Veterans Claims Help

There has been much talk of rescinding the Stolen Valor Act recently. Of course, there has also been talk of striking a medal and awarding it for, of all things, “holding your fire”. In addition, there is much discussion of the rescission of Don’t ask, Don’t tell. All of these subjects have important implications for the military.

Regarding the Stolen Valor Act: This has particular resonance for Veterans of all wars While we here at  HCVets tend to focus our attention onVietnamera Vets, we extend our offer of assistance to all- most notably that new cohort from our latest military endeavors inSouthwest Asia. But with the recent revelation that Vietnam Vets seem to be dieing at at a rate exponentially higher than statistical models envisioned, we have recently noticed a marked increase in “pseudovets” for lack of  a better term. Perhaps it is just the economic downturn that pushes these unfortunate souls towards dishonesty to obtain food, shelter and sympathy..

During the last election cycle, before the recession was in full swing, I attended our local caucus meetings to elect our standard bearer for the 2008 Presidential election. A large vocal contingent was engaged in trying to bully us into support for Rand Paul. While I admired their fervor, I disdained their tactics of shouting down their opposition. They were led by what appeared to be a gentleman in his late fifties who described himself as a Vietnam Vet. Not a Vietnam era Vet, mind you, but the real McCoy replete with the black baseball cap emblazoned with the VSM, VCM and the NDSM.  I engaged the gentleman in conversation later, asked him what branch of the military he served in and a few other non-adversarial questions aboutVietnam (and Rand Paul). His answers were vague and didn’t jive. Finally I mentioned something about our ages and how he didn’t look like he was in his late fifties. He responded by saying he was born in 1958 and started getting grey hair in his late forties.

The DOB remark went over my head for about a day or two. The revelation came when I was helping another Vet with his hepatitis/PTSD claim. He had been there in late ’74 to help shut down an airpatch and delist  surplus USAF and AirAmerica aircraft for transfer to the ARVN Air Force. He enlisted fresh out of high school and was one of the last batch of USAF Airmen and Officers to DEROS prior to our ignominious exit from the roof top of theU.S.embassy on May 5th, 1975.

Not to digress, but Marines everywhere will fondly remember a line or two from this ditty:

Up on the Rooftop-click, click,click!

Must be the skids of a Huey slick

Yo ho ho- Time to go

Ho ho ho- its gonna blow (etc.)

(sung to the tune of Old Saint Nick)

Anyway, his date of birth was in October, 1957. He was 17 when he enlisted and mentioned that he had to get permission to sign up from his parents because he wasn’t 18 at the time of enlistment. This got me thinking about the “Vet” from the caucus. Even if HE was 17 at graduation when he enlisted, that would have been in June, 1975- fully one month after theU.S. ended its involvement in that “conflict”. This didn’t even allow for any basic or advanced training prior to deployment. Trust me when I say we were not actively shipping troops into RVN in the months immediately preceding our departure. This is one of several claims I have encountered that are impossible on their face. Another one is a claim by a sailor that he was aboard an A/C carrier in the Gulf ofTonkin in 1974 during the war at Yankee Station. You can google this, but the long and the short of it is that we abandoned Naval air ops against the NVA and the DRV (Democratic Republic of Vietnam) in 1972 in conjunction with theParis peace accords. Interestingly, the carrier in question was never assigned to the waters off Vietnam!

While this discussion has virtually no bearing on the subject of HCV, it has everything to do with honor- something we all have in common with our service to America. While we have no gripe personally with those who served proudly in Canada during the war, we do take umbrage with those who would attempt to falsely lay claim to honor  never earned.

As for creating a new medal that will encourage restraint in a free fire zone?  That will soon enough be hoisted on its own petard. Whoever dreamed up this concept obviously has never heard the sound of bumblebees zipping past his head @2100 ft./sec. nor the unmitigated fear in trying to make one’s ass as small as possible. Soldiers, and, by extension all military personnel, are indoctrinated  and schooled into a “warrior culture”. There is no room for personal interpretations of perceived danger. One does what he/she is ordered to do with very little forethought. Making everyone his own platoon leader replete with decision making powers is asinine and could only emanate from the mind of a progressive bent on trying to “civilize” the military. Attempts of this nature are most often the brainchild of REMFs, the first two letters of which stand for Rear and Echelon. You can usually identify these types by the large quantity of “I was there” medals, commendation medals, unit citation medals and the virtual absence of Purple Hearts, Bronze or Silver Stars, CIBs, CARs, Ranger tabs, etc.

I read recently that one of the critical reasons why we should revoke Don’t ask, don’t tell  is that it degrades “mission capability” and the morale of our combat troops. These same “experts” in Human Resources also tell us that homosexuals have served in the armed forces in all our conflicts with no ill effects. This is an oxymoron on its face. If depriving gays of the right to serve degrades mission capability, then we should never have won WW2, succeeded in Korea, or had any measurable success in either Iraqi conflict.The jury is decidedly still out on Afghanistan.  Ricocheting in the opposite direction and claiming no ill effects actually argues for continuing the policy as is. We at Asknod refuse to take sides. We do enjoy playing devil’s advocate just to stir up the controversy and to see if anyone reads these posts.

As usual, we will add our standard disclaimer that these are the views of the editors and do not necessarily reflect the wishes and desires of Management who cringe every time we opine on matters unrelated to HCV. If we have offended anyone we sincerely apologize.      

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This hasn’t been a stellar year for Vets at the CAVC. Of 32 panel cases heard to date, 11 were decided (for the most part) in favor of the Vet and 15 affirmed the decision of the Board. An additional 7 had no bearing on win or lose(Court orders and award of EAJA funds.) We still have 45 more days of 2010 and there are generally a flurry of last minute decisions towards the end. Nothing earth shaking has been decided this year that would advance our cause, but it ain’t over til the weight challenged lady sings.

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Veterans Day 2010 

The CAVC (Court) just came out with a panel decision regarding communications between a claimant and the VA. As expected, it simply reiterated the same argument. VASEC Eric Shinseki felt that it didn’t apply to the VA and more precisely, the BVA. He was reminded to do a little more research on this subject before denying a claimant based on faulty logic.

     Fithian v. Shinseki examined the concept of what happens when you mail info to the BVA, VARO or the CAVC. Precedent setting cases in the past have held that if a Vet accidentally mails his NOD, MFR(Motion for Reconsideration) or NOA to the wrong agency, it is still constructively in the hands of the VA. This is important as it stops the clock for judicial purposes and preserves your right to appeal. Our illustrious Lt. General cum VASEC chose to ignore years of precedence and reinvent the rules on this subject. As usual, the Court had to take him out behind the wood shed and explain it in Dick&Janespeak as he simply didn’t “get it.”

     This seems to be a disturbing trend with this esteemed VASEC. We (as Veterans) were overjoyed to see one of our own at the helm at the start of the new administration several years ago. Our enthusiasm has since evaporated and we are appalled at the numerous adverse decisions being handed down by the BVA and defended by the Secretary. The equally large number of remands, reversals and vacations of decisions by the Court amply proves the defective logic of the individuals who purport to deliver unbiased justice to injured Vets seeking remuneration.  Our hats go off to the educated Justices of the Court for being able to see through the subterfuge and tortured logic the VA uses to defend its defective practices.

     What is possibly more disturbing is the thought of how many Vets walk away from their claims after a BVA denial without appealing to the Court. The system isn’t perfect, but Vets of all stripes expect a fair shake rather than the bum’s rush out the door after a shoddy trial. We served honorably and deserve as much in return.  Anything less is a travesty of justice. Worse, the tenor of the denials is becoming more nuanced and authoritarian. Using the excuse that “We don’t make the rules. We just enforce them” doesn’t cut it. When a government entity purports to deliver a product (justice) to us, it behooves them to do it properly. It is also expected that they are not going to keep moving the goalposts further down the field and implying its simply a trick of perspective from the Veteran’s point of view.

     The oft touted phrase “All gave some. Some gave all.” has even more resonance when it comes time to sweep up the remnants of wars. We, as Vets, refuse to be swept under the carpet. The clear implication we take away from these flawed BVA and VARO decisions is VA’s attempt to decrease its backlog of undecided claims and appeals at the expense of the Vet. Appealing to the Court is now the only guaranteed way to obtain a decision free from error. We used to counsel Vets that it was imperative to appeal an adverse VARO decision as the BVA was populated with college graduates who were more intelligent and ostensibly wiser. We can no longer make that statement in good faith.

     The downside to war is the collateral damage that ensues to the participants. Instead of complaining that VA’s budget is too meager and its resources are stretched, perhaps the VASEC should implore Congress to either quit waging wars or honor their commitment to those injured Veterans who selflessly offered themselves up to defend their country. President Lincoln, in his second inaugural address, said this in part, which has since become the VA’s motto:

“ to care for him who shall have borne the battle and for his widow, and his orphan…”

       When and if this ever happens, it will obviate the need for this website and others like it. We look forward to that day with great anticipation. In the interim, we will continue to counsel Veterans on how to navigate the minefield that VA has so artfully constructed to deny our legitimate claims. Happy Veterans Day to all of you from the Asknod crew.

Here’s an interesting little tidbit that we ran across and decided to share with you. The attached is a picture of the 2008 BVA judges. Yep. Some of them must have missed picture day or were on vacation (we hope). After digging further, we found this:

In Fiscal Year 2008, the Board issued 43,757 decisions and conducted 10,652 hearings with a cycle time of 155 days. Cycle time measures the time from the date an appeal is physically received at the Board until a decision is dispatched, excluding the time the case is with a Veterans Service Organization (VSO) representative.

  The Board consists of a Chairman, Vice Chairman, Principal Deputy Vice Chairman, 60 Veterans Law Judges (VLJs), eight Senior Counsel, 296 staff counsel, and other administrative and clerical staff. The Chairman reports directly to the Secretary of Veterans Affairs. The Board is comprised of four Decision Teams with jurisdiction over appeals arising from the Department of Veterans Affairs (VA) Regional Offices (RO) and Medical Centers in one of four geographical regions: Northeast, Southeast, Midwest, and West (including the Philippines). Each Decision Team includes a Deputy Vice Chairman, two Chief VLJs, 12 line Judges, two Senior Counsel, and 71 staff counsel. Staff counsel review the record on appeal, research the applicable law, and prepare comprehensive draft decisions or remand orders for review by a VLJ who reviews the draft and issues the final decision or appropriate preliminary order in the appeal. 

During the past fiscal year, the Board hired 75 attorneys and law clerks to fill vacant staff counsel positions and to replace departing staff counsel. In addition, seven new VLJs and seven Senior Counsel were selected through competitive processes. Senior Counsel serve as Acting Veterans Law Judges, draft decisions, mentor and train other attorneys, and assist in management. 

So, by process of addition, I count 67 VLJs, and 15 senior Counsel who are Acting VLJs for a total of 82 physical Judges. According to the BVA Decisions site, there were 49,125 decisions issued in 2009.  That’s 599 decisions per year, per Judge. Ouch. That’s a pretty intense caseload. Any wonder how things get lost, shredded or simply confudlecated? All the more reason to put your SSN/case # on everything and be prepared at the last moment to send them corroborating evidence they lose or misplace.
Attached Files:
Department_of_Veterans_Affairs.doc (504.50 KB, 5 views)

We certainly hope that the new conservative Congress which will assume its duties in January of 2011 will not try to balance the budget at the expense of my brother and sister Vets. Keep your eyes pealed and if you hear or see any evidence of this on either side of the aisle, please contact your Congressman/woman and remind him/her that President Lincoln made a compact with us during the Civil War to take care of us, our widows and our children. We will not take kindly to the Government using us like slave labor and then setting us “free”, nor will we sit idly by like street beggars thankful for spare change and handouts. Our country set out to rid us of muslim extremists and the like after 2001. We have performed our jobs there and in prior wars with equal professionalism. Political infighting has no place where we are concerned- just Veterans Justice. Do not hold us hostage to your political ambitions.We and those who went before us are the reason you are free. And, yes. You’re welcome. It was real and it was fun, but we can’t always say that it was real fun.

We here at HCVets have done a disservice to our fellow Vets at Hadit.com by not mentioning their immense contributions to Veterans filing claims with the VA. We apologize profusely and want Vets to know that no one on these websites has cornered the market on the knowledge needed to win a claim, least of all us. We would counsel all Vets filing claims to visit and consult with as many similar sites and even VSOs to make sure they cover all their bases and are comfortable with the advice. As no one is infallible, it helps to have confirmation on any given facet of a claim. We have even discovered that some VSOs are not up to speed on acceptable risk factors for HCV. As late as 2009, the Military Order of the Purple Heart was of the understanding that a tattoo was willful misconduct, and, as such, was not considered a risk factor that could be used in an HCV claim. The same VSO handed a Vet with a 0% Tinnitus rating an application for TDIU and told him every case was decided on its merits. He was being partially truthful in that assessment, but the Vet would never have been granted the rating based solely on the Tinnitus. Trust but Verify. It will save you a lot of grief in the long run. Again, a warm thank you to our brothers and sisters at Hadit.com and other like minded organizations that help disabled Vets attain justice.