VA AS A “VETERAN FRIENDLY” ENVIRONMENT

Posted on February 17, 2012 by asknod

ACTIONS SPEAK LOUDER THAN WORDS

Numerous trees have been sacrificed on the altar of political correctness to iterate and reiterate that the VA is “veteran friendly”. We hear it so frequently that it tends to deflect like water off a duck’s back. While I’m sure that those employed by the VA believe it in its entirety, I’m not sure the PR flacks are getting their point across quite as adroitly as they think they are.

Veteran friendly is a state of mind. Yes, in all honesty, one can say the VA is Veteran friendly in their demeanor. That is where the comparison ends and the distinction begins. Often coupled with the phrase is the expression “non-adversarial”. This is mostly used in the context of a judicial proceeding. Most decidedly, VA is adversarial in subtle ways. VA employees operate on the We, Us, Team concept like unions. Everything is a compendium of commingled effort. There is no I at the VA. Hence, there is no pride of ownership, no satisfaction of  a job well done. The phrase “Too many cooks spoil the broth” is  the more germane metaphor. If an error occurs, the raters will say it was the Development team. The Development team will blame the designated “Doctor/ARNP  who opined the faulty nexus. She/he will blame the mail room guys for delaying the evidence to her, causing her to miss her deadline to submit. And I submit there is a forest of fingers pointing  if the remand rate is 60%. So actions begin to speak louder than words.

In an environment that is decidedly stressful, it becomes an Us versus Them with the Them being Veterans. One would have to live in Zimbabwe to be unaware of the dissatisfaction Veterans feel with the claims process.  This rivalry manifests itself in a “who cares?” attitude that leaves the Vet holding the short straw. VA examiners are so overloaded that they lose sight of the goal. They become automatons and blindly crank out decisions  that even they know are riddled with errors. Their mantra is that it will come back another day and they can fix it then. The high error rate simply becomes a natural default setting. A good week with a 50% error rate would go unnoticed.  VA doesn’t keep track of  dismal prognostication that way. Call it creative statisticalology. This way the PR team can honestly say ” Well, statistics don’t bear this theory out, unfortunately for the Vet. We feel there’s something else at play. Our policy is to grant every benefit to as many as we legally can”. (So don’t watch our actions; read our lips).

When we were in the service there was a legal axiom we understood. The UCMJ held that we were guilty until proven innocent. A good example is Line of Duty (LOD) determinations. If you were in an automobile accident off-duty, you were assumed to be guilty until LOD was stamped in the medical chart. If you were NLOD, any lost time would be added onto your enlistment like being AWOL.  Some of you Mormons might not have known this. Judicially, the assumption of guilt, or to be fair a neutral stance, is far different from beginning with the presumption of innocence. VA examiners operate on this principle. You present your evidence and testimony. VA examines it and looks for anything they can use to deny it. This is a far cry from an impartial process where the evidence is assembled in two piles-for and against. If everything you submit is critiqued like a police detective looking for the smoking gun or a flaw in the alibi, objectivity flies out the window. Suddenly, subjectivity is the order of the day.  Any semblance of it being non-adversarial becomes a coincidence. And then actions begin to sound louder than any words.

The unwritten rule is the operable one in VA  decision making. I’m sure VA employees will all uniformly agree that they are diligently working for the Veteran. I’m sure there were diehards at Ford who extolled the inherent safety of Pintos right up until they were recalled to fix the gas tanks-and perhaps afterwards, too.  This is more a case of indoctrination by word of mouth than by published directive.  For he who shall have borne the battle becomes the patriotic rallying cry. The rubber meets the road in the M-21 manual. It is impersonal and doesn’t care about fair and balanced. It is written by the pooh-bahs who make the rules. The rank and file rater has to follow the book. The book is his Sheppard. He shall not want. Therefore he is blameless. Since it is now virtually computerized, raters input all the variables and could care less what it spits out for a decision. It is what it is.  He didn’t decide it. The book dictated the outcome. Suddenly, a book’s actions are speaking louder than words.

Non-adversarial can and does imply many things. Being excruciatingly polite while saying no is non-adversarial. However, when all the available evidence and testimony point towards service connection,  a denial is hardly non-adversarial. When the facts are twisted and ignored it appears for all the world to be adversarial. When 60% of all decisions that are appealed to the Court are reversed  or vacated for procedural or due process violations, we can safely say that  our “non-adversarial forum” is a misnomer-because actions speak louder than words.

Before we blame our VA raters, let’s look at the system. Fifty years ago, back in 1961, Yale psychologist Stanley Milgrim conducted an experiment to test obedience to authority. Yale students were signed up as test subjects to help do a “scientific study of memory”. They were asked to push a button that delivered a shock to a person in another room who was not visible to them. If the person in the adjacent room missed a question asked by the “tester”, they were ordered by a superior to push the button and “punish” him with the electric shock. What the test subjects didn’t know was they were the guinea pigs in this game. Dr. Milgrim was measuring them to see how far they would go when ordered to in punishing the “subjects” in the other room-no matter how loud the screams.

You ask yourselves, huh? What does this have to do with the VA? Gentle reader, the test subjects are the VA raters. Dr. Milgrim represents the VA hierarchy. The button? Why the M-21, silly. This isn’t what we signed up for.

Posted in All about Veterans, BvA Decisions, General Messages, vA news, Veterans Law | Tagged , , , , , | 3 Comments

EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT REMANDS

Posted on February 16, 2012 by asknod

Remands. What are they? Well, let’s learn all about this animal.

re·mand   (r-mnd)

tr.v. re·mand·ed, re·mand·ing, re·mands

1. To send or order back.

2. Law

a. To send back to custody.

b. To send back (a case) to a lower court with instructions about further proceedings.

This gives a whole new meaning to the term “transitive verb”. A remand can only originate from a higher tribunal or Court. The Regional Office is the lowest rung as most know. Here they make the decision. This is why you will see the term Agency of Original Jurisdiction or AOJ. The AOJ can’t remand it because they are the low man on this VA totem pole.When you get denied, you appeal to the Board of Veterans Appeals or the BVA. This is the coat and tie stage. If  the RO stepped on their necktie and failed to do something important (and they almost invariably do) the Veterans Law Judge(VLJ) will remand it back to the RO for a repair order. Some can be very lengthy in their demands. ROs are very slack about throwing these claims together. A good example is a Vet who is on SSD or SSI. The Board will want to look at those records to gauge the reason for the grant. Often there is much to be learned from them. The RO knows this yet regularly allows these appeals to go up without the records. What’s worse, if the Vet doesn’t obtain or submit them to the RO, the VA very well may make no effort to obtain them even when put on notice of their existence. This is the most common error and it continues day in and day out.

Remands occur with regularity and sometimes numerous times, causing horrible delays. It is said that a remand can add a year to your appeal, if not more. The BVA has their own private remand center right there on I Ave. and Vermont NW. The only problem is you need to file a Waiver of Review in the First Instance granting the BVA judge the full authority to fix things without it going back on remand! See my discussion below. I’d say a one-year turnaround on an remanded Appeal to the RO is conservative. With the tremendous new backlog, it will only get worse.

If you lose at the Board, your appeal to the Court will be seen within a year. Most often, if it doesn’t entail a complex legal theory, it will be heard by a single judge. Because BVA judges rely so heavily on the case from the RO for accuracy, many errors finally come to light here. There is a simple reason for this. A Vet’s claim at the Court is invariably handled by a good attorney. The legal representation you got at the BVA was, in all likelihood,  provided by VSOzoom.com. Most good VA lawyers can find a reason for a remand. They might not all be good ones, but that’s not the point. The remand allows the Vet to return to the BVA or AOJ and begin anew.  This allows you, the Vet, another bite of the apple. Now that you know the reasons for your prior necktie party, you can make plans to fix it while it’s being remanded. You are free to submit new and material evidence in the form of that shiny magic nexus paper saying “more likely than less likely that….”

Some claims are remanded with the full knowledge that their chances are worse than snowballs in a warm environment. Others are predicated on documented errors. These are ones that are destined to win. The reason I believe this is simple. No Veteran will fight up to the Court over 5 years only to give up after a second defeat at the AOJ. If we do not see this Vet up at the Court on a second trip, chances are some horse-trading occurred below.

The CAVC will not brook incompetence or stupidity. They do not remand numerous times for follow on errors. They reverse. Reversing a decision results in a one-way remand back to the AOJ. There the VA examiners will arrange for your shiny new rating. It’s a given  after your reversal that they will be granting the highest rating they can legally to prevent this from going back up. Someone puts the message out. Your C-file suddenly looks like a porcupine sprouting little red flags. The VARO Director has it open in a tab online with VBMS 24/7. It’s the first tab open and has an override for the 15-minute time out. Of course, this also happens if you file an Extraordinary Writ with the Court.

On occasion, the claim gets denied at the Court and floats up to the Fed. Cir. Again, here is another place where a remand is very frequent. Reversals by the Feds are rare. If it’s remanded by the Fed. Cir. for a redo, this can get ugly. Protocol demands that it be accomplished much like untying the Gordian knot.  The claim has to go back to the Court so they can put their remand on it. The BVA gets it and does likewise. If you are lucky this may only take a year or two to get back to your AOJ.

Here again, the claim starts over. For nice round numbers, say you filed on January 1, 2000. You go through the whole rigamarole at the AOJ including a DRO review. They finally release it to the BVA in  June 2003. The BVA gets it docketed and the show begins in late 2004. If you don’t get remanded, it would go to the Court and see daylight by 2006. Any remands would add a year+  to this. If you get one at the Court (and you will 65% of the time), back you go to the place where the error was perpetrated. Sometimes that’s the BVA. It’s not always the RO. If it does go back up, it begins a brand new odyssey at the Court. Assuming the denial is sustained by the Court, you can assume another year to get your docket at the Fed. Circuit. This merry-go-round can last for a decade without any remands, but rarely does. Remember, getting a docket is getting a place in line. It isn’t the day you walk into Court.

To add insult to this process, the VA invented a new torture-a RO at the BVA is how I would describe it. The Appeals Management Center or AMC, can be the big  roadblock. If you have given the BVA a waiver of review to the RO, your claim will fall into this black hole for a while if it is deficient. The AMC will attempt to rectify whatever it is that needs the grease. When they have finished trying to grant or deny, they send it back up for another redo with the VLJ. This assumes they deny and issue a SSOC. Even though this is in-house, it can still eat up to a year. About the only thing positive is they rarely lose the evidence. But, with the new National Work Queue, this is less frequent. The AMC is no longer a booming concern unless your Vet’s name is Macklem and the Court has spoken…twice(as well as the Fed. Circus).

Fortunately for us, the Court and the Fed. Circuit do not have these “remand centers” . Justice is not perfect but it is guaranteed to be time consuming. Remands are boogers. This is why my whole strategy I advocate is to get this done at the lowest level. Certainly there is the point of diminishing returns at your AOJ. DRO reviews are time-consuming, and delay the inevitable trip to D.C. if it’s in the cards. In this respect they can be as nasty as remands. I’ve done 4 and won 0.

I have never had a true remand. I suppose my “win” at the BVA in 1992 resulted in a remand for the 0% rating awards. I did get a sweet letter telling me this. To be truthful, I was so overwhelmed at winning 0%,  I was distracted and never absorbed the enormity of the moment then. I’m relatively certain I mailed them a thank you note.

Capture was here

Posted in All about Veterans, General Messages, Introduction-Read these first, Tips and Tricks | Tagged , , , , , | 88 Comments

How many Vets are there?

Posted on February 16, 2012 by asknod

I was doing my Evelyn Woods speed reading trick through the papers this morning and happened upon what appears to be an error.  I have seen numerous refences to the fact that we are 26+ million in number. Some have put the number as high as 28 million. The article brought me up short because it said we have shrunk to 22 million. Actually, it didn’t take into account we are losing 18 a day to suicide or another statistic that 18 Veterans of WW2 die every day as well. That 18 number sure pops up a lot.

So, what to do to resolve this? Off to Bing, n’est pas? Confusion and old age reign there. The links I found variously say : 23,532,000 million in 9/30/2007

http://wiki.answers.com/Q/How_many_US_veterans_are_there

23,816,000 in 2007

http://answers.yahoo.com/question/index?qid=20081021045451AACvNXT

24,500,000 in 2006

http://uk.ask.com/question/how-many-veterans-are-there-in-the-us

26,000,000 with no date

http://www.chacha.com/question/how-many-veterans-are-there-approximately-in-the-united-states

I’m worried. If no one knows how many of us there really are, how can there be any apportionment of monies for us? Somebody knows but they’re not giving us recent   data.

I’m anal about numbers. Just for shits and grins, let’s assume  a  few other things. The article I’m reading says the government wants to spend $1 billion on a “Veterans Job Corps” over 5 years for 20,000 Vets.  This munificent program will employ soldiers, sailors, marines and airmen to focus on building roads and trails on public lands. Before I crunch those numbers, look how many the President is hoping to employ- 20K. Next, does anyone remember the Civilian Conservation Corps by our peanut farmer President in the 70’s? They insulated hot water tanks and stapled visqueen “storm windows” on houses- all for about $4.00/hr. I know few are alive who remember the Works Progress Administration on the 30’s. Anyway, one billion divided by 5 years is $200 million per year. $200,000,000 ÷ 20,000 Vets = $10,000.00 per Vet per year. In the 70’s, a CCC employee could hope for $7680.00/year before taxes. Inflation says that should be about $16K now. This is 2012 so $10K is a slap in the face-to Vets no less.  Mighty slim pickings as my dad used to say. If you can exist on a salary that small without a mobile zip code then you are amazing.

In the same article it mentions that the budget of the VA is slated (read hoped) to rise 10.5 % from  $126.9 Billion to $140.3 Billion. This $13.4 Billion dollar increase (less the $200 million above) will go to ameliorate the dismal mental health and women Vets’ issues that seem to refuse to behave.

Try as I might, I can find no definitive number for the actual number of Vets who are actually “disabled”. That is a very nebulous term. It could be said a Vet with ingrown toenails who receives compensation (and 0% is compensation) is disabled within the realm of the meaning. Using that as a yardstick, there are possibly 3 million + who might fit the sobriquet. My search kept leading me astray to the Disabled American Vets site which was no help. They did contribute the factoid that 257,000 Vets are 100% disabled as of 2007.  I would appreciate it if one of you fellow Vets out there would tell me the truth. This is 2012. Why is everything on the Internet seven to nine years out of date? Don’t they ask these questions on Census forms? My last one wanted to know whether I had any Indian, black , yellow or blue blood in me. I don’t remember seeing one for “check this box if you are more than ¼ Veteran.”

Getting back to numbers-$126.9 Billion. That’s $126,900,000,000.00 dollars. You want to see something ugly? If there are even 4 million of us disabled, and I err to the high side, think how much they are spending per Vet. That would be $31, 725.00 per.  A large number have small ratings. 10% X12 months is $1.524.00/yr. 20% is $3,012.00.

Bing tells me only 257,000 are 100% P&T as of 2007. Excuse me? What was so important about 2007? Is this one of those mainstream media ploys to blame Bush by showing the numbers are dramatically higher now?  I guess that will surface during the debates. I’ll bump that to 400,000 and extrapolate from there. With the exception of Bent Brain Vets, most of us are married-statistically speaking. A Vet + spouse with no rug rats gets $2924.00/mo. X 12 mos. = $35,088.00/yr. Let’s  just ignore the government is paying us below the poverty line and proceed. 400K Vets X $35,088.00/yr is $14,035,200,000.00 billion dollars. That sure leaves a lot of bucks for hammer toes. In fact, it leaves $112,864,800,000.00 Billion. Apparently it isn’t enough to help the Vets with brain issues and the homeless women vets. That will take another $13.2 Billion. I’ll betting we could go out and buy repos for all the  homeless Vets (men and women)  and hand them the title for less than that.

I asked why my taxes used to be so high years ago. I don’t ask now because I get a ‘bye from my grateful nation. If we are going broke, doesn’t it seem logical to start looking where we are spending every dollar? I certainly do not advocate short-changing Vets. I simply question where and why. Mark my words. You heard it here. I suspect-no-predict that the VA will soon  discover the PTSD pandemic has subsided based on fewer Vets diagnosed with it. Control the doctors’ paychecks and you control the statistics. The same will soon be true soon for homeless Vets. With this red hot,  booming economy we keep hearing about, the rising tide will lift all boats. Homelessness among Vets will become statistically insignificant. God bless America. Onward through the Fog,  ladies and gentlemen. Vote for Oat Willie this fall. Rumor has it he was a Veteran.  And for those of you in Chicago, vote early-and often.

Postscript. Cupcake  figured it out. This is still slightly stale but extremely close. The correct number is 24,699,642 souls.  She rightly extrapolated that we are 8% of the population ( 308,745,538). That percentage has to be an absolute because I have seen it widely bandied about.

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

Fed. Cir–GARDIN v.SHINSEKI–PTSD DOCTORS LEGAL?

Posted on February 15, 2012 by asknod

There has been much said about the legality of a closed loop for PTSD exams strictly by VHA’s finest. This would seem to be the ammo against.

http://veteranclaims.wordpress.com/2010/09/20/federal-circuit-gardin-v-shinseki-no-2009-7120-usc-5125-diagnosis-of-ptsd-stressor/

I’d say the Fat Lady has yet to sing her aria.

Posted in Fed. Cir. & Supreme Ct., PTSD, Veterans Law | Tagged , , , , , | Leave a comment

SUBCONTRACTING VA CLAIMS– RUH-OH, RORGE!

Posted on February 15, 2012 by asknod

After reading this article, I can only say it’s obvious why they chose Xerox/ACS. It must give them (VA) great pleasure to find a private company that has the same techniques and lack of motivation. The bottom line will always be money. Veterans are just the fishing lure.

http://www.disabledveterans.org/2012/02/15/is-va-choosing-corrupt-contractor-over-veterans/

Seems the more I dig, the smellier it gets. Veterans deserve the creme de la creme and get the cigarette dregs at the bottom of the beer can. In the interim, we are told we are receiving the gold standard. The majority of our representatives in Congress, with the possible exception of the TEA party, are all sucking this money tit. But I digress. I don’t do politics. There are ample venues for that elsewhere.

Posted in All about Veterans, vA news, Veterans Law | Tagged , , , , , , , | 3 Comments

VA-BEST PRACTICES MANUAL FOR PTSD C&P

Posted on February 14, 2012 by asknod

I guess all of you’d like to have a peak at the exam you have to go through for PTSD. This is now de rigueur at the VA. No more private doctors cum hunting buddies writing up their nonsense nexus to get you PTSD. Below please find link to 121-page manual on how to see what’s going on under the hood.

No, veterans. The days of the unlimited PTSD rating just based on that airplane crashing in front of you or your buds in the slick in front of you getting nuked by a B-40 are gone. With the new law change, Xanax usage is going to drop dramatically. Veterans formerly diagnosed with bent brain will get new, recycled exams and mark my words. You guys are going to get better by their measurements. That means reduced ratings. If you think this is impossible, you just don’t remember the early seventies and all the “personality disorders” some of us suffered. We came home and discovered to our relief that it was nothing more than antisocial personality, avoidance personality, passive aggressive tendencies, ritual compulsions, dysthemia- all minor little peculiarities fortunately.

Read this manual to find out how the VA shrinks are going to look at you under the microscope. It’s dry but there is a wealth of info in there.  You simply can’t  live without it  if you plan on filing.  Consider it getting a peak at the process ahead of time. You may not want to file.

http://www.avapl.org/pub/PTSD%20Manual%20final%206.pdf

 

Posted in All about Veterans, Gulf War Issues, PTSD, Tips and Tricks, vA news | Tagged , , , , , , , | 2 Comments

HCV 101

Posted on February 14, 2012 by asknod

I was asked about why HCV is such a difficult bug to kill by my 8 year old grandson. His answer to bugs is a large rock. I tried explaining it several different ways but none resonate with children. Explaining immune systems falls on deaf ears. He showed me his caterpillar  named  Cat who has woven himself a new winter home. Metamorphosis will bring out a wondrous new animal come spring.

While studying the pupa, it finally came to me how to explain the mystery of HCV. Doctors should write a pamphlet for their patients on this. HCV is a cunning little virus that is like a caterpillar. It invades your body and surreptitiously makes itself a home. Soon, your body recognizes it has a new inhabitant and mobilizes the immune system to rid itself of the beast. The HCV is very clever. Once identified, it metamorphoses like the  larval-stage caterpillar into a new version. Your body doesn’t immediately recognize this new pupa so there is a delay between identification and the body’s gearing up to do battle with the newer version. This process repeats itself over and over for decades with the gradual destruction of the liver.

Because the body is on high alert and doing battle with this beast day in and day out, your immune system occasionally goes NASDAQ and chooses to attack anything it perceives as an invader. This is known as an auto- immune disorder. It explains why HCV sufferers have so many of these ailments.  Auto immune Hepatitis (AIH) is a classic example of this. The largest concentration of these bugs is in the liver so it is the logical choice to attack from the body’s viewpoint.

Interferon has been described as an immune enhancer. That’s like calling Napalm a cigarette lighter. IFN Therapy is like a Hyperdrive Motivator on an X-wing fighter. It takes a normal process and supercharges it. It’s far more intense than a normal course of chemotherapy because it takes every iota of energy from the body to assault the virus. This leaves little in reserve for the normal, regular pursuits of life. Some of our members have described this as akin to “being drug through a knothole backwards”. From my one and only experience, I can only agree. It’s also like having a industrial strength vacuum cleaner suck all your energy out, too.

It should come as no great surprise that IFN therapy has some interesting and serious side effects that one would not expect. Loss or deterioration of vision is one frequently mentioned. Others complain of “Brain fog” or the feeling of cobwebs in the noggin. A better description would be knowing your birthdate, but having a hard time remembering what part of your brain you filed it in. It always comes to you eventually which proves it isn’t Alzheimer’s. That’s small consolation to many of us.

While there is no direct correlation between IFN therapy and the inception of autoimmune disorders, I find it incongruous that I had no overt symptoms of Cryoglobulinemia or AIH before my one dose of bug juice. Of course it can be said that while there is no correlation between jetguns and HCV, it’s entirely plausible.

In 1994, the VAMC in Portland,  in conjunction with the University of Oregon, instituted a research protocol to observe if there was any link between HCV and Porphyria Cutanea Tarda. Within two years they had enough to extrapolate that 32% of infected individuals were also PCT-afflicted. Most would publish their results proudly and ask for more government funds to beat this to death. Not the VA. They quietly put this to bed and moved on. One would think VA examiners would point to this and use it for rating purposes. Not. You will never get a nexus from them on this. Oddly, there is much evidence in private circles documenting the link between Cryoglobulinemia and HCV as well.  Even citing to this literature when filing for Cryo won’t get you SC. You’ll still need the magic letter.

In light of the above, you can understand VA’s recalcitrance to do any long term studies of population cohorts to look for any conceivable linkage between HCV and the use of jetguns. Absent the knowledge of a round earth, it remains comfortably flat in their estimation. It’s rumored that studies are proposed for this in 2076, which coincides with about when the last of the jetgun-innoculated Veterans will pass from “natural” causes. At that point, VA will don sack cloth, rub ashes on their forehead and wail that “if only they’d known this, Veterans could have been remunerated  appropriately”.  Hindsight is always 20-20. Contrived hindsight is 20-15.

P.S. I received this from WGM on the subject of brain fog. The man is a powerhouse of information on this disease and it’s etiology:

http://hepatitiscawareness.com/hepc/science/hepatitis-c-virus-causes-brain-inflammation-leading-neuron-injury

Posted in All about Veterans, General Messages, HCV Health, Nexus Information | Tagged , , , , , , , , | 3 Comments

CANCER AND CAMP LEJEUNE

Posted on February 14, 2012 by asknod

There will be a broadcast concerning the pollution of the water supply at Camp Lejeune between 1957 and 1987 soon. Here are the details. Mark your calendars.

From Dick Wearne and Aaron Cheerman….Camp Lejeune – aboard the base between 1957 and 1987.Program will air Feb. 24th on MSNBC 10 PM ET and tells the story of the water contamination.

http://info.msnbc.msn.com/_news/2012/02/08/10351686-msnbc-presents-semper-fi-always-faithful-friday-february-2410-pm-et

P.S. We have a Lawyer friend who is filing for another Vet. He may take on more of these. I haven’t confirmed his desires or intents yet. He is located in Michigan.
Posted in All about Veterans, Camp Lejeune poisoning, General Messages | Tagged , , , , , , | 6 Comments

COMING HOME WITH DIGNITY

Posted on February 13, 2012 by asknod

I received an email this evening I wish to share. It’s from a Marine so you’ll see the obvious bias. All I receive from Tom is Marine stuff. When we were upcountry and a fellow airman was shot down, he invariably would be surrounded by the Pathet Lao. Surrender was a delayed death sentence. Most chose to fight bravely to the end. There was nothing more mournful than to hear one of these in progress and the inevitable final message sent to  38th ARRS-  “Raven reports negative objective”. Unfortunately the communists didn’t see fit to even repatriate the remains.

When 2nd Lt. James Cathey’s body arrived at the Reno Airport , Marines climbed into the cargo hold of the plane and draped the flag over his casket as passengers watched the family gather on the tarmac. During the arrival of another Marine’s casket last year at Denver International Airport , Major Steve Beck described the scene as powerful: ‘See the people in the windows? They sat right there in the plane, watching those Marines. You gotta wonder what’s going through their minds, knowing that they’re on the plane that brought him home,’ he said. ‘They will remember being on that plane for the rest of their lives. They’re going to remember bringing that Marine home. And they should.’

The email directed me to start wearing the color blue every Friday to show my support for our military and, by extension, all Veterans. I intend to start doing so. Thank you for this, Tom. It disturbs memories I’d rather not, but that need disturbing more frequently.

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

COVA–LAYNO V. BROWN– DON’T TRY TO LAYNO BOOGIE-WOOGIE ON THE COVA

Posted on February 13, 2012 by asknod

As a PS at the beginning(Prescript?), I wish to point out that Mary Lou Keener, future bride of Herschel Gober (soon to be acting  VASEC) was the lead attorney on this.  Nepotism is alive and well in America.

http://en.wikipedia.org/wiki/United_States_Secretary_of_Veterans_Affairs

I love this decision for a lot of reasons. It teaches a lot. Trying to be anally specific can backfire. I sure don’t need to tell myself that. This resembles Mr. Mario Caluza’s predicament in a lot of respects.

https://asknod.wordpress.com/2012/02/09/cova-caluza-v-brown-total-recall/

The CAVC had to make a stand eventually and call a halt to the practice of briefing all your second and third cousins on your new VA -sponsored financial plan. In some quarters, this is called collusion. Mr. Layno had this down to a science after the Dave Del Dotto Cash Flow seminar. He even remembered the very first day he suffered from this asthma thingie-March 8th, 1949. Funny how that was also his last day in the armed forces, huh?  You don’t think that might raise a few eyebrows down at the VARO?  Wait. It gets better.

Benitio C. Layno, loyal Veteran from 1946-49, discharged honorably. No complications, No sequelae. In 1990ish, Mr. Layno suddenly noticed his asthma, which he contended first occurred in service, and filed for same. He had one little problem… or did he?  His records were consumed in the little smoke alarm battery/sprinkler snafu at the NPRS in St. Louis in 1973. VA gave him “fire-related ” certification which meant they had to actually go find evidence wherever he’d been stationed. They did a rather desultory search and came up with little. Back then this would have been considered negative evidence and weighed heavily against him.  In today’s world he’d still lose but they’d call it absence of evidence, and therefore “pure speculation”. Six of one, half a dozen of the other.

Mr. Layno,  we shall address him by his Christian name  Benito, enlisted a host of friends and a doctor, as I mentioned above, who all told a suspiciously similar story. The only ones he overlooked were a movie star, a millionaire and his wife, the Professor and Mary Anne. Their notarized statements all confirmed that not only had Benny arrived home from service, but that he had a diagnosis of asthma. How they definitively knew he had asthma varied. Mayhap he carried around all the medical records in a briefcase and freely showed them to these witnesses when queried. Some of them said they were frequently invited to go with him to asthma appointments at his doctor’s clinic. It’s to be presumed that they liked to avail themselves of the wide variety of superlative reading material available to them exclusively in the waiting room.

The Benmeister even knew about nexus letters a full year before Mario Caluza did:

He also proffered a written statement from his private physician, Amador Corpuz, M.D., that he had been treated for “recurrent bronchial asthma” from January 15, 1950, to March 30, 1955. An additional written statement from the appellant’s doctor indicated that the appellant’s treatment records from October 1, 1953, to December 7, 1986, were available, but that earlier records “must have been misplaced, lost or destroyed due to the length of time that have [sic] elapsed since 1950.” The appellant presented copies of treatment records for the period October 1953 to December 7, 1986, in support of his claim. Layno v. Brown 1994

Benny was busy man. He also brought forth his two BFFs for the Buddy Letter(s):

The appellant also presented the joint sworn affidavit of Euletrio Laeno and Silvestre
Madalipay, stating they had personal knowledge of the appellant’s bronchial asthma “since early March 1949,” its onset, and treatment by Dr. Corpuz “from January 15, 1950 up to March 30, 1955.” The affiants stated they had this personal knowledge because they had the opportunity to observe the appellant on a regular basis. The affiants did not testify as to their particular observations regarding the appellant’s symptoms or conditions, only that they had personal knowledge of the appellant’s
bronchial asthma. The affiants also stated that they had personal knowledge of the appellant’s treatment by Dr. Corpuz because they had been invited to accompany the appellant when he went for treatment. The affiants did not state whether they had actually accompanied the appellant to his appointments with Dr. Corpuz. Layno supra

Fearing his relatives’ evidence might be viewed as too contrived, Benito sought out his  neighbors and the vegetable vendor from his neighborhood. .  .

The Board also reviewed the live testimony of Silvestre Madalipay, Cecilia Magbual, and Alejandra Gampong on behalf of the appellant at an RO hearing in September 1991. Mr. Madalipay testified that he knew the appellant and had the opportunity to observe him. Mr. Madalipay stated that the appellant had difficulty breathing “after his arrival at our place,” and that this was not consistent with the appellant’s preservice condition. Ms. Magbual testified that she also knew the appellant, and had the opportunity to observe him “after he arrived from Okinawa.” She noted that
his condition was “very bad.” Finally, Ms. Gampong testified that she too knew the appellant, and stated that upon his return from service, the appellant “started complaining about his asthma.” Layno supra.

Everything might have gone swimmingly if the testimonials had all dealt with only observable symptoms.  If you remember the Espiritu v. Derwinski decision, Jovita Espiritu ran into this problem, too. VA really gives the hairy eyeball to these things when everyone but the village idiot queues up to testify with sworn affidavits.

https://asknod.wordpress.com/2011/09/28/cova-espiritu-v-derwinski-no-lay-doctors/

Mrs. Espiritu and several of her neighbors tried to diagnose her dearly departed husband’s diseases themselves without benefit of any medical training.  There were other issues like too many death certificates whereas here, the whole peanut gallery was donning surgical gear and stethoscopes. Caluza tried to improve on this, but that is another story.

Notwithstanding a prior history of COVA jurisprudence in this same vein, Benito has now became the poster child for the observable symptoms precedent. Look at how many choices history could have cited to:

Specifically, this Court has held that lay testimony is not competent to prove a matter requiring medical expertise. Fluker v. Brown, 5 Vet.App. 296, 299 (1993); Moray v. Brown, 5 Vet.App. 211, 214 (1993); Cox v. Brown, 5 Vet.App. 93, 95 (1993); Grottveit, 5 Vet.App. at 92-93; Clarkson v. Brown, 4 Vet.App. 565, 567 (1993). Thus, “lay assertions of medical causation cannot constitute evidence to render a claim well grounded . . . .” Grottveit, 5 Vet.App. at 93. Layno supra

Why is that? Why was it Mario, Jovita and Benito were maligned (and lost to boot) with the sobriquet of  “suborned testimony” and not Fluker or Cox above. Okay, I’ll grant you these two wouldn’t pass muster on the laugh test with the censors, but what of Moray, Clarkson or Grottveit?  In other words, why is it that some Johnny-come-lately to the  “My friends are all doctors” argument gets top billing in spite of his loss? Does Layno roll off the tongue better?

There’s more at work here and I detect the subtle aroma of racism. Either that or they’re all reading from the same play book. While the decision doesn’t specifically identify the location, I’m going to venture out on a limb and theorize Benito’s Agency of Original Jurisdiction (AOJ) was Manila. We know for a fact that Mrs. Espiritu and Mario Caluza filed there. Perhaps the Manila, Philippines VARO has a higher number of “questionable” claims than others.  I think it’s only fair to reveal that the VA has been doing this since the War of Northern Aggression in 1865. They have the same Cliff Notes book on Excuses and Ploys for VA Claims©.

The fact remains that poor Benito struck out. Not only that, the Court went further; they vacated the denial and remanded it back to the BVA. The reason? Why, because the neighbors flunked the Espiritu audition and that the claim was not well-grounded from the get go.

Layno’s teaching moment, as we see in innumerable denials currently, is that you (and your friends) may only testify as to what can be observed by the five sensory organs of sight, smell, hearing, touch and taste. Anything more will be thrown out with the baby’s bath water. Exceptions are if your best friend and hunting partner happens to have an M.D. after his name. Then you are in high cotton and can ignore the above.

Meet Benito and his band of doctor buddies:

Layno_92-353

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