RO Error Rate

In a recent audit of the VA Disability Compensation System at 16 Regional Offices, the VA Office of the Inspector General estimates that the rating staff incorrectly processed 23 percent of the 45,000 claims inspected.Of the16 Regional Offices, Baltimore, MD and Anchorage, AK scored the lowest in compliance with VA standards. Both failed to meet 14 of the 15 process requirements. Extended management vacancies were cited as one of the linking factors between all poorly performing Regional Offices. Because of the vacancies, these offices lacked continuity and proper oversight. As a result, procedures were not developed or implemented to correct previously identified problems.

 

Read the full article on the Military Advantage Blog.

 

     Now. Let’ do some elementary math. People are fond of batting about  numbers. 23 percent of 45,000 Veterans is 10,350 Vets who got the shitty end of the stick. Not very impressive is it? If the IRS had a record of service like that citizens would be in an uproar. But what the hey? We’re just Vets with PTSD or homeless issues. Some of us even have incurable diseases. We are surplus baggage and very inconvenient after a war or two. America is at a loss as to which rug to sweep us under. They do give us one day a year (a paid vacation no less) and the War dead get one as well. Makes one proud to be an American. Happy Memorial Day. 

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Eating Feces Ruled Not A Risk Factor

File this one in the Boldly Going Nowhere File:

We came across this one and felt the burning need to share it with our members.

In the March 2010 VA examination report, the Veteran claimed that he

contracted hepatitis C during service due to vaccinations he received

as “they were injecting everybody with the same needle.” He denied

having sex with males or eating his own feces. He stated that he had

not used alcohol in over 8 years and used crack in the past. He denied

IV drugs in the past; however, heroin and cocaine were found in the chart.

Sex with a prostitute was reflected in a September 2000 entry and he

contracted syphilis in November 1999. The examiner reviewed the

claims folder, and opined that eating one’s own feces is not

an indicator for hepatitis C.

Good. I’m glad we got that one settled.

http://www.va.gov/vetapp11/Files1/1107694.txt

And this gem: 
6. Entitlement to service connection for bilateral ear wax 
buildup.

http://www.va.gov/vetapp11/Files1/1109876.txt

But wait. There's more humor to be found if one digs.

A hearing was held on January 28, 2010, by means of video 
conferencing equipment with the appellant testifying from a prison 
in Kentucky,...In this regard, he has raised the issues of 
entitlement to a restoration of competency; entitlement to a 
retroactive apportionment; entitlement to reimbursement of VA 
pension benefits and medical expenses; entitlement to a 25 
percent "whistleblower fee"; entitlement to an increased 
rating for nonservice-connected flat feet (evaluated 
as 10 percent disabling for nonservice-connected pension 
purposes); and, entitlement to reimbursement of stolen 
VA pension funds.
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Ebenefits– Too Cool For School

After Menalteed’s long battle with the VARO in Seattle, we decided to join the cutting edge of VA access and enlist in the Ebenefits program (See Timeline for Life is Getting Short). We have tried the Myhealthevet and found its promises far outweighed what it delivered. We assumed the same would be true of the benefits site. The jury is still out, but one facet seems to be working marginally. I had my Board hearing on April 5th and the site showed my claim as sitting in Limbo at the RO awaiting snail mail transmission to D.C. Thursday evening I went on and checked it. Bingo. I’m at stage 2. The post office delivered it and it is now there. Since I represent myself I will be skipping Stage 3. 3 is when you have a VSO and they cart it off and leave it on their desk for a month before “reviewing” it. The National organizations all have SOs in D.C. Its a posh assignment. You get to hob nob with all the bigwigs. Nothing meaningful is accomplished but lots of alcohol is consumed in the pursuit of justice.


     When Bozo finishes his review, the C-file is returned to the BVA and they set about deciding the claim. He may attach some  reasons why you should be granted SC, but they aren’t lawyers  so the argument is usually lame and devoid of any legal rationale.  If you, the Vet, submit some new evidence late, the SO will grab your file again and more delays will ensue. Stage 4 is when they finally assign this to a VLJ unless you had a Board hearing in person or by video. In that case, the judge who heard your case will be your VLJ on your appeal. Stage 5 is the decision and Stage 6 is the steno pool and mailing of the decision. My appeal was advanced on the docket like Menalteed’s as I am circling the drain, too. The VA tried to kill me to avoid paying me over the course of 4 operations in 2009-10. I’m still alive and I guess they finally decided to face the music and get it over with. We here at Ask Nod think the Ebenefits thing is going to be a big plus for Vets if and when it gets airborne. You will be able to do a number of things on the site. It does require going to a VAMC or the VARO with I.D. to register. You cannot do this on line. VA never makes anything easy. You have probably figured that out by now.
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Job Openings–CAVC

The Court of Appeals for Veterans Claims has  been authorized 9 Justices. Due to Judges retiring, laziness and inattention, we now have a predicament where 6 Judges are shouldering the workload of 9. Several older, retired Judges have come back on a temporary basis to alleviate the workload of the 6. This should not be a partisan, politically driven debate. The Judges are not inveighing on everyday politics. Their rulings affect a finite portion of our populace (Veterans). Please contact your representative/ Senator and exhort him to rectify this injustice to Vets. Unfortunately, leadership (and a nomination or nominations) need to emanate from the Casa Blanca. Strangely, this has not been forthcoming. Please call the White House or fax them and ask our President to rectify this egregious judicial defect. We know he has been busy with other, more daunting and time consuming pursuits, but this debacle is inexcusable. The numbers are:

White House
 Switchboard– 202-456-1414     FAX: 202-456-2461

If every Veteran with a claim before the VA were to do this, we might see some relief within a year.
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VA-Friendly Fire?

Veterans have been approaching us for nigh on 3 years on this site and bemoaning the fact that they have filed claims and discovered VA (that would be the Veterans Administration) is an antagonist rather than their “good buddy”. 

     The VA in its first incarnation as envisioned by President Lincoln, was a novel concept. Not only did they offer compensation or a pension to Northern troops, this same offer extended to injured Confederate soldiers, including my Great grandfather. What a noble endeavor. Unfortunately some ex-servicemen, in collusion with their hometown doctors, conspired to game the system. This forced the VA’s predecessors to require more evidence and corroboration of actual injuries. This was still viable all the way through World War Two as most people are inherently honest. Actually, it was probably true through the Korean War. But around this time Veterans again started to search for loopholes to exploit the system to obtain more benefits that were questionable. 

     Granted, the Vietnam “conflict” generated a lot of disabled Vets, but there was a new paradigm emerging. President Johnson had inaugurated the Great Society programs which were poorly conceived and woefully unsupervised. It was the beginning of a flood where everyone was a victim and everyone was entitled. This started a new industry- cradle to grave “welfare”. In this setting, the VA became a lot more defensive of its finances and largesse. Vets noticed this disparity soon enough. It became exponentially harder to gain entry into this club.Even if you succeeded, there was not a golden parachute available on the other side. Diseases and injuries that would normally be considered total disability were often rated at less than 50%. This “us against them” mentality has continued through the years and finally met its match with the inception of the CAVC. 

     Veterans, be they from the Vietnam era discovering new AO illnesses or Iraqi/ Afstan with IED/PTSD fallout, are discovering this dichotomy. How can the VA, who ostensibly represents Vets, be in an adversarial relationship with those they purport to advocate for? 

      Murphy’s Laws of War in Vietnam were many and very instructional. The first one I heard was Friendly fire…isn’t. We, as Veterans, were given a promise when we signed our compact with the Government. It sounded like a fair shake. It didn’t promise us the moon, but it certainly didn’t sound incredible or unattainable. What, then, to make of the current state of affairs? 

     Were you to file a claim with your insurance company for an auto accident that wasn’t your fault, it would be adjudicated in short order. What would you do if there was only ONE insurance company in America that was hopelessly overwhelmed and refused to subcontract the work out to overcome the backlog? What if you had to wait for a year for a decision which was invariably adverse because they had poorly trained personnel assigned to your claim? And everyone else’s? If you  were  dissatisfied with the outcome and appealed the findings, would you be nonplussed to find yourself waiting several years to get your car repaired? 

     We find ourselves, as Vets, disenfranchised simply because our nation has chosen to fight multiple wars in succession without sweeping up the broken glass in the interim. We are assured that this is a temporary aberration and soon things will be better. Meanwhile we wait. All the while more casualties are piling up requiring yet more claims personnel who are not forthcoming. More promises and IOUs are handed out-again with more excuses for the delay.

     The Veterans Administration becomes more and more choked and bloated each year in its attempts to “streamline” the process. At what point will it become a “Veteran friendly environment”? We never shirked our responsibilities when in uniform. To have done so or even threatened to would have resulted in severe discipline. So why is it that the employees we pay for with our taxes are allowed to collect their paychecks irrespective of whether they complete our claims in a timely manner. I submit that the tail is finally wagging the dog. 

     So, ladies and gentlemen Vets, when you submit your claims in the future, recognize your adversary. He/she will be smiling and sending you all manner of  pleasant literature that says you will be accorded great respect. They will tell you that they will attempt to grant you any and all remuneration you are entitled to. The operable word is “attempt” The unspoken reality is the time element. You may even enlist the help of a VSO who will tell you about the untold riches which await you upon service connection. Silver tongued devils all. It has been said that if it sounds too good to be true, it is. You are being subjected to friendly fire and VA is attempting to convince you that it is unintentional. 

     Murphy’s law of bombs held that Napalm and cluster bombs were incredibly accurate- they always hit the ground. VA’s promise to accurately adjudicate your claim as rapidly as possible is no different. However, the words “accurately” and “rapidly” are open for interpretation and wildly exceed the parameters envisioned by Miriam Webster. 
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New and Improved AO

Some of you probably thought that Dow Chemical quit manufacturing Agents Orange, Blue, White, Pink, Purple and Green after the Vietnam War. You would be wrong. Agent Blue is still manufactured and used extensively in theUS. Agent Purple was 300% stronger than Orange. White was used late in the war, but the picloram was contaminated with cancer-causing HCB. Agent Green was usually mixed with Agent Pink and they both consisted of pure dioxin- the cancer causing ingredient in Orange.  I don’t doubt that Dow continued to sell out  its stocks or shipped them to third world countries after they lost the Government contract. They probably rebranded it as Weedbgone or Nuke-it. Why throw it away perfectly good defolieant when you can sell it?  That stuff sure as hell has no shelf life.

What I really wanted to convey here was the availability of something as nasty as AO for killing  vegetation. I have been using something called monobor chlorate for almost 30 years. Its remarkable. It comes in white pellets or you can dissolve them into water. The former method will require a rainfall to activate it. The latter can be poured on anything or anywhere you don’t want things to grow. Sounds a lot like AO, no? I think its much safer., but I still suggest wearing plastic gloves and a paper mask when spreading it. I wish they’d told me to do something similar in 1970 when the C-123s flew over. This stuff is megatoxic and will probably warp your genes as if Orange or Blue hasn’t already.

Nothing grows for 2 years. Monobor claims only one year because they don’t like to brag. Not only that, if your neighbor has some pesky trees that are obscuring your expensive 270 degree view of theOlympic Mountains, whip up a super condensed batch of the liquid version and water his trees with it late at night. After several days the needles will start to brown and fall off like an unwatered  Christmas tree. Be careful though. Do one tree at a time so it will occur gradually. A $60.00/hour  arborist couldn’t even figure this one out. I know because I went over and offered my theory on the cause(global warming).

I normally use it on my gravel driveway. That was the original idea behind it-not my neighbor. Its a heavy metal product and is reputed to sink straight in and not migrate sideways or downhill. It works equally well on tall Douglas firs and  short  dandelions. I would have named it Agent Brown or Treebgone.And just who would you suspect was the manufacturer of this fine product? Pro-Serve, Inc., a subsidiary of Dow. Their motto? What else? Better living through chemicals.

Next week we’ll discuss pesky neighbors and how to whip up you very own homemade napalm (foo gas) with nothing more than  Diesel, gasoline and Tide laundry detergent. And you thought it was just for whiter whites and redder reds!


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New Presumptive AO Diseases.

 In an exciting development for Vietnam Veterans, Secretary of Veterans Affairs Gen.Eric K. Shinseki announced today that the National Institute of Health has identified 3 new diseases with presumptive ties to the defoliant know as Agent Orange. Exposure to Agent Blue has been determined to be a causative factor as well. All three are slated for inclusion in 38 C.F.R. § 3.309(e) in the new bill before Congress. This is welcome news as the NIH has toyed with the idea of including them since the Nehmer II decision in 1998.Of the three diseases, Joo-Joo eyeball has been identified as the most debilitating. Severe arthritic conditions of the eye as well as the eyelid muscles have been reported. Advanced cases of this reveal eyes that appear to be “bugged out”.

Walrus gumboot is reputed to cause feet down below the knees. This has not been confirmed by medical testing, but doctors have described “vestigial feet” protruding in the loose flesh around the upper tibia in Vets with documented herbicide exposure.  VA orthopedic surgeons stated it may yet turn out to be nothing more than harmless acute genetic defects in spite of their remarkable resemblance to human feet. Extensive testing is slated for later this year.

    Certainly of most concern to AO presumptive Vets is Monkey finger. Doctors have described witnessing the  apparent exudation of what has been described as Coca Cola directly from the ends of the fingers much like a squirt gun. Vets have described it as being very painful as well.

     Secretary Shinseki said he was confident the diseases would be approved as many Veterans of the Vietnam era are Congressmen and are very familiar with them. We will keep you informed of any developments as we hear them.

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The Noodle Dude’s BVA Hearing– 4/5/2011

     I had a Board hearing on my claim for an earlier effective date of 1994 today. Some of you may be aware that I filed my original claim for hep. and PCT 17 years ago. I was denied for a number of reasons. Part of the problem was I was in a remote/isolated tour with no military medical facilities. All my medrecs for 19 months were left in a little town hospital at the ass end of nowhere in Thailand. Naturally the Air Force never retrieved them and associated them with my service medrecs. The Air Farce also never included my TDY records to Vietnam in my milrecs so no proof of boots on ground in RVN. Not to worry- I kept a copy.The VA denied based on no record of hep in service.  I called back there (they’re 12 hours out of phase with the Left Coast) and they sent my records. Okay so far. I sent them in with my NOD. I got a SOC back a month later in January, 1995 that said: “Roger on the new and material records. Got ’em. Will review and let you know our decision ASAP”. 


     And there in Limbo, gentle reader, is where the claim sat for 13 years. I thought it was denied and dead. The jerk representing me at AMVETS had a midlife crisis and decided to leave, get his nipples pierced and become a used car salesman. When I refiled in 07 and won, they gave me that as my effective date.  I scratched my head and looked at the 94 thing and decided the proper date really was back then. Today I made my case to the VLJ. He isn’t allowed to opine until they send a decision to the steno pool, but after reviewing all the info, he agrees in principle with me. My son was 6 when I filed. He’s 23 now and going into law school this fall. I certainly hope he plans to include some pro bono work for Vets when he graduates. 

     Interestingly, the VLJ ( Mark Hindin) who heard my case worked at the BVA as a lowly associate counsel from 1992 until he became a Judge in 97. He is well suited to hear this as he has seen the VA metamorphose from a backwater claims system to what it is today. Now I begin the ? month wait. That won’t be nearly as mind numbing as  17 years, though. This may have a happy ending  or… you will see my name in lights up on Indiana Ave. NW. My real name isn’t NOD just in case you guys were wondering. It’s Buckwheat.

Attached Images:
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New Libyan Theatre Medal

We called our inside guys at Fort Fumble to get the skinny on the Libya thing. They always have the latest news from that fishing shack down in Georgia where all the vast right wing conspiracies are hatched.  This is what we found:

     They are busy creating a new ribbon/medal to show participation in the Libyan Theatre. It will have some purple in it to reflect that DADT has been repealed. The struck medal has a Tomahawk Cruise missile on the front with crossed lightning bolts and a bombed out oil derrick in the background. On the obverse is an image of Alfred E. Neuman with the patented “What? Me Worry?” inscribed below it. 

     Illustrious leader decided that we would throw our hat in the ring with the European Union even though we don’t get our oil from him. He initially wanted to do what most of them did to us in Afghanistan- say “We’re with you to the end, Bro”, then bug out on the next flight. His handlers told him that wasn’t an option so they went for Plan B- Rio de Janeiro and a week on the topless beaches. 

     When told that a very strict Muslim Brotherhood–run government like Iran’s was waiting in the wings, he was overheard to say “Good. I never did like that Ghaddafi dude.  He has a really weird first name. Who’d name their kid Moammar? It gives me the creeps.” 

      The US is all set to offer billions in reconstruction aid after the bombs quit falling and the rebels take over. There will be some cost cutting here and there at home to compensate for the increased Foreign Aid package. Illegal immigrants will no longer be  entitled to free coffee and bagels at  Health and Human Resource sites accross the country every morning. People on assistance will have to take 4 furlough days a month without pay to make up the shortfall as well. We may notice a few potholes on the interstate highways, but that is covered in next year’s budget. 

     The President has announced a new Government employment program. People can now apply for AMERICARES jobs overseas in Libya (rhymes with Doubya). The sliding pay scale will start in the mid-five figures and reportedly entails insulating Bedouin tents and water jugs in an effort to save energy and start a “green revolution” to combat Global Warming.  The President rightfully asserted that “This program is just what is needed to kick this stubborn unemployment thing in the ass”. 

     The guys at the Puzzle Palace are always dead on, so there you have it. A short non-war followed by low unemployment and $150.00/barrel oil. This appears to be a win-win situation for all concerned. The President said we may see a slight downside to this rosy picture in the way of runaway inflation and interest rates as high as 16%. This is to be expected and no cause for alarm.  He plans to print more money to combat this and claims he has a contingency plan with the  intriguing catchphrase ” Small denomination bills you can count on”.  

     Our informants also report there is a shortage of those little umbrellas for the Mai Tais since the President and his 6,000-strong entourage hit town last week. Brazilian Government officials have offered a tax subsidy to the manufacturers to increase production temporarily until the President and his party decamp. We’ll keep you posted.  News and film at Eleven tonight. 

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Statutory vs. Procedural Error

     Well, well, well. March 31st will mark the quarter of the year and the CAVC has eleven adjudications under its belt. These adjudications are almost equally divided in nature. The score is nine to two in favor of Vets. For those of you from St. Petersburg, that means Vets are ahead.  In arithmetic terminology, that is 81% in favor of Vetkind.

 

     One exception was a Vet trying to get a MFR or a panel hearing on his case. He lost on both attempts. Apparently his arguments were not as persuasive as the Secretary’s. The second one, Kyhn v. Shinseki should be filed in the Boldly Going Nowhere file. The Vet failed to show up for his C&P exam and then tried to lie his way out of it.

 

      Of the nine decisions in favor of Vets, five of these decisions were procedural mishaps and four were  statutory misinterpretations. Statutory rulings, quite simply, are cases where our illustrious leader misinterprets the meaning of the law and introduces smoke, mirrors and snake charmers in a belated attempt to justify and vindicate his argument. This might work with his wife or the plumber.  Trying this up on Indiana Ave. would require a lot of liquor and women of questionable morals. Unfortunately, they are in short supply in that neck of the woods.

 

     Procedural rulings in favor of Vets usually fall into a narrow band of stupidity. In the early years there were 20 BVA Boards made up of three judges each, one of whom was an M.D. After enactment of the VJRA in 1988, this practice continued until late 1995. The Board then switched to a single judge for adjudications and abandoned the medical member completely. Some theorize this was a cost–cutting maneuvre, but in reality it was based on the VJRA and the new Court. Board members making decisions medical in nature was outlawed early on in Murphy v. Derwinski, confirmed in Littke and enunciated again in no uncertain terms in Colvin v. Derwinski. Nevertheless, this procedural defect plagued many a BVA decision for years to come. Failing to adequately explain their decision in the Reasons and Bases section was the other bozo no-no that haunted the BVA for years. Nowadays, the majority of procedural failures are more mundane and involve nuanced readings of 38 CFR. TDIU has gone through quite a few reinterpretations as have the reasons for not granting it. The BVA is loathe to give away money unless it is to each other in the form of Christmas bonuses. It’s true. They often get bonuses. That’s about as asinine as giving the traffic cop who wrote the most tickets a raise.  I’m sure they have a well-reasoned excuse for it like the Judge had perfect attendance that year, was never tardy and used ecofriendly light bulbs in his office.  The decision in Harvey was extremely harsh. The Secretary held up justice for absolutely no reason for almost a decade before being sanctioned and fined for his misfeasance. He, too, will receive a bonus if for no other reason than to pay his fine.

 

     Whatever the reason, be it failure to read and understand the rules or just blatantly ignoring their substance, there is no excuse for sloppy jurisprudence. In a small, Veteran friendly judicial system tailored exclusively to Vets by “Vets” (and I surely use that term lightly), one would think this is a slam dunk. We are already afforded many rights denied to normal folk. The benefit of the doubt is the most well known, but there are many others. With those added protections in mind, it never ceases to amaze us to witness the audacious behaviour accorded Vets by their own Administrators.  The Court, since 1989, has seated us front and center, allowed us to observe how poorly we were treated prior to their inception and how it persists as an ongoing affair with no end in sight even today.

  Either the BVA is not attracting the requisite talent, judicially speaking, or the quality of the law school graduates drawn to this discipline is dismally sub par.  The number of CUE claims surfacing over old decisions is rising as is their success rate. The reason? Failure of the Board to explain their denial clearly in the Reasons and Bases section. Yes, there are procedural defects galore, but this wins hands down.  Another salient reason is we are all getting older and have time to dust off those old denials and recognize the injustices.  

 

 I expect we will see a flurry of panel decisions right before the 31st in an effort to make the Court look more productive. In contrast, 1991 yielded 118 panel dispositions, some of which are still cited today. EF, Hatlestad, Karnas, Littke, Manio, and Wilson are just a few notable ones.  Most well known and cited in virtually every Veteran’s appeal is the right accorded us in Gilbert vs. Derwinski –the benefit of the doubt.  If the Court could do that in its infancy, pray tell what prevents it from being faster than a speeding bullet? More powerful than a locomotive? Able to leap tall buildings with a single bound? I hesitate to venture an opinion. It’s above my pay grade.


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