FED.CIR.–Purple Heart v. VASEC (2009)

Posted on December 6, 2011 by asknod

Last year I did an interesting writeup about Macklem v. Shinseki (Leroy Macklem, come on down!). What I didn’t do was give a complete rationale for why the CAVC ruled the way it did. I simply mentioned the rescission on appeal of the Extraordinary Awards Procedure (EAP). I feel Veterans need to see the thinking of the VA hierarchy to better understand what they are up against. Its one thing to go to court and espouse a theory. It’s entirely another affair to create laws, hide them from view and state that you are allowed to do this (or whatever you please) simply because you decided to.

The office of General Counsel (027) is tasked with keeping abreast of the law as it is currently interpreted by the Supreme Court and the lower appeals tribunals. Congress routinely changes laws that apply to Vets, so that too must be current. The Secretary is free to promulgate new regulations after publishing them in the Federal Register. If anyone objects, then he will have to defend his changes. The changes do necessarily require a legal foundation to support them.

In August of 2007, the OGC opted to change the procedure on how large monetary awards were administered (the Extraordinary Awards Procedure or EAP). Anything over $250K had to go back to D.C. to be examined. All well and fine. This was okay until the small print was read. There it stated that this was to be done in the utmost secrecy and the Vet and his representative were to be excised from the loop. None of this was to be allowed to escape into public. If a reduction in the proposed award was instituted, no one would know. FAST letters, as they are known, are public so this did not go unnoticed.

The Military Order of the Purple Heart decided to challenge the VASEC on this and went to the Fed. Circuit to stop the practice. While they were engaged in this, VA quietly rescinded the Fast letter in question and substituted another with minor cosmetic changes. When they (VA) arrived in Court, one of their primary arguments was that the Feds didn’t have the jurisdiction to hear this because the FAST letter had changed!

http://caselaw.findlaw.com/us-federal-circuit/1024924.html

I quote :

The VA first challenges this court’s jurisdiction to receive this petition, arguing that it is moot because it was filed for Fast Letter 07-19, which was withdrawn when replaced with Fast Letter 08-24.

and:

The VA alternatively argues that its new procedure is not subject to judicial review because it is not a “rule” within the meaning of the APA. The Federal Circuit is authorized to review actions of the VA Secretary “to which section 552(a)(1) or 553 of title 5” refers, see n. 1 ante, and thus to “review the VA’s procedural and substantive rules, any amendments to those rules, and the process in which those rules are made or amended.” Disabled Am. Veterans v. Gober, 234 F.3d 682, 688 (Fed.Cir.2000) (citing cases). The APA defines a “rule” as

the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.

5 U.S.C. § 551(4). Purple Heart v. Secretary of Vet. Affairs (2009)

The current VASEC and his predecessors are more than familiar with how the law works. To attempt this sleight of hand with a straight face is almost a joke.  Read this.

 Petitioners refer to the new instruction that claimants are not to be informed that their claim, after a hearing and decision by the regional office, is receiving another review at a controlling level, without any right of input or participation by the claimant. The Regulations state the veteran’s “entitlement” to a hearing conducted by persons with “original determinative authority:”

Purple Heart supra

Amazing, isn’t it? VA was attempting to rearrange the judicial furniture within the confines of 38 CFR, effectively disenfranchising the Vet of any input or procedural due process- all without so much as a by your leave. The sheer effrontery of this is monumental yet this occurs every day at the VA.

The legal landscape outside 810 Vermont Ave. NW is littered with these new “interpretations” of law. There must be an Office of New  Legal Technique that does nothing other than research how to craft new meanings from existing regulations. Witness the fact that every new ploy that arises at the BVA is usually found wanting for lack of any cogent legal reasoning to support it. OGC’s staid response is that they “construed” the law to mean something new that no one else ever saw. Consequently we see the EAP, implicit denial, implicit consideration and a host of other new terms to excuse their excesses. The latest ploy of denying a claim without actually denying it is the “without resort to speculation” excuse.

You submit your claim and have several risk factors for contracting hepatitis in service. One of these  may happen to have connotations of willful misconduct- say a failed urinalysis when DEROSing back to the States. After 1971, we were required to pass a piss test that detected opiates (Operation Golden Flow). The idea was to rehabilitate the junkies before we sent them back home. Uncle Sam didn’t want a bunch of druggies being discharged and set loose on the street. They opted to dry them out before setting them free.

At any rate, after assembling all the evidence and say, noting a tattoo in service and/or an STD, the VA examiner tends to “opine” that the Vet had several notable risk factors, and he/she is simply unable to ascertain which one was responsible for the HCV. We all know the rater is supposed to do the BOTD dance and give it to us if two of the three risks are legitimate and incurred in the Line of Duty. VA has decided to change that method in favor of stating that the crystal ball is “too hazy” to get a clear reading and thus it would be rank speculation on the poor rater’s part to advance a theory on service connection. The result? A denial based on a choice to not adjudicate responsibly. The claim goes up to the BVA on appeal and they invariably affirm. This will withstand the CAVC’s scrutiny, too. They tend to defer to the BVA if the reason for denial can be rationalized. This is now starting to come under fire, though

The repair order is a nexus letter that cogently discusses every facet of the risks and ascribes a percentage to each. The jetguns should be thrown in because the Court now recognizes this to be a risk even if VA steadfastly refuses to. The nexus letter will introduce a new facet-a doctor unafraid to speculate.

VA will continue to come up with all manner of crazy new ways to look at established jurisprudence with an eye towards reinventing the interpretation. This is disconcerting for any number of reasons. We don’t pay the OGC to investigate cutting edge law. They are tasked with adjudicating our claims based on established tenets already in existence-to wit: M21-1 and 38 CFR. They have no business running around seeking new meanings for what the definition of “is” is. That’s Bill Clinton’s job. Congress has chartered them to perform a finite procedure. The task is simple and straight forward. VA has been doing this for more than a century without having to resort to speculation. Why this sudden moral quandary and the worry of disenfranchising the Vet? VA certainly never had any moral compunctions about denying us in the past based on squirrelly theories.

Identifying roadblocks to our claims success is an ongoing process. When VA arbitrarily changes a regulation, the Courts will call them on it. When they obfuscate and dissemble, we have to be alert to these ploys and identify them. It is assumed that as soon as we see a trend and find a way to circumvent it, VA will feel emboldened to erect yet another one. I will give them this much. They are industrious little elves with too much time on their hands.

Posted in Fed. Cir. & Supreme Ct., From the footlocker, Important CAVC/COVA Ruling, Tips and Tricks | Tagged , , , , | Leave a comment

DC 7354–THE FINE PRINT

Posted on December 5, 2011 by asknod

A member sent me an email and stated that he could never qualify for 20% or more under the HCV ratings percentages even though he was very ill. He wondered how any of us ever got above that with the way it’s written. Veterans need to understand that VA writes VAspeak. They run things together and use a lot of ands and ors strategically in ratings descriptions to make some ratings “either…or” ratings and some conjunctive like A+B. So, with that said, let’s look at what is necessary, what is hidden and what it means to you in Dick and Jane speak.

DC 7354 starts with this simple phrase:

With serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection:

Nothing here of note except the innocent conclusion that you have to have an EIA or PCR test positively confirming you are infected. You might be surprised that a lot of Vets just assume they have this and file for it. On appeal 4 years later, the BVA remands you for the C&P that the VARO never afforded you and Bingo! No HCV. There are other flavors and sometimes Johnny Vet gets them confused, so VA just puts this in here to CYA.

Nonsymptomatic——————————————o%

Well, this is self-explanatory. If you were puke sick, went through IFX treatment and healed, this is where you may end up. If you somehow survived unscathed, and by that I mean you kept all your mental faculties, VA will be disinclined to pay you. I personally have never met any Vet that came out the other end of the Interferon tunnel with no side effects. VA sees this all the time and that is why we have a 0% in the code.

Intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period—————-10%

Here is the first example of either/or of which I speak. You need the first set of circumstances ( fatigue, malaise, and anorexia) intermittantly to qualify. This is one distinct set of requirements. You will need to prove that you are indeed anorexic. A doctor will diagnose you somehow and write it in your records. VA has added two notes at the bottom of DC 7354. Note 1 is a prohibition of pyramiding DC 7312 (cirrhosis) symptoms on top of DC 7354. Note 2 is VA’s definition of “incapacitating episode”. What isn’t written or elaborated on is the definition of “anorexic”. VA uses this as their default definition:

http://www.law.cornell.edu/cfr/text/38/4/112

VA will keep close tabs on you and they always weigh you when you go in so remember that. One of our enterprising  members       ( Ralph) created a “weight loss” simply by packing lead weights into his jeans and boots to VA doctor appointments at the beginning of his claim. He subsequently “lost it” over succeeding months. The base line is established over time (12 months) so you sure have plenty of that. Ralphie is a real joker. He was the first to tell me about the FD&C#2 yellow food dye and black eye shadow tricks.

The other choice is the one most Vets go for.  The 10% requirement states that you must have incapacitating episodes that will require a doctor to insert a note in your medrecs that he is advising bed rest for you due to these horrible symptoms listed. Notice the “and” at the end encompassing RUQP. While no one will have all the listed incapacitating symptoms, it is expected most will suffer a majority of them. If all you report is RUQP and get nothing from the Doc on paper about how rotten you feel, chances are you are going to stay at 10%.

The VA takes great stock in how many days you are incapacitated. Thus, if you let “oh… about 5 or 6 days a month” escape your piehole, do not be surprised when VA says “The Veteran stated he is incapacitated less than a week every month” thus he does not qualify for a 10% rating.” I have read that too many times and the member says “Well, yeah, I guess that’s what I said, but I didn’t know they were that picky.” Veterans, you haven’t seen nuthin’ yet.

 Daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period———————————-20%

Again, we see the or dividing the two sets of symptoms. Some Vets end up on prednisone to try to keep an overactive autoimmune system at bay. This “continuous medication” can also be construed as Interferon and Ribavirin because it is being taken for your illness. Any of the medications for cirrhosis like Lactulose do not qualify technically, but you are encouraged to list them all. My theory is that Morphine probably qualifies if it can be said you’re eating it for arthralgia. I had one industrious Vet who stated to his doctor that cinnamon, peanut butter, tomato sauce and garlic made him nauseous enough to throw up. The good doctor wrote this into his records with an admonition that the Vet should try to refrain from eating these items. This qualifies as a diet restriction. He wasn’t lying. If you eat them all at once, vomit happens. Here, again, the Vet is advised to push heavily about how many days he is incapacitated for the record. The magic minimum is 14 days now, but no more than 28. VA will not get anal about proving this yet. They start to require proof of time lost in the form of time cards or your supervisor’s letter stating as much later when you attempt the 40% hurtle. Another VA trick is to say that “The veteran does not mention any time lost so it is assumed he had no incapacitating episodes.” It certainly wouldn’t hurt to document this with pay stubs showing hours worked now. I say this because I sense the VA is on the brink of tightening up the purse strings on money. Congress is soon going to get ugly about how much is spent and everyone is going to suffer. The Department of Veterans Affairs swallows an incredible amount of the budget and it is increasing faster than the National Debt,  so we are in the crosshairs.

Daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period-40%

At this juncture, VA is going to start taking a long hard look at you. Hepatomegaly is the enlargement of the liver. This is something you cannot fake. The gastrodoc will have you lie down and he’ll feel the edge of your ribcage and then discern the liver below it. The more swollen it is, the larger it will feel on palpation. Notice this rating will also require minor weight loss defined as at least 10% less than your heaviest period in the last twelve months. For the mathematically challenged, 10% of 180 lbs. is 18, thus 162 lbs. constitutes what you need. After the red or you will see the incapacitating episodes criteria is increasing. 28 is now the minimum and 42 is the ceiling. As you can see, this is still an either… or ratings proposition as the prior 3 have been. Obviously some symptoms will overlap, but the important one will always be the days lost to this.

Daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly——————————————–60%

At this stage, VA is really looking under the hood. Over the course of the rising ratings above, there has been mention of weight loss, both stated and silent (anorexia). VA will spring this on you if you do not show evidence of it. Here, at 60% the requirement jumps to substantial weight loss. If you intend to go for the requirements of the first batch, your 180 lb. person will now have to weigh in 36 or more pounds less at 144.  That’s a mighty tall order to accomplish with wheel weights. I went from 165 to 118 in the hospital while VA was playing “Operation” on me. It’s grueling to say the least, but it had nothing to do with my hep. It was all Crohns disease issues and being fed through an IV for 3 months. Going for the second set of issues is simple if you can document those 42 days on paper. Paper as in medical records paper. It makes no difference if they are civilian or VA doctors. Pay stubs are advisable as well. If you are indeed suffering incapacitating episodes, it’s assumed you’re on a first name basis with the doctor and nurse by now.

This last rating is the almost insurmountable hurtle and I cannot emphasize how much VA will do to poke holes in your doctor’s assessment.

Near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain)————————————-100%

Many is the Vet who applies for 100% and is denied. The reasons vary, but the one common denominator is the language employed. The words “near-constant debilitating symptoms” must be physically written into your medrecs. Anything less will not suffice. You, Joe Vet, cannot state this is the case. Only your doctor can do this. I had one Vet state this in his request for increase and the denial stated that he had no supporting medical evidence saying that. We had the doctor write that in an addendum and he had the rating in less than two months. I cheated a little bit by just using the phrase to describe my condition to my doctor. He wrote it in verbatim and I lucked out. I had spotted it in a BVA decision and knew I needed it. I also wrote it down on the QTC form for the P&T exam.

Face it-there are only so many ways you can say this. VA is adamant that it be done exactly like this so do not try to improvise and make yours unique. If you are still working, the odds are 100% you will lose, too. Near-constant pretty much rules out working -even occasionally. One Vet’s wife wrote a supporting letter saying “It’s very difficult for my husband. He can barely work now.” Bad idea. He lost. VA hates to hand out the big ticket ratings. They have a mentality that you need to be at death’s door to get 40%. They also assume you are dumb as a post and pray you won’t visit web sites like this one.

Getting to the 100% rating is an arduous process and requires you to be very sick. You will probably need an ugly liver biopsy and some assessment that you won’t be voting in the 2024 elections. High AST/ALTs (in the 100-200s) are very helpful. Having a doctor who commiserates with your plight is a prerequisite. You sometimes have to go back to him several times to get the letter right because Dr. Bozo wants to say ” The patient is very ill and has episodes that require him to occasionally seek bed rest several hours a day.” It sounds good, but it won’t fly with Uncle Victor. Hopefully this will help you and save you months or years of experimenting with the right phrase to win.

And here, ladies and gentlemen, is a classic example of what happens when you don’t have all the ingredients for the recipe:

http://www.va.gov/vetapp11/Files3/1126591.txt

Posted in General Messages, HCV Health, Introduction-Read these first, Tips and Tricks, Uncategorized | Tagged , , , , | 2 Comments

Quote for the Day

Posted on December 5, 2011 by asknod

Watching the Republicans and the

Democrats bicker over the U.S.

debt is like watching two drunks

arguing over a bar bill on the

Titanic

Posted in General Messages, Humor, Uncategorized | Tagged , | 1 Comment

BVA– HABCV

Posted on December 4, 2011 by asknod

Here’s a well-done production by a Pro Se Vet. You can figure this out easily. There is no REPRESENTATION line in there for the attorney of VSO. The judge, like most there at the BVA, is no spring chicken.

Vito Clemente is a seasoned judge and one who has had to remand poorly prepared or outrightly flawed jurisprudence much in the past. Quite a bit judging from this remand decision. His 12 little dwarves who assist him have delved deeply into the meanings and nuances of what HBcAv  and HBsAg actually represent. One problem. Colvin v. Derwinski prevents Vito from ruling in the Vet’s favor. He has to send it back to the VARO chowderheads and, get this, order them to perform no less than 19 separate actions. If in the course of those actions, the VARO should find in the Vet’s favor then they should figure out a rating and send it back up to be reviewed. Rarely would we see such detailed “if…, then…” in a remand instruction unless old Vito had been given many the bum’s rush by the RO in the past.

Back in the days, there were no Australian antigen tests. If there were, the test tubes weren’t available where we were. If you were puke sick, not hungry and you had yellow eyes, you had hepatitis. If you ate a lot of vitamin pills and laid low for a week or ten days and pulled out, you probably had HAV. If you were toast for 6 weeks and came out looking like you’d been drug through a knothole backwards? Probably HBV. As there was no way of testing for HCV, it didn’t make any difference. It was very dirty in Southeast Asia. It still is. Scientists have all but dubbed the entire Indochinese peninsula the Hepatitis Capital of the World. People there have genuine immunity to this in a lot of cases. We should be looking there for the cure.

In the early 70’s the Australian Antigen test became widely available and an active case of HBV would easily be discernible. A negative finding meant HAV. Of course it could equally be said that it might have been Steatohepatitis or Autoimmune Hep. There is no test for AIH other than a liver biopsy that they send out to the AFIP (Armed Forces Institute of Pathology).

In the early 90’s Scientists discovered how to interpret HBV surface antigens, core antibodies, etc. to ascertain if you ever had it and if you still had it. This Vet still had it and had not developed an antibody to combat it. That is what they are talking about in the remand section.

http://www.rapid-diagnostics.org/rti-hepb-viral-comp.htm

Something this pro se Vet is really good at is the English language and English composition. His introduction manages to encompass HAV and HBV as an either/or possibility. This is good because his HAV tests are positive, too, showing prior infection as well as immunity. VA isn’t going to give him doodly squat for HAV, but it shows he was in the vicinity of a lot of hepatitis which is positive evidence. The fact that he’s HBV active is a big plus for SC. The reader will notice he has listed HCV as well in a different request. This is good, too. He’s throwing a lot of spaghetti on the wall in hopes some will stick.

What the Vet needs here is his own nexus from a friendly doctor instead of Dr. V.A. Demento. Only a VA doctor could rationalize that the Vet couldn’t possibly have contracted HCV at the same time he contracted HBV because there was no test for it in 1974. Yet this is what the bozo signed his John Hancock to:

Additionally, it appears that the Veteran was diagnosed with hepatitis C in approximately July 2006. The May 2008 VA examiner has expressed the view that the Veteran may have been infected with hepatitis B and hepatitis C concurrently. He expressed the view that it is less likely than not that the Veteran contracted hepatitis C during service, but the reasoning seems limited to the fact that there was no known test for hepatitis C at that time(in approximately 1974), so that during those years it would be diagnosed as non-A non-B hepatitis.

Vito did not come over on the Nina, the Pinta or the Santa Maria, nor was he born last night.  He’s not going to be taken in by this kind of shenanigan. Issuing a remand much, much longer than the discussion phase of a decision indicates that the VLJ has little confidence in the RO examiner’s ability to stay on track. Much like an ADHD-afflicted adult, Vito is going to take this poor man to task and enumerate each and every thing he wants done and the order in which to do it. Bravo Vito.

http://www.va.gov/vetapp11/Files2/1119127.txt

Posted in BvA HCV decisions, HCV Health, vARO Decisions | Tagged , , , , | 2 Comments

Of Tank Traps And Mailboxes

Posted on December 4, 2011 by asknod

I am no stranger to mailbox baseball. In my youth, I was renowned for my uncanny abilities at this art form in Sumter, South Carolina back in the sixties. A close cousin to this sport was cherry bombs as first class mail.

In the last several decades, this practice has abated, but a newer style has supplanted it. I speak, of course, of the uncivilized practice of mowing mailboxes down with 4WD vehicles. I moved to a new rural residence in the Lake Holiday gated community in 1990 thinking I was living amongst civilized neighbors. I probably was , but failed to account for their rowdy offspring. Considering my own youth, I count that as a fatal assumption on my part.

My first loss was minor. My 4X4 post was clobbered, but the mailbox managed to survive the low-speed impact. I laughed and erected a new one with a 6X6 post that was infinitely more substantial. Everything was fine and no one felt tempted to test the mettle of such a gargantuan post-for a while. Wood decomposes and my ornate cedar post was not immune to nature.

1995 dawned and the mettle of the post was tested yet again. It survived the first assault, but succumbed later that year to termites and juveniles with driver’s licences. I also noticed that a criminal element was stealing my mail occasionally. The new improved vessel was staunchly anchored with a 4X6 of treated lumber immune to bugs and topped with a locking mailbox. The second locking mailbox installed a month later was secured with two (2) 3/8’X5″ lag bolts and fender washers. Why would anyone want to steal a locking mailbox if they don’t have the key? Mailboxes are incredibly cheap so I was somewhat bewildered at this theft because the box was empty and it happened at night.

All was fine for almost five more years. I found the post nudged over once and straightened it. I suspect the garbage truck bumped it inadvertently when backing out of a dead-end street across from our house.

The twenty-first century dawned without any calamities. My checking account was still there and my wife’s computer didn’t go NASDAQ. Not so the mailbox. In an attempt at New Year’s day humor, someone had mowed it down once again. Either that or they were incredibly drunk and were having difficulty navigating home. To be equitable I gave the individual the benefit of the doubt and dug a new hole and reset the post and mailbox. My wife is a stickler for tidiness so I was forced to replace the dented box and found a larger, locking version that was better suited to the job. It lasted one month.

It was obvious that the “drunken” person suffered from this malady frequently. I based this on the observation that I lost this one so soon. Stoically, I reset the post again and made a promise to myself that this was the last time. I was prepared to throw in the towel and get a P.O. box at the local post office. I couldn’t stand guard over the thing night and day. The cost of repair or replacement was negligible, but the futility was becoming evident.

Sure enough, several years later I came out at 0600 to get the paper and found it lying on top of the horizontal post and box. I went in to read the paper and made plans to stop at the P.O. for the box. All that day I had black thoughts about the little twerp who was making my life miserable and laughing in glee each time he mowed it down with Daddy’s Jeep. I decided on a new course of action predicated on what broke me of that baseball bat habit in South Carolina. Some enterprising welder had artfully constructed a Joe Blow mailbox identical in every respect to your standard curved top version approved by our U.S.P.S. The difference was this one was a) welded to it’s post and b) made out of 1/8″ plate steel. You could drive over this with an automobile without any noticeable deflection of the metal. To say that it defied a wooden baseball bat is axiomatic, and it left me with peripheral neuropathy of the upper extremities for several months.

Towards that end I began planning. As we get mail everyday, this meant an instant repair order. Thinking back to my days in the military and measures employed to impede terrorist traffic at military gates, I came up with what I felt was the viable alternative. The speed limit in our neighborhood was 20 m.p.h. so I wasn’t worried about a high speed crash and a lawsuit. I set about crafting what I considered as the perfect mailbox post.

Waiting until all the little reprobates had departed for school, I started with a nice 30 inch deep hole and my old 4X6 post so as not to arouse undue suspicion. Next I mixed  four(4) sixty lb. bags of concrete and inserted a 60 inch (five foot) piece of 2 inch galvanized rigid steel conduit on the back side of the post invisible to oncoming traffic. I camouflaged it further with several large hose clamps to make it appear as if I had simply attached a broken post to a pipe. The pipe stuck up several feet and was spray painted a nice flat brown to accessorize with the post. I put orange cones around for a week to protect it until the concrete could set up hard.

The week after school let out I got my last customer. This was 2004. I had come home from work and headed to the rain locker for my evening cleanup before dinner. While dressing in the bedroom, I heard the incoming bass boom of a loud car radio with rap approaching. Suddenly the vehicle accelerated audibly and then there was a horrendous crash and the protracted sound of what could best be described as tortured metal.

I honestly thought there had been an automobile accident. I promptly jumped into bedroom slippers and ran downstairs and out the front door. Nothing. No vehicles. My neighbor across the street came over laughing and pointed to my mailbox. A closer examination revealed it was broken-sort of. The post was lying on the ground and the box was destroyed once again. The steel pipe, however, was tipped at a 45 degree angle and very shiny where the paint had been scraped off. It was still about 19 inches off the ground. Several feet away was a residual trail of brake fluid leading off down the street. Ten yards further was the purple telltale stream of transmission fluid mixed with what appeared at first glance to be the green of antifreeze.

I ran back inside, armored up with my trusty .44 magnum S&W, grabbed my wallet and car keys and was off in a flash. The trail led approximately 500 yards down and around the corner past the 9th green of our golf course. There was a small pool in the road and then it circled around a cul-de-sac and headed back out towards my hacienda. The return fluid trail ended for the most part about 60 yards from the entrance to Easy Street. An occasional blob appeared every 10 yards all the way to the front gate. I went back to the house and a neighbor, Russ, informed me that a Ford Expedition with some major engine noise had passed while I was inside grabbing my keys, etc. I decided this was too good to be true and raced down to the local gas station/desperation delicatessen. The Korean proprietor informed me a young man in obvious distress had arrived with friends and just purchased all his transmission fluid and filled his radiator up with water from the hose. In fact, I had just missed him.

I used a logging chain tied off to my ball hitch on my one ton to pull the steel pipe up straight again. Several new hose clamps and a new mailbox and I was back in business for the next customer. Word travels fast, apparently. I moved out several years later to my brand new empty nester abode, but never got another customer. After building such a successful mailbox protector, I have used it as a model for the current one.  I guess my mailbox prowess precedes me. I have yet to get my first victim here.

Here’s a picture of the old tank trap. The new owners moved the box over to the right of it because there’s so much concrete below the steel post. I must not have gotten it back to perfectly vertical in 04. It still has a slight tilt to the left in the direction the Expedition was traveling.

tank trap 12-2011

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

CAVC– Hubbard v. Shinseki–Implicit Consideration

Posted on December 2, 2011 by asknod

vetcourtappealspromoWell, we’ve certainly heard about implicit denial. You know, the ace up the sleeve trick where VA tries to use the “We forgot to include that back claim when we were rating you for the hammer toe and the hemorrhoids, but it was implicitly denied. Besides, you didn’t mention it when you appealed so it’s dead”. A lot of Vets heard that one for a while until the Courts finally said “Hold on there, hoss. The Vet has to understand what it is you are doing to him when you ask him to bend over. This is a claimant friendly environment where the Vet is accorded every courtesy, including a blindfold when he is paraded into the courtyard for his firing squad.”

Those funny guys who work up in D.C. must think we have the collective IQ of Dumbo the flying elephant. This came out of the mouths of the guys of the General Counsel (GC). They are the creme of the legal creme at the BVA. To march into court and recite this babble to an educated  CAVC Judge (Mary Schoelen) almost defies the imagination. Old Tommy TwoTones Hubbard is dead in the water on this claim and his attorney, Perry A. Pirsch, Esq. is wearing a paper bag on his head or begged off on oral arguments before Mary with a bad head cold. It does appear as though Tommy might have done the brief for the appellant judging by what he contends on appeal. This is a train wreck.

The one possible reason for continuing this charade with a remand evaporates in the air when the evidence reveals that our injured party actually admitted to doing heavy duty drugs in 2001, six years before he remembered to change his story and “come clean”  or perhaps “become clean”. My daddy taught me one thing about lying. Don’t. Or, if you do, do not involve anyone else in it who can rat you out. No matter how drunk or high you get, do not get diarrhea of the mouth. Come to Jesus meetings will bite you on the ass every time as you see here. This does not mean I advocate lying as a means to SC. Strict honesty in this endeavor will make it easier six years from now. Remarkably, the story will still be the same.

This decision reveals a fatal flaw and an attempted coverup- a post hoc rationalization for failing to do something correctly. The GC would have us believe that it is not prejudicial error. And for anyone who still doubts their word, a bald statement that even though the RO and the BVA didn’t actually mouth the words “shared razors as a risk factor”, they were thinking it and it was right on the tip of their tongues. So razors were “implicitly considered” even though they weren’t specifically mentioned. Hey. Shit happens. Maybe somebody forgot to write it down, but the fact remains we say we looked at it and we did. Surely, you don’t think we’d lie over something this inconsequential? Besides, the guy is an incorrigible liar and we proved that, didn’t we?

Here’s the actual footage:

HubbardTL_10-936

The Board acknowledged that the March 2009 examiner did not specifically address “all theories of exposure . . . elicited by the Veteran,” but reasoned that all such theories were “implicitly considered” because the examination report was based on a complete physical examination, a review of the diagnostic test results, and a review of the appellant’s self-reported history. R. at 12. The Board’s analysis on this issue is flawed. The March 2009 examiner ignored the RO’s explicit instruction to comment upon the sharing of razors as a theory of exposure, and continued his silence in an addendum to his original examination report. R. at 32, 37-38. The examiner’s silence on the appellant’s sharing of razors as a theory of exposure cannot permit, contrary to the Board’s reasoning, the finding that the theory was “implicitly considered” and therefore adequate. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (finding an examination inadequate where the examiner did not indicate whether he considered the veteran’s assertions of continued symptomatology); R. at 12. Such silence as to an identified theory of exposure cannot yield a fully informed evaluation by the Board. See Barr, 21 Vet.App. at 311;Ardison v. Brown, 6 Vet.App. 405, 407 (1994). The March 2009 examination is inadequate. 

Nonetheless, the Board’s reliance on an inadequate examination does not doom its decision. See 38 U.S.C. § 7261(b)(2) (the Court is required to “take due account of the rule of prejudicial error”). The Board separately, and adequately, found the appellant to be an incredible historian because he provided inconsistent and apparently self-serving accounts of his history of drug use:

A review of the service treatment records, however, specifically indicates that he was found to have a history of drug abuse within eight months of having been diagnosed with hepatitis A in April 1974, and was found to be in the possession of hashish. He also told a VA clinician in May 2007, during the pendency of his
claim, that he again knew of no possible risk factors for hepatitis C. However, as discussed, he admitted in October 2001 to having used IV drugs on at least one occasion in 1973. At that time, the treating practioner found that he had multiple risk factors for hepatitis C, including a history of illegal drug use and multiple sex
partners. Hubbard v Shinseki 2011

Tommy is perhaps “memory-challenged” as new age progressives like to say. This was his undoing more than anything else. But it must be said that, had he kept the story line consistent, he would have had his moment on remand to go through this hopeless Dog and Pony show all over again.

Along with the implicit consideration, I would like to add this morsel of legalese. Mr. Hubbard’s legal cupboard is bare. He finally  alleges, here at the Court for the first time, that it’s all the Board’s fault:

First, the appellant argues that the Board erroneously failed to find that his in-service hepatitis A caused his current hepatitis C and that the Board erected an insurmountable burden to proving such a connection. Appellant’s Brief (Br.) at 5-7. Hubbard v. Shinseki supra

I don’t know if it’s worth it, but you may want to write that excuse down for the record books. Let’s summarize: I didn’t present any evidence or a nexus letter that would help in my claim. I lied about the drug risk. The VLJ ruled against me because he didn’t believe my theory on how I got it and made it impossible for me to win. They dissed me and then they blew me off on the shared razors thing. And what about that benefit of the doubt thingie? I rest my case, your Honor.

I expect we haven’t heard the last of implicit consideration. Anything this new is bound to be around for 5-10 more years before a “clean” Vet arrives at the bar with a viable case. A panel will probably laugh, look the GC right in the eye and say “Are ya kiddin’ me? Really? Are ya kiddin’ me? You want to die on that hill with Gen. Custer?”

Mr. Hubbard has definitely won this month’s “What? Me worry?” award hands down.

Posted in Important CAVC/COVA Ruling, Jetgun BvA Decisions, Tips and Tricks | Tagged , , , , , , | Leave a comment

Karnas v Kuzma(re DC 7354)

Posted on December 2, 2011 by asknod

Something dramatic happened in 2003 that affects all Veterans who applied for Hep. before July 2, 2001. I speak of the effect of the VCAA enacted that year. It changed the way we are remunerated for hep inasmuch as some of us filed before 2001 and were granted SC. The Fed. Circuit decision in Kuzma v. Principi in 2003 overturned 12 years of CAVC precedence set in the Karnas v. Derwinski decision of 1991.

Karnas_90-312

By way of history, Mr. Karnas came before the Court with a problem in 1989. He had been rated 100% for Schizoprenia and it was reduced to 70%. He appealed and it was returned to 100%. Then Va axed him again down to 70%. This time the BVA affirmed the decision. Fortunately for Martin this was the dawn of the new COVA Court. Here he prevailed and got his Andy Warhol fame for a lot longer than the 15 minutes Andy had forecast.

Which brings us up to 1991. The Karnas decision held that your rating was protected in that if you were rated for bent brain in 1972, and the laws and Diagnostic Codes changed in 1978, that your 1972 rating was preserved intact and couldn’t be “upgraded” to the 1978 standards. The import of this was to protect old ratings from being reduced by newer laws. It made good sense and was supported by Supreme Court precedence.

On July 2, 2001, the VA promulgated new Diagnostic Codes for hepatitis. Prior to this, the “new” hepatitis C, also known as Non-A, Non-B Hep., had been rated on the only hepatitis diagnostic code then in existence-DC 7345. Seeing a whole new field of claimants at the gates, VA had decided to divide the codes. HAV, HBV, steatohepatitis and Autoimmune hepatitis were kept in the old DC 7345. HCV was given its own code of DC 7354. The law also changed the DC 7345 ratings % from a 0%, 10%, 30%, 50%, 70%, and 100% to the 0%, 10%, 20%, 40%, 60%, 100% format found in the new HCV code. Of more import, VA tightened up the rules in 7345 for ratings and made them virtually identical to the criteria echoed in 7354. Because of the Karnas holding, if a Vet had been granted SC under 7345 for HCV, he could elect to continue on that rating code if conversion to 7354 might cause him a reduced rating. Imagine being rated 70% on 7345 and converting to 60% on 7354. Karnas prevented this and it was really the only equitable way to accomplish it. Enter Mr. Kuzma in 2003.

Mr. Kuzma got caught in this retroactive triangle in 1997 through 1999 and finally found his way to the Federal Circuit. They threw out Karnas and Holliday upon which Mr. Kuzma had hung his hopes.

http://scholar.google.com/scholar_case?case=14761261010471629301&q=Kuzma+v.+Principi&hl=en&as_sdt=2,48&as_vis=1

Now, let’s look at how this affected hepatitis claimants such as us.Prior to the VAOPGCPREC 7-2003 holding that was issued on November 19th, 2003, if you crossed over into July 3rd, 2001 with a rating for hepatitis C based on 7345, you continued to enjoy that Diagnostic Code unless it was more advantageous to convert to the new DC 7354 and get a higher ratings percentage. Once the Kuzma precedent was issued, VA proceeded to enact the precepts of  the General Counsel precedent (see link below). The law now read that you had to be rated after 2001 on the kind of hepatitis you actually had regardless of when you were awarded your claim.

Purely as an example,  let’s pretend Joe Vet got 30% in 1994 for HCV under 7345. In 1998, VA increased his rating to 50%. In 2000, they increased it again to 70%. In 2003, without any ado, they dropped it to 60% based on his symptoms, existing medical records, DC 7354 and the holding in VAOPGCPREC 7-2003.

http://www.va.gov/ogc/opinions/2003precedentopinions.asp

All the appeals in the world would fall on deaf ears. Joe Vet was screwed. Mr. Kuzma found himself in the same boat.

Thus, you can see that the VA giveth and the VA taketh away. An interesting example of this which was enumerated in the Karnas decision of 1991, was the concept of a stabilized rating being protected to a certain degree after five years (see 38 CFR § 3.344). Do not confuse this with the twenty year protected rating which is immune to revision absent fraud ( see 38 CFR §3.951). Mr. Karnas ably argued that his rating fell into the stabilized category and was protected from revisionist diagnostic codes gerrymandered to reduce his rating. His argument was flawless in that regard and thus he won without much ado. That wouldn’t happen today. Fortunately for Mr. Karnas, his rating became protected this year, assuming the VA grinch didn’t intervene in 2003.

In summary, we as litigants are faced with a bifurcated rating that changed on July 2, 2001. If you floated to a higher rating by virtue of the change, you were decidedly in the minority. Most discovered they received a demotion from 70% down to 60 or from 50% down to 30%. What concerns me today about this is the current pickle the government finds itself in financially.

Could it be the VA will once again use this technique to trim ratings of their assigned percentages in hopes of lowering the amount paid out as compensation to us? This would not be the first time. Veterans might not remember the Tinnitus brouhaha in the late 90s when the Court held that it was suddenly permissible to pay 10% for both ears (bilateral Tinnitus) in lieu of the previous policy of 10% for each ear. This has saved the VA untold amounts of money and allowed them to institute the practice of paying year-end “Santa Claus” bonuses to all those employees so richly deserving of special attention and accolades.

I propose a bonus for Veterans who reach the 20 year mark of compensation. Assuming you actually win while you are alive (and young), a twenty year high water mark truly would be a stupendous accomplishment. The bonus would honor the few who accomplished this against all odds and had the intelligence to file when they did. No one told me to march smartly down to the VA and apply for residuals of Agent Orange or the upcoming HCV in 1973 when I was handed my walking papers. What I wouldn’t give for a DeLorean with a Mr. Fusion and a flux capacitor in the backseat…

 

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

QUANTITATIVE STATISTICALOLOGY

Posted on December 1, 2011 by asknod

Hmmm, that’s a mouthful. Allow me to explain. As many know, I drive down the road on autopilot going to my appointments to keep me alive. I leave surreptitiously when Cupcake isn’t watching because she doesn’t like me to inflict myself on other drivers. My theory is that scaring the shit out of other drivers keeps them on their toes-ergo alive longer.

While going to yet another blood letting at the VAMC, I had this epiphany about VA claims. I cannot be in the minority when I observe that the Administration has managed to misinterpret, misconstrue and basically mis-everything they get from me. Another member wrote me about this and wondered if it was just him or if this was endemic to the system. Sadly, I believe it is. Whether it’s a ploy to delay the inevitable or a genuine defect in logic assimilation is what I analyze today.

If you went to the dentist for a nagging pain in the right upper quadrant and the dentist said you had decay in the bottom left, you would question your sanity. Or would you? You trust the dentist to be knowledgeable. That is his forte, not yours. But when you are handed this misinformation, and it clearly is such, you question his ability to do that which you employ him for.

Similarly, when you finally engage in the distasteful job of bringing the VA to the table to settle old debts, you would expect them to be able at that which they accomplish everyday. Silly Vets. What were you thinking?

If every other Vet comes to me for help with their claim and shows me documented proof that the VA, purposefully or otherwise, managed to make a hash of their claim, I would assume they do it religiously for a living. This should be cause for alarm, but it is so prevalent that it passes for normal. How can that be?

The art form of collating evidence is old science. Assemble the contemporary evidence “for” in one pile and “against” in another. Determine who’s been naughty and who’s been nice in the interim and put it in the correct pile. Next, assemble current information and lay testimony and file it in one of these two mounting piles. Finally, weigh the evidence for and against based on judicial canons and if the evidence is in equipoise, give the benefit of the doubt to the Vet. Right? Seems pretty straight forward on its face, doesn’t it?

Now, let’s examine the fractious, disingenuous VA system and see where the two methods of decision-making part company. VA accomplishes, for the most part, all the above actions by requesting your files from the NPRC in St. Louis. The NPRC are water-challenged or eternal optimists, so they don’t own or possess normal fire suppression devices like overhead sprinklers and fire extinguishers. Other people’s paper burns-not theirs. And on the off chance that they do have another fire-what the hey? That means less filing and fewer requests for files from their brethren over at the VA. A win-win situation all around.

If the files managed to make it to St. Louis after you separated (and they don’t always do so), then they are sent to the VARO. This doesn’t mean they’re safe there. I don’t know how many Vets who have told me they filed and got 40% in San Diego and then refiled last year in Sioux Falls only to have VA tell them return to sender, no such number, no such zone. If they had the medrecs in 86, where’d they go? VA can look you right in the face and pull their collective pants pockets out and say “Search me.”

If they do manage to keep the files intact, the battle has just begun. VA looks at all your files including you military service files. If you had a run-in with them over some hashish or a love affair with Johnnie Walker, they know this. Bingo. You smoked hash, shared the pipe with someone who was HCV-positive, and therefore you are not entitled to SC. Same for the JW bottle. If you claim you wiped it off before smoking/drinking? Well, that can’t be corroborated and is mighty self-serving testimony, isn’t it? In a word, drugs or alcohol are the death knell for any HCV claim.

In the event that your milrecs are spotless, then the medrecs come under focus. Absence of any complaint of hepatic malfunction is positive evidence against SC in spite of the cryptogenic nature of HCV and further substantiates their theory. If you did have a hepatic misadventure in service it will be discounted as HAV, HBV or even mononucleosis if they didn’t test you for it. Absent a viable HCV test before 1988, this fact is overlooked by VA examiners or simply buried under the CAVC’s Maxson decision that so much time has passed that they can’t in good conscience attribute this to service.

With the advent of PCR testing, they can look into the past now and see whether you had HAV or HBV back in 1970. What they still can’t do is say you didn’t have HCV then and this is what VA continues to do. Medical evidence aside, your nexus letter is going to be suspect without contemporaneous medrecs from the service viewed by the doctor. Your risks were unique to you alone. The mere recitation of these events to your doctor from your perspective is not considered probative evidence. Lay testimony is supposed to be admissible and credible absent you changing your story every two years. If you give the doc everything you recall verbally, unsubstantiated by medrecs, the VA calls that inventing history and will not recognize it as evidence. Of course, a VA examiner and his cronies are allowed to opine all day long inventing history as they imagine it to support their decision.

In a nutshell, you have a mighty tall order to fill and you’re dealing with a deck that has less than 52 cards in it. Vets who win are few and far between because they do not comprehend what the rules of the card game are. This is what calls into question what the qualifications of the people hired to examine the evidence possess. What school of discovery do they attend to become approved VA sleuths? I submit that the diplomas come from Crackerjack boxes or south of the border from Diploma mills.

VA examiners as the BVA is fond of referring to them, can take a set of facts and come to the exact opposite conclusion you or a logical thinking person might because that is how they are trained. The VARO adage of “Grant if you can and deny if you must” is for PR publication only. The facts speak differently judging from the appeals process. This means that the assimilators and triers of fact have a predilection for leaning towards guilty until proven innocent. As there is no accountability for errors, an examiner can blunder through claim after claim and get absolutely none right. He will, however , get a bonus if he can do several of these a day and keep his in-basket empty.

Imagine the scales of justice-the normal scales. Then picture VA’s interpretation of how the fulcrum is positioned. I conceive of it as looking something like this:

To win at this, your pile has to beat their pile just to get a benefit of the doubt. There is no magic to this. If you are taught by VA instructors that you start with the assumption that the claim is bogus and start filling it in with supportable fact, then you can cease looking for support before you reach the tipping point on the scale. This is one common ploy. Say you had tattoos in service. The entrance and the exit exam says no tattoos because you didn’t think to show them to the pecker checker on the way out. You lose absent several buddy statements.  But let’s say you also had VD in service and they fail to look at that as positive evidence of HCV risk. That in itself would win your case but VA ignored it. Do you honestly think that is an accident? These guys look at everything. If you did time at the Graybar Hotel, they know about it even if you neglect to mention it to them.

We had a recent case when member WGM’s rater said “No sir. Wasn’t them jetguns. No way. That ol’ boy got it from patronizing prostitutes. Lookee here in his medrecs. 6, count ’em-6 cases of the clap in service. Willful misconduct! No money for you.” The service officer had to tell them that VD is not willful misconduct. With egg on their faces they admitted it was CUE. What they were also forced to admit was that they had made a finding of fact that it was clap. Now, they couldn’t change their story in mid-stream, so they gave him SC for hep. based on the STDs. VA doesn’t make many errors so this was an aberration. Usually, they have the story line established 15 minutes after they get all the facts. Claim denied due to … oh, yeah, here it is, no medrecs evidence and let’s throw in the failed urine test as proof of willful misconduct. Good deal. Send it down to steno and let’s look at the next one.

With an error rate approaching 70%, one would think it was time to reinvent the process. There must not be suggestion boxes in the coffee break rooms of VAROs. Think how much money they could save doing it right the first time. They might have to lay some of the raters off or let them go.

Posted in General Messages, Tips and Tricks, Uncategorized, vARO Decisions | Tagged , , , , , | Leave a comment

18 SUICIDES PER DAY

Posted on December 1, 2011 by asknod

The Senate woke up yesterday and got pissed. Sen. Patty “tennis shoes” Murray, our staunch defender of all things Vet (when it is politically advantageous), just discovered that 18 of our elite club decide to check out of the hotel every day by their own hand. Ungrateful little bastards, aren’t they? Why, the sheer effrontery of these former souls to put Congressmen/women on the spot.

The problem? Well, it seems that if you, Joe Vet, want an appointment for a mental health issue, you can expect to get in line. If you’ve been down to the VAMC recently, you probably noticed this because you had to stand up for a while. Seems they’re running out of chairs. The wait can be as short as 21 days to as long as 87 in Spokane, Wash. according to Sen. Nike. Were this a sucking chest wound, the delay could be fatal. Our good senator has also finally connected the dots and figured out that delay in mental health care can also result in the cessation of life. No longer can they whistle whilst passing the graveyard and pretend they’ve done their job when Veterans are being so blatant about disposing of themselves in this manner.

Part of Congress’ job, above and beyond appropriating the funds for the VA, is to ascertain that they are actually using the funds for the intended purpose. It appears something is amiss down at 810 Vermont Ave. NW. If you own a company and have worker injuries, you institute training protocols to reduce same. If you throw $10 million at it and get 0% reduction in injuries and actually suffer an uptick, including fatalities, you’d tend to question what the hell is going on. Well, after about 6 years, Congress decided to investigate yesterday in earnest. “Earnest” being defined as it interrupted their 2012 campaign plans for the day.

Since 2006, the VA has been faced with a 34% increase in the number of Vets seeking help for bent brain syndrome. Unfortunately they haven’t kept up with the demand for services. This is causing back pressure in the form of the aforementioned suicides and drug abuse. Nobody is including homelessness in the equation yet, but that can’t be too far down the road. To do so would make the numbers seem more dismal than they already are.

Government guidelines require VA to schedule an appointment for those who so request within two weeks. 40% of Vets surveyed laughed at that and said they were having no such luck. 70% of VA providers queried in the survey said they didn’t have the space/personnel/staff to meet the mission requirements. An additional 46% said they needed to provide more “off-hour ” appts. for their clients to accommodate their (Veterans’) work schedules. Yes, Virginia, Veterans have to go to work and pay bills just like Mommy and Daddy.

This just torques my jaws. This has been going on for many years, and not just on the mental health side of the hospital. Vets have been getting the lowest priority for years and years the moment they get their walking papers. That America’s elected poohbahs just woke up and smelled the coffee is almost absurd. Visualize if you will a person (the military) balling up a piece of paper (a Vet) and hucking it in the trashcan like a basketball. The VA is NOT there to unfurl the paper, smooth it out and file it correctly until forced to do so. Consequently some of the trashcans get emptied before all the paper can be rescued. VA complains they are resource-challenged and they may well be. My advice would be to ask for more M-O-N-E-Y.

Mary Schohn, the head of the VA’s mental health operations was trotted out recently as the fall-gal and beat her chest with the usual mea culpas. She informed Congress that the number of mental health professionals employed and assigned to Vets has ballooned from 14,207 to over 21,000 since 2006-a 47% increase. VA had 1.2 million requests for mental health actions last year alone. Donning sack cloth and spreading ashes on her head, she went further and said VA “realizes we have much more to do.” Well, duh. Where’d you park the squad car, Dick Tracy?

Let’s analyze this. In my war (Vietnam) we were deployed for a finite 365 days and knew it. For combat troops, we could expect 240 days of same. 85% were support personnel but were still recipients of harassing fire and terrorist activity which kept them on their toes. Granted, we have had our fair share of bent brains from this, but as a percentage of number deployed, we have had less than the current war(s). What is so different that we see such dichotomy in the numbers?

First and foremost, it seems, would be the number of deployments. In my war, many were drafted and could only be held to serve three years. Granted, many enlisted for four and served without incident, but the stop loss codicil was never employed due to the large numbers of warm bodies available. Now we are faced with a different set of circumstances. The smaller, smarter, all-volunteer, leaner military has corralled a finite number of servicemen and deployed them repeatedly into the fray-some even now deploying on their third tour. Any farmer can tell you the plow wears down and does not function well without replacing the blade occasionally. Likewise, the continued insertion of troops into battle has consequences unforeseen since the years of WW2. Put bluntly, one cannot watch the continued destruction of his brethren without serious mental deterioration.

Why the military and the VA think this is some new phenomenon never before seen doesn’t pass the smell test. Every war has it’s collateral damage. Brain readers since before time have written papers and done studies on how mental adversity can have odd effects on the psyche. After all, they’ve had an ample laboratory for this with two World Wars, two more in Southwest Asia and that pesky disagreement with North Vietnam in the 60s-70s.

With all this experience under their belts, they now come forward hat in hand and shrug their shoulders as if this is some untoward development that caught them unawares. Wars have had this exact same fallout every time they happen. Christ, you can almost set you clock by it. The fact that they are using a “no deposit, no return” philosophy with soldier’s brains is now demanding a solution-one they are ill-prepared to proffer.

The writing on the wall with the current administration is to blame the prior tenants rather than seek a viable solution. Another aspect that is surfacing is to retreat inwards and shrink our military. This myopic philosophy will simply embolden our enemies to become more aggressive as they see us retreat. We need to choose our battles carefully and, most of all, allocate funds to compensate the ensuing damaged participants ahead of time. No more can we pay lip service as the politicians did yesterday to this crisis unless we are satisfied with the status quo of watching 18 of our citizen soldiers give up and take their own lives every morning. America makes a pact with each and every one of us when we sign up. The fact that they are so parsimonious and indifferent when it comes time to honor the commitment is appalling. With the current,  unsettled economic doldrums, mental health can be a difference between living and dying-something Congress seem inured to. I hope all of you remember this next November. That’s the only time the pen is mightier than the machine gun.  Make it so, Number One.

Posted in From the footlocker, General Messages, Uncategorized | Tagged , , , | 2 Comments

A PH VETERAN X 2

Posted on November 29, 2011 by asknod

Yesterday I met the man who puts a face on Veterans everywhere from my war. I might have mentioned that my best friend Paul owns a butcher shop. I drop by there frequently just to see what red meat looks like and drool. While I was there an older man who was bent over walked in on a cane. Paul promptly introduced us and mentioned that we had Vietnam in common. Well, Gordon and I looked each other up and down and we started talking. It felt good like draining an abscess relieves pressure on a wound. Gordon said he hasn’t talked to anyone about it all these years and I know why. Nobody understands it. Hell, to this day he and I both probably don’t understand it. 58,000 + is a lot of lives wasted teaching the art of combat and that was just our casualties. This will open your eyes about us.

http://www.vhfcn.org/stat.html

I was watching a show on the 1968 Tet offensive a month ago and they mentioned that only 2.2 million men actually served in Vietnam. Total. That’s really not a lot considering we were there in one capacity or another from 1954 to 1975.  In my post Vietnam travels, I have only come to know less than 25 who were really there or who would admit to it. I have met many more who professed to have been present after it became fashionable, but they show their ignorance of a map when questioned as to where they were in country. Gordon is the real McCoy. He has more stitches in him than Frankenstein, too.

Gordon enlisted in 67 and was chosen to be a land warrior (MOS 11B-infantry) and was so trained. He departed about six months after induction for the Cu Chi-Tay Ninh  area where they were doing search and destroy missions. Gordon said all he remembers was the ping sound when the Bouncing Betty jumped up ahead of him. This is where God and miracles enter. The explosion evaporated the guy when he stepped off it as could be expected. It also got the 90 day wonder and the Point who succumbed a day later. The two gentlemen in front of him lost their legs to the knees and one to the right lost a leg and an arm. Gordon came home with almost all of himself. Guys behind him lost fingers, eyes and pieces of ears.

Gordon held on to consciousness just long enough to hear the dulcet thock, thock, thock of the Huey dustoff. He was actually short-he had 30 days to DEROS. What he was doing near the front of that column probably will haunt him for the rest of his life. He told me the Point was a FNG and nobody trusted him so he moved up to keep an eye on him.

At the Evac hospital at Bien Hoa, they took him in for triage assessment. He handed over a few grenades from his cargo pocket that they had missed and scared the bejesus out of the pecker checkers. The grenades were suspect as they had been damaged from the mine explosion. He tells me he woke up next in Yokosuka EVAC in the intensive care ward and lived there for four months. He must have come down with Hep. because he told me he was yellow as orange juice for several weeks. The doctors were busy picking shrapnel from his body for the first two months and trying to save his right leg. The compound fracture above the knee was messy and got infected right away.

The military police arrived a month into his vacation and wanted to know where his M-16 was. He remembered that the barrel was bent at a 90 degree angle when he opened his eyes after the blast. I do not know this from experience, but I know for a fact that once you are down, they relieve you of your weapons. I know because I had a long discussion with my pilot about who was going to babysit my S&W while I was at the hospital. Gordon was most definitely not loaded onto the dustoff with his rifle and he sure didn’t have it under his gurney at Yokosuka.

His next stop was Madigan Hospital at Fort Lewis, Washington. The Army continued to pursue him for his 16 and threatened to prosecute him or deduct it from his pay if he didn’t cough it up. He spent a year there for more corrective surgery and to get his brain unbent. He did extensive P/T and learned how to walk again. The doctors tried to ship him up to the VAMC in Seattle, but his mother wouldn’t hear of it. Apparently that place had a bad reputation 40 years before I got there and found out for myself.

The scar that runs from above his left eyebrow, across his forehead and ends behind his right ear hides pretty well with a baseball hat. He pooh-poohs the idea that his was a unique experience.For this he got a Purple Heart, but it wasn’t his first one. He got dinged by B-40 shrapnel about 4 months before this incident and had received a PH for that as well.

Gordon must shit ice cream and walk on water. Either that or he is on a first name basis with God. By rights he should have lost his leg and his head or at a bare minimum, the majority of both. He said he now believes in God. He walks with a cane and is 100% P&T. They feel that he may have PTSD but he won’t go see a psychiatrist and confirm their contentions.

A decade ago, Gordon came out his back door to find a cop trying to shoot his Brittany Spaniel over the fence. Apparently a neighbor had a pit bull escape and Dick Tracy mistook his dog for it. Gordon didn’t cotton to this, retrieved his .45 ACP  and came out and poked a couple of holes in the air near the deputy to get his undivided attention. Said deputy smartly retreated and called in reinforcements. They convicted him of assault, took all his guns away and told him they weren’t going to put him in jail. I’d say that was mighty big of them with him being a genuine war hero and all. Gordon is now a convicted felon. I bet that looks good on the old resume, huh?

Gordon lives near me and I will count him a close friend. We get along like peas and carrots because we live in another world few others will ever know. Some will say we’re war Vets-even Veterans of combat. Mostly, we are the brotherhood of survivors of that insane invention of politicians-war.  And the AWOL M-16? Gordon’s First Shirt submitted a letter and said it was destroyed or lost in the Cu Chi area during combat.  Mystery solved. Case closed. Welcome home, Gordon.

If you look closely, you can see the bullet hole through the handle on this RPG. The gentleman shooting it at me didn’t survive the impact of the 5.56mm.

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