CAVC– Greer v. Shinseki– Defective IME/Lay Testimony Not Credible

Posted on January 8, 2012 by asknod

Over the years, the VA and the BVA have become more adroit in their handling of denials where HCV is concerned. Hepatitis comes in many different forms and is not always as simple as it seems. This case is a prime example. Many kinds of Hepatitis are not the garden variety alphabet types and VA tends to try to group them together for simplicity’s sake. Here, they can’t even agree on which one it actually is. The Veteran, Perry Braxton Greer, is no longer with us to add his voice and a new biopsy to the record.  As they say in the obituaries, “Gone fishing-November 1, 1995.”

Perry’s wife Betty, the appellant in this case, is appealing a denial by the BVA from January 2010. She belatedly filed for accrued benefits and an appeal of the denial for service connection for the cause of death. What makes this decision so intriguing is the reasoning of the Judge, Mary J. Schoelen. Her Honor is the daughter of a Vet and she came up the the congressional ranks doing extensive work for the Veterans committees. This gave her a rock solid foundation on the plight of Veterans. Thus it is no mystery as to why she has an excellent track record on ferreting out the truth and exposing the shortcomings of our “infallible” non-adversarial system.

Perry had a documented history in service of digestive issues that continued chronically post service. In fact he testified that he suffered from vomiting and diarrhea frequently after separation. He even had his gall bladder removed in 1970. With a documented history of something amiss, it seems amazing that the VA could deny this Vet. He had numerous letters attesting to various diagnoses. Although none were dispositive of exactly what it was, the general consensus was that it was from service in 1950-54 while in the Japan/Korea theatre. He also had abnormal Liver function tests that showed elevated SGOT/SGPT readings. This, in itself, would be pretty damning evidence against the VA’s findings.

VA, as we all know, sometimes raises their hackles and refuses to budge. They will go to great lengths to discount your theories and nexus opinions to rule against you. This is what transpired here. This old boy had enough mustard on the hotdog to satisfy most courts of law. VA didn’t think so. Unfortunately, he died in the middle of this before another liver biopsy could be performed.

Now keep in mind this all started back in 1992. That, for the numerically challenged, was twenty years ago. This is still the same claim and is now headed back to the BVA on remand for the same old reason-VA screwed up. Having done this since 1812, it would seem they have had ample opportunity to perfect the process. I don’t think we can point to a specific weak link in the chain. There seem to be numerous places where these errors occur and no end to the variety.

Here, the VA chose to send out for an Independent Medical Expert. I would respectfully ask what VA defines as “independent”. Independent would seem to me to be the sort blindly chosen from a fishbowl of potential MDs with suitable credentials. Anything less smacks of a denial in search of an opinion or, perhaps, vice versa.

The BVA, thus armed with the new ammunition, denied Mrs. Greer on all counts and that brought her to Judge Mary several years later.

Betty was smart and lawyered up with one Sandra W. Wischow, Esq. which was very fortuitous. Two women and a Female Judge is apparently a lethal combo. It didn’t take long to pick this apart and see all the little tricks VA uses to make objects appear closer than they are in the mirror.

After an extensive review of the record and inclusion of part of the Board record, Judge Schoelen remarked:

The appellant expresses, and the Court shares, incredulity toward the Board’s reasoning. Appellant’s Br. at 13. The Board allows the absence of a discussion of record material in the opinion to serve as proof that such a discussion was not required for the opinion to be adequate. The statement, however, reveals that the Board itself is aware that the IME failed to account for contrary medical evidence in the record in his opinion.

This case, as the IME noted, is characterized by conflicting opinions among numerous medical documents as to the actual nature of the veteran’s liver disorder. As the appellant notes, several of these documents, such as the report from the veteran’s September 1987 liver biopsy revealing that there was “no evidence of . . . auto-immune liver disease,” and a March 1994 medical note indicating no evidence of “1E biliary cirrhosis,” appear to be compelling evidence against a diagnosis of PBC. Appellant’s Br. at 12 (citing R. at 345, 686). Given that the IME concluded that “[a]ll available evidence is consistent with a diagnosis of [PBC]” (R. at 54), his failure to explain why evidence that seems to contradict his diagnosis is, indeed, consistent with his diagnosis renders his statement inadequate.    Greer v. Shinseki (2011)

The Board decision ridiculed Mr. Greer’s lay testimony, and later that of his wife as not being credible. Veterans would be advised to sit up and take notice of this. This event didn’t occur in 1970. It happened during the adjudication of the case in 1994, and much more recently at the turn of the century. The VA, both at the VARO and Board level, are very fond of using this technique to make it appear as though the Veteran and his witnesses are incompetent, incredible and not credible. They get away with this frequently and only stub their toes when they arrive at the Court or the Fed. Circuit. As so few Vets appeal this high, they generally get away with it. Familiarity breeds contempt and here it is on display:

Next, the Court notes that the U.S. Court of Appeals for the Federal Circuit has stated that “[w]hile the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran’s lay evidence, the lack of contemporaneous records does not, in and of itself, render lay evidence not credible.” Buchanan, 451 F.3d at 1336. As the appellant notes (Reply Br. at 6), the Board appears to reject the veteran’s and appellant’s lay statements, as opposed to merely assigning them less weight, because they are corroborated by some medical documents in the record but not by others. Thus, the Board is unsuccessful in its attempt to distinguish Buchanan.  Greer supra

While I feel some empathy for the VASEC’s dressing down here before Judge Mary, I see a trail of deceit, innuendo and outright evidence fabrication to sustain their findings. There is little in their favor to even point to as an alternate theory. A lovely analogy is building a tree fort supported by three trees. Here the judge has unceremoniously cut down two of them leaving the tree fort unsupported. Had the VA done their job, they wouldn’t be up here shucking and jiving before the judge:

Because the Court has found the September 2009 IME report and the Board’s statement of reasons or bases explaining its rejection of the appellant and veteran’s lay statements to both be inadequate, the Board’s statement of reasons or bases for rejecting Dr. Sue’s opinion can also no longer be considered adequate.

The Board’s statement regarding Dr. Sue’s failure to discuss PBC is also no longer adequate. The Board found that Dr. Sue’s silence as to PBC weighed against the probative value of his opinion because PBC is “the most likely diagnosis suggested by the other medical evidence of record.” R. at 26. Because the Court has found the IME’s opinion to be inadequate, the Board’s characterization of the evidence may no longer be accurate. Therefore, the Board, on remand, should reconsider the probative value of Dr. Sue’s opinion based the outcome of its future development of this case.          Greer supra

Since the beginning of recorded VA history, our VASEC and his forebears have been engaged in a nefarious scheme that denies all but the most obvious cases. While this one is not as clear cut as some, the evidence mitigates more for a benefit of the doubt argument than a concerted effort focused on denial and a show trial confirming it on appeal. Mrs. Greer and her attorney have made a credible effort to attain justice, all the while being given short shrift by the VA. I wager we’ll hear no more from her because this will be settled in her favor.

 http://search.uscourts.cavc.gov/isysquery/14bbe483-6022-4b8e-bf9a-e646aa2b1680/1/doc/

As usual, click on the word download in the upper left to view it.

Posted in CAvC HCV Ruling, Important CAVC/COVA Ruling, Tips and Tricks | Tagged , , , , , , | Leave a comment

Agent B Update

Posted on January 7, 2012 by asknod

Well, to no one’s surprise the VA opted to adopt the first rules promulgated in the Federal Register on January 13, 2011 on Agent B.

AB will be service connected for Vietnam Vets with documented proof of “boots on the ground” between January 9th, 1961 through May 7th, 1975. The rating will be as published and limited much like Tinnitus (Diagnostic Code 6260) to a maximum of 10%.

To avoid a long process of developing a new code, it was  deemed most advantageous to Vets to utilize DC 7301 (Peritoneum, adhesions of) for this as it is already available. Claims filed for this should include the words “Entitlement to presumptive exposure of Agent B” with addition of “Analogous to”. Include the Diagnostic Code, too.

http://www.law.cornell.edu/cfr/text/38/4/114

The pertinent language reads:

_______________________________

Moderate; pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension——————————————————-10%

There is an important distinction in here as this is not conjunctive or phrased with an “and”. Either set of symptoms is considered as being presumptive automatically. Abdominal distension will qualify as a stand-alone symptom for compensation purposes, assuming the winky test is met or exceeded. VA will send out for a C&P exam to confirm those findings.

Granted, 10% is not a large remuneration for this disease, but I’m sure it is certainly welcome to all who will qualify for it. VA indicated they will be setting up the link to their site soon, but they are trying to tie it in to the Ebenefits  Network. We know how long that may take. The assigned link will be:

speedupmyclaim@va.org

Veterans are urged to file this on VONAPP in the meantime to avoid delay for an effective date of claim. VA has stressed they can only pay this to the date of filing. There will be no earlier effective date than the day of receipt at VARO mailrooms. This claim is planned to “FASTTRACK” and will be sent to Tiger Teams in other cities who are not backlogged if necessary. Turnaround time is expected to be 6 or 7 months from filing to direct deposit.

To see the original post concerning  Agent B click this link:

https://asknod.wordpress.com/2011/09/30/rvn-vets-and-agent-bpresumptive/

Actual contemporary 78mm Agent B canister with self actuator (circa 1969)

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CHANGE YOUR WORDS

Posted on January 6, 2012 by asknod

This is a testimonial to what I hope to accomplish at this site. I want all of you to change the way you file your claims and how you say it, how you present it and mostly, how VA views it. You deserve to win if your claim is legitimate. Most who come here pass that test hands down. Let this sink in. It’s one minute long, but can shave time off your claim when viewed in the same context.

http://www.youtube.com/watch_popup?v=Hzgzim5m7oU&vq=medium

Posted in Tips and Tricks | Tagged , , , , | 3 Comments

CAVC–Quattlebaum v. Shinseki

Posted on January 6, 2012 by asknod

Once again, the illustrious Kenneth “the wood butcher”  Carpenter sharpens his  legal skillsaw blade and gives the VASEC a much-needed haircut and manicure. This one is particularly bloody in that it results in a reversal rather than a namby pamby, vacate and remand. Reversals are, by their very nature, the ultimate bitch slap legally speaking. In DickandJanespeak, it means the legal foundation the VA based their entire defense on was faulty. It implies they got their law degree out of a Crackerjack box. I apologize to the makers of Crackerjacks for that deprecation.  It was uncalled for.

Peggy L. Quattlebaum’s spouse, Cecil L., applied for, and was denied, several ailments to include tremors of all fingers, twitching in finger, a heart condition, and a total disability rating for individual unemployability (TDIU). This was August 2000. As is their wont, VA being unaware of what their individual departments were up to, continued to send the Quattlebaums letters saying they were still in the process of examining his claims for compensation. Ten days following the last letter on December 29th, Cecil packed his bags and checked out. He was no spring chicken and the rigors of dealing with the VA probably made him apoplectic.

Peggy, obviously a well-schooled woman in the arts of the VA, filed her claims for DIC, accrued benefits and a death pension February 2001. This is important. It was done within a year of when he passed so it passed muster legally. The VA, still stumbling around in the dark, mailed Mr. Quattlebaum a letter acknowledging his recent resurrection from the dead and (Peggy’s) application for benefits. It didn’t take long in VA terms to clear this up. In a mere six months, those Dick Tracys at the Montgomery, Alabama VARO informed her her claim was dead in the water. What they didn’t put paid to was her claim for accrued benefits. This should come as no surprise to Vets. VA has a hard time “construing” what it is we ask for when we file. To misplace a part of our claims is entirely expected.

After four years and five months (January 2006) of waiting, Peggy informed the VA that she was still waiting on the accrued benefits check. She also politely asked them to review their records and determine what the status of the claim was that he had filed prior to his demise and to please send her a check for that as well. In the blink of an eye (seven months), VA returned her epistle and summarily informed her that his claim had been denied in August 2000 and, if she had a problem with that, she could file a NOD. What the letter didn’t state (or address) was this pesky little matter of the accrued benefits. VA seemed to be studiously avoiding the issue.

VA is nothing if not ingenuous. Using their best post hoc rationalization techniques, the September 2007 SOC artfully explained to her why she wasn’t going to be in the running for the VA’s version of the Publisher’s Clearinghouse Sweepstakes. VA decided to look at only the January 2006 date as a claim for the accrued benefits. Naturally, if they used that as the very first date for a accrued benefits claim, it would fail. This claim would have to have been presented within the one year statute of limitations after death. By conveniently ignoring the January 2001 filing, they avoided much financial hardship on themselves.

Peggy smartly filed the F-9 and beat feet for D.C. One would think she’d finally get this straightened out among people with triple digit IQs. Not. The BVA made the same mistakes the RO had, and didn’t investigate this properly. I witnessed this phenomenon first hand in 1992 in my own BVA misadventure. It appears they simply took the RO’s version, chapter and verse, and put their imprimatur on it. This makes for speedy justice, but not justice. By not performing due diligence at this level, they managed to overlook the seminal filing in January 2001 that explicitly requested the accrued benefits. This was all a matter of record, so no one can say Peggy and Ken snuck it into the C-File.

Without going into the minutiae of the claim, suffice it to say that VASEC was trying desperately to once again employ VA pretzel logic and bend their regulations to fit their circumstances. About the only thing they didn’t do was run to the General Counsel and ask that a VAOPGCPREC be issued supporting their contentions. The BVA’s VLJ and his minions did a miserable job of sorting this out and now the VASEC was going to the mat for them. Bad idea. When you finally find yourself before an impartial panel, the fig leaf will not cover your nakedness. VASEC owns the BVA. He can tell them what to say, what to think, what to decide and for the most part, how to decide it. He does not similarly hold sway over the Court. They had no trouble reasoning this out which leads me to believe VASEC knew it was defective and hoped to moon walk it past them. He needs a new dance instructor:

At oral argument, when confronted with the above possibility, the Secretary argued that the only proper avenue for obtaining relief in the circumstances described above is a motion for revision based on CUE. However, a CUE motion involves errors “based on the record . . . that existed” at the time of the previous decision, Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc), while an attempt to reopen involves a supplement to the record that existed before the Agency decisionmaker, see 38 C.F.R. § 3.156(a). The situation of a claimant submitting evidence that was in the possession of the Secretary, but not previously in the claims file or before the decisionmaker, more closely aligns with the concept of reopening. Further, the CUE standard requires a claimant to demonstrate that the document “would manifestly have changed the outcome of the case,” Sondel v. West, 13 Vet.App. 213, 221 (1999), imposing a significantly higher burden than that of demonstrating “a reasonable possibility of substantiating the claim,” which is the new-and-material evidence standard. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010); see supra note 6. Thus, while a request for revision based on CUE is potentially one way to obtain accrued benefits when a timely claim for such benefits has been submitted but denied, that option does not preclude the option of seeking to reopen the claim based on new and material evidence.  Quattlebaum V. Shinseki (2011)

Rubbing salt into the wound, the Court also pointed out that there has to be some continuity in the way VA administers justice. This has always been a bone of contention among Vets. How else is one to  present a structured defense of one’s claim when the reasons for denial seem to be based on a different interpretation of the law on any given day? The Court addressed that as well:

Further, in Wright v. Brown, 9 Vet.App. 300, 302-03 (1996), when a surviving spouse “submitted a document which could be interpreted as a claim alleging CUE . . . or, in the alternative, a request to reopen her [accrued benefits] claim” four years after a final Board denial, the Court did not hold (as the Secretary requests here) that such an attempt to reopen was precluded by statute. Rather, the Court stated that, “[t]o the extent that the document submitted . . . may be considered as a request to reopen,” the spouse had failed to demonstrate new and material evidence. Id. at 303. While acknowledging that an agency’s interpretation of a statute that it is charged with administering is subject to “some deference,” Cathedral Candle Co., 400 F.3d at 1365, we also recognize that “‘considerably less deference'” (Gose v. U.S. Postal Serv., 451 F.3d 831, 837-38 (Fed. Cir. 2006) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)) is due to an interpretation that is (1) articulated by appellate counsel, rather than promulgated formally by administrative officials, (2) inconsistent with previous agency positions, or (3) not a reflection of the “specialized expertise'” of the agency, Cathedral Candle Co., 400 F.3d at 1367 (quoting U.S. v. Mead Corp., 533 U.S. 218, 234 (2001)). Here, deference to the Secretary’s current interpretation of the statutory scheme is particularly unjustified, where (1) the Secretary has not identified any regulation, VA Office of General Counsel opinion, or Agency-wide pronouncement positing his current interpretation, (2) this current interpretation is inconsistent with positions previously taken in Moffitt and Wright, both supra, and (3) the Secretary has not articulated – and the Court cannot discern – how this interpretation reflects his specialized expertise. Quattlebaum supra

As I have pointed out to Vets in the past, the VA either flaunts the law with no worries of ever being caught or they are artisans who carefully rearrange the judicial furniture and stage the crime scene. This may sound harsh, but it is not just my opinion. One of the reasons for the VJRA in 1988 was to address this inequity. As Sen, Cranston said at the time (and I paraphrase), VA has existed in splendid isolation for eons with no appreciable judicial oversight. This breeds contempt for the law. After reading thousands and thousands of decisions, one thing seems evident. VA either loses evidence, conveniently misplaces it or blatantly decides not to include it in the record in hopes that no one will notice. If you have the IQ of my goat and are a litigant, you may not notice it. If you are the Kenster, this stands out like a coastal lighthouse in a Maine fog. The fact that Mrs. Quattlebaum studiously included this in her evidence of record speaks volumes of what the VA either failed to do in discovery or chose not to do when they came to Court to defend their position. Ignoring the 800 lb. gorrilla will not make him disappear.

In this regard, we note that the record of proceedings reflects that Mrs. Quattlebaum attached two VA letters in support of her claim. These letters (1) indicate that Mr. Quattlebaum’s claim was still being considered by the Secretary at the time of Mr. Quattlebaum’s death, (2) were not mentioned in the August 2001 RO letter that stated that the RO “cannot approve your claim for accrued benefits because VA did not owe [the veteran] any money” (R. at 318), and (3) appeared in the record of proceedings only once (as submitted by Mrs. Quattlebaum), indicating they may not have been in the record at the time of the August 2001 RO letter. Quattlebaum supra.

Reading these decisions afterwards and doing the Monday Morning Quarterback routine, I find myself in awe of Kenneth Carpenter. Not that he is an astute, adroit counselor, but that he can separate the legal wheat from the VA chaff and see the obfuscation and legal chicanery employed day in and day out. The VA is our avenue to service connection in spite of what it may seem like. If you have only one venue to turn to and all you see is spike strips, justice can seem unattainable. When you attempt to avail yourself of same and VA resorts to deceit or decides to ignore the evidence of record, you feel pregnant and alone. On appeal to the BVA, this should all be unraveled and set aright. However, when Vets or their widowed spouses are forced to consume a decade of time in their twilight years in pursuit of this and the ones ostensibly employed to facilitate the delivery of those benefits become your foe, I submit that the process has gone horribly awry.

Singing the praises of ex parte justice is all well and fine. That assumes the process is followed and a truly non-adversarial, veteran-friendly adjudication ensues. I see less and less of that every time I look at what the VA serves up for justice at the Court. Where is the interaction contemplated and mentioned in every decision? VA has yet to ever engage me in a beer summit and ask any questions or sort out any unresolved mysteries. The accepted protocol seems to be “Damn the Veteran. Full speed ahead”. My apologies to John Paul Jones’ ancestors are in order here, as well as to the Crackerjacks folks.

Ladies and gentlemen Vets, meet Peggy L. Quattlebaum. And for those of you who frequent the VBN, this isn’t the same “Peggy”. I just want to make that clear.

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Footlocker Redux

Posted on January 5, 2012 by asknod

I guess it’s never too late to burn your draft card-assuming you still have one. I found this at the bottom of the box under the General Discharge (under honorable conditions). My guess is they don’t issue these anymore. I had another one that said 1A on it but I think I had to turn that in at the AFEES place when I signed the magic paper. It’s hard to remember what I was doing 42 years ago.

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

Chaossoldier 24

Posted on January 5, 2012 by asknod

A funny thing happened yesterday. “Chaossoldier 24” came in on the site search engine identifier. This is a media device that tells me what   someone who visits was looking or searching for. I happened to remember that we had a fellow Vet with that moniker who came to us looking for help back in February 2010 at the old site. He suffered from PTSD and had been DXed with the bug. His query was standard and I gave him what I could on how to proceed with a hepatitis claim and what to expect:

https://asknod.wordpress.com/2011/09/26/afghan-vet-needs-help-please/

Yesterday, the site stats started ratcheting up and taking off. I finally got a pingback from a fellow Vet’s site that explained what was going on. Apparently our Chaossoldier 24, one Corporal Jesse Thorsen, was live on CNN the other evening singing the praises of Ron Paul. Ron, as most know, aspires to be our next President. What was of note was that our Cpl. Thorsen had tattoos on both sides of his neck above the collar of his fatigues. Perhaps they call them BDUs now. I’m not sure, but when I was in, no tattoo could be visible below the upper forearm. Navy rules may have been different.

Perhaps what most might find disconcerting is that Cpl. Thorsen, aka Chaossoldier 24, indicated in his post that he was a reserve trooper and been air evac’d out of the war zone to Landstuhl, Germany,   His queries about getting VA comp would lead anyone to believe he’s filing claims or planning on doing so, soon.

He was invited up on the stage and introduced by Congressman Paul  to the crowd after being cut off by the CNN correspondent. CNN attributed this to a “satellite glitch”. I’m no conspiracy freak so I won’t delve into the theory that the mainstream media tried to prevent him from advocating for Ron. What is apparent to me is that something is amiss here. Corporal Thorsen claims he has had multiple (3)deployments to Afghanistan and he also appeared in uniform. Many suspect he’s a glory hound and a raging white supremacist with an agenda. Here’s the pingback link I received last night. As I consider all of you to be erudite enough to make your own conclusions, I submit it without bias. Nevertheless, I smell a rat here. I feel bad for Congressman Paul. Thorsen simply inveigled his way onto the stage and got his fifteen minutes of Andy Warhol-described fame. Being apolitical, I could care less, but the idea of presenting yourself as a member of the elite 8% of America for personal aggrandizement, in a word, sucks.

Check this out:

Ron Paul’s uniformed supporter CPL Thorsen is a white supremacist by DrMeithos – TribalWar Forums

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Independent Living Program–NOT.

Posted on January 3, 2012 by asknod

After doing extensive excavation on the subject, here’s what I know. The VA instituted a program for extremely disabled Vets- those who were not going to do a Lazarus imitation and rise from their wheelchairs or throw off their crutches.  This was promulgated by Congress in 1980 during the reign of Carter the Last. It ostensibly was designed to encompass those of us who desired more than TV for entertainment while we wait for the meat wagon.

This from 1998 proves VA used to do this:

http://www.va.gov/vetapp98/files2/9817237.txt

In search of some history I went back as far as 1992 looking for instances of awards for this. I found one instance where a Vet had received computer peripherals and his spouse (also a Vet) was in receipt of a complete laptop with all the bells and whistles. I found evidence of a Vet receiving a greenhouse (heated) and other accouterments. And then… nothing. All requests after this phase (2006) were for naught. The BVA is the source of much valuable information on this, but it appears they have taken a new tack with the financial headwinds they are now experiencing. No more is the snowplow/rototiller tractor the normal grant. No more computers seem to be forthcoming. In fact, VA’s munificence, in spite of their protestations to the contrary, is in extremely short supply.

By way of history, I found this morsel:

In VA Precedent Opinion 34-97, VA's General 
Counsel essentially found that VA has the 
authority to provide services and assistance 
of a recreational nature (in this case, a 
computer) as a component of an eligible 
veteran's program of independent living 
services; and that VA has the authority, 
and responsibility, to provide all services 
and assistance deemed necessary on the facts 
of the particular case to enable an eligible 
veteran participating in such a program to live 
and function independently in his or her family 
and community without, or with a reduced level 
of, the services of others.  This includes the 
authority to approve, when appropriate, 
services and assistance that are in whole or 
part recreational in character when the 
services are found to be needed to enable or 
enhance the veteran's ability to engage in 
family and community activities integral to the 
veteran's achieving his/her independent living 
program goals. See VAOGCPREC 34-97

And voila- VAOPGCPREC 34-97. Actually, you’ll have to scroll down to 34-97 as the link gave me all of them. What is of interest is that the VA started chipping away at this largesse as quickly as Congress authorized it. Funny how that works. All that money available for bonuses to the VLJs for not meeting their goal of cleaning off the desk by December of their backlog, but a paucity of funds for this noble endeavour. Okay, I give up. Anyone from VA who visits here feel like inveighing?

http://www.va.gov/ogc/opinions/1997precedentopinions.asp

In 2001- Va went through a marked retrenchment. VAOPGCPREC  6-2001 was issued and it put the chill on what we got henceforth:

The Board notes that VA has wide discretion in 
the types of equipment and services to be 
approved.  However, as noted by VA General 
Counsel, in making a determination for 
approving such service "The operative word...
is 'necessary', that is the services provided 
must be vital to achieving the [independent 
living] goal, not merely desirable of 
helpful." See VAOPGCPREC 6-2001.

Here is the complete VAOPGCPREC 6-2001:

http://www.index.va.gov/search/va/va_search.jsp?SQ=&TT=1&QT=VAOPGCPREC+6-2001&searchbtn=Search

I find it interesting that funds for “recreational” pursuits segued into “independence in daily living”. When that became overly broad, the word “necessary” became operable. Now “vital” has supplanted it. This is becoming a semantic jungle. What’s next? Near constant and debilitating symptoms requiring oxygen for the issuance of grab bars? Somehow, I doubt the strictures for those D.C. bonuses do not suffer from “requirement creep”.

Witness VA’s recalcitrance to give this old boy a tractor, an ATV and some other little piddly photography stuff to keep him out of the bars: http://www.va.gov/vetapp10/Files6/1041050.txt

The same applies here. No goodies for Gomer:

http://www.va.gov/vetapp10/Files6/1046460.txt

As for a computer, here is the “new” rationale. Keep in mind that for several years, Vets were granted this sort of thing so they could pursue avocational interests like pornography-oops- photography.

http://www.va.gov/vetapp10/Files1/1008276.txt

As for a metal detector for beachcombing? Seems like a noble endeavor to stave off boredom and get you out of the casa to meet new people and expand your horizons. VA’s opinion?  Not!

http://www.va.gov/vetapp11/Files1/1105982.txt

Here, the Vet wants a riding lawn mower in lieu of his push mower. The smart money says he hid his regular gas powered one over at the neighbor’s and picked up the push version at a garage sale for a dollar:

http://www.va.gov/vetapp11/Files3/1124514.txt  This just isn’t going to come to pass, G.I.

I did find  the decision where the enterprising Veteran asked for an old car to ride in on Veterans day and the Fourth of July parades. That, to me, is the epitome of need. A hero needs a vehicle for these things when he’s a legend in his own mind. I have no problem with that. A Vet sitting at home who desires to be active is a good thing.  I think a go-kart would be a more fitting request with the current financial issues our government finds itself embroiled in. Sometimes the VA can be so myopic to our needs.

http://www.va.gov/vetapp08/Files2/0813462.txt

VA professes to have a program, but when examples are sought to affirm this, there are none. They carefully explain that it exists, but we cannot see examples of it. Much like God, it is something we are asked to accept based on faith. All well and fine, but I like to see an occasional flood of Biblical proportions or a raging pestilence every once in a while to reaffirm my faith.

As for me? My needs are still unmet. Jim, the Information Technology expert/counselor from VA, came for a visit last week. He examined my wife’s computer inside and out on which I write this. I think he mentally measured me as well. He determined that I didn’t fabricate AskNOD.org out of whole cloth. He further determined that the old site was real and not a fig newton of my imagination. He found no pornography. His assessment was that I needed a new dockable computer with a printer/scanner/copier, a new Micro Word 7, Dragonbreath (which my wife says I already possess) and an updated Veterans Benefits Manual (2012) on Lexis Nexis. He cogently reasoned that I do, indeed, help Veterans and that this would be a truly “vocational” interest, even if it didn’t result in employment or income. He reasoned other things, but VA is stuck on deny where the ILP program is concerned. He admitted as much candidly after I promised I wasn’t recording it.

I’m not planning on doing a whole lot for the foreseeable future, so if I have to appeal this up to the CAVC, what the hey? It’s good typing practice. I wonder if VA realizes I’m as intractable as they are. They could employ one person full-time to deal with all the havoc I create for them. I rationalize the expenditure of time and resources as a fight for your rights. If I can accomplish it, then it stands to reason that others may, too. I’m mindful that it might impact other Vet’s claims, but this is the VR&E department, which is divorced from the Veterans Benefits Administration. No Veterans or animals were harmed during the course of the filming of this claim. As we are not a 501(c)(3) corporation, there is nothing to look up in Delaware, either.

P.S. This is a good one, too. A king-size bed +…

http://www.va.gov/vetapp08/Files5/0840642.txt

Golf clubs? http://www.va.gov/vetapp08/Files3/0818973.txt

So, this is the skinny on ILP and all its ugly trappings. I just thought you might find it instructive should you decide your lot is miserable. Pity, instead, the poor disenfranchised VLJ who toils over his martini every lunch in a vain effort to decipher the intricacies and nuanced interpretations of 38 CFR desperately in our favor.

Posted in General Messages, Independent Living Program, Uncategorized, VR&E | Tagged , , , , , | 4 Comments

What to say at a BVA Hearing

Posted on January 2, 2012 by asknod

The title on this was what caught my eye. It was a search engine term that came in on my site stats. Obviously some enterprising Vet is girding himself in armour to do battle with the evil VictorAlphabeast.

What do you say at a hearing? I have only done two, but I will tell you the procedure is very relaxed. In both hearings, the only participants were the judge, the tape recorder, my DAV rep. (in 1990) and my wife in 2011.

I built three three-ring binders-one  for each claim so as not to confuse the different ones. The judge swore us both in and said we would be allowed 45 minutes to present my claims. He did not offer to have me call him Mark, nor did I. I was told I could address him as Mr. Hindin. I chose “Your Honor”. Hey, he’s the one who will make the call. I’m sure not going to annoy him with “Dude!”

I started out with the Tinnitus claim and said all I had to say about why they should pay me back to July 1989 or, on an alternative theory, to March 1993.

Next, I moved into my HCV claim and pointed out that it was never finished in January 1995. Due to that fact, the correct date of claim is March 1994. I also am claiming my PCT back to that date because they are inextricably intertwined.

Lastly, I plead my case for my back claim from 1989. I submitted an alternate theory of Clear and Unmistakable Error because they gave me the Bum’s rush and didn’t go get civilian records in the outback of Thailand.

When the time ran out, the Judge was so engrossed, he changed out the tape, put in a new one and had me continue. We consumed about an hour and twenty minutes. He asked numerous questions when I quoted a VAOPGCPREC or a Court precedent. He was amazed that I could have assembled everything without a VSO or an attorney. When we walked out, the last thing he said was that I should consider helping Vets…

The process is non-adversarial. The idea is to conduct a hearing like  adults without a lot of “Objection, your Honor. Leading the Witness.” I find it better to look a man in the eye across a table where I can see his demeanor. I don’t cotton to the idea of  videocamera hearings. You don’t get the feel for the man. Its too much like, well, TV.

With that said, I don’t trust anyone with legal blood flowing through their veins except for my brother in law. They’re like pit bulls- vicious, unpredictable and liable to turn on you. All the little head bobs are well and fine. A little compliment to throw you off guard. When the judgement comes down, more Vets than not are likely to scratch their heads at the end and say “Huh? I thought I had it in the bag.”  Hopefully, we shall see what the BVA gods have in store for me sometime this year. Hopefully. I’m polishing my CAVC armour, just in case.

Posted in BvA HCV decisions, Tips and Tricks | Tagged , , , , , , | 4 Comments

2011 in review

Posted on December 31, 2011 by asknod

The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.

Here’s an excerpt:

A San Francisco cable car holds 60 people. This blog was viewed about 3,600 times in 2011. If it were a cable car, it would take about 60 trips to carry that many people.

Click here to see the complete report.

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

VA’s take on HCV

Posted on December 31, 2011 by asknod

I ran across this website put up by none other than VA. If you can believe this, they actually state:

The source of infection is unknown in about 10 percent of acute hepatitis C cases and in 30 percent of chronic hepatitis C cases. 

Eighty five percent of cases filed are denied based on willful misconduct for drug abuse. If they cannot account for 30% of HCV cases, perhaps 15% were denied unlawfully?

In fact, VA cares for more individuals with hepatitis C than any other health care system in the country. 

Really? And why is that? Could it be that a lot of Veterans got it in the military or is it an odd coincidence?

This is the best by far:

And should the disease worsen (which it can, over the years, in a small percentage of patients), liver transplantation is also available.

So I read this as saying very, very few of us are going to die, but the majority have nothing to worry about. Boy, I’m glad we got that cleared up. I guess I’m just one of the unfortunate small percentage.

Read ’em and weep, Veterans.

http://www.hepatitis.va.gov/provider/policy/military-blood-exposures.asp

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