Fed. Cir.–CUSHMAN v. SHINSEKI–DUE PROCESS

Posted on February 3, 2012 by asknod

There has been much talk about what constitutes “due process” and a lot of it has been misleading. While perusing another Vet’s site, I noticed a long diatribe about what was reputed to not be due process and Cushman was cited. Let’s look at this.

http://www.vdpi.org/Fed-Circuit-Decision.pdf

Here are the particulars from the decison:

Philip Cushman served in a United States Marine Corps combat infantry battalion in Vietnam during the Vietnam War. While he was fortifying a bunker in Vietnam, a heavy sandbag fell on Mr. Cushman’s back and damaged his spine. He was honorably discharged in January of 1970. Mr. Cushman underwent four spinal surgeries to treat his injury and has received continuous pain medication.

In October of 1974, Mr. Cushman filed a disability claim with the Department of Veterans Affairs (“DVA”) at the Portland Regional Office. Following three years of interaction with medical examiners and Adjudication Officers at the Regional Office, the Board of Veterans’ Appeals (“Board”) found that Mr. Cushman’s injury was service connected, and classified his symptoms as “pronounced” (a grade above “severe”) with “persistent symptoms” and “little intermittent relief.” See 38 C.F.R. 4.71a (1982) (diagnostic code 5293). Mr. Cushman received a 60% disability rating, which is the maximum scheduled rating for a back injury.

Mr. Cushman secured a job as a manager at a flooring store. The job required some bending and lifting work, as well as supervision and paperwork. During his time on the job, Mr. Cushman’s back condition worsened. Mr. Cushman avoided sitting and standing at work whenever possible. During his last few months at work he would typically lie flat on his back behind the store counter to fill out paperwork and whenever it was not necessary to move around. In November of 1976, Mr. Cushman was asked to resign his position at the warehouse due to his inability to perform his job duties.

In October of 1976, Mr. Cushman went to the Portland DVA Outpatient Clinic to have his condition reassessed. Records from that visit diagnosed him as having a postoperative ruptured intervertebral disc, with radiculopathy and degenerative joint disease affecting his lumbar and lumbosacaral spine. In November of 1976, when Mr. Cushman resigned from his job, he returned to the DVA Outpatient Clinic for another assessment. This assessment, dated November 15, 1976, was the last entry in Mr. Cushman’s medical record {576 F.3d 1293} before his files were sent to the Portland Regional Office. The last comment in the record stated, “Is worse + must stop present type of work.”

Mr. Cushman filed a request with the DVA for a total disability based upon individual unemployability (“TDIU”) rating in May of 1977. With his request, Mr. Cushman included a letter from his former employer explaining that Mr. Cushman could not continue to work at the flooring store because he was always lying on his back to do paperwork. The following July, the Regional Office denied Mr. Cushman’s claim without obtaining his medical records. Mr. Cushman appealed to the Board. In February of 1978, the Board vacated the denial and remanded the case to the Regional Office with instructions to consider medical evidence in evaluating Mr. Cushman’s claims…..

Mr. Cushman requested reevaluation and a TDIU rating in 1994. He returned to the Outpatient Clinic for another assessment of his back condition. Based on the medical record of that visit, the DVA found him to be incapable of substantially gainful employment, and granted his TDIU rating. Mr. Cushman has received TDIU benefits since August of 1994.

In April of 1980, the Board affirmed the decision of the Regional Office. Although the Board did not cite any particular evidence on which it relied in making its decision, the Board concluded that “the evidence fails to show the presence of symptomology which would preclude sedentary employment.” The medical record before the Regional Office and Board, however, differed from the medical record on file at the DVA Outpatient Clinic. Namely, one of the doctor’s entries had been altered to change the language “Is worse + must stop present type of work” to instead read, “Is worse + must stop present type of work, or at least [] bend [] stoop lift.” (emphasis added, brackets indicate illegible or stray marks). The altered record also contained the additional entry, “says he is applying for reevaluation of back condition,” which does not appear in the official record on file with the Outpatient Clinic. The alterations appeared in the last, i.e., most recent, doctor’s notes documenting Mr. Cushman’s condition.

RUH-OH, RORGE.

Mr. Cushman first discovered that there were two versions of his medical record in October of 1997. Mr. Cushman went to the DVA hospital to review his records in preparation for another hearing before the Board, this time seeking an earlier effective date for his TDIU rating. He also reviewed the record from his prior proceedings before the Regional Office and Board. He noticed that the medical record {576 F.3d 1294} attached to his claim adjudication did not match the medical record on file at the DVA hospital. The file at the DVA hospital contained only the original, unaltered document.

Mr. Cushman wrote to the DVA about the discrepancy between the two versions of his medical record. The DVA conducted an investigation that confirmed that Mr. Cushman’s medical record had been altered. In response to Mr. Cushman’s inquiry, the Chief Executive Officer of the Portland Regional Office sent Mr. Cushman a letter in which he acknowledged the discrepancy between the two medical records, and explained that the DVA was unable to locate the original (wet ink) record among its files. He also apologized that the DVA was unable to “arrive at a reasonable explanation” for the nonconforming records. He confirmed that the official record is the one without the additional entries. The DVA instructed the Portland Regional Office to destroy all copies of the altered document in Mr. Cushman’s file. The Office of Inspector General opened an investigation for fraud, but closed it three weeks later as unsubstantiated, two days after receiving the DVA’s response to the complaint.

Upon learning of the nonconforming records, Mr. Cushman challenged the Regional Office’s 1977 decision, and the Board’s 1980 and 1982 decisions as containing clear and unmistakable error (“CUE”). He argued that those decisions were based on medical records that were improperly altered to understate his disability. In February of 1999, the Board denied his claim on grounds that the 1977 decision was subsumed by the 1980 and 1982 decisions by the Board. The Board did not address Mr. Cushman’s argument that the 1980 and 1982 decisions imported the same CUE.

Mr. Cushman timely appealed to the Veterans Court. In November of 2001 the Veterans Court affirmed the Board with respect to the 1977 decision, and found that it did not have jurisdiction to review the 1980 and 1982 decisions because Mr. Cushman did not properly raise a CUE claim for those decisions.

Meanwhile, Mr. Cushman filed a civil action in the United States District Court for the District of Oregon regarding the denial of his social security disability claim. The district court remanded Mr. Cushman’s case for further evaluation by the Social Security Office. Mr. Cushman appealed to the United States Court of Appeals for the Ninth Circuit. In April of 2006, the Ninth Circuit reversed the district court and remanded his disability claim for immediate payment of benefits. The Ninth Circuit also found that Mr. Cushman’s medical record had been “fraudulently altered” and remanded the claim to determine whether he was entitled to retroactive disability benefits from an earlier date. Cushman v. Soc. Sec. Admin.,   175 Fed. Appx. 861, 862 (9th Cir. 2006). In August of 2007, the Social Security Administration Appeals Council (“Council”) reconsidered Mr. Cushman’s claim and found that he had been continuously disabled since February of 1976. The Council extended his benefits accordingly. Cushman v. Shinseki (2009)

Now we step up to the meat of the due process argument.

Mr. Cushman asserts that he was denied a full and fair hearing on the factual issues of his claim due to the presence of the altered medical record. Mr. Cushman therefore raises a genuine issue of procedural due process under the Fifth Amendment to the Constitution. Cf. Pierre v. West,  211 F.3d 1364, 1367 (Fed. Cir. 2000). We find that this court has jurisdiction to resolve the due process issue in deciding his claim.

In order to allege that the denial of his claim involved a violation of his due process rights, Mr. Cushman must first prove that as a veteran alleging a service-connected disability, he has a constitutional right to a fundamentally fair adjudication of his claim. The right to due process of applicants for veterans’ benefits is an issue of first impression for this court.

The Due Process Clause of the Fifth Amendment guarantees that an individual will not be deprived of life, liberty, or property without due process of law. U.S. Const. amend. V. Due process of law has been interpreted to include notice and a fair opportunity to be heard. See Mullane v. Cent. Hanover Tr. Co.,   339 U.S. 306, 313,   70 S. Ct. 652,   94 L. Ed. 865 (1950). To raise a due process question, the claimant must demonstrate a property interest entitled to such protections. Richard v. West,  161 F.3d 719, 723 (Fed. Cir. 1998).

It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker,   472 U.S. 115, 128,   105 S. Ct. 2520,   86 L. Ed. 2d 81 (1985); Mathews v. Eldridge,   424 U.S. 319, 332,   96 S. Ct. 893,   47 L. Ed. 2d 18 (1976). The Supreme Court has not, however, resolved the specific question of whether applicants for benefits, who have not yet been adjudicated as entitled to them, possess a property interest in those benefits. See Lyng v. Payne,   476 U.S. 926, 942,   106 S. Ct. 2333,   90 L. Ed. 2d 921 (1986); Walters v. Nat’l Ass’n of Radiation Survivors,   473 U.S. 305, 312, 320 n.8,   105 S. Ct. 3180,   87 L. Ed. 2d 220 (1985); Peer v. Griffeth,   445 U.S. 970, 100 S. Ct. {576 F.3d 1297} 1348,   64 L. Ed. 2d 247 (1980) (Rehnquist, J., dissenting).

The Supreme Court has, however, offered guidance relevant to our resolution of this question by explaining, “‘[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire’ and ‘more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.'” Town of Castle Rock, Colo. v. Gonzales,   545 U.S. 748, 756,   125 S. Ct. 2796,   162 L. Ed. 2d 658 (2005)

We now turn to the issue of whether Mr. Cushman acquired a due process right in his claim for benefits that was violated by the process he received from the Portland Regional Office, Board, and Veterans Court. 2

When Mr. Cushman was injured while serving in a United States combat infantry battalion in Vietnam, he acquired a legitimate claim of entitlement to veteran’s disability benefits under 38 U.S.C. § 1110 et seq. Applications for benefits cannot be denied unless the DVA factually determines that the applicant does not suffer {576 F.3d 1299} from a disability originating from service. Id.

The government asserts that even if due process attaches to veteran’s benefits, Mr. Cushman received adequate process, citing his multiple hearings before the Regional Office and appeals before the Board, Veterans Court, and this court. The sheer number of times that Mr. Cushman has appealed the denial of his claim, however, is not relevant to the question of whether he has ever received a fair hearing. The initial determination of Mr. Cushman’s TDIU claim was tainted by the presence of an improperly altered document. That initial determination has been subject to nothing but deferential review, on a record that still contained the altered document. The source of the fundamental unfairness that tainted the initial evaluation of Mr. Cushman’s claim was never removed from any prior proceedings. Therefore, none of the subsequent appeals and rehearings that Mr. Cushman received satisfied his due process right to a fair hearing on the merits of his disability claim.

We find, in this case, that the presentation of the altered medical document was indeed prejudicial. The Regional Office was instructed by the Board on remand to consider medical evidence in determining Mr. Cushman’s employability. The altered document was the only piece of medical evidence that addressed Mr. Cushman’s then current employability. The substance of the alterations spoke directly to the type of work that Mr. Cushman could perform in light of his progressing disability. Although, as the government argues, the Regional Office and Board did not discuss which evidence was determinative, any reasonable fact finder would have at least considered the altered medical record under these circumstances. The content of the altered document indicated that Mr. Cushman was more employable than did the content of the unaltered document. We find that there is a reasonable probability that the result of Mr. Cushman’s TDIU hearing would have been different in the presence of the unaltered document instead of the altered document.

Accordingly, consideration of the altered document instead of the unaltered document in adjudicating Mr. Cushman’s claim was a violation of his constitutional right to a fair hearing. Mr. Cushman is entitled to a new hearing without the presence of the altered document. We therefore vacate the decision of the Veterans Court and remand the case with instructions to further remand to the Board for a de novo determination of Mr. Cushman’s 1977 TDIU request.

Mr. Cushman went on to assert CUE but that wasn’t necessary. Once the Court has found fault with the decision in any regard, secondary accusations of impropriety are superfluous. In fact, by not addressing the relative merits of CUE in great detail, it will preserve his right to argue those on another appeal.

So, what have we learned from this vis a vis due process. It is a right accorded us under the Fifth Amendment. We are entitled to present our case based on the true state of the evidence. Falsifying or in any way obfuscating it provokes a tainted decision. Regardless of whether Mr. Cushman’s argument had judicial merit or held water, by including evidence that simply wasn’t true and refusing to remove it, the RO, the BVA and the CAVC all continued to step on their neckties by ignoring due process.

Since this is such a new venue to argue in Veterans law, it causes confusion as to whether it can even enter into the discussion. Where, as here, it has such tremendous import to a fair adjudication, the old “Well, gee. Cushman wasn’t disenfranchised. He got to have it looked at three times” doesn’t cut it. That is what the boys up at the Fed. Circuit enunciated. Any set of circumstances in law, even VA law, that creates an unlevel playing field for the Vet, is of concern. Under the best of circumstances we often do not prevail because the evidence has been lost, misplaced or, God forbid, destroyed or altered by those entrusted with it. For the VA to profit from this or assert that it would not manifestly have changed the outcome ignores the concept of a veteran friendly environment where every consideration is accorded the Vet.

Mr. Cushman was disenfranchised in 1977 and did not discover the malfeasance until 1997. VA somehow feels that this means finality has attached. I can commiserate with him. I went to a BVA decision in 1992 assuming they would remand for my missing service  medical records. I lost and did not discover they hadn’t until I got my C-file in 2009. Retrieving service medical records is not optional. If, for whatever reason, they fail  to do so, the VA is required to come to you, hat in hand, and ask how you wish to proceed. Failure to cure this deficiency is also a due process violation because the absence of records is just as insurmountable as altering them.

Veterans benefited from this decision immensely and will start to make inroads into VA law as this tenet gains purchase. My hope is that the higher courts will eventually overthrow Caffrey as being apposite to due process. An incorrect record, due to VA intransigence or indifference, cannot be classified as an incomplete record without the codicil attaching as to why it’s incomplete. The precedent cannot be immutable. There will always be a “Yeah, but…” moment where failure to obtain these probative documents is the seminal cause for the error. Always remember that catchy phrase “Veteran friendly” and don’t lose sight of it.

Like the venerable American Express card, we  never took off without one of these on board. They kick like a .338 Win mag. The strap makes a very good impromptu tourniquet as well.
Posted in CUE, Fed. Cir. & Supreme Ct., From the footlocker, Important CAVC/COVA Ruling, Tips and Tricks, Veterans Law | Tagged , , , , , | 2 Comments

WGM–THE SAGA CONTINUES

Posted on February 2, 2012 by asknod

Nothing floats my boat like the realization of a long overdue rating after a series of snafus. By now, I’m sure a large number of you are aware of WGM’s unfortunate travails with the Houston RO. We are told that CUE is so rare that one hardly ever sees it anymore. We are told that our claims will be adjudicated in 187 days, but they would hope in the future to see it done in 125. In sum, we are told myriad things by the Agency entrusted with our welfare. Some true, some not. WGM chose to believe me and adopt my modified Dave Del Dotto cash flow system. It seems his faith was rewarded. He is now the recipient of $2924.00 for life.

Mr. M, using the Texas Department of Veterans Affairs, put up one of  the most  spirited, well-assembled  jet  gun claims on record. The VA ignored him and found conclusively that it was caused by STDs in service. This was their whizzbang doctor’s nexus, not Mr. M’s. Hell, he had four saying it was the jetguns. VA denied him in the face of all that based on STD’s being willful misconduct. Apparently in their haste to deny, they overlooked the fact that clap and tattoos aren’t Bozo No-Nos. A painful retraction was due after the filing of his NOD. Since they’d already stepped in it, they continued with the poop on the shoe and granted him SC. Unfortunately, they didn’t give him his two scoops of ice cream on the cone. Mr. M came back for remedial Asknod counseling  and then asked for an increase. Bingo.

WGM is in the same league as me and his health is not conducive to doing the Dolly Parton 9 to 5 routine. He more than meets the “near-constant debilitating symptoms” needing prescribed bed rest. Today he received his 100% rating -one month and sixteen days from filing. So of course we are all wondering here at the NOD command post if he’s going to ask for an earlier effective date.  It’s also time to start filing for the secondaries. That will be somewhat anticlimactic compared to getting his 100%. He joined the other 392,000  effective Nov. 2011.

I have WGM’s files here awaiting sanitary treatment but have been in the medical mode for most of January. I promise to put them up on their own posting such that Vets can download or obtain them soon.  They are a piece of work and that is a masterpiece of understatement.

If any of you in the Houston area are looking for a red hot VA representative for your claim, I would suggest you contact WGM and get the gentleman’s particulars. Better yet, move to Houston and ask him to rep. you.

Please, ladies and gentlemen Vets-a well-deserved round of applause for a man who followed the plan. It works. As impossible as it sounds, these techniques work. This is more fun than fishing with dynamite and it doesn’t cost as much.  Let me put that in perspective-it doesn’t cost you and me that much. It’s a whole different story for the boys down at Vermont Ave. NW in D.C.  There’s no joy in Mudville tonight. Mighty Uncle Victor struck out.

Here’s the original lowdown on WGM’s fight.

https://asknod.wordpress.com/2011/09/30/the-power-of-one/

Posted in All about Veterans, Tips and Tricks, vARO Decisions | Tagged , , , , , , , , , , , , | Leave a comment

LETTUCE DEPRESSION

Posted on February 2, 2012 by asknod

4584199128_0252bf6dcaI am sure you, my fellow Veterans, are aware of this phenomenon by now. If not, forewarned is forearmed. We have all read of the large numbers of Veterans returning from the latest wars with horrible cases of depression stemming from PTSD. In addition, it has been reported that as many as 18 souls are committing suicide a day. Apparently, the VA is slowly getting the message. Slowly as in they hope to have it down to 16 by this time next year.

New programs to plaster over the problem are trotted out weekly. The VA talking heads call in the media and give long-winded explanations of how this will no longer be a problem as soon as the new alphabet-lettered program is instituted and up and running. I anticipate it will have a spiffy name like ACTION ( Agency for Controlling Tenacious Individuals Overtly Negative) or its like. There must be an office full of media flacks who do nothing but dream up these acronyms.  This is all well and fine but will do nothing to alleviate war and its attendant fallout.

Governments are very adept at dreaming up catchy acronyms with repair orders and short on eliminating the reasons for them in the first instance. Being a builder for years, if I discovered a flaw in the way we were building a house, I would take great pains to avoid or reconfigure how I did it. Sometimes this costs more money up front. If the change eliminated a callback for repairs, it was a godsend and improved my bottom line. Government types are forward thinkers. They don’t look back and analyze what’s amiss. They also don’t have to operate at a profit.

So what should I encounter on my latest visit to the VAMC last week? Why, nothing less than a complete psychological mini-workup by the temperature and BP queen. When you show up for the appointment, they do the vitals and then send you back for the one hour navel contemplation period in the waiting room. A side note on the waiting room-did they take a lot of chairs out or are there more patients suddenly? It’s getting harder to find a seat now. In fact, down at the lab it’s standing room only these days.

Back to brain shrink. As I said, the Blood Pressure queen threw a new wrinkle in this time. Well, Actually I started it. I let her take my BP on my left arm. It was damaged by a PICC line install at the hospital in 2009 where I spent my one year staycation.  Any pulse and BP taken on that arm are wildly inaccurate now. It’s fun if your bored. I was. People look at me and ask if I’m feeling okay. I’ll play along and ask why innocently. They’ll tell me my BP is 85/60 and they can’t get a pulse. They then ask things like if I have fallen down or been in an auto accident recently.  They also ask you to roll up your sleeves and look for tracks associated with IVDU.  They also like to check your pupils for excessive dilation with a flashlight.

This time, after the BP trick, the lady asked me if I had been feeling depressed lately. I thought it had something to do with the low BP so I told her yes. I was extremely depressed about the progress of my lettuce in the greenhouse and how the weather of late had been atrocious. She started scribbling on the medical record.  Without looking up, she then asked “Have you had any suicidal ideations or thoughts about harming the lettuce?” I thought she was playing along with me on the joke. Wrong. The dye was cast no matter how I explained it, I was now labeled “depressed”. She wrote a lot more while I laughed and explained weather and lettuce.  She stopped writing,  looked into my eyes and said “Depression is no joking matter, sir.”  If you go to the VA in the future, remember this. They may have a straight jacket with your name on it if you make a mistake. I was lucky. Lettuce can’t call 911 and report you for abuse.

This notation carried into the doctor’s office.  If any of you haven’t noticed, this is a lot like going to see your service officer at the VSO. He started with “And you are here  because…?” I truthfully answered that VA had called me and scheduled this through the new PACT dealiebob. I could see the gears meshing in his mind as he rapidly scanned the computer for some clue as to who and why I was. Finally he had the epiphany and then squinted one last time. “Well, tell me about this depression thing”. After  bemoaning the recalcitrance of my bib lettuce and Romaine to propagate, I told him I was good to go on the mental thing. Wham! “Depression is no laughing matter, Mr. Nod.”  I wonder how many years of penance this will cost me? Even money says there’s a notation in there that says “Mr. Nod is clinically depressed and frequently makes jokes about it in order to cope with it. He was also adjudged anti-social with passive aggressive tendencies and bears watching.”

The good news? No mental problems. The bad? Cryoglobulinemia is kicking my ass and taking names. My LFTs are way up again and I’m having thought about harming eating my lettuce. Of course, if the VA doesn’t hurry up and grant my claim back to 94 or 89 I will be depressed. I want to get the foundation poured in the back yard for the pool house and pool. I have been putting that off for almost a year.

Posted in Humor, Uncategorized | Tagged , , , , , , , , , , , , , , | 4 Comments

BRAIN DEATH

Posted on February 1, 2012 by asknod


Stick Deodorant

 

I got a new stick deodorant today.

The instructions said: “Remove cap and push up bottom.”

 

I can barely walk, but whenever I fart the room smells lovely.

Posted in Humor, Uncategorized | Tagged , , | 2 Comments

VA BACKLOG DISSIPATING (SOON)

Posted on January 31, 2012 by asknod

On my morning hike (100 yards) to the mailbox for the paper, I am always accompanied by my able-bodied PDAs. That would be the 4 personal dog assistants and the new kitty who mistakenly believes she’s actually a canine. With no cat role models, Ambush is condemned to assume that everything on my property are dogs except the horses.

This morning I pulled the paper out and was greeted by “BACKLOG OF DISABILITY CLAIMS SWAMPS VA”. This was apparently just discovered by the mainstream media. Nobody from AP or UPI consulted the 3 million Vets who are sitting around watching Drew Carey and dying or contemplating suicide. This news morsel emanated from the fertile brain of Steve Vogel, a correspondent for the Washington Post. Considering he’s a stone’s throw from 810 Vermont Ave. NW, I am amazed he wasn’t all over this like white on rice sooner. This is like living in Dallas and just finding out someone assassinated John F. Kennedy.

He is quite the sleuth  judging from the article. He has reasoned that this must be due to Veterans returning from the SWA Olympics and compounded by the VA’s recently “liberalized” rules for Vietnam Vets to file AO related claims. Hoo-ha! Actually the VA has never made it difficult to file any claim, but he thinks the process may have been more arduous in years past. If he’d left an email after his name, I’d enlighten him. Perhaps I could post on his wall or sign him up for my tweets.

He states that the number of “pending” claims before the VA stood at 853,831 on Friday last. He thinks this is a net increase of 100,000 more claims than last year and up 500,000 from three years ago. Another interesting factoid was that although VA “processed” over a million claims last year, 1.3 million more were filed during the same period.

Additionally, of the 2.2 million veterans fighting the Raghead Uprising, 624,000 have filed claims and many more are expected. Hold the phone, Joan. More claims are expected? What about the million or so who have probably filed and whose claims lie unopened (and “unprocessed”) in the VA’s RO mailrooms across our fruited plain? Mr. Vogel also has it on good authority that 200,000 Vietnam “War” Veterans have filed claims since VA made it so easy to get compensation for AO.  The man is clairvoyant. He  adduced this all by himself.

He goes on in this breathtaking expose to reveal the VASEC  “launched a department-wide effort to break the backlog, according to agency officials.”  He points out the two billion dollar increase in funding (20%) is going to “accelerate services for Veterans“. These same agency officials have stated that going to a paperless claims processing system “will take months out of the process”. Months as in plural, mind you. It makes my head spin. This new paperless concept will embody “cutting edge information technology”.

Allow me to give Mr. Vogel a little accumulated knowledge from the other side of the pasture. I have illuminated some things here in red to make it easier for me to find them again. VA has never liberalized anything except their pay scale. They may have finally started explaining what they require and telling us, but that’s a far cry from the verb liberalize.

Let’s take the word “processed”. In order for a word to have meaning, we all must be able to define it the same way and agree on it. VA uses “processed” to mean received- perchance in the “process” of being adjudicated. It does not imply finality. More importantly, this terminology does not encompass claims in the development “process”, denials in the “process” of being appealed, appeals in the “process” of being remanded to correct errors, or other partially complete claims in one “process” or another.  We have more claims in other “processes” combined than what arrived last year. Were Mr. Vogel to count these it would better reflect this nagging “backlog”. I liken this to the art form of counting the unemployed. Once you quit looking, you are no longer unemployed. When your unemployment paycheck time limit runs out (99 weeks) you are-yes- no longer unemployed.  Were we to truly count the “unemployed” the currently touted 8.5 % would be closer to 25%.  That agrees with what I see out there every day.

You will notice the past tense form of the word “launch” as in, to inaugurate or introduce a new program. VA knew the wars in SWA were going to generate vast quantities of injured and maimed. They also were the progenitors of the new, “liberalized” rules for Vietnam Vets vis a vis AO. This was as predictable as flatulence after consuming baked beans.  How can they be stupefied to suddenly discover this is causing a backlog?

As for ” accelerating the process”, here again we run afoul of semantics. Where we were traveling at 20mph in a school zone, we are now accelerating up to the heady speed of 22mph. Helmets and protein pills are in order. We are on the cusp of witnessing a sea change in the way claims are processed. No longer will this take 3 years, fellow Veterans. No, we’re talking on the order of two years and nine months and perhaps several days less than that.

If VA does away with paper files, I guess you could characterize it as “cutting edge technology”. After all, ball point pens were once cutting edge-as were typewriters. It’s all in the description and the phrase employed. Being the only government entity in D.C. still clinging to 19th century quill and ink pot, any innovation can be touted as cutting edge without stretching the concept of the truth.

If we all gather here next year at this time and compare notes, I wonder if  the term “backlog” will issue from anyone’s piehole? We Vets have been ordained Emperor and forced to wear nothing while being told we are wearing finery suitable for Kings. This imaginary fig leaf doesn’t comport with the “process” we hear redefined constantly. Trimming months off a decade-long claim and calling it a watershed event somehow seems a little bit overdone.

Words are amazing  devices for conflusticating reality. I look forward to more entertaining VA  faery tales in the future. We may soon read that seven dwarves named Denial, Never, Speculative, Construe, Soc, Ssoc and Noa have been hired as VA examiners and are busy chopping even more months off our claims.

You will notice Soc is holding his hand up in the well-known “V” for Veterans. You may also notice that I had a molar pulled by VA today and this post is heavily influenced by morphine.

 

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

Bristol Meyers Touts New Oral Antiviral Treatment

Posted on January 30, 2012 by asknod

Check this out. It’s hot. I know its still not the cat’s pajamas, but it will help someone in the interim. A true non-interferon is what I’ve been hoping and waiting for. The only problem is it can’t be something that incites my autoimmune hyperdrive motivator.

http://www.hepatitis-central.com/mt/archives/2012/01/bristol-myers_g.html?eml=hepcen152

 

Posted in General Messages, HCV Health, Uncategorized | Tagged , , , , | 2 Comments

MEN LIKE AU CHOCOLAT TOO

Posted on January 30, 2012 by asknod

Unfortunately, guys also like white socks with brown shoes. Big belt buckles are often another trademark of men here in the west. I’m interested in the wallets with chains attached to the big belts with the big belt buckles. What’s that all about? Seriously, do you get  plowed so frequently that it’s become a problem in the past?  Is the Alzheimer’s so bad that you misplace it fairly regularly in bars? I’m just making an observation, mind you. I noticed them mostly on motorcycle enthusiasts over the years and assumed they vibrate out of your pocket while riding. Now I see them everywhere.

While waiting to have a blood lab drawn this morning I happened to look across the waiting room at another man in his sixties. I’m lucky. My hair is just starting to turn grey. This old boy has had a harder life than me or saw a ghost. He’s seriously grey. What was weirder was that his hair was combed straight forward-all of it. It’ wasn’t a massive comb-over to cover a receding hairline. It was a massive comb-forward with something like Dippidy-doo goo to approximate a new frontal boundary. The effect was like a frozen, artificial widow’s peak iceberg, but more disorderly. Nothing was going to hide the fact that the hair had lost and was retreating. A sudden gust of wind would treat him the same way it does Donald Trump. I hate that when that happens.

Fortunately, I have a minder. I’m sure you’ve heard of these. If you ever manage to get into North Korea for a little downtime, you will get to meet one. When you leave your State-assigned hotel, you are accompanied by a free “government-assigned tour guide”. They help you find all the good photo shots and steer you away from embarrassing ones.  In my case, it’s a spouse with good taste. I think she’s embarrassed to identify with me or that friends in town will call her and ask if she knows I’m out and about unchaperoned.

In the old days  BH (before hep), I was allowed to leave home to go frame houses in just about anything. Steel-toed boots don’t come in accessory colors. Blue jeans could be color-coordinated in paint and ABS glue with the sweatshirt du jour. T-shits were chosen for their messages. I found a magazine with all kinds of neat ones and ordered several without clearing them with Chipmunk. The best one (“If it has tits or tires, you’re gonna have trouble with it”) disappeared mysteriously after the first trip to the laundry room. I’ve never seen it again. The same gradually happened with others over the years.

Now, in AH (after hep) life, I find my significant other lurking in the hallway around the garage door when I leave. Occasionally she has had to step in my path and give me that oh-so-painful looking pout. That’s followed by the usual “Honey, would you at least go look at your hair in the mirror? You just can’t leave here looking like that. Where did you find that hideous sweater? I thought I threw that out.” (She did).

So the new Nod has recently been born. I now actually look at my blue jeans to make sure they aren’t “work” jeans. They can’t have any questionable (visible) spots on them.  If the blue jeans are brand new, then all the tags actually have to be removed before wear. The socks have to match the shoes. Why? I have no idea. It’s just one of the rules. No one looks at your socks. If they do, then they’re weirdos and perverted.

White tennis shoes are fine with white socks. I know this now. Cupcake just blows the ass gasket when the white tennis shoes aren’t completely white. I’m going to have to get some hi-gloss enamel and keep it in the garage to solve this one. Tennis shoes don’t get comfortable until they lose their luster. Men know this. They also know they don’t need ten pairs in exciting pastel colors. Quite recently I learned that you cannot accessorize shoes with duct tape. I thought it showed you were a rebel and proudly announced your independence. I stand corrected.

The sleeveless sweaters have all migrated to Goodwill when I wasn’t looking. My old, faded Lacoste polo shirts with the slightly worn collars? Gone with the wind. In their place are  new black, white and electric guacamole  celery green ones that seem to accessorize with her wardrobe-not mine. Why does my shirt have to match her purse? I can find nothing on the internet to support that hypothesis.

I don’t do blue. Blue was the color of my dress Air Force uniforms. It is a chapter of history that is closed. Why, then, do I find all manner of blue in the walk-in closet at my end now? I actually can’t remember when the last time I went out and bought clothes. Perhaps they reproduce by themselves? Well, come on. We have same sex marriage now and they even manage to have kids somehow. Anything’s possible.

I guess I shouldn’t complain. Now my daughter says things like “Whoa! Stylin’, daddy-o.”  I’m convinced my wife paid her to say it. I notice complete strangers or “store associates” at Home Depot don’t come up and say things like that. Perhaps they’re impressed, but are keeping their thoughts to themselves. I’d like to think they are full of envy because they don’t have my wife’s good taste in clothing. As for the hair? We’re still negotiating on that. With the way things are going, I’ll wake up some morning and discover it’s accessorized itself. That would solve so many problems.

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CAVC– KATH v. SHINSEKI–NO RETROSPECTIVE EXAMS

Posted on January 29, 2012 by asknod

images

Richard P. Kath filed for hep in 1978. As with most of us, he didn’t know the program and received a denial slip. He didn’t appeal, but it appears he refiled in 1980. He got the same treatment  from what little the record reveals. His 1980 C&P exam concentrated on his eye and heel complaints and didn’t address the liver issue.

Fast forward to 2000 and a new reopening of the hep claim. VA prevaricated for several more years and finally denied yet again. As luck would have it, a VA examiner in an October 2002 review of the evidence finally “got it ” and they granted him SC. We talk of the empty lollipop stick or the ice cream cone with two scoops of air frequently here. That’s exactly what Richard got- 40% from the date of his filing in August 2000. That’s more than most, but still doesn’t reflect the severity of his symptoms or address his earlier filings with basically the same evidence.

Richard, over the years, had reported credible symptoms of RUQP, gastrointestinal abnormalities and occasional jaundice. These are all symptoms that we are competent to observe and report on (Layno). VA. as is their wont, ignored him and said it was not supported by the medical evidence of record. He continued his quest for a higher rating and an earlier compensable date to no avail. In 2008 the BVA put a fork in it and said no way. They granted SC to 1977 at 0% and that was that. Hence the analogy to the empty lollipop stick.

Mr. Kath promptly filed his NOA like a smart fellow should and off to Indiana Ave. NW they went. VA immediately sought to take this away from the Court and bury it back down at Vermont Ave. NW. They succeeded. In 2010, it floated back up to the Court following another denial. What the Board had done was use the old “no evidence is negative evidence” ploy to deny a compensable rating. With this logic, Mr. Kath magically became very ill on the day he filed and not one minute before. This contradicts most medical theories on HCV but there you have it. If this were one isolated incident, it might be notable. Mr. Kath was probably the 120,001st recipient of VA’s ULUZ award.

Mr. Kath argued at the Board that he deserved a retrospective medical evaluation based on numerous factors, to include his lay statements. This was a reasonable request but VA, in an attempt to husband their financial resources, politely declined and spent it on souvenir coffee cups and ballpoint pens with the “for he who shall have borne the battle” logo. All those meet and greet performances cost money and Mr. Kath was simply being unreasonable.

Mr. Kath lost his argument that the October 2002 medical exam was not adequate. It failed because the exam was to determine if the hep was related to service and nothing more. Having solved the conundrum of the etiology, VA was not remiss in failing to discover the onset date. That’s analogous to the mechanic repairing and replacing a blown head gasket and not changing the oil. When you’re in the doctor’s office why not kill two birds with one stone? That concept is a hard one for VA to grasp, but they won it here nevertheless.

We finally see Mr. Kath get some traction when it comes to a discussion of his lay testimony. The Board’s decision was silent on this probative testimony. They use one of those circular arguments that says “Gee. Rich. You were healthy in 2000 because your LFTs were normal. Therefore we don’t have to go back any further even if it might show you were ill, right? We have all we need to make our decision here in front of us”. The VASEC’s minions do this frequently. What they are also fond of is explaining later, here at the Court, why they did what they did and that they simply forgot to put it in the BVA decision. No harm. No foul. If you’re interested, we’ll explain it here and now…

First, the Secretary highlights that none of the evidence cited by the appellant predates August 2000. Secretary’s Br. at 16. The Board, however, apparently based its determination that VA was not required to provide a medical examination in this case in part on a July 2002 VA document noting that the appellant’s liver function tests were normal. R. at 11-12. Therefore, because the Board determined that evidence postdating August 2000 could be used to determine whether a retrospective medical examination is necessary, an assertion that it need not discuss other evidence because it did not predate August 2000 or that such evidence cannot be relevant is not convincing. Moreover, since the Board chose to apply the July 2002 document against the appellant’s claim, in order for its statement of reasons or bases to be adequate, it should have discussed record materials that are potentially favorable. Caluza, 7 Vet.App. at 506.

Next, the Secretary attempts to mitigate the Board’s silence on the evidence cited by the appellant by explaining why that evidence is not sufficient to support the appellant’s arguments. Secretary’s Br. at 16-21. The Court, however, will not accept the Secretary’s attempt to provide a statement of reasons or bases on behalf of a silent Board decision. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action,
advanced for the first time in the reviewing court.”).  Kath v. Shinseki (2012)

Mr. Kath will get another bite of the apple and the VA will undoubtedly try to give him the bum’s rush yet again. Once again, our illustrious VASEC, through the shenanigans of his General Counsel, has attempted to mitigate VA’s less than perfect adjudication system. Coming into Court and trying to explain what your lawyers did and how they arrived at their decision is still not kosher. The time for that was 2010 and wallpapering over it won’t fly.

Once again, valuable judicial resources, which we are told are in short supply, will be expended righting another wrong. This will delay justice for another Vet patiently waiting his turn. It doesn’t seem to require a lot of intelligence to see why our claims system is mired in hopeless backlog. A cursory examination of this case shows the deficiencies. VA has one job in this respect-to develop and decide Veterans’ claims. They’ve been employed in this undertaking for over a century yet continue to make the same mistakes again and again. This wouldn’t seem so horrific if they just acknowledged the error and fixed it. By fighting tooth and nail all the way to the halls of the Court defending stupidity, they delay justice for all of us.

We all make errors in our everyday life. When identified, most freely admit them. Granted, there are the adherents of the Flat Earth Society and nothing will convince them otherwise. I suspect we would have no difficulty changing their beliefs if we were to launch them into space. VA, on the other hand, seems to think they have cornered the market on logic. Their abiding hope  is that one day the Court will agree with them on this post hoc rationalization technique. Converting souls to your cause at the Court must be predicated on law-not excuses and tortured explanations.

Meet Rich Kath- a smart cookie with the bug.

Kath HCV vacate and remand

Knowing the intractible nature of the BVA, my money is riding on another denial based on a new review and exam. Richard will have more grey hair before he sees a paycheck. He’s asking for a glorified Fenderson rating (with compensation) from 1977 forward and VA wants to commence the financial clock in 2002.

Fast forward to January  2015.  And sure enough, here comes Rich Kath again with the typical VA Bum’s rush. Now that they have given him his 1977 date they are forced to abide by the VA’s Schedule of Rating Disabilities or VASRD in effect in 1977. DC 7354 didn’t exist until July 2001 and the old DC 7345 was far more liberal back in those the days. I, too was rated under it when they granted my EED to 1994.  Detroit’s VA raters refuse to go back that far nor does the M21 computer seem to want to comply.

One thing his VA agent may have overlooked in this retrospective C&P examination would be to send Mr. Kath out for a Fibroscan to determine exactly what stage of Hepatitis he’s in between Stage 0 and stage 4 as of today. This will definitively determine the age and the severity of his debility retrospectively. Hepatitis advances in stages of ten years when using the common Metavir scale. Thus, if he contracted it in 1975, he would ostensibly be stage 1 in 1985, 2 in 1995 and in 3 by 2005. By now, he’s pushing the far side of 3 like me which is technically 100% assuming he’s not good at describing his symptoms. Hey, he’s not a doctor. Why should he be held to the standard? Because VA has screwed this up, the best thing is to waive review in Detroit and give it to the AMC for a rating. They’ll do the Pontius Pilate hand washing and give him 100% from 1990 and be done with it simply to get it off the books.

Nevertheless, the Detroit RO continues to step on their neckties and use the new DBQs reflecting all the newer DC 7354 percentages. Twice now the Acting VLJ, William Yates, has sent it back with a stern remand. This time it’s couched in either/or format so even the village idiot can digest it…maybe. Old Rich is going to be due for a Writ to beg the Court to effect his remand if Yates can’t get this back on track.

We are all condemned to this hamster wheel unless or until intelligent life forms begin to populate the Veterans “Service” Centers across the fruited plain. Until then…

 

small-farmers.inferior correct jpg

Lord help us.

Posted in BvA HCV decisions, C&P exams, CAvC HCV Ruling, Earlier Effective dates, Important CAVC/COVA Ruling, Remanded claims, VA Medical Mysteries Explained, Veterans Law | Tagged , , , , , , , , , , , , , , , , , | 4 Comments

Will Electronic C-Files Reduce VA’s Errors?

Posted on January 28, 2012 by asknod
Posted in All about Veterans, General Messages, polls | Tagged , , | Leave a comment

VA –PAPERLESS CLAIMS BY 2015?

Posted on January 28, 2012 by asknod

Tom Philpott had an interesting article about our claims plight in this morning’s paper.  I attach the link but have no faith in VA to honor this commitment;

http://www.military.com/Opinions/0,,Philpott_Index,00.html

VA told us in 2009 that they would be cranking these things out in 125 days or less from date of claim. Then the excuses started. The large influx of AO Vets with IHD and hairy cell leukemia, etc. followed. They saw this coming and did little or nothing. They hired about 11K FNGs and started the laborious process of training them for several years. When do they come on line? Look at Mr. Philpott’s numbers as quoted by the VA mouthpiece. 585K are a little outside the normal timeline of the 125 days by about six months or more.

The clear implication of this dog and pony show was to “acknowledge” once again that things are a little delayed and VA is unhappy with their performance statistics. Donning sackcloth and ashes does not camouflage the Rolex, the Armani suit and the Gucci loafers. Life is good down at the Puzzle Palace- make no mistake about it. The boys are working hard with the Neanderthal tools they were handed and this infernal paper system that was foisted off on them centuries ago after that nasty War of Northern Aggression.

Vets should look at this from our standpoint. We know they have computers. Witness the plethora of terms the Dial a Smile “technician” rattles off. “Yes sir. Well, all we have to look at here is the VACOLS computer. It’s not connected to VISTA or the WARMS computers.” Does that sound like a paper system? The M-21-A1 is now so complicated a rater cannot even read it. It, too, has become computerized to spit out a decision after all the incorrect info is uploaded.

With all this, these guys should have a dart board in the break room and be sipping IPAs by 1500 hrs. I make light of this, but even the Supreme Court of the United States knows these bubbleheads are wrong 60% of the time and go to extraordinary lengths to defend their errors. The old adage that you just need to throw more money at it to make it work may pay off here if it gets rid of the paper filing system. On the other hand, being the last agency of major proportions in D.C. to relinquish this antiquated system might have been planned. Do you realize how many more people they’ll need to hire and how many compatibility studies they’ll have  to do in order to integrate this spider web?

Smart money says to invest in computer stocks because this one is going to be a whopper. As for accomplishing this by 2015, I think someone has been concentrating aromatic aromas and sniffing them to get high. It took VA this long to get comfortable with the CAVC as an overseer. It has only been a blink of the eye since they broke the BVA of the habit of playing Ben Casey and Dr. Kildare.

The paper system will proliferate at the far corners of the RO empire for at least another decade. Sioux Falls and the office in Guam will be the last to switch over. Nevertheless, we welcome this long overdue touch of modernization. Perhaps we can turn the shredder rooms into ratings offices. In fact, with the elimination of all those acres of filing cabinets, scads of room will be available for even more personnel to keep up with the new tidal wave of injured vets from the latest Olympic games in SWA. This is simply a win-win for us. I wish I could live long enough to see it.

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