NOVA INC. vs. SECRETARY OF VETERANS AFFAIRS

Posted on January 21, 2012 by asknod

TAKE YOUR PROTEIN PILL

AND PUT YOUR HELMET ON

The National Organization of Veterans Advocates et al versus Secretary of Veterans Affairs was issued yesterday. It went up on the rocks just as the Costa Concordia last week . I don’t think its a case of NOVA failing to present it well, either. There’s more at work here and I believe its politically driven.

The new regulation, or revision of the old one, was to 38 CFR § 3.304(f)(3). It all sounded so good on paper when first proposed. From now on, PTSD stressor requirements would be relaxed and it would be easier to prove one. Delving further into the proposed changes was like looking at the inner workings of Obamacare. The difference was that opponents were voicing concerns before it was passed rather than after.  One onerous proposal of paramount importance was the new requirement that all these PTSD determinations would henceforth be conducted by the VA! That would be the same VA that is hopelessly years behind in every department, be it medical or benefits related.

After much commentary, conjecture and consternation, the VA elected to leave the new regulation as proposed and ignored the pleas of interested parties such as the plethora who joined this action. VA decided not to extend the rule to encompass private psychologists and psychiatrists because PTSD diagnoses are “particularly complex”. These same soothsayers would be required to adduce further by reading chicken entrails to divine the “forensic” determination as to whether the Vet actually had PTSD as measured by the claimed stressor. No more searching for a stressor and providing the “aha!” moment. No siree. Doctors would now determine this and then employ Ouija board techniques to confirm their findings.

One of the bedrock principles of our claims process where combat Vets are concerned, has always revolved around 38 USC § 1154(b) which gives great credence to lay testimony by same. If the testimony isn’t inherently incredible and is not rebutted by evidence, then it is considered admissible without further ado.  It appears that statute is headed for the burnpile.

VA claims they have enlightened reasoning for this rules change. Please keep your rude outbursts to yourself until I’m finished. Low, guttural laughter will be permitted unless it distracts. VA contends that their personnel are better suited to this endeavour because:

1) VA practitioners are given specific instruction on how to conduct PTSD examinations, including guidance materials and a certification process.

2) VA reviews the quality of its practitioners’ examinations, including taking steps to address identifiable problems with feedback and training.

3) VA provides VA associated practitioners with the veterans’ claims folders in connection with all mental-disorder examinations, including PTSD examinations

4)  VA noted that limiting the rule to VA associated practitioners would “ensure standardization and consistency.”

The above reasons were followed up with this paraphrased statement-presumably delivered with a straight face:

The consistency would be a product of both the large number of PTSD examinations performed by VA practitioners and the review of those examinations by the
VA. Because the VA does not control the quality of private practitioners’ examinations, it could not ensure, manage, or develop the same level of quality and consistency. For these reasons, the VA opted to leave the rule as proposed.

Without delving an inch deeper into this, let’s survey what we already know. A certification process? Isn’t that what doctors go through for 8+ years? Are we to assume VA is now going to hire the “best of the best” for McDonalds wages? At present, we are already subject to the Doogie Howser syndrome.  I might point out as an aside that they better plan on hiring a shit ton of new doctors (which they can ill afford) because, by  commandeering this responsibility, they are going to create lines right out the front door like your worst Day-after-Thanksgiving sales nightmare. As for guidance materials, I have a suspicion it will be a thesaurus for all the synonyms  of “less likely than more likely” or “not as least as likely as not”. VA denials were always a semantic art form. I can’t wait to see the new ones enhanced by “guidance materials”.

The second reason reeks of Human Resources and gobbledygook to make the enumerated reasons look more impressive and protective of Vets. “Address problems of feedback and training”? When has there ever been feedback? X rays of my back in 1990 for a claim showed the inexorable march of the onset of Crohns disease. VA “feedback” failed to alert me to this. Perhaps the new training regimen and the feedback loop will remedy this shortcoming. I rightfully assign this the $600 toilet seat award. If VA has the correct equipment and tools, they can better perform the task. Naturally, only they have the insight as to what this might be to the utter exclusion of us untermenschen.

Item three was vociferously objected to by all parties to this because Vets have access to their C-files, and thus their SMRs. Implying that only VA can access these “highly probative” documents and come to reasoned conclusions insults Veterans and their treating physicians alike. Talk about the proverbial bitchslap. Of all the reasons enumerated, this was the weakest in my mind.

VA saves the most damaging (for Vets) theory for their arrogation of the nexus for last. Think about this for a moment.  Do any of you think that bringing this process under one umbrella at the VA will  “ensure standardization and consistency”? Apropos standardization, I would say there will be a standardized denial process consistently to the detriment of the Veteran. Parsed another way, I’d say PTSD, as a mental disorder, will soon become the least diagnosed mental defect to come out of the Afghan Olympics.

Remember the phrase that those who forget history are doomed to relive it?  Are we that far removed from the Vietnam “misunderstanding” that consumed 58K+ of my brothers and sisters?  For those with short brains stems, look back and recall the “See no PTSD, Hear no PTSD and Speak no PTSD.” that followed. How many of us came home with bent brain syndrome? What was the diagnosis? I venture I could find 10,000 of you in 10 minutes with a diagnosis of a “personality disorder”  who never attained SC for your inability to adjust to the World when you came back. Regrettably, I have to count myself as one, too.

What I take away from this is something far more sinister than most of you will. By usurping the right to diagnose this particular form of illness, the VA has the camel’s nose under the tent. How long, pray tell, will it be before the VA proposes the next sweeping rules change that will bring the WHOLE nexus process into the VA? Certainly,  if we can’t trust private doctors to be prudent, impartial and make cogent, informed decisions as to the etiology of something as complex as brainf*ck, how on earth can we entrust them to inveigh on complicated subjects like TBI, HCV and back injuries to name just a few?

The slippery slope of the VA ratings process is on display here. As for a fair and balanced rendering of SC, we have never been witness to it. Now it appears we are going to be further disenfranchised with the rubber stamp of the Federal Circuit. If this stands you can mark my words. Within a decade you will see the nexus letter, first envisioned in Caluza v. Brown, become a hollow holding devoid of meaning.  Allowing the VA fox into the realm of the doctor’s nexus henhouse will be the beginning of the end of what many currently construe as a veteran friendly environment where benefit of the doubt resides in the Veteran’s pocket.

Many may recall the gradual erosion of our right to disturb an otherwise final decision via the CUE path. Following Akins and Bentley, the Court agreed with VASEC in the en banc Russell holding. Hard on its heels were Fugo and Caffrey. Caffrey is unarguably the most egregious holding for Vets in our lifetime. To commit grave procedural due process by failure in the duty to assist is unconscionable. To then say an ensuing record is “incomplete rather than incorrect” but nevertheless legal is the worst form of chicanery ever foisted on us.

Hayre and Cook both tried to rectify this injustice, but the Courts continually come down in favor of VASEC and the Government. How can that be in this wonderful judicial environment we have been blessed with?  Can it be with the War(s) winding down in Southwest Asia that we will be relegated to the back of the bus yet again? By controlling who dispenses the diagnoses, we will soon see a marked drop in mental ratings. That will soon be followed by decreases in virtually any and all ratings until VA has accomplished what no other agency in D.C. ever has. I speak, of course, of the legendary balanced budget with adequate funding for all- well, all except  disabled Vets.

Soon, the rationale will evolve that if not for the stupidity and inattentiveness of Vets, they would never hit the IEDs and provoke these injuries.  Therefore, any injuries sustained are not intrinsically the fault of the Government. What these chowderheads fail to realize is that they will be robbing Peter to pay Paul. Follow the  vacuum cleaner cord to the electrical outlet- SSD, n’est pas?

Post Script

Looking further afield, I noted Nieves-Rodrigez v. Peake (2008) for the proposition that  Veterans need not show that a doctor has reviewed the medical records for the nexus to be probative. I subsequently stumbled across  Gardin v, Shinseki  2010 which is recent Federal Circuit precedence.  Proposing these new rules in the Federal Register is all well and fine, but any regulation promulgated by the VA Secretary still has to pass muster vis a vis 38 USC. Any regulation in direct conflict with this cannot stand absent Congressional action to revise the controlling Statute. Which brings us to 38 USC §5125…

Acceptance of reports of private physician examinations

For purposes of establishing any claim for benefits under chapter 11 or 15 of this title, a report of a medical examination administered by a private physician that is provided by a claimant in support of a claim for benefits under that chapter may be accepted without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim.

Old growth trees are going to take another hit from this. The amount of pulp needed to straighten the argument out and restore §5125, not to mention 38 CFR § 3.159(a)(1), to their rightful place in the scheme of jurisprudence will be stupendous. It makes no sense to allow an Agency to arbitrarily change law with no supporting statute by default or inaction. By not contesting the proposed changes in the Federal Register,  Congress allows them to become law. While we accept that Congress is dysfunctional and the two houses are at each others’ throats, allowing this to transpire either through disagreement or inaction is unconscionable. Irrespective of  tree populations, this flies in the face of  the law. The creation of a regulation unsupported by the statute it is predicated on cannot stand for long, so why try? We have heard Federal Circuit Judges opine that Congress would never have enacted legislation that produces such absurd results. To my dismay, they have yet to announce a holding on how absurd Congress has become.

Posted in Fed. Cir. & Supreme Ct., Gulf War Issues, PTSD | Tagged , , , , , , | Leave a comment

INFO FOR SINGLE MALE VETS

Posted on January 20, 2012 by asknod

Things have been piling up on my desk and I haven’t been keeping up. My wife handed me this and told me to post it weeks ago because she felt it was hugely important for older Vets who are thinking about seeking a new mate.

My suggestion for what it’s worth? Don’t. But hell, that isn’t very romantic. If you do, don’t go looking in bars. Been there, done that. Church is probably the best shot if you absolutely have to destroy what’s left of your life. Have you considered going to the pound and finding a really foxy Yellow lab? Okay, that’s right out.

That’s probably why my wife handed this to me. Many of you will be clicking on those pictures of impossibly good looking women who have already been snapped up while you dawdled. In the alternative, they were never available and simply posed for $20.00 and a chance to be seen unless they’re in Russia.

Most of you will be looking at print that briefly describes the woman and her attributes. Please accept this as a navigation tool the way you would use a GPS. It isn’t a condemnation of women seeking men so much as a deciphering device because we are so dense. Yes, gentlemen. You, me, we are naive and need assistance in all things. That is why God invented women according to my wife.

Posted in General Messages, Humor, Uncategorized | Tagged | 3 Comments

REST IN PEACE

Posted on January 20, 2012 by asknod

Charlie Sheen is 45 and his story is all over the news because he is a substance abuser, an adulterer, sexually promiscuous and obnoxious.

Lindsay Lohan is 24 and her story is all over the news because she is a celebrity drug addict and a thief.

Something as frivolous as Kim Kardashian’s stupid wedding (and short-lived marriage) was shoved down our throats.
Meanwhile…

Justin Allen 23
Brett Linley 29
Matthew Weikert 29
Justus Bartett 27
Dave Santos 21
Jesse Reed 26
Matthew Johnson 21
Zachary Fisher 24
Brandon King 23
Christopher Goeke 23
and Sheldon Tate 27…
Are all Marines that gave their lives last month for you. There is no media for them; not even a mention of their names. Only in America.  Sucks, huh?

 

Posted in All about Veterans | Tagged , | Leave a comment

DOGS V. PARROTS

Posted on January 20, 2012 by asknod

In 1979, when my first wife decided my brain was hopelessly bent from too much fun in the sun in Southeast Asia, I decided to get a parrot. She had taken the dogs and wasn’t giving mine back. I reasoned that a parrot lasts forever versus having to redog every 15 years. God, it’s hell to pay when they augur in. Just about the time when you can explain to them the theory of relativity-bam!- they up and die on you. God forbid you get one that thinks cars have it in for him. If they don’t, they soon will. That shortens the 15 year rule but does nothing to assuage the bond that is crushed.

Enter the parrot. They last longer than you do. Buddy (quite possibly Budette) was born Sept. 17th, 1968 in Ballard, a suburb north of Seattle. He is what we call an egg bird- one who is born in captivity and hand raised. These birds are much more docile and rarely attack.  The Budster turned 43 several months ago. For his birthday, I gave him one of the meatballs from my spagetti. Put that in perspective. The bird weighs a pound and a half. That’s like you or me eating a basketball-sized meatball. Ne problemo. He had half an oatmeal cookie without any candles afterwards. Truth be told is he would have eaten the candles or at least reduced them to little pieces. That’s what parrots do. They diassemble things-permanently.

What cannot be said about a parrot is their fetching abilities. Parrots talk. That’s their claim to fame. They don’t cuddle up very frequently with you unless you have chocolate. Buddy is not potty trained. He will dump, however, if I give the magic command of Bombs away. I do that when he’s on my friends’ shoulders. Its that warped sense of humor that drove my first wife off.  I thought Buddy would be a better conversationalist that the ex. I was wrong. They both scream equally loudly when they are unhappy.

When I remarried, I inherited Buff with the marriage. Having always had a dog up to Buddy, I immediately saw the void. Buff passed in 98. We mourned for a number of years and finally got two new ones six months apart. Dogs feed the soul where a parrot can’t. I’ve had Buddy 32 years and he’ll live to be between 80-130 if my wife doesn’t stick him in the freezer some day.

Today I received this from my daughter who loves anything that will get in the car and come home with her (animals, of course). Her husband has cured that defect or forbidden it.

Being a veterinarian, I had been called to examine a ten-year-old Irish Wolfhound named Belker. The dog’s owners, Ron, his wife Lisa, and their little boy Shane, were all very attached to Belker, and they were hoping for a miracle.

I examined Belker and found he was dying of cancer. I told the family we couldn’t do anything for Belker, and offered to perform the euthanasia procedure for the old dog in their home.

As we made arrangements, Ron and Lisa told me they thought it would be good for six-year-old Shane to observe the procedure. They felt as though Shane might learn something from the experience.

The next day, I felt the familiar catch in my throat as Belker’s family surrounded him. Shane seemed so calm, petting the old dog for the last time, that I wondered if he understood what was going on. Within a few minutes, Belker slipped peacefully away.

The little boy seemed to accept Belker’s transition without any difficulty or confusion. We sat together for a while after Belker’s Death, wondering aloud about the sad fact that animal lives are shorter than human lives.


Shane, who had been listening quietly, piped up, ”I know why.”

Startled, we all turned to him. What came out of his mouth next changed the way I try to live.

He said,”People are born so that they can learn how to live a good life — like loving everybody all the time and being nice, right?” The six-year-old continued, ”Well, dogs already know how to do that, so they don’t have to stay as long.”

I’d say that puts dogs in perspective perfectly. Buddy, on the other hand, will take longer. I haven’t even been able to break him of the habit of eating the Venetian blinds or using four letter words yet.

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

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