Writ terms in no uncertain language:

1) The RO should be ordered to comply with the remand instructions within 60 days.

2) Order the Department of Veterans Affairs to pay an independent contractor to do the reconstruction pronto.

3) Prohibit the contractor from contacting her.

4) Award attorney’s fees and costs for having to go through all this stupidity.

It was heard before the Court February 7th, 1990 and decided sixteen days later. Mrs. Erspamer, in conjunction with the claims filing by Mr. Erspamer, had now been actively engaged in this for over eleven years. Well, putting that in context, it was only eleven “VA years”- a mere blink of the eye for a rater. The very first thing that had to be hashed out was the turf question. To be more precise, did the new COVA have the authority to even venture down this path?

Despite the confirmation of the authority of this court to
exercise All Writs Act jurisdiction by the terms of the All Writs
Act itself, the plain language and legislative history of the VJRA,
and the case law on Article I courts, respondent nevertheless takes
the position that such jurisdiction is lacking. Without benefit of
citation to any relevant authority, respondent argues that it
cannot be the subject of the All Writs Act jurisdiction of this
court because the DVA is an executive agency, not an inferior
judicial tribunal. We disagree. Erspamer v. Derwinski (1990)

Yes, the VASEC was apoplectic and this wouldn’t be the last time. His days of ruling the VA roost with an iron fist were numbered and this was just the beginning of a long line of bitch slaps. After consuming a number of adult beverages over several weeks of working lunches in the conference room, the Court fleshed out what I think is one of the most cogent paragraphs in their early history. It’s too bad they didn’t make a plaque out of it and hang it at the entrance to 625 Indiana Ave. NW or chisel it into granite tablets like Moses.

Claims for benefits due to military service clearly implicate
human health and welfare concerns as distinguished from economic
regulation. In consideration of the “nature and extent of the
interests prejudiced by delay,” we must reject the suggestion made
by counsel for respondent at argument that any and all prejudice
resulting from the decade’s delay would be offset by retroactive
payment should the DVA ultimately determine that benefits were
warranted. Payment of benefits ten years after they were due could
never serve as full compensation. Moreover, the interests
resulting from delay here transcend those just of the petitioner.
“Quite simply, excessive delay saps the public confidence in an
agency’s ability to discharge its responsibilities and creates
uncertainty for the parties, who must incorporate the potential
effect of possible agency decisionmaking into future plans.” Potomac                              Electric Power Company v. ICC, 702 F.2d 1026, 1034 (D.C.Cir. 1983).                                Public confidence is particularly sapped where, as here, the delay results                      from the failure of one component of an agency to comply with the                         authorized mandate(s) of an office of the same agency speaking with the                        express authority of the head of the agency.  Erspamer supra

The sentence in red was VASEC’s “Let them eat cake” moment.

In the end the Court gave the VASEC six months to fix it. The reason was that the VJRA had recently been enacted and this meant everyone was an FNG including VASEC. It just wouldn’t be fair to slam him with the shortcomings of his inferior predecessors who didn’t hold cabinet rank. Interestingly, as we see frequently, this matter must have had a happy ending because Mrs. Erspamer did not find herself before the Court again. Nor did we see her make an appearance on appeal of a denial in Mr. Erspamer’s old claim. As for her son, Gordon? He decided to seek fame and fortune holding the VA’s feet to the fire for all the rest of us Veterans.

http://www.abajournal.com/news/article/meet_gordon_erspamer_vas_worst_nightmare_in_ptsd_benefits_case/

The infamous saga of Ernest Erspamer:

Erspamer_89-14

My son currently is attending law school at Gonzaga. While he does not intend to make the VA his sole focus in life, he feels he owes it to us as Veterans to have a voice in the courts. It was my Chapter 35 benefits we fought so hard for that made this possible. What could be more fitting than the shoe soon to be on the other foot as Gordon Erspamer has done with the VA “footing” the bill? I cannot begin to tell you how proud I am of him in pursuing not only his Juris Doctor’s degree, but a Masters in Forensic CPA. It seems the more denigration the VA heaps at our doorsteps, the stronger our resolve becomes. This website is living proof of the adage “We’re mad as Hell and we’re not going to take it anymore.”

Ladies and Gentleman Vets, I give you Buckwheat Junior (circa 1989)-VASEC’s  latest   nemesis waiting in the wings. Granted, he doesn’t look that intimidating in this picture, but that’s all part of the plan. Never show your strengths.

Posted in Extraordinary Writs of Mandamus, Important CAVC/COVA Ruling, Tips and Tricks, Veterans Law | Tagged , , , , , , | Leave a comment

CAVC–BOVE V. SHINSEKI–EQUITABLE TOLLING

Posted on February 25, 2012 by asknod

Equitable tolling is another one of those blessings a grateful nation has bestowed on Vets. We get more slack that any other class of American litigant. This does not absolve us of the right to appeal our claims in a timely manner, but it does expand the excuse list a bunch. Stupidity is still not a valid excuse so let’s look at how the Court views this crack in the foundation. Bowles v. Russell (551 U.S. 205- 2007)  was the predicate for where Henderson v. Shinseki led. Henderson had three bites at the apple and finally got his traction at the Supreme Court. We are a unique class of claimants who have given more than any other citizen of America. Since our litigation area is unique, so should the presumption of a non-adversarial, veteran friendly environment where the Vet and the VA play in the same sand box together and no one hogs the bucket and shovel. Throwing sand is, of course, prohibited. Everyone is allowed to disremember some of the details. The VA is not allowed to reconstruct the details to make you look like a sub human seeking a welfare handout. There are rules for you that fill great books. Equitable tolling is one and it is very important.

Congress, when they reined in the BVA in 1988, wrote the new covenant with us.  This was the Veterans Judicial Reform Act. It finally gave us a voice in a higher court which had been denied for centuries. Once the BVA spoke, it was law. With no neutral power to intervene, many Vets over the past century were denied unjustifiably. Many never returned when they saw the judicial lay of the land. Some tried with attorneys, but VA ingeniously held them to almost a pro bono basis with a $200.00 limit.

With the VJRA, we were given our path to the Supreme Court and funds from the 1948 Equal Access to Justice Act. Veteran attorney practice immediately picked up which was great for us. The New Deal was 20% of the win or the billable hours expended which currently is $125.00/hour. Unfortunately, VA was a little angry so they’d write the whole check out to the Vet. If he got cold feet and didn’t pay the attorney, tough luck. The poor attorney was out the bucks unless he could find a way to sue Bozo and attach some property or assets. That always looks good on the 6 o’clock news, huh? Vet attorney sues destitute Vet for representation.

This threw cold water on the law dogs and they have to be more selective nowadays. This also means they sniff around you and check you out to make sure you’re not some reprobate or have dirty diapers. I know this makes you feel uncomfortable, but look what they are going to do for you. They aren’t part of the 1% club, gentlemen. You have them confused with the ambulance chasers.

With the inception of the VJRA, the CAVC (formerly the COVA) instituted the 120 day rule that Congress prescribed. This was twice as long as most civil trials permit. So far so good. The statute also did not prescribe a specific mode d’emploi for the Court to follow. Therefore they took the sterile approach that 120 sunrises and 120 sunsets was what it meant. Eventually the equitable tolling showed up. Joe Vet was in surgery at the VAMC having his leg amputated and couldn’t type it up in time. Granted. Hurricane Katrina blew shit everywhere and the Vet’s records were soaked when the roof blew off. Denied. One by one the dog ate my homework cases came through and were given an up or down until Bowles.

Boom. Back to 120 days and and nights. This became pretty much a dead effort and the excuses started surfacing due to PTSD. Bowles upheld a century of precedence but did not take into effect the unique nature of our Veterans system. Where other jurisdictional laws in civilian  statutes were very clear, Congress wisely did not include the same language in 38 USC § 7266(a). Mr. Henderson finally attained that right for us that has eluded us for so long. Bove v. Shinseki was the implementation of Henderson 3.

Since this decision is now binding, the equitable tolling precept may now be employed at the BVA and the RO. You may end up having to appeal to get it, but at least the path to it is established once again. Once we have a well-worn path to the CAVC on this, the BVA will eventually acquiesce and grant it more frequently. Don’t assume this hole in the dike will become a gully washer anytime soon. I suggest everyone who is ill gather good documentation as they go. It happened to me in 2010.

I petitioned the Court for a Writ of Mandamus. If I’d researched it a little more, I would have discovered there’s only been about two granted in 20 years. A writ asks the Court to make VASEC either give  you your day in court or let the CAVC take care of it. I asked the Judge (DAVIS) to grant me my 1994 date for my claim due to the VA never finishing it. Then I went into the hospital for operations #3 (failed) and #4 semi-success). I was so ill after I got out I couldn’t even read the reasoning for the denial of the Writ. I had 30 days to respond and rightfully figured that being in the hospital and all was worth some equitable tolling. Wrong. I was 11 days late and it might as well have been 11 years. So I went home and filed the F-9 and waited. And here we are almost in March two years later. Time flies everywhere but the VA. Of course, if you have a suspense date, that evaporates in seconds. With Bove, we simply have more leeway instead of an ironclad rule.

Below is the order issued by the Court in December 2011 that describes four cases awaiting the outcome of Henderson 3 and why each one is going to be give a bye or the thumbs down.

Anthony Bove gets a bye. He mailed his NOA to the RO. Dumb, but the RO should have sent it post haste to the Court. They cheated and chose to hold on to it long enough to exceed the 120 day rule.  That’s a Bozo No-No. From now on, if we screw up and send it to the RO or the BVA, that’s constructive possession in the eyes of the Court.

Aquel Rasheed is a different story. He claimed brain Fukitol for his excuse. He felt the letter describing the 120 sunsets had a “sunrise” clause in it. If VA had simply written the letter in simpler terms, Rasheed would have had an easier time understanding it. Rasheed arrived with no evidence of this mental impairment so he will not be going to the CountyFair this year.

Alfonzo Lopez is one very lucky son of a gun. His claim well ran dry at midnight on Friday, June 25th, 2010. His claim was received and time stamped in the CAVC  mailroom as Monday, June 28th, 2010. Alfie was SOL but for one quirk of fate- some industrious paralegal who never will gain fame had the wherewithal to fax the thing in before midnight Friday.  Alfonzo thus gets the magic paper and another bite at the judicial apple,

Wesley L. King suffered the same fate as Mr. Bove. Those VA grinches at the RO tried to hide the NOA even though he filed it with ample time to spare. The Court was very polite and didn’t comment on why it seems to take forever and a couple of more days (past the suspense  date) to get those NOAs sorted out from the rest in the shredder bins. Shoot, the fact that Bove’s and King’s even arrived at all is a subject worthy of discussion in its own right.

So there you have it. You can be late in certain circumstances and still get a docket, or you can piss it away and then come up with some half-baked excuse as to why you should get equitable tolling. There should be leeway for us as I said earlier. We are a unique breed of human. Our miniscule 8 percent of the population rarely asks for remuneration for our service. Less than 30% of the 8%  apply and win. Millions more don’t or give up prematurely. Cutting us some slack is the Veteran friendly way to accomplish it. At least that what the Supreme Court thinks Congress meant.

http://www.uscourts.cavc.gov/documents/Bove_Rasheed_Lopez_King_published_order_12-20-2011.pdf      Bove et al.

http://www.uscourts.cavc.gov/documents/2012-04_Timeliness_of_Appeals_and_Bove_V_Shinseki.pdf   Order

The sword is for the Johnny-come-latelys.

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

Remember me? Part II

Posted on February 24, 2012 by asknod

How’s this for a conundrum wrapped in an enigma. The BVA IRIS’d me back today and said “Dude,  that claim departed  via Pony Express to the Atlanta RO and you’ll have to call them at …800-827-1000”. Right. So why is my appeal at an RO … unless it’s being fitted for a new Fenderson staged rating from 1994. That might make sense if Seattle is overwhelmed with that PTSD mess going on at Ft. Fumble  Lewis down the road.  What’s even weirder if you believe in coincidences is the Atlanta RO’s Health Eligibility Center just mailed me a complete personalized medical benefits package and a Form 4107 telling me how to appeal my new “medical rating” if I’m not happy with it. My “new” rating is 100% P&T  and I’m now a proud “Veteran of the Vietnam War, where before I was simply a Veteran of the Vietnam Era. I am also presumptively exposed to herbicides as well.  I joined the medical program in 2008 so I surmise this means I just joined it again retroactively to 1994. Interesting. Do I get to collect all the money I spent on doctors way back to then? Seems fair. Something is brewing and I think I like the smell. I dreamed of a ’67 GTO gold Goat last night. It looked just like the one I had to sell for $1500 to the used car jerk the day before I left for Southeast Asia in May 1970. Of course, I had a migraine when I woke up so that might mean I dreamed I inhaled too much carbon monoxide in my dream listening to it run.  I”ve got SEG all over my face.

Remember me– Part I–https://asknod.wordpress.com/2012/02/22/bva-yo-remember-me/

Posted in General Messages, Humor | Tagged , , | 8 Comments

OMERTÀ–PART TROIS

Posted on February 23, 2012 by asknod

In what can only be considered record time, the Army’s cranial sufficiency experts determined the fate of the souls shanghaied off in the night to Walter Reed. Of the 14 unfortunates, six were indeed found to be documented cases of certifiable bent brain. An additional six were determined to simply be suffering personality disorders. It appeared the most common was anxiety disorder. This was a great relief to the troops because they had been having suicidal ideations and other symptoms that prompted them to seek help. With this new diagnosis, they can now go on to lead productive lives secure in the knowledge that they are certifiably defect-free.  Thus,  if they should have occasion to take their own life in the near term, it would be due to intercurrent causes after their service to our great country.

Oddly, 2 of the 14 were determined to be free of any defects at all and were indeed offered re-enlistment papers, including a $49.95 signing bonus. We’ll keep you up to speed on what the future holds for these ” defect-free” servicemen as we receive it. This leaves us with a ratio of 6/14 or a 23.3% rate of disability.

The Rand Corporation has already done a study and determined that the ratio would be one out of every five servicemen from the SWA Olympics. What this means is the Army will be sending  their doctors back for reindoctrination training to trim that pesky percentage down at least 3.3% to comport with the Rand findings. According to sources, a misprint was reputedly found in one of the manuals that accidentally qualified many more Vets for PTSD than were entitled. Once this discrepancy is instituted, it is believed that the numbers will align more with the statistical model.

In fact, Major Gen. Vogel, the head of  Western Regional Medical Command, emphasized that further investigation was warranted: “We have a responsibility to identify the cause of variance, eliminate diagnostic variance, and standardize our processes across all of Army medicine.”  Left unsaid was the spectre of revising the requirements upwards to make the illness unattainable.

At this point, the Army admits it doesn’t have a clue how many Vets are wandering around off the reservation with what they characterize as an “upwardly-adjusted” diagnosis. They claim they’ll have a handle on it a week or so. The Army’s spokeswoman for the the Army Surgeon General (ASG) said “We want to do the right thing”. In fact, in testimony before a congressional subcommittee this month, the ASG said they just wanted ensure the Army diagnoses bent brain “consistently”. No distinction was made to our representatives as to whether she meant “right” or “wrong” as a modifier for the adverb “consistently”.

Sen. Tennyrunners said [there]  “are still some big unanswered questions” about how much veterans’ compensation payments played a role in the decisions. Wow. Way to be on top of this. Ya think?  One thing I will say for the little lady-she doesn’t miss much.

Rumor has it that a bare minimum of 145 Veterans may have been given this “bum’s rush” through the Madigan shrink mill. Unofficial sources cite a far higher number Army-wide or world-wide. I’m sure we’re not far from “NEWS and FILM at ELEVEN”.

One thing’s for sure. Omertà works.

Oh boy Omerta   Part Un—https://asknod.wordpress.com/2012/02/08/what-happened-to-omerta/

Oh, Boy Omertà  Part Deux–https://asknod.wordpress.com/2012/02/22/omerta-part-deux/

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CAMP LEJEUNE DOCUMENTARY

Posted on February 23, 2012 by asknod

The Camp Lejeune documentary Semper Fi, Always Faithful will be shown on the Last Word with Lawrence O’Donnel Friday night on MSNBC at 10 PM EST.  Lawrence O’Donnell was instrumental in MSNBC’s purchase of the documentary and it is on his show that it will air for the first time on Friday. We ask that you please support him and thank him by visiting his Facebook page and leaving a comment. Here is the web address:
–
http://www.facebook.com/thelastword
–

Anyone stationed at Camp Lejuene, North Carolina from 1958-1988 should watch this informative documentary. The film tells the story of former D.I. SSGt Jerry Ensminger and how his daughter died of leukemia from the tainted water.  Since then, the wells have been closed, studies done and toxic chemicals tetrachloroethylene, trichloroethylene and benzine have been identified. My second son,  conceived at Camp Lejeune, was born with a ventricular septal heart defect. Very quietly, the Veterans Administration has paid compensation claims for 63 marines diagnosed with breast cancer. Once a marine , always a marine. Get the word out.  Aaron Davis former Sgt. USMC.

Posted in All about Veterans, Camp Lejeune poisoning, General Messages, vA news | Tagged , , , , | 3 Comments

VACCINE FOR HCV!

Posted on February 22, 2012 by asknod

How ’bout them apples? The guy who figured it out in 1989 is back with the cure. I just about fell out of my chair.  I wonder how this bodes for us with the bug?  With the way the economy’s headed, I don’t want to live forever, but this sounds like its too cool for school. Now, get to work on a non-lethal cure for it and be quick about it.  Knowing the  government, they’ll study it for 10 years before they give it their imprimatur.  I also read in my travels today that HCV is now killing more of us than HIV. Great. As for Vets, the figure bandied about is three every day pass from it.

http://gizmodo.com/5887080/hepatitis-c-vaccine-developed-by-same-scientist-who-discovered-the-disease

Michael Houghton, I salute you. You should get the Nobel prize.

Posted in All about Veterans, General Messages, HCV Health | Tagged , , , , | 2 Comments

PTSD–What does the future portend?

Posted on February 22, 2012 by asknod

For entertainment purposes only.

No cookies. No attachments. No data mining. You can even vote Chicago style-early and often-and you don’t even have to be dead. I trusted you when you carried a 16 and hand grenades. Why wouldn’t I trust you now?  Comments are welcome, as usual.

Posted in All about Veterans, PTSD, Uncategorized | Tagged , , , , | 3 Comments

BVA-Yo! Remember me?

Posted on February 22, 2012 by asknod

I called the BVA on their secret number yesterday and talked with a really nice gal named Cybil.  Yes, she actually told me her name. We talked for almost 15 minutes about my claims and their non-progress. She did indicate that the decision will be very soon, though. I’d like to think that she’s not peeing on my leg and telling me it’s raining out.

I asked her about a point of law and that’s when the music stopped. She regretfully informed me that they are not allowed to do that , then tried to answer the question! In the end, she decided she didn’t know and told me to call Dial a Prayer and ask to speak to a “benefits counselor”. That’s an oxymoron. There is no intelligent life there. On the off chance things had changed (remember hope and change?), I did so.

I  was told it was a 23 minute wait. I opted for the callback function. There used to be a default setting to get to the operator. You just pretended you didn’t have a touch tone phone and waited for a live, oxygen-breathing  entity. Twenty three minutes later my callback came in and they promptly disconnected me. Well, hey. That sucks. I called back and this is where it departed reality and entered the theatre of the absurd. The computer-generated person informed me the next opportunity to talk to a live warm-blooded mammal would be today (Wednesday) between 1435 hours and 1435 hours. The machine asked for a confirmation to call me back then or to schedule a different time. I was so flabergasted I inadvertently chose option two for a later date. I was then informed that this would be Monday between 1015 and 1015 or would I like Tuesday? I hung up.

Next I tried the IRIS method. I used to have the link on my toolbar way back when on the old Sony Vaio tower computer. That died. I searched all over ebennies and finally googled the damn thing and found it. Something’s wrong. It shouldn’t require an Act of God to get in touch with these Bozos.

Once upon a time when the dinosaurs roamed the earth and the VAROs were young, you could call them. Shoot, you could take the elevator up to the eleventh floor and walk in to talk to them. Somewhere around 2007, there must have been a Disturbed Veteran incident or they simply got tired of answering the phone. Suddenly we had the new Dial a Smile technology. It wasn’t the end of the world-yet. The phone still rang at the local office and you could get a decent response. Somewhere on down the line that technology was found wanting and they opted for Denise in the Salt Lake RO taking my call or Robert in Oakland. Huh? The IQ dropped below 90 and they resorted to the “Someone will get back to you on this. It’s above my pay grade and I only have the WARMS computer, sir. Have you tried Ebenefits yet?”

Now, we have the “If you want to ask about______, please press one. I tried to go into sub-menu #3 and ask about this burning question of law and was greeted with the news that  a one-time $250.00 payment as part of the 2009 Drain the U.S.Treasury Act would be available on my next paycheck and if I’d like to listen to this again all I had to do was press 4. I never got a human or even a promise of one. What gives? Are these people so verbally challenged that they cannot converse? Do we need to hire more Gomers? Why can’t they sub this out to India?  The BVA isn’t suffering this problem. Cybil answered on the third ring. No Muzak-nothing. I don’t want to get her in trouble , but all she asked for was my SSN. No name, rank, airspeed, tail number or heading.

This doesn’t bode well. I hate to say this but it appears the RO personnel are so embarrassed at a) the backlog ; b) their dismal error statistics and ; c) disgruntled Vets that they have chosen to try to deny us the right to talk to anyone-be they knowledgeable or otherwise. Actually, this is brilliant. If a Vet calls up thinking about filing a claim and your computer tells him you can’t do that until next Monday @ 1015 hours, he’ll probably blow it off. Even if he calls back at 1015, the little recorder will tell him the delay may be 28 minutes and offer the callback/hang up option. Ideally, the filing rate will shrink and the problem will solve itself. VA can then state with some authority that they are finally catching up on the backlog. I wonder who put that one in the suggestion box? They probably got a promotion.

If I hear from Iris, I’ll let you know. I wonder if that’s her real name?

Posted in All about Veterans, General Messages, Humor, Uncategorized | Tagged , , , , , , , | 3 Comments

OMERTÀ– PART DEUX

Posted on February 22, 2012 by asknod

The newspapers this morning updated the fallout from my earlier post on the PTSD brouhaha at Joint Base Lewis McChord.

https://asknod.wordpress.com/2012/02/08/what-happened-to-omerta/

Much like a chain collision in the fog on the freeway, the Army is busy sweeping up the loose ends. The latest collateral damage is that the head of the Madigan Army Medical Center has been removed from his post. This was initially categorized as “on leave” to protect him from a bad OER. Col. Dallas Homas  announced this late Monday (after the newspaper had been put to bed). Actually, Maj. Gen. Philip Volpe, his immediate superior at the Western Region Medical Center announced his much needed break from the rigors of a stressful job environment. Col. Homas was “unavailable” for comment and will be for a loooong time.

Meanwhile, since gravity always carried defecation downhill, the Army Surgeon General was trotted out to contribute her two cents. Sen. Tennis shoes probably excoriated her for letting this get off the reservation. As if that weren’t enough, somehow the rank and file troops who were actually disenfranchised have  heard about it and are requesting reviews of their cases. Who taught them how to read? They should have been held incommunicado at some remote location in East Bumf***, Egypt to prevent this. The potential for this to get out of hand goes without saying. A gag order will have to issued soon or a lot more Vets are going to learn they got the poopy end of the punji stick.

Moving 14 guys to Walter Reed is not the panacea they thought it was going to be. The Army has not divulged exactly how many diagnoses it has “adjusted”.  Gen. Volpe said “As this process continues, we will undoubtedly be faced with areas not yet addressed. That said, everyone at all levels, is committed to facing these challenges head-on to ensure the best care for our soldiers”. He said he has decided to do a little checky-checky on his own. Jez, its not like they can turn the internet off at Fort Lewis. Hello? McFly?

Moving right along, Army Surgeon General Lt. Gen. Patty Horobo (no relation to Sen. Patty) has finally decided to investigate why the these untermenshen decided to close down a PTSD intensive outpatient clinic in 2010. Some people who like to play Deep Throat came forward and allowed as how it might have been because the clinicians were diagnosing Bent Brain Syndrome too frequently. Get out of here!  This has about as much scientific validity as the Prognosticators involved in Groundhog Day. Pure conjecture on the mainstream media’s part. Unsubstantiated rumors.

In an “official” news release after he’d been caught off guard and bushwhacked by the press, he revealed that Col. Homas’ administrative “removal”, formerly referred to as “leave” (now an inoperable phrase), is a “common practice ” during ongoing investigations. Here’s the “unofficial” news release- Col. Homas might as well retire. He’s screwed. If he respects the law of Army omertà, he may keep his retirement. Chances of seeing O-7 (Brigadier General) are somewhere betwixt slim and none. It’s really too bad. Homas is one of the Long Grey Line (West Point) and would fall on his sword if asked to. Knowing how the military works, our West Point graduate did not come up with this plan to screw brain-bent Vets out of compensation. No way, dude. This originated much, much higher. Nevertheless, the usual suspects will be rounded up. Spin the bottle will determine who was remiss and a Dog and Pony show presentation will ensue in the White House Rose Garden. Sack cloth and ashes will be the uniform of the day. The plight of all Veterans will be bemoaned-especially those mentally impaired by this horrific disease. And then all will return to SOS/DD (same old shit/different day).  PTSD will be recharacterized as a personality disorder and all will be well again. Walter Reed will be shut down because there will be no demand for their services. Next?

Koolaid, anyone?

Posted in All about Veterans, General Messages, Gulf War Issues, PTSD, vA news | Tagged , , , | 1 Comment

COVA–LAZANO v.DERWINSKI–ESTOPPEL

Posted on February 21, 2012 by asknod

What is estoppel? It’s another one of those crazy words the Courts use to confuse all but the initiated. Let’s turn it into DickandJanespeak.  Estoppel. See? That was easy. What we have left is “stop” as in “They told me I was good to go and I believed them”. Estoppel simply means that a person relied on something said to his detriment. Lots of times this has big consequences for us. We have time deadlines to submit appeals notices and validate our substantive appeals. Delaying too long with no good reason to file a timely Notice of Appeal to the CAVC used to be a death sentence to a claim. The Court has recently relented after having its arm twisted by the Fed. Circuit. While this is called equitable tolling, it can be caused by estoppel. Nevertheless, you still need a note from your parent.

Here’s the Free Dictionary’s take on it:

es·top·pel   (-stpl)

n. Law

A bar preventing one from making an allegation or a denial that contradicts what one has previously stated as the truth.

[Obsolete French estouppail, from Old French estouper, to stop up, from Vulgar Latin *stuppre; see stop.]

I have searched for the earliest example of this in VA history and believe Mr. Simeon G. Lazano holds the distinction. While the Court ruled against him, they did not rule out the theory of estoppel entirely. They simply adopted the Supreme Court’s position that a good example of estoppel had yet to surface against the VA yet (or the government in general).

I may have to rely on this theory soon if the VA chooses to 86 my appeal for an earlier effective date. Imagine this. You file for SC. VA denies. You submit new evidence with your NOD. VA chooses to send you a SOC saying we denied you based on this and this. But…. we did receive your new evidence and will be making a decision on it soon. So don’t do anything , okay? You’ll be hearing from us. 13 years go by and you get the feeling they were funning you. You win in 08 and then ask for the 1994 date because-hey, they never called back. Everyone knows the VA takes a long time to get anything done. Things weren’t significantly different back then. VA does a DRO and says “Dude! You didn’t file a Form 9. Your claim died in January of 96.” My take on estoppel is that they “induced” me not to file the Form1- 9 until they did a new decision on the new and material evidence. By law, I couldn’t file the F-9 until they had denied again. This may be the make or break of the CAVC case if they deny me..

This is another of the long line of rights we are accorded that you might not see at first glance. It’s one of those rights that exists like a pot of gold at the end of the rainbow. We know it’s there. We just have never seen one.

Take a look at what estoppel isn’t. Mr. Lazano from 1991:

http://search.uscourts.cavc.gov/isysquery/814046b1-59b5-41ad-9c58-fdee3d402c62/3/doc/

Here’s a more recent example of what estoppel isn’t. Unfortunately this double dipper got caught and then tried the estoppel argument. It can be done, but you need it in writing from them.

http://www.va.gov/vetapp11/Files4/1140022.txt

To see where VA did it to me look at the bottom of this( Evans v. Shinseki.

https://asknod.wordpress.com/2011/09/28/cavc-evans-v-shinseki-2011-post-hoc-rationalizations-3/

Item #2 is labeled 1/95 SOC. Note the yellow hightlight that says:

“We are reviewing the additional records you submitted with your appeal and we will notify you of our decision as soon as it is reached.” 

Now, I ask you. Would you wait for a new decision based on that statement or would you file a Form 1-9 out of time and risk condemning your claim to several years of BVA purgatory?  I gave them thirteen years worth of rope to hang themselves with. I rest my estoppel.

So, if VA says “Don’t worry. Be ‘appy”, my advice from now on is to be worried and conserve your humor for decision day and the magic paper.

P.S.  I had a premature verbal emission.  Included are two important concepts of estoppel

Collateral estoppel:

A doctrine by which an earlier decision rendered by a court in a lawsuit between parties is conclusive as to the issues or controverted points so that they cannot be relitigated in subsequent proceedings involving the same parties.

Collateral estoppel is an affirmative defense that must be pleaded by a defendant in civil actions. The similar affirmative defense of Res Judicata differs from collateral estoppel in that it completely precludes the relitigation of a claim, demand, or cause of action, as opposed to an issue or controverted point, in a subsequent proceeding between the same parties to an earlier action.

The application of the collateral estoppel doctrine promotes the speedy administration of justice by preventing the continuous, duplicative litigation of fruitless claims when relitigation of them is unlikely to change the original decision made regarding them.

And equitable estoppel:

Equitable estoppel, sometimes known as estoppel in pais, protects one party from being harmed by another party’s voluntary conduct. Voluntary conduct may be an action, silence, acquiescence, or concealment of material facts.

There are several specific types of equitable estoppel. Promissory estoppel is a contract law doctrine. It occurs when a party reasonably relies on the promise of another party, and because of the reliance is injured or damaged.

Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time. This doctrine is closely related to the concept of statutes of limitations, except that statutes of limitations set specific time limits for legal actions, whereas under laches, generally there is no prescribed time that courts consider “proper.” A defendant seeking the protection of laches must demonstrate that the plaintiff’s inaction, misrepresentation, or silence prejudiced the defendant or induced the defendant to change positions for the worse.

Here is a beautiful case of equitable estoppel where the VA tried to change their story after the fact. The evidence told a different story.

http://search.uscourts.cavc.gov/isysquery/1a85bd71-e1b3-45c1-ba34-23cdc150a369/2/doc/

Posted in Important CAVC/COVA Ruling, Introduction-Read these first, Veterans Law | Tagged , , , , , | 2 Comments