BVA Statistics

Posted on November 20, 2011 by asknod

I found this while roaming around. The fellow who posted it feels that VSOs are the way to go. He pointed out that the 39.9% of pro se claimants lost. Statistics are everything. Let’s look:

We have 4,576 Vets who have chosen to represent themselves. Without digging too deeply, I will wager some are as bright as I was in 1989 and 94. I would do this differently and will explain. A remand is a “win” in that it is another chance at winning, so I will combine wins with remands. This yields 2,655 of 4,586 claims filed (58.1%). The impressive figure is that only 9.3% of us attempt this. There is no magic in numbers. Numbers reveal things they often are not asked to.

AmVets claims  81 successes but they only filed 265 claims. DAV, with 14,594 filed, claims a whopping 4,174 wins and even larger 6,150 in remands. VVA is the clear winner, but only sallied forth  796 times with 220 wins (remands 422). Statistically, I’d prefer to have an attorney, but the thought of giving him 20% of a big settlement sticks in my craw.

These stats would have us believe that  numerically, it is advantageous to hire a VSO. I don’t read it like that. I see a win column that insinuates 25-30% of Vets win their appealed claims in their entirety. I see only 49,127 appeals of what is usually about 1,000,000+ claims filed each year (based on 2009). These are appeals only. If we look at the RO statistics, we’d be stupefied at the win/loss ratios. I’d love to see those figures.

Check this out for brainwashing. VA calls it a Strategic Plan. I call it a Defensive plan with a lot of  polysyllabic words designed to confuse the reader and deflect blame away from their door..

http://www.va.gov/op3/Docs/StrategicPlanning/VA_2010_2014_Strategic_Plan.pdf

There’s 4 million of us disabled Vets out there now. The report says our numbers are shrinking! Have any of you a) been to a VAMC lately and looked for a place to park and b) tried to get an appt. with your PCP in less than a month? The only thing shrinking is their ability to deliver the promises they are tasked with providing. If our numbers are shrinking it’s due to death from lack of proper medical treatment.

My take (and I’m not a good number cruncher) is that a lot of unrepresented Vets appeal their denials and need serious help with them. That’s all I can take away from it. Having a VSO doesn’t seem to be a big help unless you go to a smaller VSO or find an exceptionally good SO. The truth is out there. One thing is certain. No one will worry about your claim as much as you. It stands to reason you will be your own best advocate with some guidance. It’s not for the weak of heart, though.

Posted in BvA HCV decisions, General Messages, Tips and Tricks | Tagged , , , , | 6 Comments

CAVC–Hall v Shinseki–SJD–Unverifiable Evidence

Posted on November 19, 2011 by asknod

One has to hand it to Mr. Milton L. Hall. He represented himself before the Court in a single Judge disposition pro se– no small feat for someone who isn’t a legal beagle. That he fights them to a draw and a remand is also of note. He probably isn’t going to prevail when this gets a new trial because he picked up the hep. sometime after service or it would appear he did. Since this is a single Judge decision (SJD) we can’t use it for precedence, but it illustrates something we all can benefit from-to wit,unverifiable events. Milt had a love affair with all things drug related and a proclivity for the suds.This caused enough problems that he took the “cure” at a VAMC for the ETOH issues in 1985. During his convalescence, he got the diarrhea of the mouth disease and bragged about his 15 year  history of shooting up junk with shared needles. His treatment cure didn’t take and he tried again in 1988. This time he disremembered some past history but averred it was probably 12 years of IVDU as opposed to 15.

Milt ‘s drug and alcohol abuse started to catch up with him and he discovered the Hep. C problem in 1998. Being the eternal optimist, he filed for SC on the hep. in 2004. After much denial and NODs, the BVA elected to have him fill out a VA Risk Factors Questionnaire in June of 2007. I would have thought that happened in 04. Maybe VA wasn’t taking him seriously. At this time they also asked for the Dog and Pony show to see if it was SC. Nobody at the RO bothered to do any of this before it was appealed. It would seem that they didn’t see a need to waste any money on a burnt out junkie. I sure wouldn’t and I apologize for that sentiment. The BVA likes to make sure they have all the facts before they summon the Firing Squad and that is why they did this. As expected, they denied and he appealed to the Court.

Which brings us up to date. The Court has found a interesting wrinkle here to enunciate. What happens when a Vet recites his version of history and the VA then uses it against him? They have shown over the last decade that when a Vet offers lay testimony, it is simply his rosy version and uncorroborated. Now we have the shoe on the other foot and his lay testimony is the primary reason for the denial. It’s still unverifiable by his medical records, but now it is believed and used as the primary reason for denial. Damned if you do and damned if you don’t.

Read this one for what it discusses on this subject and I guarantee you will discover a rich vein of cites from precedent to buttress you cases before the BVA. For instance:

It is not the function of this Court to speculate on the relationship between an appellant’s military service and his current disabilities; rather, it is the function of this Court to decide whether the Board’s factual determinations on the issue constitute clear error. See Shoemaker v. Derwinski, 3 Vet.App. 248, 254 (1992); Gilbert, 1 Vet.App. at 53. For the Court to determine whether the Board’s factual findings related to hepatitis C are clearly erroneous, the Board must ensure that its findings are adequately explained and sufficiently supported by the evidence of record. See Shoemaker, 3 Vet.App. at 254.
Here, the Court agrees with the Secretary that the Board’s reasons or bases are inadequate,  particularly in light of the fact that the Board discounted the available medical evidence as based on “unverifiable” events. See R. at 9; Secretary’s Br. at 10-14. As conceded by the Secretary, the Board fails to point to any legal authority or regulation that requires an independently verifiable event to award service connection for hepatitis C. See Secretary’s Br. at 13-14. Indeed, the law establishes that entitlement to service connection may be based on lay evidence. Davidson, 581 F.3d at 1316;
Caluza, supra. Accordingly, because the Board’s inadequate reasons or bases prohibit judicial review, remand is warranted. Milton v. Shinseki 2011

The VA and, by extension, the Court are eager to remind us in decisions that they do not subscribe to the Federal Rules of Evidence and are not bound by them. One of those rules states that discussions between an individual and his doctor are inherently credible because the patient has a vested interest in being healed. It follows that he/she would not give false information to obfuscate a correct diagnosis. With that said, the credence to be accorded a drug addict in the throes of delerium tremens would be low. To use that information to deny him based entirely on this self-reporting is against the law. VA knows this yet they tried to slip it by Judge Farley. He wasn’t buying it.

I hope some here can find value in this when they put their claims together. VA will try anything on the assumption that they either won’t get caught or you won’t appeal. This is apparent in almost every contested decision. When unmasked on appeal, the VA will  nod their heads sagely, agree the Judge is right and ask for a do over. This allows them to give it more attention and deny properly the second time.

Old Milt has no chance in Hell of winning this, but his new denial will be properly arrived at and his “unverified” risks will be stricken from the record. The proper reasons will be correctly assembled and a new decision crafted that is appeal-proof. This is as it should be. Regardless of whether your claim has merit, the law must be followed. This is why Congress wisely inserted the Court of Appeals for Veterans Claims into the process to curb VA’s propensity to run roughshod over the judicial landscape.

Hall v. Shinseki  

Posted in Important CAVC/COVA Ruling | Tagged , , , , | Leave a comment

9th FED. CIRCUS TO DO EN BANC ON VCS V. SHINSEKI

Posted on November 18, 2011 by asknod

Back in May, I wrote about this seminal decision  VCS v. Shinseki wondering how long it would be before a) this was granted en banc reconsideration or b) it was appealed up to the Supremes. Yesterday the 9th Fed. Cir. spoke. They have decided on option A. This is good. It will create more back pressure to force our compromised federal agency to start doing what it should have been accomplishing all along.

It may come at the expense of other federal programs that have nothing to do with Vets, but we comprise 8% of America and are allotted a very small piece of the pie. A $27 billion a year budget may seem like a lot to you and me, but the government spends that in a day or two.  We are used like a broom throughout the world to clean up messes. Yet oddly when the time comes to repair or refurbish the broom, we are given excuses as to why that will take time. Lots of time. VA has lots of this time stuff. They measure time not with atomic clocks, but with trees. A tree can grow 30 feet in the time it takes to adjudicate a claim. I’ll take a picture of the six foot tall live Christmas Tree we planted after my son’s first Christmas in 1989. That was the year I first filed for my back. It’s in CUE status in D.C. right now. My son is twenty three and in law school. The Adjudication Officer (AO) who did my claim in 1989 and ultimately mailed me my denial was named Wallace. When I filed in 2007 again, his name was at the bottom as being the manager of the Seattle RO. He retired in 09.

The tone of the judges on this is refreshing even if they’re inherently liberal progressives. I admire them for hitting the nail on the head. Too often the Government types try to do the moon walk backwards off the stage and leave without concluding business. These fellows certainly can’t be convicted of this crime. Read this intro:

We are presented here with the question of what happens when the political branches fail to act in a manner that is consistent with the Constitution. The Constitution affirms that people have rights that are enforceable against the government. One such right  is to be free from unjustified governmental deprivation of property-including the health care and benefits that our laws guarantee veterans upon completion of their service.Absent constitutionally sufficient procedural protections, the promise we make to veterans becomes worthless. When the government harms its veterans by the deprivations at issue here, they are entitled to turn to the courts for relief. Indeed, our Constitution established an independent Judiciary precisely for situations like this, in which a vulnerable group, that is being denied its rights by an unresponsive government, has nowhere else to turn. No more critical example exists than when the government fails to afford its injured or wounded veterans their Constitutional rights. Wars, including wars of choice, have many costs. Affording our vets their constitutional rights is a primary one. 644 F.3d 845 (9th Cir. 2011)

This decision tells of things similar. It tells us that VA is broken and needs to be rebuilt like an automobile engine. Procedures need to be revamped. Whole processes of judicial procedure need to be overhauled. In fact, the May decision concluded that it may be unsalvageable and perhaps should be subbed out to the civilian judiciary to sort out the mess.

You can almost see the smoke coming out of Eric’s ears on this one. Veterans for Common Sense isn’t like a VSO you can make heel like a dog. Their ranks contain all number of law dogs eager to get their imprimatur on the Appeal pro bono. VASEC is facing the possibility that he is going to be emasculated. If the en banc decision goes against him yet again, I foresee him resigning rather than dying on that hill. A spirited defense will go to the Supremes. That is cast in stone regardless of which way the tree falls. One other thing is paramount here, too. Getting certiorari at the Supreme Court is going to be easier for Eric and much harder for VCS. That’s just the way the cookie crumbles. The government, even the much vaunted Judiciary, has a vested interest in America’s pocketbook. They won’t go down in history being the one that broke the bank.

The 9th Circuit, as we all know, sits on the Left Coast. They are not pestered by things such as precedence. Their decisions have a horrible success rate but there is power in numbers. If you throw 10 darts at the board simultaneously, some will hit and stick but  will eventually be dislodged. The damage that ensues has to be swept up, too. That’s what lawyers are for. Lots of them on the left coast, too.

VCS will prevail in this en banc venture- that much is certain. Oral hearings are slated for the week of December 12th.  A 9th Circuit en banc Court overturning a 9th Cir. panel hasn’t occurred for as long as I can remember. How the Supremes will look at it is the important thing. That we won’t see for several more trees.

Posted in Fed. Cir. & Supreme Ct. | Tagged , , , | 1 Comment

SHOW ME DA MONEY

Posted on November 17, 2011 by asknod

I read a thread with a number of posts on another Veteran’s Web Site several days ago. It concerned who knows what to begin with, but had degenerated into a sub discussion which had been hijacked from there. One of the fellows posting suggested that VSOs are paid with the funds that the VA pays them  for every POA they collect. Phrased differently, it seemed the fellow was implying that VSOs cannot survive solely on contributions, donations, car washes and bake sales. The VA gives them funds based on the number of Vets they are assisting. This is where the POA enters as that is an indicator that the Vet is using the named VSO for his claim. VSO presents signed POA to VA and voila- funds are distributed. This seems to make sense on it’s face as the VA insists that we take one of two paths. Either we represent ourselves pro se or we hire the VSO (free). The lawyer option is not allowed until after you get your denial and file the NOD.  Pretty screwy system, huh?

This is when the fur began to fly at Peggy’s site. I say “Peggy” because everyone keeps referring to Peggy said this and Peggy told me that. I assume she must own it for her name is bandied about almost hourly. The site is also done in a lovely shade of pink and looks very feminine which would comport with my supposition. She has an 800 number but apparently is hard to get through to. Many of the personnel who are in day to day charge of the site immediately attacked the poor Vet and called him a liar and worse. In spite of his giving the name of the Service officer who divulged this financial practice, even more attacks were forthcoming. Shortly thereafter, the thread was shut down and no further discussion was allowed to be posted.

Being the inquisitive person I am, I decided to research this claim on Bing. Zero. They’re overrated on Vet info, apparently. Next, I called the Department of Veterans Affairs in Washington State (Olympia) and talked with a sweet lady named Colleen. She told me all about how the Washington (state) DVA apportions funds from the General Fund to contract out for Veterans assistance on claims. Many, but not all, states have State and County Service Officers who are paid by the state to provide this service. They make on the order of $47-50 K a year full time and often work from home. Washington State has none. That’s why they contract the service out. Nevertheless, all states have a mechanism based imprecisely on what Peggy’s member Vet suggested and was attacked for.

As for the National Organizations? They , too receive a small stipend from the VA and Colleen emphasized the word “small” to imply they should probably pay more. She said VSOs do get free rent, electric, furniture and phones from the VA. That isn’t actual currency but it certainly saves the VSO a large financial outlay every month. I would hypothesize it could be “construed” as income in that it is a hard cost rather than a soft one.

I guess what really struck me as illogical was the attitude the moderators took of bored ennui and snide responses associated with the Vets they purport to help. On the occasions when a Vet ventures a theory or  states anything that casts the VA in a bad light, the siren goes off and the whole place jumps into action like a  Chinese Fire Drill. Moderators are summoned to castigate the individual, dispute his allegations and generally ride him out on a rail. Posts are removed if deemed too inflammatory. This is no way to approach a dispute. I noted that the moderators demanded, rather than asked him, to provide his sources (which he did).  Once he did so, the  Grand Poohbah shut it down. The personal attacks are what floored me. Peggy was nowhere seen or heard during this distasteful display of what turned out to be ignorance.

We as Veterans, must stand together rather than become a fractious group with nothing in common. We are 8% of America. John Adams said (don’t quote me) of the War of Independence : We must all hang together or we most assuredly will be hung individually. Drawing a parallel, to partake in backbiting amongst ourselves and call one another names is a disservice to us all. Some are not as well-versed in this claims process as others. To call one another dolts and question our parentage is counterproductive. It breeds animosity in short order and drives prospective Veterans seeking information away. Incorrect information can be reversed but blind, uncalled for anger simply breeds more of the same.

I personally want to thank all of you for acting like adults on this site. We have never here, or on the old site, had anyone who was rude, racist, or disagreeable as I observed the other day. A fellow member of this site as well as Peggy’s, said it is the norm rather than the exception there. How sad that gentle readers cannot curb their their tongues if not their emotions.  Disparate views on VA’s alleged abuse of Veterans, while impassioned, should be able to be discussed without raising our voices. The VA is no paragon of virtue, but neither is it the wicked witch of the east. I find their attempts at denying us both humorous and sad. Humorous in that they come up with some of the darnedest reasons for denial and sad because so many are missled and discouraged by poor legal advice at the hands of those charged with representing them for “free”. Nothing in life is free. Or, to paraphrase an old parable, don’t look a gift VSO in the mouth. And no, I have no proof that VSOs are in league with the VA in a vast right wing conspiracy hatched by Halliburton and Cheney to deprive us of our rights- yet.

We pause now for Station Identification.

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

For Veteran’s Wives Only

Posted on November 16, 2011 by asknod

In June, my wife had to go to Las Vegas on real estate business. Naturally, I was assigned as her bodyguard. While there, I wanted to express my appreciation to Princess for keeping me alive in 2009 when the VA was doing everything in it’s power to kill me. This was our first vacation since the bottom of the world fell out. I saw a gorgeous purse in what could best be described as electric guacamole green. I had not been informed that the correct color name is “celery”. Up until this time I had no idea that fashionistas named colors after vegetables. I guess I should have figured it out by now. In 2004, while laying pink tile in a foyer of a house we were building, I came to realize it was actually Salmon-colored and added it to my severely compromised default color chart. Men have about six colors and verbally mix them for the benefit of other men. You women have what can best be described as “verbal skills” that make it easier to communicate these various hues.

Shortly after this gift, all the women my wife encountered in her work complemented her on her choice. She allowed as how I was the progenitor which elicited squeals of laughter. The idea that a man could pick this Fall’s most trendy color defies the imagination, doesn’t it?

What happened next is indescribable. Suddenly Honda came out with a metallic green version of the same thing. Then another auto maker followed suit. That was the just the beginning. Next, Cupcake found a gorgeous black raincoat with matching green “celery” collar. Well, when in Rome, accessorize- right?

Who would have thought a Praying Mantis needed to accessorize with her body color? Well, my better half, obviously.  My color library is growing slowly. I hope to encounter red the color of rare roast beef soon. Perhaps I’ll get a wallet that color. It may be the newest trend. One thing is for certain.  Women will not refer to it as Red.

Ladies, I give you… Bug, with matching handbag.

Posted in General Messages, Humor, Uncategorized | Tagged | 2 Comments

Ping Golf Clubs and Vets

Posted on November 16, 2011 by asknod
I think this is something of which all Americans should be aware.
     
This isn’t a joke or cartoon; just something interesting to know … you may want to forward this on to others.
     “On Monday, I played the Disney, Lake Buena Vista course.  As usual the starters matched me with three other players.  After a few holes we began to get to know each other a bit.  One fellow was rather young and had his wife riding along in the golf cart with him.  I noticed that his golf bag had his name on it and after closer inspection, it also said “wounded war veterans”.  When I had my first chance to chat with him I asked him about the bag.  His response was simply that it was a gift.  I then asked if he was wounded and he said yes.  When I asked more about his injury, his response was “I’d rather not talk about it, sir”.
     Over a few holes, I learned that he had spent the last 15 months in an army rehabilitation hospital in San Antonio, Texas.  His wife moved there to be with him and he was released from the hospital in September.  He was a rather quiet fellow; however, he did say that he wanted to get good at golf.  We had a nice round and as we became a bit more familiar I asked him about the brand new set of Ping woods and irons he was playing.  Some looked like they had never been hit.  His response was simple.  He said that this round was the first full round he had played with these clubs. 
 
    Later in the round he told me the following.  As part of the discharge process from the rehabilitation hospital, Ping comes in and provides three days of golf instruction, followed by club fitting.  Upon discharge from the hospital, Ping gives each of the discharged veterans, generally about 40 soldiers, a brand new set of custom fitted clubs along with the impressive golf bags.
     The fellow I met was named Ben Woods and he looked me in the eye and said that being fitted for those clubs was one of the best things that ever happened to him and he was determined to learn to play golf well enough to deserve the gift Ping had given him.  Ben is now out of the service, medically discharged just a month ago.  He is as fine a young man as you would ever want to meet.
     Ping, whose products are made with pride here in America (Arizona), has the good judgment not to advertise this program.  God Bless America and the game of golf. 
“Thank you “PING“!!!  “May God Bless our Military!!!”
 

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

MORE VA MATH

Posted on November 16, 2011 by asknod

MORE VA MATH

While driving to a job site to check on my WIFE’s Construction Co.  that I USED to own, a horrible thought of collusion came to me. As most who know me would agree, I think in numbers- like the Count on Sesame Street. Examine this enigma.

 The VA has a budget. It is newly projected each year and is currently about $26 Billion this annum. That covers a lot of ground. The DVA is two major entities- The ROs and VAMCs. If you work for them, it’s the VBA and the VHA. I can see how budget poohbahs arrive at a close estimate for Veterans’ health care. They have X number of VAMCs and personnel to finance. They can anticipate the numbers of Veterans coming into the system from the military in advance. That is shared knowledge and easy to program for. What would seem to me to be random, or should be, is the ensuing number granted. Who can predict that? Read on and find out.

Statistically and historically, we know that Veterans only win at the RO level approximately 15% of the time.  Additionally, only 14% appeal their denial. Whether it’s due to apathy or genuine fraud does not interest us. The quantity does. In order to plan for a budget, a number has to be arrived at for compensation costs. This requires a good faith estimate on the cost of same. To achieve this, a budget guru would need to input the fact that 85% of claims were going to be denied each and every year. And, of the 14% appealed, approximately 70% were going to be denied. But, of the 70% thus appealed from the RO and denied, a miniscule number wend their way higher. They win 70% of the time or are vacated and remanded consistent with the Court’s instructions. That last figure is telling. Again, it doesn’t have bearing on our financial examination today.

From this foray, we can surmise that the VA has, in essence,     pre-denied a fixed number based on what? Finances. Now we get to “construe”. May we construe that only the most egregious cases of service-connected injury/disease are granted? Does this leave the hearing-impaired Vet with hemorrhoids a 0% popsicle? If only a select 15% are invited into the party, are they the first 15% to apply each year or are they on VA’s twitter? Do Vets represented by lawyers have a higher rate of success than those by VSOs?  I can only answer the last and it is a resounding “Yes”.

If  VA’s financial prognostications only include the universe of X number of new, service-connected Veterans each year, they can arrive at a budget figure that fits the number Congress is asked to foot. Absent that number, you would be shooting in the dark. Knowing full well that VA only intends to reward X number of souls and deny Y more, their poohbahs can usually be right in the ballpark. Amazing prognosticators, what?

But. There’s always a but. What of the Vet that shows up 20 years later and says VA made a mistake to the accrued tune of $200 K or so? Shoot. Multiply that by 3000 Vets. With VA’s track record of misconstruing 50% of what they take in, that’s probably a conservative number anyway. In order to accommodate these Vets, others suffer both in timely decisions and (gasp) ungranted decisions. VA can neither go over budget with extraordinary awards again and again nor can they deny genuinely injured Vets. Or can they?

With a fixed budget, VA is constrained from being too lax in decisions. Their largesse is severely limited. All those boys in D.C. drink expensive Russian vodka and parking isn’t cheap either. Why, you wouldn’t want the Judges running around in Kias and Corollas, would you? A good 4WD GMC Yukon isn’t cheap and appearances are everything in D.C. So, there’s no fudge room in that part of the budget. Likewise the VHA. This 18-guys-a-day suicide phenomenon is going to need some serious PR money soon to combat the perception that it’s ignored. Where else to scalp that money from? Why, the VBA.

So, at first glance, the only flexible part of their budget has to be the compensation pool.  It’s being manipulated artificially now, so a little more claims gerrymandering isn’t going to arouse attention. The VA got caught promulgating rules for extraordinary awards in 2008. They wanted to “trim and prune”the payouts a bit before offering them to the Vet in hopes he had recently arrived via the good ship HMS Mayflower.  All claims over $25 K had to go back to D.C. for a time/date stamp. The Court decided that was not according to Hoyle and forbad the process. I suspect they still do it- albeit via secure voice network now so as to leave no fingerprints.

In summary, something stinks (besides me). I have an excuse called Short Bowel Syndrome. Veterans are obviously getting a special brand of justice and it stinks. If your claim is denied today and takes 3-4 years to appeal, then they have effectively moved their budget projections for your eventual success (again, based on statistical models) to 2013-2014. That’s not off-budget. That’s future budget. Much the way we use a credit card to buy something now and pay later, the VA is using a denial to buy time until they absolutely have to pay. In the interim they hope you will a) die; b) go away; or c) settle for chump change. Yes, as odd as it seems, the VA has created a whole new “M2” money supply. They have their 2011 budget as expressed in M1$-that which they were allotted by Congress – as well as their now off-line future M2 claims dollars (unawarded as yet). You have to hand it to them. That is very innovative, cutting edge bookkeeping. It brings back memories of Wimpy petitioning Popeye with his signature “I would gladly pay you next Tuesday for a hamburger today”. What has me stymied is that they put Bernie Madoff in prison for the same thing. One of these days they’ll have to pay the piper. That timeworn excuse of “We just gotta hire more guys. We’re inundated here” won’t work forever. VA hired 18,00 new claims guys last year, then  moon walked and said “Yeah, but now we gotta train them”.  What’s next? Hall passes at the RO for FNGs to keep them at their desks working? 

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

VAMC Dayton Dental Clinic

Posted on November 15, 2011 by asknod

What could be worse than a D&C? Why, a DDC. Imagine going to the VA dental clinic in Anywheresville, America and trusting these chuckleheads to observe normal sanitary protocols in this day and age. It would be not only expected, but highly unusual for anyone to be unaware of the consequences of unsterile behaviour. What, then, to make of Gomer here, who decides these rules don’t apply to him/her and endanger everyone’s health?

The VA, in its denials, regularly uses the presumption of sanitary protocol when telling us there is no way, in this day and age, that Vets are going to pick up HCV from any VAMCs. Sorry, Charlie. You must have gotten it from the toilet seat at McFlugald’s. We don’t carry that flavor/color here. They are borrowing a page from the Court which has held that the presumption of regularity is invoked any time they mail something to us. Yep. We got it if they mailed it. No CM,RRR needed. Of course, the obverse isn’t the case. Which is why we have to have proof we mailed it. That says a lot about what the VA thinks of our honesty, but I won’t go there today.

Similarly, everything VA owns and uses, including their endoscopes are safe sanitary and above reproach… until they’re not. Hence we have pesky little outbreaks of HVC, HBV and other bugs at the hospitals touted as being the best. While I’m sure you can point to the outbreak in New Jersey as not being VA, one would be advised to take heed of the fact that New Jersey doesn’t seem to be in the limelight for medical malfeasance as frequently as the the VA. VA is like The Truman Show-on 24 hours a day.

We can sue the VA if we discover they have given us one of these things within 2 years of the date of the medical “mishap”. That assumes we find out about it in that narrow window and act on it. Here’s the form:

SF-95

If you should attempt this, be prepared for a rude awakening. First of all, you will be hardpressed to find a law firm, let alone an attorney, willing to set out on this journey. It occurs before a Federal Judge acting as judge and jury so a sympathetic jury is right out. Add to this the fact that even if you prevailed, the Judge might only award you 500 to 750 thousand dollars. Do the math. Preparing for, finding and paying an expert medical witness-$20-30K. Attorney fees?40% plus that doctor/witness. Attorney outlays for collating and preparing for trial? Priceless- literally. The settlement ends up being a crap shoot for the amount of time invested and the take for the attorney. Most won’t touch it unless its a cut and dried wrongful death suit. Settlement value? A mil+ if you’re lucky, less the costs.

The only avenue of help is the VA. You cannot sue them in the proper sense as above and win, but you can exact a tribute from them in the form of a VA claim for their stupidity. This is the 38 USC §1151 statute. If you can prove they screwed up, you get a rating- maybe a big one depending on the Diagnostic Code. This is just barely better than nothing. A big 100% one at $2800.00 a month sucks if you’ll pardon my French. No thank you. I’ll take my health please. Keep your paltry welfare. $33,876.00 a year doesn’t even cover my annual mortgage payment and the essentials of life. Throwing shitty medical and dental care in on top is a bit much.

This brings me to Dayton, Ohio. Polish your spectacles and take a gander at this. What you are going to read is what never happens, but somehow did. One of our old, eagle-eyed members, Sylvia, managed to get the mustard off the hotdog and send it to me. Wait. I’m not implying Sylvia is old old, okay? I haven’t a clue how she did this, but publish it in hopes that others who either had the misfortune to go to the Dayton VAMC DC or know of friends who did, will pass this on. She has the other 44 pages that go with it. I can get that in a zip file and pass it on to any who got the DDS (Dayton Dental Sweepstakes). It makes me sick to think anyone would treat people with this no deposit, no return attitude- let alone Vets. But then, look at the ones who come to VA to “practice”. Without casting aspersions, did you know you could lose your licence to practice in Texas, California and Nevada like Dr. Conrad Murray has (the guy who gave Michael Jackson the Propofol sendoff), and still come to work for VA. Scary? Well, he has to do the 4 years first, so it’s not like you’ll be seeing him right away. California may be the land of the fruits, the nuts and the raisins, but they do incarcerate the bad guys for a little while so you probably won’t see him at the Oakland VAMC for at least two years.

Only at a VA, huh? Thank you, Sylvia.

Posted in General Messages, Tips and Tricks, Uncategorized | Tagged , , , | 5 Comments

Atheist Priests

Posted on November 14, 2011 by asknod

What a lovely concept. A religion based on no religion. I adopted and adapted as I went through different cultures during my vacation in sunny Southeast Asia.  I was  particularly enamoured of the Buddhist faith when I was there and openly practiced it in the remote locations where I was stranded. There were no chaplains where we were. Hell, to be perfectly frank, there wasn’t much in the way of any organized religious programs for us at all with the exception of informal nightly worship services. In remote/isolated assignments like Project 404   http://en.wikipedia.org/wiki/Project_404   the patron Saint was St. John the Walker hands down. Regardless of his religious attire from day to day (Red or Black), the only other serious contender was Brother Tanqueray  of the Order of the Juniper Berry and occasionally St. Chivas. Absent meaningful and reliable  refrigeration, beer wasn’t even in the running.

Buddhism is an interesting concept that is predicated heavily on reincarnation. This helps to control social mores by employing the “What goes around, comes around.” theory. Nobody wants to come back as a snake or a dog due to a poor personnel performance report from Buddha.

With the sudden ascendancy  of the new world order, the Muslim faith is now recognized and tolerated. How soldiers in the Army can pop out and do 5 prayer sessions a day hasn’t been explained to me. For instance, do they get to forego packing an entrenching tool around and substitute a prayer rug? All these questions as Roseanna Rosanadanna used to say.

Which leads us to this Baltimore headline I saw yesterday:

“Capt.  Ryan Jean wanted to perform well on the Army’s Psychological evaluation for soldiers. But he also wanted to answer the questions honestly. So when he was asked whether he believed his life had a lasting purpose, Jean, an atheist, saw no choice but to say no.”

Due to this, he was asked to report for remedial save your soul training with the chaplain. Apparently the Army considers itself (according to the chaplain) as an adjunct of the Army of God. Anyone who isn’t a committed Christian is quite obviously on the wrong side of the fence. He was admonished to fix this. The “fix”, in Capt. Jean’s estimation, would be to seek a religious position as a “priest”, albeit a secular one, that marches to the beat of no God we recognize or can ascertain as one. How enlightening. I assure you this is not rank humor. This is right in the paper authored by one Matthew Hay Brown of the Baltimore Sun.

In light of everything I have seen about social and sexual mores recently in the military, this seems to comport perfectly with all the other claptrap. If troops are allowed to have any gender designation they wish imprinted on their dogtags, why not “Atheist” as their default religion if they so choose? And, with that in mind, who will lead these souls to everlasting humaness but their own cadre of Priests. This doesn’t need a lot of thought to process it.

I leave you with the last, well-written paragraph of the article. If this doesn’t summarize that we have reached “emptiness” nothing does:

” Nonetheless, the drive for lay leaders reflects the growing level of coordination among atheists in uniform and their increasing willingness to speak out in a military that has labored in recent years to develop a more inclusive environment for its diverse membership.”

When I was in the service, we were entitled to believe in one thing only-the prevailing opinion of 6 Actual. Anything else was heresy. Slats commanded and I obeyed.  Seasons change and so the military. Marching to the beat of a different drummer can be so enervating.  We’ve come a long way, baby.

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

Fed. Cir.–Hampton V. Shinseki (audio)

Posted on November 13, 2011 by asknod

Mr. Kenster the Carpenter seems to live in the Fed. Cir. now. Here we have him hard at work in Mr. Jerome Hampton’s defense. Ken should feel right at home in this case because it’s just a continuation of sorts of his 38 CFR § 3.156 (b) defenses in Bond v. Shinseki last month (Fed. Cir. (October 7th, 2011) and Rice v. Shinseki (CAVC , May 2009). Mr. Hampton (via Ken) actually filed to stay proceedings on his claim pending the Fed. Cir.’s disposition of Bond. This the Court declined to do, but as luck would have it, he gets to use it here as it was decided one month ago.

http://scholar.google.com/scholar_case?case=8275446648167860747&q=Hampton+v.+Shinseki&hl=en&as_sdt=2,48&as_vis=1

This is the audio of the hearing and it really makes the General Counsel for the Board look like a bunch of 1st year law students. They insist on looking through the binoculars backwards even when instructed to turn them around and use them properly.

The GC insists this is a case of a claim for increase or, in the alternative, a failure to file a timely NOD with a rating decision. Argument Number 3 (yeah, it’s complicated, huh?) would be that what Mr. Hampton filed after his rating was not truly New and Material Evidence which would fall into the area of § 3.156(b). I would call this the shotgun theory.  The GC seems to be saying “He is not entitled and one of these arguments will support our contentions. We’re not sure which one, but we think at least one of them is on point.” They should be arguing that one and only one of these is the basis for the Fed. not having authority to address this. The CAVC has already stepped in it by narrowly focusing on what the BVA characterized this as- namely an argument about an earlier effective date.

Poor old Ken almost gets laryngitis trying to get the Feds to “Stay with me on this, people and follow the bouncing ball”. They keep reverting back to the CAVC’s misinterpretation. It gets humorous when the Feds finally get it and lay into the GC and say “Hold the phone, Gomer. Let’s look at what you say is not New and Material evidence first”. The GC immediately goes into Moonwalking mode trying to draw attention away from it. The ploy doesn’t work and this is where the case will be decided.

Basically anything is new and material evidence when filed if it passes a rather simple test. Once you have been rated, the biggest hurtle has been surmounted. Here, we have a claim that has been decided in the Vet’s favor in February of 2000. All he is saying is “I think you screwed up. Here are two (2) more records of psychiatric notes from my  shrink that support my contentions that I should get a higher rating than 30%.”

The test is simply 1): Is it New in that it has never been introduced into his file and been used to consider the claim? and 2): Is it material  (pertinent or relating to his claim for PTSD in that it would aid in making a decision)? If it passes these two smell tests then it qualifies as an addition to the existing case file and can be considered. The most important thing to consider that makes this identical to Bond and Rice is that Mr. Hampton filed this within the one year limiting period (April) following the February 22 rating decision. The GC must know its in over it’s collective head and is now grasping at straws. § 3.156(b) doesn’t permit much wiggle room and Ken has made that point in spades not once, but twice already.

If my opposition in Court was Ken and he had a success rate like that (2-0) under his belt on this subject, I’d be sitting up all night every night looking for flaws in my logic and cracks in the foundation of what I thought was a cogent, bulletproof  defense. Ken really doesn’t have to do his homework. The case is what it is. The BVA and then the Court have denied based on the wrong tenets. Mr. Carpenter seeks to right the canoe (appeal), excavate the water (flawed decision-making process) and allow the sun to shine on the facts and nothing more. It’s like Detective Joe Friday saying “Just the facts, m’am. Just the facts.”  The GC keeps saying “Wait. Look through the binoculars the way we do. Mr. Carpenter didin’t argue this the same way down at the CAVC. This isn’t very fair.”

Listen for yourself.

http://veteranslawlibrary.com/files/Fed_Cir_Audio/2011/Hampton_2011-7032.MP3

You can almost hear the GC start to whine when the Fed. gal and her partner lay into him and say “Whoa. Which two documents aren’t N&M? Show us. Now, why aren’t they N&M?We don’t want to hear you digress. Tell us about these two documents. Are they new to the decision? Do they bear on the subject?”. I think Ken has this one in the bag. You can bullshit some of the chuckleheads most times. You cannot bullshit Mensa members any time. They will not be swayed by dancing Hula Girls on the dashboard in grass skirts. They look at the facts.

Posted in Fed. Cir. & Supreme Ct., Tips and Tricks | Tagged , , , | Leave a comment