BVA– MAGIC DISAPPEARING CLAIMS

Posted on January 20, 2012 by asknod

I’ve been at this for a number of years and once tried to keep track of how many Hep claims showed up at the BVA on appeal. I researched this for my own claim all the way back to 1992, which is as far back as the BVA’s online files go. I watched the number grow and grow each succeeding year until it was approaching  twelve or thirteen thousand. Last year (2011) something changed. All of a sudden you could only access the “top four hundred” as they phrased it. What? the rest weren’t important? Every claim is important to me. Each one can teach one something. To arbitrarily short sheet the table of contents seems a little suspicious so I decided to go back and see if anything else had been tampered with.

Ruh-oh, Rorge. Astro’s immortal phrase streaked through my mind. While there are now only 149 cases listed for 1992, the total number of documents listed is 664,549.  Moving to 1993,  there now are only 133 documents out of… hmmm, 664,549 total. Knowing there was something afoot, I moved forward a year and found 176 out of a total of…664,549 documents. Is it my conspiratorial nature to assume something is amiss? Can it be by a completely extraneous set of circumstances that Vets cumulatively file exactly the same number of claims and the denied appeal  in exact aggregate amounts identically each year?

When VA elected to abridge the listings, they also removed the search engine that instructed you to put quotes around a word to get exactly what you wanted and weed out the chaff. Gone. Why is this? As Roseanne  Rosannadana used to say “it  always goes to show it’s something!”  I suspect as much. The “something” apparently is an inartful attempt to camouflage reality. Limiting Vets’ search to just a paltry 400 claims of 11,875 possible seems somehow to be an attempt to restrict the flow of information.  Ah, yes. The old Veteran friendly, we’re your best friend, pshaw, what claims? Administration we have all come to know and love.

My daddy used to say when they’re shaking hands with the southpaw, you better be wondering what’s in the north one. While my brother Veterans’ help sites all hold firmly to the belief that the VA is your best friend in this business, you have to look at the statistics. When the same sites swear the VSOs are independent and have no truck with the VA, look where they get their paycheck from. I had an argument with one old boy who was a former peckerchecker. He insisted they didn’t get one thin dime from VA. He’s right. Their moneys come from an act of Congress. Where, pray tell, do you suppose VA gets its funding? Same paymaster, different check number. Duh. No flies on me.

How VA thinks they can pass these numbers off without someone noticing speaks volumes to how they perceive our level of intelligence. Granted, most of us haven’t been invited to join Mensa, but I wager to say I can’t be the first to latch on to this disparity. What bothers me more is what the truth is and why we are being deprived of it. As Fox Mulder used to say “The truth is out there, Scully”.

Posted in BvA Decisions | Tagged , , , , , , | 1 Comment

Global Warming

Posted on January 20, 2012 by asknod

The latest NOAA results are in. Seattle (and Gig Harbor, by extension) are getting colder each year. This won’t do. I’ve started burning garbage outdoors and feeding all manner of junk food to my barn animals to promote flatulence  and increase their output of methane.  It’s my abiding hope that it will get warmer otherwise the Green Freaks will be made to look foolish .  At present, I’m looking at 14 inches of snow and it’s 30 degrees outside. This  does not comport with the climate model I am being fed on the 6 o’clock news.

From the NOD Command Post:

Posted in Humor | Tagged , | 3 Comments

VCS vs. VA– Who will Win?

Posted on January 19, 2012 by asknod

Relax. No cookies. No chasers to spam you. It’s clean. I trust you guys so much, you can vote as many times as you want to (just like in Chicago). If you know how your dead mother would vote, what the hey? Vote for her, too.

Posted in Fed. Cir. & Supreme Ct., polls | Tagged , | 3 Comments

PEG INTRON– ITS WHAT’S FOR DINNER

Posted on January 19, 2012 by asknod

I opened the refer in the garage to get some stuff out to bring in to the house. Imagine finding this. On April 12th, 2007, I did my first shot of this in what I thought was going to be 26 weeks of hell. It turned into so much more. Over the next seven months my HCV viral load jumped from 248,000 replicas to 8.2 million. My ALT went from 158 to 601. My Crohns disease, which had been in remission for 13 years, came back with a vengeance. I finally ended up in the VAMC on April 23rd, 2009 for a collapsed bowel.

Our insurance company had declined to pay for this so I purchased the first three redi-pens for $1600.00 out of my own pocket. We were trying to peddle my first born male child on line to pay for the rest, but no one wanted a pimply-faced 16 year old with a 2.5 GPA and a shiny new driver’s license. Fortunately for me, I became violently ill and the nascent autoimmune response precluded having to buy more.

There was some thought of suing the shitforbrains Dr. over it because they knew about the autoimmune issues. In the fine print of the circular that comes with this death injector, it clearly states that it is not recommended for patients with AI disorders. Crohns, for any of you who are not knowledgeable, is an AI disease just like RA, Ulcerative Colitis, Cryoglobulinemia, Fibromyalgia, and a host of others. When a medical circular in a prescription starts discussing the patient in the third person, I infer that it was written for the edification of the treating physician. If I can digest this and figure it out, it follows that the doctor who prescribed it must be well aware of the side effects. Interferon jacks up the AI function in your body to attack anything that moves. Unfortunately, that included my own liver.

$533.00 a pop, ladies and gentlemen. Bring back any memories for any of you? Incidentally, I still have two of these I will part company with for a small pittance.

I just went on line. The price went up since 2007.

 

Peg-Intron Redipen – 120mcg/0.5ml Kit
Quantity Our Price
1 ea $632.00 – save 12% ($87.60)
3 ea $1,760.04 – save 18% ($398.75)
4 ea $2,346.72 – save 18% ($531.67)
5 ea $2,933.40 – save 18% ($664.58)
6 ea $3,520.07 – save 18% ($797.51)
other:  update price
Note: Savings calculated from Average Retail Price
Posted in General Messages, HCV Health, Uncategorized | Tagged , | 5 Comments

ROBERTS V. SHINSEKI–A MISCARRIAGE OF JUSTICE?

Posted on January 18, 2012 by asknod

I was recently contacted by Mr. Roberts’ counsel who defended him in the actions that resulted in his loss of service connection of all his claims as well as incarceration. You may or may not have read my original write up on this seminal en banc CAVC case.

https://asknod.wordpress.com/2011/09/27/roberts-v-shinseki-2009-dumb-and-greedy/

When evidence begins to pile up like a snow drift at your front door, its time to investigate and see if there’s more than meets the eye. On first inspection, I made an assumption and did nothing more than write up the decision as it was presented by the CAVC. Following that, I  started seeing other articles on several Vet’s websites that implied Mr. Roberts was railroaded unjustly. I mistakenly reasoned that they would probably defend a Vet accused of child molestation. Most of the sites were vociferously defensive of Vets. I am now of a mind that an error of immense proportions may have been perpetrated. Mr. Roberts’ legal problems were widely disseminated in the mainstream media and many talking heads hypothesized that this would give pause to other Veterans who might file false claims. I unwittingly followed suit.

I could don sack cloth and pour ashes on my head. I could claim cognitive disorders due to cirrhosis or Interferon therapy. In short, I could claim a plethora of different reasons as to why I wrote what I did. Mr. Roberts found himself in the same set of circumstances when faced with being summarily stripped of his ratings. He proposed that he had other, equally compelling arguments that supported the reasons for his service connection. This may be why the injustice was permitted to be perpetrated.

I was sent an inordinate amount of information about Mr. Roberts by Mr. Walsh concerning the case and see a disturbing pattern of obfuscation, refusal to entertain alternate theories and a blind rush to judgement that granted the VA most all that they sought.

Over the years I have vociferously defended the CAVC as being the closest thing a Veteran has to real justice, with the possible exception of their propensity to continually chip away at rights accorded us under the CUE challenge. Thus I find it unconscionable that the Court would allow the VASEC to disenfranchise Mr. Roberts on one theory at his BVA adjudication and subsequently allow him to transfer his flag to a different regulation at the Court- all without so much as a “Hey. You can’t do that!”

The law is an ever-metamorphosing process that discovers new facets when held up to the light. Many Veterans rights have been gleaned from adjudications where the VASEC has gone overboard and engaged in mission creep. Newly extrapolated explanations for revelations from age old CFRs are his stock in trade. While the Court has held the line in most cases and simply refused to entertain his new theories, the Roberts case seems to be an anomaly. This concerned me enough to look more closely.

I have an ugly propensity to read the meat of a decision and all but ignore the dissents published at the end of them. My reasoning was that they were Monday morning quarterback assessments, sour grapes about being in an en banc minority or worse-endless drivel that would not change the outcome of the decision anyway. I stand corrected.

I have great respect for Judge Mary Schoelen. If you read her biography on the CAVC site, you will find she is the daughter of a career Naval Officer.

http://www.uscourts.cavc.gov/about//judges/JudgeSchoelen.cfm

My father was a career Air Force officer who retired as a Lt. General after thirty three years. Being a military brat and steeped in an austere military upbringing breeds familiarity with the Veterans plight. My father would go to the mat  for his fellow fighter pilots and disdain for political correctness prematurely ended his storied career. I ascribe much of my proclivity towards helping Veterans to his willingness to stand up and risk his career for others.

Similarly, Judge Lawrence B. Hagel is no stranger to this plight of Veterans as he was one, too. Not only that, he was a Vietnam Veteran which resonates more with me than any other accomplishment of his. His involvement in the hierarchy of the DAV also gives him a cachet that most do not bring to the bar. While I am no fan of VSOs, I make exception for this man due to his bona fides in the Vietnam debacle.

http://www.uscourts.cavc.gov/about//judges/JudgeHagel.cfm

Thus, when Mr. Walsh admonished me to read the dissent of Judge Hagel, with whom Judge Schoelen concurred, I naturally felt that they might contribute something more to the case than would be found in the body of the ruling. Oddly, the case was originally heard by a panel and both Hagel and Schoelen were members. Had this not proceeded as an en banc decision, I  question whether these words would be written.  En banc decisions are usually only provoked by some earth-moving decision that needs enunciation or clarification so as to be understood. Mr. Roberts’ case doesn’t meet this test.

The Court may have it wrong. I have no legal training, but a tenet of the early Court rings in my ears from the Gilbert v. Derwinski (1990)  decision:

“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

After reading the distinguished Judges’ dissent, I am left with that feeling. Mr. Roberts took his argument to the Federal Circuit and was similarly rebuffed.  What does this tell us? I surmise  Mr. Walsh’s contention that this was a put up job to warn all veterans    to mind their Ps & Qs or face the wrath of the VA may have some substance. If  Big Brother is watching, we would all be advised to keep in line and not make waves.

No one can deny that Mr. Roberts cut a swath through the VA compensation process over the years. His claims were finally eviscerated as being based on fraud and deceit. What was overlooked was a vast body of evidence that may have refuted or ameliorated the circumstances. Focusing myopically on one small part of a claim to the exclusion of all else and making it the predicate for the denial is strange for the Court. They pride themselves on looking behind every bush and under every rock for something-anything- to find common cause with the Veteran. Additionally, they are known to parse every statute and regulation for that small amount of wiggle room and accord it to the Vet. This is why I find something amiss when the Court allowed the VASEC to alter the reasons for his defense of his actions. Put another way, the Court allowed the VASEC free rein to espouse his migratory theory and similarly curtailed any logical rebuttal.

When you or I (or the VA) arrive in Court, we have a set of rules to follow. We base our arguments on what we feel are reasons our claim should be granted. These reasons are grounded in laws developed and tested by years of jurisprundence.  We also develop this theory at our BVA adjudication and simply take the same argument to the Court for vindication when we are unavailing. When we arrive, we cannot argue a new scenario predicated on a different theory from that which we began with.

VASEC did just this. When called out on the regulation [38 CFR §3.105(d)], he promptly changed his tune and switched to §3.103 to support his argument. Even if I were pro se, I don’t think I could swing that. There were peccadilloes such as Mr. Roberts having other documented stressors that would have corroborated his PTSD diagnosis, but strangely, they were left by the wayside. The Court reasoned that if he wished, he could march smartly down to the RO and file a NOD concerning these contentions. They did their best Pontius Pilate imitation and washed their hands of that business.

Justice often miscarries in the lower courts. It is the expectation of Vets that they will eventually make  their voice heard at the BVA or the Court. As the Court is not a trier of fact nor a Court of equity, we strive to get the evidence into the record before arriving and let the Judges read it. What happens when we are precluded from this and the record becomes woefully incomplete? When a Court-any court- becomes so engrossed in trying to make an example of a Veteran that they rearrange the judicial furniture at the crime scene to accord with their facts,  we are in deep doo doo.

Again, I am not a forensic leagle beagle. I call them as I see them. I called this wrong and offer this belated apology to Mr. And Mrs. Roberts. I find it unfortunate that he chose an alternate legal theory that implied he might be less than forthcoming in his original facts, but he did have the requisite evidence to support his contentions several times over. The fact that this was ignored leaves me with a queasy feeling. Even though I never subscribed to it before, Chicken Little’s admonitions may have substance.

I also wish to add Mrs. Roberts’ comment here which she posted in another area several days ago. As Mr. Walsh said: “Watch your 6”. I can only add my “Roger my six, over” to that.

Theadora Roberts says:

AskNod –

Take a good look at Mr.Roberts SMRs and you will find in its Dec 69 and Jan 70 entries his informal service connected claims for psyche disorders to include PTSD and his “REPORTED” ie “CLAIMED” Dec. 69 non combat sressor. When you read the CAVC’s decision, you will find that the EN BANC Court has conceded that Mr Roberts’ SMRs do so “REPORT” the Dec 69 “INCIDENT” ie “STRESSOR and that in VA’s March 1991 “Special Psych Exam Mr Roberts had REPORTED the Dec 69 Stressor and that VAs examiner had the determined the “REPORTED” Dec 69 stessor is “Corrobotated in {Mr. Roberts records and in a report of a brief psychiatric hospitalization” AS it is so first REPORTED and CORROBORATED in Mr Roberts’ SERVICE MEDICAL RECORDS

Roberts service medical records containing his service  connection claims first came before VA as of and for his May 1972 Service  Connection Claims which he had filed within one year of his Honorable separation from the U.S. Navy on Dec 21 1971. Those service connection claims in his SMRs have yet to be adjudicated by VA and became Formal Service  Connection claims as of his filing his initial VA form 21-525 on Feb 27 at RO Milwaukee.

One and only one of the veterans “REPORTED” non-combat stressors, Prior to mid 1995, was required to be “Corroborated” as having “Actually Occurred” ie “To come into the conscious mind ” of the veteran. There was not, and stiil not any requirement that the reported and unverified Feb 69 Holland stressor had to be corroborated, and there was not ever any law which required Mr Roberts and all veterans to corroborate their “physical proximity to”, “personnel participation in” and “first hand experience with” any of their Reported non combat stressors. see Cohen V Brown 1994.

Read all the evidences Mr. Walsh has sent to you then please set the record straight. VA’s employees of record are the ones who have commited, repeatedly the fraud in Mr. Roberts VA claim since May 1972.

I did as she asked and the evidence on its face supports her contentions. There really are not two different interpretations that would permit two equally well-grounded conclusions. The benefit of the doubt is not for application here as the evidence is not in “equipoise”. Keith Roberts, by any legal yardstick, got short shrift at the Court. File this one under S for Shoddy Justice.

I wish to add this as a post script:

I copy and paste a comment left on my original post concerning this Veteran (Mr. Roberts).
Jim Vincent says:
January 18, 2012 at 17:40
Please make it easier for others to find your apology and current standings on this case – like your response when asked my Keith Robert’s daughter to actually read the full facts of the matter.:
“Read all the evidences Mr. Walsh has sent to you then please set the record straight. VA’s employees of record are the ones who have commited, repeatedly the fraud in Mr. Roberts VA claim since May 1972.
I did as she asked and the evidence on its face supports her contentions. There really are not two different interpretations that would permit two equally well-grounded conclusions. The benefit of the doubt is not for application here as the evidence is not in “equipoise”. Keith Roberts, by any legal yardstick, got short shrift at the Court. File this one under S for Shoddy Justice.”
Others need to know that some people in the government did go out of their way to deprive this vet of not only his benefits but also of due process and of his liberty.

My answer to you, Mr Vincent :
I apologized above in a 2000 word synopsis of what I did wrong. It took me three days to digest the documents I received. Short of buying a front page spot in the New York Times, I am constrained to use this forum to express my mea culpas. To better illustrate your unhappiness with the quality of my apology, I have moved your comment here to amplify your displeasure.
I am ill with a terminal disease and have just so much time to devote to this page. Unbeknownst to you, I also help Veterans attain service connection for this insidious disease with what energy is left. I am not a candidate for a transplant, so my shelf life sticker is probably accurate. I have made as great an effort as possible to exonerate Mr. Roberts and atone for what was admittedly wrong. Perhaps you can give me a more concise accounting of how I can make it easier for others to find this apology. My current standings on this case are as printed above. As Mr. Roberts’ SSN is emblazoned all over the documents I received from Mr. Walsh, I hesitate to publish them here. I do not have the time or energy to redact them and provide them for readers’ edification. I have mailed personal apologies to Mr. Walsh and Theadora Roberts, who I assumed was his spouse. If she is his daughter, I extend my apology to her mother as well. Since I can only apologize to those who provide me an email, I extend my apology to you as it sounds as though you, too,  may be part of the extended family.
Comments are attached to each post by people visiting this site. Since WordPress will not specially modify the format of this forum, and I am not part of the well-heeled 1%, members are forced to click on the word “comment” either to read or post their own as you did.
I do not mean this to sound sarcastic. I know the opprobrium of public opinion far better than you-especially when the phrase HCV is spoken. I am not gay, nor am I a drug abuser. I came by this disease inadvertently after a through and through gunshot wound and subsequent transfusion to save my life. Since it happened during my employ with a civilian airline in Southeast Asia, I do not have the honor of wearing a Purple Heart. Nevertheless, the VA medical community treats me like a leper-or worse. I commiserate with Mr. Roberts re the stain on his record and for the unjustness of serving four years for a crime he is innocent of. Were he to ask me personally, I would apologize to him as well.
I believe most who frequent this site are well aware of my feelings about the VA. Additional diatribes in this comment section would be superfluous. Since I belong to the Church of England, any Acts of Contrition will have to be couched in Pater Noster format.

Posted in Complaints Department, Fed. Cir. & Supreme Ct., General Messages, Important CAVC/COVA Ruling, Tips and Tricks | Tagged , , , , , , | 2 Comments

FALLEN ANGELS

Posted on January 17, 2012 by asknod

Two prostitutes were riding around town with a sign on top of their car which said: 

Two Prostitutes – $50.00.

A policeman, seeing the sign, stopped them, and told them they’d either have to remove the sign or go to jail.
At that time, another car passed with a sign saying:

Jesus Saves

One of the girls asked the officer, “How come you don’t stop them?”
“Well, that’s a little different,” the officer said. “Their sign pertains to religion.”
The following day the same police officer noticed the same two hookers driving around with a large sign on their car.
He figured he had an easy arrest until he read their new sign:

Two Fallen Angels

Seeking Peter — $50.

 


Posted in General Messages, Humor, Uncategorized | Tagged , | Leave a comment

BVA–CONNECTICUT YANKEE IN VA’S COURT

Posted on January 17, 2012 by asknod

 

From the Life Insurance Co.

RO of New England

You know how you can sense things? Have you ever had that Deja Vu, look over your shoulder feeling ? I was spinning through a bunch of those BVA  Decisions on the link above and spotted this one.

http://www.va.gov/vetapp11/Files4/1140114.txt

Immediately upon reading the interlocutory part from the 2009 RO hearing, I scrolled back to see if  King Arthur here had a VSO sword carrier named DAV.  Friggin’ ESP , dude. I apologize for that. Yes, indeed. the way that hearing was going, I knew it had to be the DAV. At my 1990 RO hearing , my weapons bearer Ronbo Ampedout, started out by asking me questions just like this. I’m not referring to the drug stuff, but the general presentation. The only problem was we were supposed to meet at 0800 to go over it for the 1030 hrs Show and Tell. This was before Saturday night special  cel phones,  so I had no way to damp down my panic until he arrived at 1000. We quickly went through the motions. Everything I had to tell him had to take a back seat because he’d done this a hundred times.

“Just let me ask the questions , man. I’ll lead you up to it and then you tell it in your own words. First we’ll talk about the…  the hearing thing and what else? Oh yeah. The tinnitus. Got it. Let me, uh-huh, I better write this down. I do better that way.  Yeah, t-i-n-i-t-u-s.and what else were we… right. The back thing, yeah, hips too? Oh, that’s right. It’s all coming back to me now. You were in the Philippines, I mean Viethailand. So, we’ve still got 10 minutes. How about we go over to the VFW’s coffee pot across the hall? So, does the back thing bother you a lot?” He remembered I was in the Air Force.

They must all go to the same school:

At an RO hearing in January 2009, the Veteran contended that his current hepatitis C was related to inoculations by an injection air gun during basic training. He recounted that he later learned that these inoculations presented a risk of passing on bacteria and viruses. When asked by his representative, he noted that he had other lifestyle risk factors that could cause hepatitis C, including drug use. He also related that he had been told that exchanging toothbrushes or razors was another way of passing hepatitis C. When asked if he had ever exchanged toothbrushes or razors, he said that he had not. He recalled that his drug use history included sharing needles. He recalled that this may have included incidents during active service. However, the law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. 38 U.S.C.A. §§ 1110, 1131; VAOPGCPREC 2-98.

So, Arthur. Do you mind if I call you Art? What do you think, I mean, after reading all that internet stuff on HCV and all, what do you think you got this from? Yeah. And the guns were like megadirty and bloody, huh. So, anything else? Drug use, huh. Yeah, but you got through that way back in 90 and you’re like clean now, huh. Yeah , and we talked about that razors and toothbrushes thing and your were, like, oh- you didn’t. I thought , well, never mind.

About this time Mr. DRO cuts in and says:

So, Mr. King. You say you had some drug use issues? Why don’t you lean a little closer over there to the microphone? Yes, that’s good. So, you used injectibles and smoked crack? Well, we all did that when we were younger. I know how that is. And VA doesn’t hold that against you, either. We’re here informally and its just here among us, so we can discuss it like men. You say you SHARED needles? Mmmmmmm. Yep. Sometimes they’re scarce and if you know him and he’s your friend, well, you have to trust someone, huh? They say that Hepatitis is really hard to transmit, anyway.

This goes on like a friendly tag team. You’ve seen the cop show with the good cop and the bad cop in the interview room? Well, just imagine two good cops lighting your cigarette and pouring the 7 up in the glass. Ice?  Everyone’s all smiles like the Cheshire cat at this Texas necktie party. These guys are your friends, man. They just want to make sure you get what’s coming to you legally. What could possibly go wrong with this deal…

The Veteran does not have medical training, education or clinical experience. He does not have the medical expertise to relate his current hepatitis C to air gun injection inoculations during active service. 38 C.F.R. § 3.159(a). Because he is not medically competent to make expert medical determinations, his assertion that he has hepatitis C attributable to in-service air gun injection inoculations during basic training are of no probative value. There is no competent medical evidence to indicate that the Veteran’s current hepatitis C may be due to in-service air gun injection inoculations during active service or any other incident of service.

And of course:

Also, as the Veteran described at his January 2009 RO hearing, and as indicated in medical histories of record, he has experienced an alternative risk factor for hepatitis C, which is the sharing of needles during intravenous drug abuse. This is lay and medical evidence of a possible intervening cause of his hepatitis C, for which service connection is not warranted. This is evidence that weighs against the Veteran’s claim as to medical causation.

Well. Bummer, Dude.
There is no competent lay or medical evidence to support the medical nexus element of the Veteran’s claim, or continuity of symptoms of hepatitis C from active service forward, and as discussed directly above, there is substantial probative evidence against these aspects of his claim. The Veteran may have received air gun inoculations during basic training, as described at his RO hearing, and competent medical evidence shows that he has current hepatitis C. However, as discussed above, there are several aspects of the evidence that weigh significantly against medical causation or continuity of symptoms from active service forward.

Yeah, I forgot to mention that.  What we’re gonna do is file for a reconsideration and get you a C&P exam, Arthur. VA supplies the nexus thing for you no charge. If its any consolation, dude,  I thought you nailed it. Your testimony was straight up and we had the pictures of the guys getting the shots. I don’t get it. They told me that 2004 VA FAST Letter works every time. I think we’ll  win for sure if we go for the reconsideration. What the hey, We can always appeal this to the Court. They like so owe you, dude. And I’m right behind you man. You know, like a wingman. FISTBUMP! High Five!

And so it goes. One Veteran at a time.

Posted in BvA Decisions, BvA HCV decisions, Frivolous Filings, Tips and Tricks | Tagged , , , , , , , | Leave a comment

More Footlocker Stuff

Posted on January 16, 2012 by asknod

A member asked me if I still had my shot records from service. I said I didn’t. I lied. They were in between my helmet and my liner and they fell out when I felt compelled to separate them recently (I told you guys I’m a packrat). What he was asking about was if the shot record recorded the manufacturer and lot number of the vaccines used. I looked at  them all and could find none but found something even more amazing. I have never found any paper proof that I was ever “over the fence” in Laos. No orders. No ” Take the morning Klong flight to Vientiane”. Nothing. And right there in the medrecs is my cholera/Gamma Globulin shots right after my GSW transfusion. I couldn’t remember exactly what day it was other than late September 1970.

Check this out. The little white paper is from LS-20A which was Long Tieng Airpatch. The flight surgeon gave me the shots and put the stamp on it. The yellow book was kept in the U.S. Embassy at Vientiane. When I came back through, they transferred the shot record from the little white doomoflotchie to the yellow book. AIRA  was the abbreviation for Air Attache.

Posted in From the footlocker, Humor, Uncategorized | Tagged , , , | Leave a comment

CAVC–BROPHY v SHINSEKI-HELLO? McFLY?

Posted on January 16, 2012 by asknod

What is it in this day and age of claims filing that would allow a Veteran to file a claim with no evidence? What also would possess them to ignore all requests for substantiation? And why, pray tell, would their lawyer sit on his duff and ignore his client’s claim?

Lawyers are light years ahead of legalzoo.com and VSOs. They do this for a living and some go the extra mile and do it for Vets. Veterans law is a nice cozy little backwater that has limited parameters. More slack is given to a Vet than in a civil proceeding on paper. We have found out over a century and a half that what is proffered is not always what is received, but that is not the discussion today.

Enter one Randolph J. Brophy who served in the Gyrines from 1966 to 1970. There is no mention of his serving in RVN , or anywhere for that matter. About all we know is that he received shots for different diseases while he was in the service. Okay. So did we all.

When filing a claim, it is incumbent on the claimant to list what he/she is filing for and to prognosticate on the possible reason for the disease /injury. This helps the VA to misconstrue it and look in all the wrong places. Eventually it gets sorted out if we are lucky, and a decade down the road we may or may not see a grant. I theorize that this is a way of delaying the inevitable. It’s like a new source of money for the VA in that they can program it into the 2022 budget cycle. Avoiding paying for it now keeps the current budget on track and within its predicted parameters. As an example, I point to the M2 money supply on credit cards. It only exists on paper. The debt is real and the funds are eventually realized, but this is not cold, hard cash. I digress.

In August 2008 Mr. Brophy filed for Hepatitis, erectile dysfunction and DM2  with two Form 21-4142s. which are requests to fetch medical records. That’s it.  You read that correctly. He had his able law dog (a non-attorney) at his side when he did this ( the record implies it). As is the SOP, he got his development letter from VA in November that said “Whatdaya got? Send it in.” He replied with a terse ” Nothing to add. Decide my claim and  send me the shekels”.

December arrived along with Seasons Greetings from Uncle Victor. They were desperately trying to fathom Randolph’s risk factors as they had none to deny on. They dutifully asked for anything and everything again. Silence greeted them and as is their wont, VA denied him. The January 2009 denial included a brief note that, in the absence of any communications or N&M evidence filed, VA really had no other alternative than to deny.

What happened next is really bizarre knowing he had a law dog:

In April 2009, Mr. Brophy, again through current counsel, submitted a lengthy Notice of Disagreement with that decision. That Notice of Disagreement, however, contains no arguments based on the specific facts of Mr. Brophy’s case; rather, it contains only a litany of laws regarding VA’s various duties. Mr. Brophy ultimately appealed to the Board. In his Substantive Appeal, also submitted through current counsel, Mr. Brophy again made no factual arguments, only general assertions that VA failed to consider and properly apply numerous statutes and regulations.   Brophy v. Shinseki (2011)

At this point you and I would wake up, smell the coffee and get cracking. No, actually we’d have done so at the beginning if we had our wits about us. What ensued should not have come as a surprise to Randolph and Perry A. Pirsch, Esq. As an aside, what is it with the Esquire crap? That is sooooo passe. It’s like Jr. or Nod III. Does that imply Perry’s a vertically challenged person that needs more titles after his name? Perhaps one who feels he’s mentally inferior to his peers?  I vote for the inferior theory judging by his legal acumen.

At any rate, Randy and Perry got the deep six in August 2010. Assuming the RO didn’t shred his file and ignore something, it appears as though they had less to read than the funny paper section of the Monday morning Charlotte News Observer. Based on that, even I would be forced to surmise as much. We all know I am no fan of the VA, either.

On appeal to the Court, the problems start to pile up. As I have pointed out to Vets in the past, anything you want to argue in front of the Court better damn well have been argued in front of the RO or the BVA. Since the Court is not a trier of fact, you cannot arrive with a laundry list of  new reasons why your claim should have been granted.  Perry must have slept through that part of his legal schooling. He and Randy promptly busted out the brand new proposition that his risk was due to jetguns, or, in the alternative, the scars on his wrists. They didn’t go into a detailed explanation of why the scars on the wrists were indicative of the contraction of HCV. That was left to Judge Hagel to decipher. He politely declined:

As the Secretary points out, at no time before the regional office or the Board, however, did Mr. Brophy identify his in-service inoculations as a risk factor; indeed, he did not identify any risk factors at all, despite VA’s express request that he do so. He may not now allege error because the Board failed to read his mind. The Court finds no error in the Board’s failure to expressly consider this purportedly “favorable” evidence.  Brophy supra

Nota bene. This may be the only time you see me agree with VASEC on something. Footnote # 3 at the bottom of page four on the electronic publication is quite facetious:
Mr. Brophy invites the Court to take judicial notice of “multiple articles published on the Internet” that he contends “describe[] a problem with airgun injectors.” Appellant’s Reply Br. at 2. The Court declines the invitation, as Mr. Brophy has not demonstrated the foundation necessary for the Court to do so: that such a “problem” is not subject to reasonable dispute.  Brophy supra footnote

Ah, grasshopper. Now you see the defense. As for the scars on the wrist, the immediate thought that comes to mind is that he attempted suicide with shared razors, but that is not in the STRs. Randolph’s second theory was that he didn’t get a Dog and Pony show at QTC, but that falls flat like a cheese souffle in a room full of rugrats. Aside from arguing this at such a late date, he gave nothing to them to provoke one.

The third and last gasp was the old “duty to assist” was violated. Well, pilgrim, if you don’t ask them to play Rover and fetch, you can’t bitch on appeal. All these late-breaking revelations were to no avail, nor should they have been. Randy and Perry were out cutting bait when they should have been fishing. As an attorney, Perry’s performance was more a case of being AWOL.

I wrote a post about a BVA decision a while back and entitled it “Boldly going nowhere” as a humorous redo of the Star Trek phrase. This far and away surpasses it in spades. I almost wished I had saved the title for one similar.

https://asknod.wordpress.com/2011/09/26/bva-boldly-going-nowhere/

Mr. Brophy and his erstwhile mouthpiece lost this as we can see. It isn’t even a good teaching moment for Vets. It’s tragic in my mind to see a Vet commit claims hari kiri. If he had been pro se we could all point and exclaim ” Well,duuuuuh!”  Doing it with someone who has been granted a law license is unfathomable with behaviour like this.

If and when I find myself similarly situated, I intend to find the brightest and the best. I would have no qualms about sharing any moneys with them. Going up to the Court pro se or with this bozo would be like climbing Mt. Everest barefoot. That, if anything, is all you can derive from this judicial exercise.

http://search.uscourts.cavc.gov/isysquery/fe9cd874-44ed-4e18-8114-e8208ad608c8/66/doc/

Posted in CAvC HCV Ruling | Tagged , , , , , , | 3 Comments

CUE–FAILURE IN DUTY TO ASSIST

Posted on January 15, 2012 by asknod

In 1994, the Court came to a very tortured decision that has disenfranchised Vets ever since. I refer to the holding in Caffrey v. Derwinski. This was hard on the heels of the Russell decision of 1992 that brought us the “manifestly different outcome” and removed the benefit of the doubt argument from CUE consideration.Prior to Russell, we had a two pronged decision. An error had to be obvious and it had to be prejudicial to the Vet. Russell added that if the error would not have changed the outcome then it was not clearly and unmistakably erroneous.

Caffrey moved the goalposts much further down the field. It put forth the proposition that an incomplete record was not an incorrect record. This was the advent of the “semantics as law” phase of the Court. While Caffrey concerned itself with private medical records held in private hands away from the VA’s grasp, subsequent decisions have tried to encroach more and more on what constitutes “private”. VAMCs have gone so far as to start using “in the community” as a catch phrase for these records. Caffrey’s holding that the failure in the duty to assist is especially troubling from many aspects. Once the VA camel’s nose is in the tent, Vets can be assured that the rest of the animal is not far behind.

38USC § 5107 is unequivocal in this respect and 38CFR § 3.159 follows it chapter and verse. The dichotomy seems to enter when the decision (denied) is final and a CUE claim is raised. When this happens, the failure to assist is now permissible. Now we have two sets of rules that unarguably conflict with one another. The premise that an incomplete record is not an incorrect record is all well and fine if VA wants to interpret Congress’ intent in that regard. The slippery slope I address today hinges on the obverse of that statement. When does an incomplete record enter into the prejudicial arena of an incorrect record?

Russell expounded extensively on the premise that a CUE determination, by rights, can only examine the record on the facts that were before the adjudicator at the time of the prior adjudication. What Russell never touched on, and what Caffrey purports to interpolate from it, is that the record can be incomplete and somehow not be prejudicial to the Vet. In a word, this sucks.

If a Vet puts the VA on notice that records are available “in the community” and asks that they be obtained, this is required, or obligatory, for the VA. It has even been held that once the VA is aware of these records,  they are either required to obtain them or have you sign a 21-4142 which permits them to do so. Ignoring your request is right out. The cutoff point is the CAVC. If the error is uncovered, a remand to obtain them ensues. If  the Vet loses hope and gives up, the incomplete record, an admittedly incorrect record, is allowed to stand and a revision based on CUE cannot be based on the failure to assist.

Caffrey hung its hat on Porter v. Brown,  5 Vet App. 233 (1993). Porter, however dealt with records that were developed after the final decision. The Court reasoned that they had left open the question of whether the failure in the duty to assist could constitute CUE. Whereupon they turned around and did just that.

Caffrey can trace its roots back to Ivey v. Derwinski (1992):

While Ivey did not specifically request his private medical records and sign the VA
release form as the veteran did in White v. Derwinski, 1 Vet.App. 519 (1991), he put the VA on notice of their existence. Ivey v. Derwinski (1992)

White v. Derwinski (1991) again dealt with private records:

The “duty to assist”  arises when a well-grounded claim is filed. 38 U.S.C. {1 Vet. App. 521} � 5107(a); 38 C.F.R. � 3.159(a); Murphy v. Derwinski, U.S. Vet. App. No. 90-107, slip op. at 5 (Nov. 8, 1990). The statute, 38 U.S.C. � 5107(a), does not explicitly require the Secretary to assist a veteran in obtaining private records. The regulation, 38 C.F.R. � 3.159(b) (1991), is broader than the statute, and does require the Secretary to help the veteran obtain private records.

The Court vacated and remanded White to comport with the above holding. So we can see there is ample precedent for the supposition that the duty to assist is mandatory for private records. The problem seems to arise when we allow our denied claims to lapse for failure to appeal to the next higher venue. This is the tenuous concept that Caffrey tried to excavate from Russell.

Let us take this one step further and enter the theatre of the absurd. When we file, VA is expected to obtain our contemporary records  from  the St. Louis NPRC. I have had numerous members come to me and say that NPRS has no medical or other records for them. Fortunately most (but not all) can be tracked down to your last duty station hospital. What of those that can’t? Is VA remiss in being unable to provide that which is needed to substantiate your claim? Obviously, VA will purport  to go through the motions to obtain them. You are put in the unenviable position of having to do their work if they don’t (and they never do.) Your Congressman/Senator is often your last resort in this. The “what if” factor still rears its ugly head in spite of all that is attempted sometimes.

I was brought up short by a distinguished attorney yesterday for not acquainting myself with the dissent of several Judges of the Court in the CUE claim against Mr. Keith Roberts. Mr. Walsh, his counsel,  made the point when he said that the original panel of three that heard the preliminary case were the three who dissented in the ensuing en banc decision against Mr. Roberts. He rightfully reasoned that if the three had continued the case as a panel, Mr. Roberts may well have simply had his claim terminated rather than be liable for fraud and jailed. While this conjecture is a case of could of, would of and should of, his point is well founded. The Court sometimes seems to operate against the best interests of the Veteran.

With that said, I decided to read the not-so-concurring opinion of Judge Steinberg where he dissented in Caffrey:

Hence, the Court’s tautological distinction between an incomplete and an incorrect record seems manifestly at variance with a fundamental precept of Russell. Surely, it can just as reasonably be said that a record which causes the adjudicator to deny a claim when the “correct facts” would manifestly have produced the opposite result was an “incorrect” record and not just an “incomplete” one. In any event, I find nothing in Russell to warrant the incorrect/incomplete-record distinction which the majority attempts to make.  Caffrey (1994)

Having discussed the issue of CUE and private records, allow me to throw a new wrinkle in. I filed a claim for my back in 1989. I was denied by the RO without a C&P. They granted one for my hearing but not for my back. I complained in my NOD and they promptly ordered one up. It was a put up job. The VA doctor found the problem area (L5-S1) but could ascertain nothing from the x-rays other than lumbar lordosis and possible ankylosing spondylitis.  He made no determination on the etiology, did not review my STRs and did not venture a nexus as to the cause. Pointedly, he also never reviewed any of my private records. The RO put on their very best Ben Casey duds and said it was not service related. This was printed on a single page that said “Sorry Charlie”. No Reasons and Bases. Nothing.

I was stationed at a very remote airstrip with 20 other guys when I injured my back. We all used a hospital contracted by the Government to take care of us. This included Air America and several other spook operations. The records of my treatment were never associated with my STRs. I found this out at my RO hearing when I pulled my C-file over and looked at it. There simply were no records of that time (October 1970 to May 1972). It  was as if the earth had swallowed me whole and spit me back out at Edwards AFB in July 1972. VA did not believe my testimony about the additional records in spite of my pleas to obtain them. In desperation, I called long distance to the tune of $80.00 US and asked them to send the documents. Something was lost in the translation because I got one page that partially documented the injury (x-ray results). VA used that to prove two things. First, there was no evidence of a back injury and second, that there was no evidence of a hip injury. They made no effort to obtain anything. Apparently in VAland, Veterans regularly pull up to private hospitals at the ass end of nowhere during a war and pay good money out of their own pockets for x rays without even consulting a doctor.

My CUE claim is before the Poobahs in D.C. I’ve debated putting up a poll like the one for Leroy Macklem. This one would ask if CUE can attach to a final decision where the VA erred in their duty to assist by not obtaining “service department records” held by an entity other than the government. Mind you, we are not discussing records “in the community”. These are actual records commissioned and paid for by none other than Uncle Sam.

Assuming VA denies, I would be forced to accept some absurd results. Being “official government records”, VA’s failure to obtain them would not technically be covered by the holding in Caffrey. If VA decides to employ mission creep with the regulations, I suppose they would repeat the mantra of “incomplete, not incorrect”, therefore not CUE. With this holding, they would open Pandora’s box for all manner of new interpretations.

What if? What if they decided one day not to obtain Joe B. Sixpack’s STR’s from St. Louis and proceeded to a rating on a knowingly incomplete record? What if Joe Bob didn’t appeal and then attempted to revise it via CUE? Does the VA get a bye on Caffrey and 38 CFR §20.1403(e)? Vets by now can see the slippery slope I am painting. The willful decision made by the RO, and compounded with interest by the BVA, not to obtain the records when apprised of their existence, content, and location created the very same incomplete record that they now will argue isn’t CUE. Judge Steinberg called this circular logic. I call it excrement emanating from a bull.

You may see me in D.C. seeking my Warholian fifteen minutes in a year or two. I thought VA was niggardly with their funds when they sent Leroy to the EAP showers. I can only assume I will get the same treatment. I dug this one up and I think it is very on point:

Fowler v. Califano, 596 F.2d 600, 604 (3d Cir. 1979) (remanding social security claim where record of appellant’s prior claim, through no fault of her own, had been lost and appellant provided evidence to reconstruct the record; the court was “inclined to agree” that it is unconscionable for the Administration to take a position that in effect permits it to profit by its own errors“). 

Since this holding precedes Caffrey and is Fed. Circuit precedence, it supercedes any finding of the Court vis a vis official government records. Well, that’s my theory anyway. As we all know, VA will “construe” it in their own inimitable way and come up with some tortured, pretzel-shaped interpretation of § 5107 or § 20.1403 that supports their view. What remains to be seen is whether the Court, like a docile cow, will follow suit.

Look , Ma! Off road Official Service Department Medrecs!

Posted in BvA Decisions, CUE, Tips and Tricks, Uncategorized | Tagged , , , , | 1 Comment