VA HOMELESS FIGURES– HOW BAD IS IT?

Posted on February 7, 2012 by asknod

Loyal sends us this from the Heartland of America. VA can hide nothing from this gentleman. If there is anything amiss in VAland he seems to smell it.  Here we have the typical VA “Meet and Greet” with the press and pray nobody reads the thing:

 

I find this article interesting, and revealing:

http://atwar.blogs.nytimes.com/2012/02/06/number-of-homeless-female-veterans-rises-sharply-report-finds/

 

According to Shinseki, his Veteran homelessness initiative is working.   http://www.military.com/news/article/shinseki-says-vet-homelessness-down-12-percent.html

 

Many Vets doubt his numbers.   It would seem odd that it “works for males” but not for females, who have had worsening homeless numbers.

 

More likely, is the VA “made up” the numbers to make it appear that Veteran homelessness is improving, while it is really getting worse, along with the claims backlog.

 

You can track the worsening backlog, here:

http://www.vba.va.gov/REPORTS/mmwr/index.asp

Living in the shadow of the Drew Carey RO, he hears and sees more than us. Years from now we will read that Loyal pioneered the original GPS  RFID document-tracking device to help him locate  the phantom Cleveland claim eater. I can’t wait for the book.

Posted in All about Veterans, General Messages, Tips and Tricks, vA news | Tagged , , , , , , | 1 Comment

TOO MUCH TIME ON MY HANDS

Posted on February 6, 2012 by asknod

Gentle readers,

Please never engage in idle threats via the internet. Besides leaving a nasty taste in the mouth, it also leaves an indelible trail back to you. Being cultured and above this type of boorish behaviour, I merely mention it so that you may observe the ugly consequences. It is one thing to be rude and crude. By being socially unacceptable, you will find yourself off the A list for cocktail parties.

http://www.justice.gov/usao/vt/press/releases/20120131_george.html

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

DUE PROCESS FOR VETS–WHAT IT IS AND WHAT IT ISN’T

Posted on February 5, 2012 by asknod

Ever since I published the Cushman decision, I have been inundated in “what ifs” from Veterans. As in “What if they didn’t grant the hearing I asked for-is that deprivation of due process?” etc. Allow me to take a CAVC decision that should never have seen a panel but nevertheless illustrates what Veterans can and cannot do to obtain justice under this (the fifth) amendment. The decision I  will use as an example,  Edwards vs. Peake(2008) is classic. Mr. Irwin J. Edwards is either dyslexic, has poor attorneys or suffers from “I don’t get it” syndrome.

http://www.uscourts.cavc.gov/documents/Edwards_04-1104.pdf

Even the dumbest of the dumb of us will eventually read the instructions on the back of the box or get out the Rand McNally atlas when things go awry. Not so Mr. Edwards. Apparently, he chooses the argument least effective by complaining that the instructions were a) not clear enough to interpret; b) not written at his level of comprehension; or c) designed to lure him away from filing in a timely manner (basically estoppel)

He therefore tries desperately to couch his argument in the Due Process clause. Let’s look at what this says, and perhaps more importantly, what it doesn’t say.

First a brief history of Mr. Edwards’  claim. He was a reserve or Nasty Guard because he had a limited active duty adventure lasting from 10/01/77 to 4/04/78. For those of you from Yorba Linda, that’s five (5) months and four (4) days. This is an extremely short time in which to contract a horrible, life-long mental disability. Several months later in July, 1978 he filed his claim. VA procrastinated and finally denied in August 1981. He failed to appeal. Not the least bit deterred, he refiled in July 1987. July apparently was his slow month business wise and he had more time to devote to this project. Most guys trying to finagle the government on this flimsy a claim would have the common sense to attend their dog and pony show. Not Mr. Edwards. The February date came and went and Irvin was a no show with no explanation. In March(1987), a month later, the RO obliged him with a brand new denial to frame with the old one.

Ten years later, January 14th, 1997 dawned clear and bright. Mr. Edwards felt suuuuper motivated and marched out to the mailbox with a request to reopen this neglected enterprise. July 1997 arrived (there are a lot of Julys in this) and the mail brought yet another denial. This time it was due to a lack of any new and material evidence with which to begin this. Back in the olden days when you filed for anything, you had to present something that supported the claim. Similarly, filing a 526 and saying “Here’s the address. Send the money”. wasn’t sufficient to begin the process. Each time you do this, you have to file with more new and material info. I suspect Irvie was plumb out of that product.

Nevertheless, he filed a NOD this time. After several years in the pre-appeal state and still at the RO, Mr. Edwards hornswoggled these old boys into 50% in March 1999. I have no idea what he used to get there and it’s certainly not germane to this discussion. Dissatisfied with his effective date of  the January 1997 reopening date, he filed a new NOD disputing it right after the RO grant. The appeal was certified and the game was on.

This moved to D.C. where the Board rightfully put a fork in it. Mr. Edwards opted to go up to the big house and got some momentary traction with a remand. Keep in mind the claim was doomed and all the trees being converted to pulp were not going to put Humpty Dumpty back on the wall. It’s axiomatic that an unappealed claim, absent prescient VA examiners, can’t have an earlier effective date. Trust me.

This minor inconvenience didn’t faze Irv in the slightest. Somewhere along the line he hooked up with a couple of law dogs that agreed to carry these empty pails of water. Which brings us to 625 Indiana Ave. NW.

This is the Court’s reasoning on Mr. Edwards’ precarious legal argument claiming a due process violation :

The Fifth Amendment to the U.S. Constitution provides that “No person
shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V. “[T]he Due Process Clause provides that certain substantive rights–life, liberty, and property–cannot be deprived except pursuant to constitutionally adequate procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). An essential principle of due process is that deprivation of a protected interest must “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). The Court reviews questions of constitutional interpretation de novo. See Buzinski, 6 Vet.App. at 365 (“VA resolution of questions of constitutional interpretation are questions of law, to which no deference is accorded and accordingly this Court’s review is de novo.”).


The appellant argues that he was not provided constitutionally sufficient notice because he was not informed “of the res judicata effect of failing to submit new . . . evidence within the one year period” following the March 1988 RO decision denying his claim for service connection for a psychiatric condition (schizophrenia). Appellant’s Br. at 12. However, “an appellant’s claimed lack of subjective knowledge does not as a matter of course deprive him of due process. Rather, the Court must inquire into the procedures that were employed in this case to determine whether they comport with the Due Process Clause.” Buzinski, 6 Vet.App. at 365. Edwards v. Peake (2008)

We pause here to cut down more trees for additional paper.

The RO notified the appellant of its decision on his claim (“We cannot grant your
claim for disability benefits.”) and the reason for its decision (“You failed to report for a scheduled examination.”). R. at 191. It included notice of the right to a hearing (“If you desire a personal hearing to present evidence or argument on any point of importance in your claim, notify this office and we will arrange a time and place for the hearing.”), and notice of the appellant’s right to initiate the appeals process by filing an NOD (“You can start the appeal process by filing a Notice of Disagreement.”). R. at 192. The appellant argues that this notice was inadequate because the RO “failed to set forth a time deadline for the submission of new evidence.” Appellant’s. Br. at 11. However, the March 1988 notice clearly advised him of the period in which an appeal must be initiated (“You may appeal our decision to the Board of Veterans[‘] Appeals at any time within one year from the date of this letter.”), and promised to provide further information (“If you decide to appeal we will advise you further as to your procedural rights as your claim progresses through the several stages of the appeal process.”). Edwards supra

As much as I dislike the VA and what it does to Vets, it seems the phrase “stuck on stupid” was coined for this fellow. VA is horribly anal about telling us what the time limits are for appealing anything. What they don’t do is call up like the dentist’s girl Friday and remind you that your appointment is tomorrow at 0900. I’m not implying they should. Perhaps a  little polite reminder would be nice.  Say “Mr. Edwards. We notice your time to appeal your denial of January of 87 is due to expire soon. Please  do not overlook this important date.”  Since that isn’t likely, purchasing a calendar and reading your denial thoroughly is in order. The Irvin’s of the world will never see or read this so writing it down is futile. If they won’t come to the D&P and refuse to reschedule when it is offered, it is safe to say their motivation is questionable.

Due process can be a simple mistake on VA’s part. In fact it is more frequent than we know. I shudder to think how many Vets are disenfranchised at the RO level  when it does occur and never know. If we are not permitted any meaningful legal representation at that stage (and VSO legalzoo.com doesn’t count), then we are often effectively denied a meaningful judicial forum no matter how artfully VA tells us we got one.

Always remember, when you get your denial, it is your initial opportunity for meaningful legal representation. I do not wish to demean VSOs or service officers with a broad brush. Apparently down in Texas they have real ones who care about their charges. A case may be made that they have good ones everywhere and I’m full of hot air. I speak only from the perspective of western Washington. It’s bleak out here in my blue state. I struck out as in 0/3 over a 20 year span. I feel that is ample proof to sustain my theory here locally. WGM is lucky he lives in Texas in my book.

Your teaching moment on Due Process is over. Get back to the Superbowl. I read that the amount of guacamole eaten today will cover a football field 6 feet deep. My abiding hope is that they put saran wrap down first and avoid walking on it. Bon appetit.

Posted in All about Veterans, Important CAVC/COVA Ruling, Tips and Tricks | Tagged , , , , | 1 Comment

Milestones–Gary Lupole

Posted on February 4, 2012 by asknod

It is with great sadness that I announce the passing of Gary Lupole, Veteran and husband of Patricia. She is, after all, the reason this site exists. She had the farsightedness to give me a voice in August 2008.

Gary fought VA long and hard for service connection and in the end, it eluded him. He was the quintessential Vet who took on the VA over jet guns, used lancets, unsanitary dental procedures, etc. There probably wouldn’t be a Risk Factors Questionnaire if it were’t for Gary.

Patricia put the message up on her facebook page several hours ago. I believe she needs our support right now. We all know this day will come for us non-responders. We know it will be much sooner than the time of our choosing, too. Gary was robbed of time and his health by a war. He came home and was robbed of his compensation. Now a grieving widow has been robbed.

Patricia has a business website that we all use to contact her. Email her and thank her for carrying the water for Gary, you and me all these years.

HCVETS@AOL.COM

Postscript… Here is what Gary has left us. It’s a beginning for many on a long journey.

http://hcvets.com/data/claim_statement.htm

I add this as a PostScript. I received it today( 2/9)

This is the link
 http://www.hcvets.com/includepage/MemorialFund.htm

Donations for Gary can also be mailed to:
Tricia Lupole
C/O HCVets.com Educational Website & Support Forums
110 Glover Cir
Staunton VA  24401

Posted in All about Veterans, General Messages, HCV Health, Milestones, Uncategorized | Tagged , , , | 7 Comments

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