38 CFR § 20.900(c)– MORE THAN MEETS THE EYE

Posted on November 5, 2011 by asknod

Members have asked me frequently what the parameters are for seeking an advancement on the docket. While this might sound like climbing Mt. Everest barefoot, it isn’t. There are four criteria for this in spite of the common misconception of two.  Additionally, this is not something that can only be petitioned for to the BVA. Let’s review this. I print below 38 CFR  § 20.900 first:

Here is the link if you wish to peruse it later

http://www.law.cornell.edu/cfr/text/38/20/900

(a) Docketing of appeals. Applications for review on appeal are docketed in the order in which they are received. Cases returned to the Board following action pursuant to a remand assume their original places on the docket.

(b) Appeals considered in docket order. Except as otherwise provided in this Rule, appeals are considered in the order in which they are entered on the docket.

(c) Advancement on the docket— (1) Grounds for advancement. A case may be advanced on the docket on the motion of the Chairman, the Vice Chairman, a party to the case before the Board, or such party’s representative. Such a motion may be granted only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. “Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case or the advanced age of the appellant. For purposes of this Rule, “advanced age” is defined as 75 or more years of age. This paragraph does not require the Board to advance a case on the docket in the absence of a motion of a party to the case or the party’s representative.

(2) Requirements for motions. Motions for advancement on the docket must be in writing and must identify the specific reason(s) why advancement on the docket is sought, the name of the veteran, the name of the appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), and the applicable Department of Veterans Affairs file number. The motion must be filed with: Director, Administrative Service (014), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. (This is for advancement on the BVA’s docket. All other request should go to your VARO)

(3) Disposition of motions. If a motion is received prior to the assignment of the case to an individual member or panel of members, the ruling on the motion will be by the Vice Chairman, who may delegate such authority to a Deputy Vice Chairman. If a motion to advance a case on the docket is denied, the appellant and his or her representative will be immediately notified. If the motion to advance a case on the docket is granted, that fact will be noted in the Board’s decision when rendered. (oddly, if the advance occurs at the VARO, you will never know except that justice sure seems to move right along).

(d) Consideration of appeals remanded by the United States Court of Appeals for Veterans Claims. A case remanded by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action will be treated expeditiously by the Board without regard to its place on the Board’s docket.

(e) Postponement to provide hearing. Any other provision of this Rule notwithstanding, a case may be postponed for later consideration and determination if such postponement is necessary to afford the appellant a hearing.

 § 20.900(c) is up in the § 20s section of 38 CFR because it ostensibly only applies to cases before the Board. Not so. Any claimant can ask for this from Day One of his filing. Here is another little secret. They (your VARO) must make this determination within 90 days of your filing for such. It behooves you to supply them with everything needed to make this decision if you want to hit that 90 day number. One cannot simply ask for it and sit back and wait. You have to be proactive on this. You are petitioning them for special consideration so you must do the legwork to prove you are eligible. Once they have all the required information, the 90 day clock begins to tick. If you provide them with it at the outset with VA VISTA records and/or reams of credit card balances, it will begin sooner rather than later. They will not send you a letter saying they are granting it either. You will just notice things move along rather swimmingly.

So, with that laid out, you will notice the underlined portion in section (c). This is the one facet of the regulation most are not aware of. Usually, this is utilized to help older WW2 Vets. I petitioned on the grounds that my 1994 claim was unadjudicated and thus still open. VA accepted my argument or else they rightfully assumed I’m going to be room temperature sooner rather than later. I certainly haven’t given them any reason to believe otherwise. Four operations and a one year sojourn at the VAMC in a private room (MRSA) is a good beginning for this argument. Secondly, I put forth the argument that medical records from a civilian hospital in a war zone should have been treated as service medical records and collocated with my SMRs.  Working for AirAm did not always give you the opportunity to just hop a plane back to civilization and the nearest military medical facility when you were bleeding out from a GSW.

HCV claimants have a leg up for this request. Those of you who are getting along as I am at 60ish, are usually rather advanced in the disease process. This mitigates for an advancement based on poor health. As most of us can no longer work, we have financial issues as well. I know I did and they just got worse the longer I waited.  This is why I admonish the reader to start with this at the beginning rather than wade in and ask for it a year after filing when things are bogged down waiting for an IMO. Don’t think you are stepping on another Vet’s toes.  Someone filing for acne vulgaris or hemorrhoids does not face the same time constraints as you.

Lord, I felt so guilty when I first set foot in the Seattle VAMC in 1989. I asked myself what on earth I was doing there. I had nothing more than a simple, screwed up back with radiculopathy down into my hips for 20 years. Outside the entrance were Vietnam Vets with no legs and some without arms either, happily smoking and sharing jokes. I felt so out of place compared to these warriors. It seemed that I was the interloper who might somehow detract from their financial or medical needs. Three years later when my health started going south and I found out what Agent Orange was doing to me, my sentiments changed. While the feeling persists that I am less worthy than one who has lost limbs to war, I console myself by keeping in mind that my injuries are virtually invisible, but far more lethal. This is one of the hardest concepts for many Vets to overcome. VA aids and abets this insecurity through VSOs by implying that somehow you are a “willfully disabled Vet” or one that is not as “entitled” as other real Vets. Some of those we have helped have reported that the SOs they approached were loathe to take their cases and went so far as to imply it was a waste of their time. I won’t go into how I feel about this subject line, but I saw the raised eyebrows of my rep. and the knowing look traded with another SO sitting beside him in 1994. It spoke volumes as to their belief that I obtained this from drugs.

Now that I have that off my chest, I can proceed. Asking for advancement and being denied same is not good. Of course they will think you are trying to cut in line if you request this without documentation. I don’t think I need to explain why. Go look on another Veterans Web site that has pink in the background and examine the laundry list of problems these guys and gals are trying to hang on their service. I mean no disrespect to anyone, but it seems something is amiss when Vets come out the other end of a four year enlistment as a paper pusher and have more ills than combat Vets. I don’t buy it. HCV secondary to paper cuts? Hemorrhoids due to sitting too long at a desk? Bunions due to those nasty combat boots you wore for 6-8 weeks in Basic and never donned again?

I hope this little diatribe reinforces your resolve if you were wavering on this subject. HCV and resultant cirrhosis waits for no one, be it Veteran or civilian. The hosts of ills that travel with this circus are horrible and debilitate you further. As such, you legitimately should file for advancement. Your time on earth absent SVR (HCV remission), is measurable- not some nebulous concept that may or may not come to pass. It is incumbent on you, especially if you have a spouse, to start making provisions for the future now. Advancement on the docket, even at the RO level, is prudent if you qualify. I think I speak for all Vets when I say that most would advocate for a triage philosophy that comprehends the sickest and neediest be afforded a quicker resolution to their claim(s). I apologize if I seem selfish about this. No Vet is better than another, even if they served in time of war. Hate me if you will, but I advocate for the sickest first.

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

Krispy Kreme–The Veteran’s Friend

Posted on November 4, 2011 by asknod

I have discovered something very valuable to Veterans that they need to know. There are many corporations that show their appreciation to you as a Veteran by granting a discount upon presentation of your DEERS ID card. I don’t know if they grant this to those of you with just a VAMC ID card but I would hope so.

My knowledge of this began a year or more ago at Home Depot when the clerk saw my card and said  “Whoa. Cowboy! 10% off”. I had no idea. She informed me this applied equally to active duty or retired Vets w/ 20 years. They have the card, too. This led to the discovery that Lowe’s offered it as well. This P&T thing was starting to pay off even away from the PX/commissary.

Last fall while rummaging through my wallet for  9 and some change for a dozen raised glazed, the young lady said “Excuse me sir but your military ID entitles you to a discount so I’ll just recompute that and take the 15% off.” Well, this was too cool for school. A dozen of America’s best donuts had just gotten $1.48 cheaper. When did this happen? Why don’t they advertise this? Can I apply for a retroactive refund?

As a matter of course, I ask everywhere now. Cabela’s offers 5% which is nice as I’m an avid sportsman. I’m a little under the weather for hunting now but I love their outerwear.  And who besides Jack in the Box down near Joint Base Lewis McChord on Pacific Ave. South should offer 10%? No one. Arbys, McDonalds and Burger King all decline to offer this to America’s finest.  That’s an insult to us. I have had Vets come back from Iraq telling me BK had set up at some of the bases there as well as Mickey D’s. How is it we give them a foot in the door for profit over there and they decline to remunerate us here at home? I suggest you voice your indignity loudly at the counter where the patrons behind you can hear. Better yet, vote with your feet, walk out and go to JITBox.

I find it never hurts to ask. I don’t do it to embarrass or coerce establishments into something for nothing or a reduced price. Obviously, there are responsible corporations that comprehend good business practices. The mere offer of a small discount to the 8% of Americans who have offered up their lives in service to their country can be a powerful public relations tool. Vets talk to other Vets. As a minority smaller than Blacks and Hispanics and only slightly larger than Asians, we naturally interact with one another once identified. Communicating how to be frugal and take advantage of a proffer from these corporations is natural for us.  Look no further than this post.

I take advantage of anything I can to save money. I think I speak for the 99% here. We’re in a pretty rough spot economically in America now and finding a station selling gas for 10¢ a gallon less than their competitors always prompts me to tell friends, employees and relatives. It’s human nature, I suppose.  As for the aforementioned corporations, they appear to have a strong incentive to help Veterans. Altruism? Maybe, but the fact that we communicate this knowledge to other Vets is bound to help their bottom line. It’s like a blue light special at K Mart. Marketers call it the Loss/Leader phenomenon. Get a shopper in the door for an advertised special and they’ll buy other things resulting in a profit that far outstrips the loss of profit on the special. The same applies for us. I’m telling you about this although I suspect most know. However, the Krispy Kreme connection is too good not to share in the event you don’t. I hope all of you start supporting them and they make tons of money because I have ulterior motives.  They can hire more people and build more stores.  And hopefully this time they’ll build one closer than 38 friggin’ miles away from my house on the other side of the toll bridge.

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

BVA– BENT BRAIN + ETOH = SC

Posted on November 3, 2011 by asknod

From the gambling halls of Reno, we are treated to this gem of jurisprudence. Judge George R. Senyk is another judge who is no stranger to the BVA corral so I’m sure he’s seen a lot of these. However he must have been scratching his head when he read the VA-provided nexus letters by the “specialists”. Here’s a split decision that grants alcoholism (substance abuse) as a disease secondary to Bent Brain Syndrome (PTSD). This, in itself, isn’t so infrequent as to warrant attention. Our Renonian also has the Hep, but VA is going to deny on that. They will grant the liver transplant as being SC too, but only because of the alcohol. Even though the two diseases (alcoholism and HCV) are co-equally responsible, VA will reason that 50.0001% was caused by alcohol rather than hep and therefore give him the SC for this as well. Vet wins big with new liver, right? Not so fast, Hoppalong. If he dies before his ten year protected rating  date of November, 2015 from what they adjudge as HCV-related liver cirrhosis, then the P&T evaporates and if he has a wife and kids under 18, it’s bye-bye compensation and any DIC/DEA hopes.

If you were service connected 100% for PTSD and died within the first 10 years of that rating, your heirs/spouse lose. Ten years and one day? Then they’re good to go.  Interesting concept. Here the American Legion has done some phenomenal horse trading and got this Vet a stellar deal. You will notice that VA is still in denial about the whole jetguns, razors,and toothbrushes thing. They are willing to give him the cirrhosis of the liver only as alcohol-related to dodge the HCV bullet. Very interesting.  In the next paragraph below I present the VA’s infectious disease specialist’s nexus theory, or should I say non-theory. VA has a marked propensity to always point to something and say “Here. See? Right here the Vet said he did thus and so. He admitted that he (fill in “snorted, shot up, huffed, drank, absorbed, inserted in body cavity”) on this date to VA medical personnel. This is where he got the bug. Willful misconduct!”

What’s interesting in this decision is how the Vet didn’t get it. They have spent a lot of energy proving what it isn’t from (the PTSD), but strangely are not the least inquisitive as to ascertaining the etiology. You just don’t see this in VA adjudications. Ts have to be crossed and Is dotted before the denial can ensue.  The sordid truth must be revealed. The culprit must be unmasked. The method and frequency of ingestion must be identified.

In March 2011, a physician from the infectious disease department of a VAMC stated that he had reviewed the Veteran’s medical records as well as the psychiatry specialist’s opinion regarding the hepatitis C, alcohol use and PTSD.  The medical expert noted studies regarding the causes of hepatitis C, and found, in essence, that the Veteran’s hepatitis C is unrelated to his service or to his service connected PTSD with alcohol abuse.  Regarding the Veteran’s alternative theory of entitlement, that his hepatitis C is the result of exposure to infected blood/blood products in service, the medical expert opined that razors, sutures, and suture needles are an ineffective vector for transmission; casual exposure of intact skin to infected blood or body parts is insufficient to produce a hepatitis C infection; and although jet injector use (vaccinations) can be associated with hepatitis C transmission, this is usually recognized in an outbreak situation where there has been a breach in standard operating procedure.  Thus, the VHA medical expert’s opinion is against the Veteran’s claim that his hepatitic C is secondary to his service-connected PTSD and alcohol abuse .  The Veteran has presented no competent (medical) evidence to the contrary.  His own statements (that his hepatitis C is the result of exposure to infected blood in service or is secondary to PTSD/alcohol abuse are not competent evidence; he is a layperson and lacks the training to opine in a matter that is beyond the capability of lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

VA has always held that alcoholism is a risk factor for HCV, yet here we see that is no longer true. A specialist in these things has spoken. In several weeks he will probably be called to opine on another Vet who has a history of alcoholism, HCV but no Bent Brain Syndrome. The doctor will undoubtedly come down on the alcoholism leading to the HCV but no explanation as to how this is possible. I suppose a homeless Vet toasted on MD 20-20 could pass out and do a face plant into a small pool of blood from his HCV-positive buddy for several hours and rise with the disease.  VA denials are always carefully crafted to fit the circumstances. Here we have a classic example.

I suppose the good news is that AmLeg will get their photo op with this fellow if they invite him to their bar. You won’t see many of these types of decisions, but this is a good primer if you’re planning the “bent brain syndrome ate my liver with Alcohol” defense.  The teaching moment is also that you should claim alcoholism rather than blood exposure as your hep risk factor secondary to PTSD because it is recognized as one, apparently.  Well, except for here,  most of the time.  I think. Except in Reno. Right?

http://www.va.gov/vetapp11/Files3/1122102.txt

 

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A NEXUS LETTER IN A MANILA ENVELOPE

Posted on November 2, 2011 by asknod

We have a member in the Philippines- Manila-to be precise. No, he’s not a survivor of the Second World War He was a naturalized citizen who signed up and fought in the SEA conflict. After he got out, he opted to leave LA and moved back. He has filed for hep. via the jetguns and just natural exposure inVietnam. I suspect he’ll win on the drunken tattoo in Saigon ploy though. He had none going in on his entrance exam and one documented coming out. He was denied based on no nexus so he’s in search of that right now. What blows me away is that there’s still a VARO (of 57 in the world) in Manila. I realize we won the Philippines from Spain in the Spanish-American War of 1898. We’re still paying a tax on our telephones for that war in case you were not aware. I guess some wars are more expensive than others. Seems we would have paid that one off by now. I  also wonder how long it will be before VA downsizes and closes their office there.

Manuel (not his real name) is having a tough go of it getting the nexus. I noticed this with another vet we are helping in Puerto Rico, too. I don’t get it. Why is it so damn difficult to get a nexus out of anyone? Seems like you could just cart your records down to Dr. Kildare and say “Hey, check this out. If you believe that this is plausible and I’m not wet all over, would you be so kind as to sign this letter for me? I promise no one’s going to question your bona fides or sue you. In fact, you’ll never hear from me or VA again. If I need to pay you something to perform this function, I would be happy to.” We shouldn’t have to be at the mercy of the VA examiner to give us a winner. As most know, that only happens about 10% of the time.

In the United Soviet Socialist Republic of Washington, I can go to an ARNP and say “my hep. makes me sick and nauseous” and give them $100 for a “marijuana letter”.  That gives me a prescription for the pot.  In fact it’s getting cutthroat now. They’re running recession specials for $89.95 at the pot “pharmacies”.  Last year it was $200 for one. I guess what I ought to do is set up a “clinic” and have all you Vets who need nexus letters write in for one. I’m sure I can get some underemployed Dr. or ARNP/PA to do this on the side in the evenings.  In fact, I can run specials around the holidays and for twofers. I’m seeing dollar signs already. We can do it a la Occupy Wall Street mode. The 1%ers have to subsidize the 99ers.  The problem is I don’t know any rich Vets.  It’s an oxymoron. Nevertheless, this bears investigation. My hope is to find a doctor who would do it for free for hep. Vets and not everyone with hammer toes and hemorrhoids.  This may prove to be a seminal moment for HCVets should we succeed. I will report back to you.  Just to clear the air, should I succeed in this, any fee would be strictly between you, the Vet, and the doctor or medical professional. I jest when I say I would be the intervenor.  I have no desire to benefit financially from another’s misfortune, nor would I.

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Quotes Worthy of Quoting

Posted on November 2, 2011 by asknod

I was asked by someone active in the HCV movement named Terri L. to be friends on Facebook. On her page, I spotted this:

“You have never really lived until you do

something for someone who can never repay you.”

I wish to second that opinion and thank her (him?) from the bottom of my heart. That is the joy I feel with every victory and have never seen summarized quite that succinctly. As a codicil, I have been offered remuneration for this work by several and I have to remind people that it’s AGAINST THE LAW. Even if it wasn’t, I could never bring myself to accept anything for what I do here. This is my pay it forward phase for some of my shortcomings earlier in life. Without getting all religious on you (which I don’t approve of), it is definitely more blessed to give than to receive. I am blessed, so it follows that I would share what I have found and continue to discover with others similarly situated. That’s all I’m going to say about that.

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Cel phones for Homeless Vets ?

Posted on November 1, 2011 by asknod

What could possibly sound more useful and compassionate? The devil is in the details.

I constantly search other Veterans websites and glean them for meaningful things that may help you, the Veteran, in your pursuit of justice. However, when I run across a prime example of do-gooders run amuck, I cringe. Help should be spontaneous and unconditional for Vets. We defended America and expect them to honor their compact with us. What could possibly be more wasteful of limited resources than to do the following…

http://www.veteranstoday.com/2011/10/24/all-men-are-created-equal-except-homeless-veterans/

No offense to the Kenster, but he looks a little wet behind the ears on this one. A cel phone that ET would have a hard time phoning home on? Hello? McFly? Look at me without laughing, Ken Smith, and tell me you think this is the solution or even a beginning towards ending homelessness. This is hopeless social engineering with nothing accruing to the Vet. Feel good programs let social workers sleep better at night, but do nothing to improve the homeless’ lot. Throwing a cel phone into the mix is like handing out flashlights with no batteries. What honestly must pass through their pointed little heads when they “envision” these schemes?

Or this one already preplanned for a photo op and the news and film at eleven:

Veterans Advocate Bill Pittman, M.Ed. , Director of Special Programs for the “Veterans Workshop” and alum of Boston College will help launch this program in Washington DC with a homeless veteran calling his VA outpatient clinic coordinator in early 2012.  Together with support and encouragement, all Americans can bring a voice to those who have given so much.  Homeless veterans are asking for a voice because they are now -voiceless.  Oh shit. What happens if the overworked outpatient clinic coordinator puts him on hold for 45 minutes? What if his cel phone battery runs out while he’s waiting for meaningful assistance? Smart money says they’ll be sitting there waiting for his call at the expense of every other Vet calling in.

Ki Yi yippee all day. Let’s launch another program that will run out of funding in six months and then what the hey? Launch another one. If they keep this up, we’ll be too busy attending the launchings and cheering to notice all the homeless Vets sleeping on the park benches behind us.  I’m sure Bill Pittman and all his cadre think they’re going to make a difference with genetically inferior cel phones, but I have been watching this Dog and Pony show for decades and I have seen more “get rid of homelessness” programs launched than I can count. News flash! We still have an epidemic of this and all the king’s men and all the King’s horses haven’t managed to make meaningful inroads in it.  The VASEC recently (six months ?) announced that he, too, was going to slay this dragon before he leaves office or die trying. Oh, please. Spare us the theatrics. What we don’t get to see is the army of Bill Pittmans he has hired as consultants at $120K a year to study this and make recommendations to VA on how to fix it. After paying all the REMFs to demonstrate how to use a cel phone at a VA photo op in 2012, the coffers will be empty. The 99% will be hornswoggled out of their money yet again and the fat cats will be shopping for a new “problem” to study and cure. They are so helpful. What would we do without them?

If we took all the money devoted to these studies and actually spent it on the homeless Vet- and not all the administrative infrastructure they employ to deliver it, we might discover we accidentally fixed in the problem.  Thousands of you are out there willing to donate your time and energy to the plight of disenfranchised Vets, yet the Government doesn’t trust you to be objective like them.  You are well-meaning but unprepared and untrained to perform anything other than mundane volunteer work. Therefore, VA must hire trained professionals.  Everyone has to have a Masters in Sociology to get on this gravy train.  No, the smart money to ending homelessness is to enroll them all in college, give them a degree and then a job at the VA.  Yep- more government equals more taxes. Take a page from the Wall Street krewe- Kill the rich and take their money. Income redistribution is the cure, apparently, until we run out of rich people. And then what?

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PRIZE PATROL– PART II

Posted on November 1, 2011 by asknod

For all of you from Yorba Linda, this is part 2, not part 11. Those represent Roman numerals above, not ones. Just so we get that straight and avoid any confusion. I sure wouldn’t want you tearing your hair out trying to figure out where I posted the other ten installments to this.

As I mentioned in Part one, Johnnie B and I shared the same birthday but not the same year. He was born in 1958. I wasn’t. This was March 31st, a very auspicious date. I, however, was born at 1149 hours. I’m not sure how they do that time stamp on the birth certificate. Is it when your head emerges from the womb or when your feet part company from the progenitor? Is it when the umbilical cord is severed? All these questions and no definitive answers. All my mother would say was I was enormous and there was much consternation I might be born a fool. In spite of the Aries aspect (if you subscribe to astrology theory), the fact remains I was born under a fool sign. This has plagued my existence since I reached the age of reason. Cupcake insists that men never attain that age.

Be that as it may, since having at least attained the age of majority, I have a marked proclivity for jokes, pranks, and all things that bring a smile to the face. I started by putting pink flamingos in a friend’s yard after driving home drunk after an especially good 30th birthday party I don’t remember much about. I saw them in my neighbor’s yard a year earlier when I moved in. It’s a miracle I wasn’t shot or arrested for purloining them. I returned them a week later and I can imagine the look of wonder on the owner’s countenance when he woke up and discovered his charges had migrated safely home. This just whetted my appetite to breed my own flock for April Fool’s day.

Cast ceramic yard ornaments of any color are expensive. I had no idea. The newer plastic ones are cheap but these weren’t available in 1982. A trip to the yard statuary store in my city gave me a bad case of sticker shock. I settled for a 1/4 lifesize statue of a young man sitting on a separate stump holding a fishing pole in his lap. I disposed of the fishing pole and visited the adult sexual aids shop to obtain what could politely be called a “portable male appendage”. This completed the ensemble for April Fool’s Eve. It fit in the trunk of my sportster and was easily deployed even when extremely inebriated. All good things must come to an end eventually. My friends all started waiting up until 2 AM when the bars closed to make sure they weren’t that year’s recipient.  It’s a given that no one wants to wake up and be sipping their coffee only to discover an aroused little man staring at them through their living room picture window.  Or worse, to have a neighbor call to ask what that quaint statue represents on your front lawn. It all came to an end in 1988 when an uninitiated friend called the police. They came and confiscated my statue after taking copious pictures of it. He apologized for breaking the chain. He thought it was a hate crime for some reason. I’m not even going to entertain ideas on why he might have thought that.

My son loves my parrot we have had now for 32 years. In 2004 when he was in his junior year, I removed Buddy from his cage at 0 dark thirty and took him upstairs and put him in my closet on the coat hanger rod. I left the cage door open and strewed feathers I have collected for years all over the floor and out the cat door. Buckwheat Jr. came down to leave for school at 0700 and discovered what appeared to be the scene of a homicide. He frantically ran all over the back yard vainly looking in the bushes and shrubs for his favorite pet. After a short time, he burst into the bedroom and announced the horrible truth. Buddy, still in the closet,  started laughing before I did. My son still has some hard feelings over that one.

Now that I don’t imbibe anymore, and most certainly am not out and about in the wee hours, I have new plans for my favorite day. As I am expecting a large windfall from Uncle Victor Alpha soon, I have made arrangements for the construction of some magnetic signs to attach to the sides of my vehicle. In addition, I am constructing and painting a large piece of  1/2″ plywood approximately 30 inches tall and six feet in length. It will be painted white and resemble a bank check in all respects including the “Pay to the order of”. The magnetic signs will proudly announce “PCH Prize Patrol”. I intend to arise early on April 1st, feed the barn animals and read the paper. I will don a suit and tie and  proceed to the local florist for some helium balloons, and thence to the espresso stand across the street. I do hope I can induce my sweet wife to join me. Then the fun will begin. I will, of course take the camera to immortalize the event for you readers. I anticipate quite a parade…

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The Prize Patrol– Part One

Posted on October 31, 2011 by asknod

This is both humorous and bittersweet. In 2008, one of our members approached me with a problem. I instantly identified with Krazyhorse (John) as we share the same birthdate. Even more amazing was that his parents ancestral property in upstate New York abutted a fellow’s named Max Yazgur. When I graduated from a private boarding school in Vermont in 1969, the talk of the summer was to attend a Music and Arts festival at Mr. Yazgur’s farm. It would later come to be known as Woodstock. I still have my ticket. We parked and hiked in 5 miles but the fence was down when we arrived and there was no one to take it. John was only eleven and his parents wouldn’t let him attend.  Smart move, Mr. And Mrs. B.

Fast forward to 2008. John contacted me about his claim and told me the ugly particulars. He was one of the first to be diagnosed in service with documented Non A, Non B Hep. He was given a medical and a 10% pat on the back along with his General Discharge. He endured this and got sicker over the years. By 2008, he was in a bad way. He hadn’t lost his sense of humor though. He lived in Rockport,Texas and had to deal with a very recalcitrant Houston VARO. One would think it would be a piece of cake getting an increase when you were swelling up with ascites and spider angiomas.  This was definitely a “Houston. We have a problem” moment. Houston didn’t feel that way so John was picking my brain for ideas. We had just gotten the AskNod site up and I was giving him advice that I hadn’t even had a chance to publish. He went to work and got everything he needed from his doctors and burned it all onto a CD. He had everything color tabbed and cross referenced to aid the rater. I went into the hospital in April of 09 and went on the Dilaudid diet- Hear no pain. See no pain. Feel no pain.  I managed to stay sane enough to be his touchstone on this and we had many a laugh about the foibles of the VA and his travails. I escaped in June, went back, escaped in August, went back and finally was discharged for good about Thanksgiving.  He hit the jackpot around Halloween and I was overjoyed. VA had stubbed their toe and screwed up a request for an increase in 93. It was still pending when he refiled.  He wasn’t my first success, but he was the first I had guided to a 200% rating and a major six-figure check for everything but the kitchen sink. He was also the first Vet I had met who got 100% for DC 7312 and was still vertical and capable of talking about it. Most people with advanced cirrhosis and a barely compensated liver are not good conversationalists. They have major brain disorders due to all that ammonia building up in them.

So wonder of wonders when a week after he got the magic papers, the VFW calls him. Yes, gentle reader, that would be his Veterans Service Officer- the same one who ignored his calls, made appointments he never intended to keep and was generally AWOL throughout his claims process. Apparently Bobbie-Joe wanted to come over with the VFW photographer for a glad hand and an 8 1/2 x 11 photograph for the Trophy Wall. Or, in the alternative to the Prize Patrol, he could come on down and they’d take his picture with the Congressman who never returned his calls either. Opportunities like these do not come along every day. Nevertheless John begged off saying he wasn’t a Prize Patrol kind of guy. He had to share this with me about a minute after Bobbie-Joe hung up and I now have discovered that this is common practice. I’m referring to the Photo op, not the habit of ignoring you once they have your POA. That’s been SOP for decades. Jez, I’m not that dumb.

John passed on Mother’s day this year awaiting a liver transplant. His mother called to tell me. He had moved back at the end to be near them on the farm behind Max’s. He leaves behind two lovely daughters and some grandchildren. I keep his memory alive now by refusing to erase his number from my cel phone speed dial. Even though it would be futile, I’m tempted to call him sometimes.

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

Trick or Treat From Drew Carey’s RO

Posted on October 31, 2011 by asknod

Here’s an interesting decision that will provoke much discussion for years to come.  This comes to us from Shreddergate, the Cleveland, Ohio VARO with a unique filing system for round records that don’t fit into square holes. Their motto is tried and true- When in doubt, do without (shred it) .

I review many legal decisions here. Many are not precedent-setting but nevertheless provide us with valuable insight on how the VA works.  This case is very unique for any number of reasons. First, it fills the bill for a case having to do with HCV. Secondly, it is sufficiently unique to pique my attention. Lastly, it shows you, the Veteran the perfidy of the VA examiner in seeking to cover his ass after making what he and his superiors considered to be a gross error in judgment. They are your nemesis- treat them as such.

You will come to discover that when VA makes a decision and arrives at a finding, they are stuck with it. They can’t shout “Do Over” or “Not It!” No sir. Once they announce it, it’s Holy Writ just as much as a bullet that cannot be coaxed back into a fired gun.

This is also what is called a Merged Appeal.  It encompasses two different decisions simultaneously. Here are the particulars. Sgt. Cleveland applied for HCV in February 2002 and was granted SC in October, albeit at 0% from February to August and thence 100% onwards. Our Sgt. contested this in a NOD and finally completed a Form 9 and certification of appeal in 2003. While waiting for a Court docket in D.C., the VARO decided to cut him off based on a Clearly and Unmistakably Erroneous decision rendered that sunny October day back in 2002.

This came to pass in a February 2006 VARO decision which was effective June 1, 2006. So what he had now was a decision on an original appeal remanded down for development in April 2005 being 86’ed . No development. No claim. No 100%. No dice. By this time the good Sgt. had filed to block the severance to no avail.  Perhaps that idea of holding out for an earlier effective date was starting to sour in his mouth.

The BVA took mercy on the boy and threw him a life preserver in the form of another remand to get his feces co-located and obtain a personal hearing to clear all this up in a mano a mano before the VLJ. This he declined to do, and in August 2007  asked for the claim to be returned to DC for adjudication.  I will say he was confident. I certainly wouldn’t have been under these circumstances. As you will see, he lucked out.

This VLJ, F. Judge Flowers, is another of a long line of judges who have been there a while. As such, he is tenured and knows his jurisprudence is above reproach. He will not face opprobrium from the General Counsel for this decision because it was correct. They might have gotten purple-faced and apoplectic, but there was nothing defective about his reasoning.

CUE as a judicial tool is most often employed by the Veteran to disturb an otherwise final decision of the VA. The saw cuts both ways though. If VA finds the reasons for your grant are defective, they can elect to disenfranchise you and take it away. Unlike your CUE options and requirements, they can rely on subsequent medical evidence obtained after the rating to do this. You cannot. You are limited to the record as it sat when the decision was rendered.

What VA forgets all too often in their rush to judgment is elementary- the record. This is cast in stone. VA frequently attempts to rearrange the verbal furniture in a vain attempt to disguise their motives. Here is one of those classical “post hoc rationalizations” they are so fond of. The problem arises when VLJ Flowers calls bullshit on their technique…
The RO has alleged an error of fact, VA’s failure to recognize that the veteran’s service medical records did not indicate he had a blood transfusion in service, as its basis for severing service connection.  The Board notes that the veteran’s service medical records were on file at the time of the October 2002 rating decision.  A November 1976 record reflects the veteran’s scalp laceration was cleansed and sutured, but no mention is made of a blood transfusion. 

It is unclear, however, that the veteran was granted service connection in October 2002 based on the assumption that he had received a blood transfusion in service.  No mention of a blood transfusion is made in the October 2002 rating decision.  This inconsistency was specifically pointed out to the RO in the October 2002 VA examination report.  It therefore appears that considering severance on this basis amounts to little more than a reconsideration of how the evidence was originally weighed.  Mere disagreement as to how the facts were weighed or evaluated cannot form the basis of a claim of clear and unmistakable error.  Luallen v. Brown, 8 Vet. App. 92 (1995).  Therefore, the Board does not believe that the alleged error of fact is a legitimate basis for clear and unmistakable error. 

And lastly, the piece de resistance:

Even assuming that the veteran was a habitual user of intravenous drugs prior to contracting Hepatitis C, however, the veteran’s remaining risk factors render the Board incapable of concluding that the veteran “undebatably” contracted Hepatitis C from intravenous drug use.  Specifically, the Board notes that the veteran admitted having sex with a prostitute while in Germany, and the October 2002 VA examination report indicates the veteran was promiscuous while in service.  As noted above, the residuals of venereal disease are not considered to be due to willful misconduct.  See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301.  From the competent evidence of record, it does not appear indisputable that the veteran contracted Hepatitis C through drug use and not through unprotected sex. 

So you see fellow Vets, once the Oracle of Delphi at Drew Carey’s VARO has opened his piehole and opined in a decision that our illustrious European traveler could have obtained this HCV hitchhiker from a Madame du noir in Germany, he was stuck with it. Remember when you were young and your parents asked you how the bookcase with the candy bars on top tipped over on Halloween morning? The story changed each time with the telling. No longer was Frisbee the dog the guilty party. It was the lost hamster you were rescuing. Then it was an Act of God or an earthquake. Eventually you broke down and admitted your crime. The only difference here being the VA examiner was never going to cop to his underhandedness.

What this all goes to prove is to be careful of what you say. The VA examiner who dropped the ball on this in 02 must have thought he had won the Lotto. Here came the Vet back on remand which allowed them to reexamine the original decision and fix that which they screwed up (in their own minds). The obvious error was trying to pull the post hoc rationalization switch- scratch the transfusion and substitute the IVDU. You can do this hat trick if the prostitutes are not waiting off stage in the wings.

Our lucky Sergeant escapes with his grant restored and an initial rating of 40% followed by the subsequent 100% he had originally. He should probably thank his lucky stars for getting Judge Flowers to adjudicate this. I commend him for hiring an attorney and not relying strictly on a VSO for judicial guidance.  The moral? If they hand you the deed to the gold mine, don’t ask them to pay the electric light bill, too.

http://www.va.gov/vetapp07/Files4/0737810.txt

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

Cognitive Brain Disfunction

Posted on October 30, 2011 by asknod

Members write me occasionally and during the course of their epistle, they always point out the increasing deterioration of their mental acuity. This happens to all of us as the HCV disease progresses. Others point out the Interferon therapy seems to accelerate it or increase the deleterious effects.  I agree.

I noticed this today when I was roaming around the file cabinet and discovered something I was going to do but thought I hadn’t. It involved filing a claim for Special Monthly Compensation at the “S” rate. I filed for this legitimately in  December of 2009 when I came home from the hospital- finally and permanently- after an extended stay of almost a year. I weighed 118 lbs (normally 165) and was so weak and dizzy I didn’t trust myself to drive. I had numerous appointments at the VAMC 42 miles away so I enlisted my wife, son and daughter to drive me out there. I filed for the SMC -S at that time. As most or perhaps some of you know, VA grants SMC-S for Housebound status. I have uncontrolled bowel movements to put it politely. I’m too dizzy from phlebotomies and anemia to trust myself behind the wheel beyond a short jaunt to the grocery store 3 miles away. I have started driving further, but am substantially confined to the house and the immediate rural area we live in. I do not travel extensively and the fear of incontinence keeps me close to a water closet.

So, I filed for the S rate in late 2009 and was denied in June of 2010. Some time this spring I must have filed a NOD but have no recollection of it. Cognitive brain fart. Here’s what VA has to say about that.

For the purpose of this subsection, the requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized)or immediate premises due to a service connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime.

You can also get S if you have a 100% rating and another 60% from other combined ratings unrelated to the 100%. S gives you an additional $326.00/month or $3912.00 more per year. That’s not something to sneeze at. It stands to reason I’m going to fight for it as I am legitimately entitled to it. What’s smokes me is why VA denied me in the first place. Their reason? Why, I obviously can’t be housebound because I have attended all my appointments with my doctors at the American Lake VAMC!  Colostomy bag? Not a problem. You can dump one of them anywhere in public without even pulling down your pants or going to the bathroom. Case closed.

What VA cannot explain is why they inserted  cadaver flesh known as Alloderm into my abdomen in March of 2010.

http://www.hernia-patchlawsuit.com/alloderm/

Considering the product was recalled in 2005, they should have taken it off the shelf. I guess they didn’t want to waste it. Can you say §1151 claim? I expect that will give me the extra % needed to get the SMC-S. The scar from this baby is enough to send small children into seizures. Check it out. This is not for the faint of heart.

And you all wonder why I have a beef with the VA? They did this to me 4 times.  This last one they didn’t even bother to button up because with their poor success rate, they figured they’d be going in again for #5 shortly.  My grandson thinks I should dress up like  Frankenstein for Halloween. I agree. I just need some big electrodes for my neck.

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