Things Vets Need To Know.

Posted on September 29, 2011 by asknod

So, you thought you had it bad filing a claim. Pity the poor, overworked VA. They are inundated in work, have been for years and now find themselves being persecuted for same. In our travels in pursuit of why this is, we came across an interesting case brought by a National Veterans outfit in conjunction with a California one. They lost most of their demands at the district court level as the Judge felt he had no standing to order the VA about. The 9th Circuit, being a Federal Circuit Court, has no illusions about their enumerated powers however. They proceeded to demolish the VA and order it to begin complying with the Veterans complaints. While this began as a case to help PTSD Vets and speed up the claims process, it mushroomed and now has the VA thinking of appealing to the Supreme Court.

     What interested us were the findings of the district court in 2008. These facts are stale and 3 years old now but illustrate how far behind VA actually is in the claims process. Remember also that the VA has now added new diseases to the AO family and caused another stampede to the claims trough. This will increase the backlog and frustrate Vets further. At this time there is no relief in sight other than the usual mea culpas about how each claim is unique and must be carefully examined to ensure accuracy. I will list some facts that may cause dismay and angst among Vet claimants everywhere. This problem is not indigenous to one RO- it encompasses all 57. We may see the Courts overrule the VA and put the process in other’s hands to cure the backlog. Think judicial activism on a scale akin to Court-ordered busing of minority school children when they felt the states were loathe to comply with orders and directives mandating integration. 

FACTS ABOUT THE VBA( VETERANS BENEFITS ADMINISTRATION)

AND VHA (VETERANS HEALTH ADMINISTRATION) 

     There are approximately 25 million Veterans alive as we speak. Of them, almost 8 million are served by the VA medical system (VHA). Of the 25 million, almost 3 million are service-connected for injuries/diseases incurred in the service of our country (2008).

     The VA supplies health care via 153 VAMCs ,  approximately 800 Community-Based Outpatient Clinics (CBOCs) and 200 “Readjustment Centers” ( Vet centers) throughout the U.S., the Philippines, and Puerto Rico. Most Vets receive their care from the CBOCs, but VA has no provisions for treatment of PTSD at these smaller clinics. Ruh-oh, Rorge.  What would you suppose is the most prevalent problem afflicting recently discharged Vets hundreds of miles away from VAMCs?  Approximately one out of three servicemen returning from duty in SWA suffers from mental health issues. 

     We could certainly go on for hours about that subject, but that is not the focus of this dissertation. The VBA is the source of our concern today. The VBA, as its name implies, is responsible for benefits programs, including pensions and disability /death compensation claims. Do not confuse it with the VHA.

      The following facts you may find informative. Currently, (2011), 3.4 million of us receive benefits. The district court found that some of us are educationally challenged and often find it difficult to navigate the maze to obtain benefits without substantial third party assistance. This is the least of our worries. We are not allowed to involve a lawyer or other professional who charges monies to obtain justice at the RO level. We can only resort to this ploy after we have been denied and appeal. Therefore we are condemned to using the VSO system or defending ourselves pro se until such time as we are finally allowed to appeal to the BVA. This is an interesting fact that VA is remarkably silent on. Consider also the following in no particular order. 

The current waiting time for a C&P exam is 35 days (2008). 

Even if you have been diagnosed with a disease/injury at a VAMC or CBOC, you must still go through a C&P when filing a claim. 

Approximately 88% of all claims are at least partially granted. This interesting factoid is very misleading. A rating of 0% for hearing loss is as equally weighted as a temporary award of funds for Vocational Rehabilitation.  Actual ratings awards of any substance continue to be denied fairly regularly and those awarded are usually lowballed to an insignificant percentage so as to be initially incompatible with the actual progression of the disease/injury. This, in turn, provokes an additional NOD (or appeal) to obtain a realistic rating commensurate with the injury.

During the pendancy of a Veteran’s claim to the RO, he is statutorily barred from paying a lawyer to represent him (38 USC § 5904). 

If a Veteran disagrees with a rating decision by the RO, he may appeal-thus embarking on a path that will delay his receipt of benefits for many years. We all know this. I am simply stating it for the record. 

More than 830,000 claims are filed with ROs every year (again, 2008 statistics).

On April 12th, 2008 there were 400,450 claims outstanding awaiting adjudication. Imagine what the latest deluge of new Agent Orange and Afgan/Iraqi war claims has done to inflate that figure. 

11% of all claims lead to the filing of a NOD. A lot of Vets apparently walk away from this process upon initial denial. It in no way reflects on whether the claim(s) have merit. It is born of disillusionment with the interminable delays in the process. Perhaps after a year of waiting and subsequently finding oneself destitute and homeless, the prospect of waiting another 3-4 years for justice might seem futile in some Vets’ minds.

Only 4% of all ratings claims proceed to an appeal before the BVA. Appalling but true. 

Throughout your appeal process, you are faced with time limits and constraints, the failure of which to timely follow can result in forfeiture of your claim rights. In contrast, the VA is not subject to any statutory or regulatory time limits at any phase of the process.   

VBA’s stated goal is to “process” all initial claims for benefits within 125 days. Reality reveals 182 days is average with 101,019 claims pending for over 180 days (again-2008 statistics). 

From the filing of a NOD, it takes 261 days to issue a SOC. In some cases Vets have waited in excess of 1000 days (Yep. 2008 statistics).

After receipt of the SOC, the average delay for filing a Form 9 by the Vet or his designated representative is 43 days. 

The average delay for the RO just to certify the Vets appeal averages 543 days. This is purely a ministerial function and requires little to accomplish. Some Vets have experienced delays up to 1000 days for the VARO to accomplish this collation of your file and attach a Form 8. This does not include the transmission of the C-file via snail mail to Washington, D.C. 

Veterans who forgo a DRO review and take the traditional route to an appeal wait an average of 336 days for BVA to issue a decision on their appeal. If you decide to have a hearing before the BVA judge this will compound the delay an additional 455 days beyond the 336 mentioned above for an average aggregate total of 791 days. That’s slightly over two years according to VA’s calculations.  I assume they are referring to the planet Mercury’s calendar. 

From inception of claim to adjudication by the BVA reveals an average of 4 years and 5 months assuming no remands, readjudications, DRO reviews, or other roadblocks to a simple up or down decision (2008). This does not include any time between denial of the initial claim and filing of the NOD (up to one year permitted). 

Bradley Mayes, Director of the C&P Services at the VBA testified under oath that he had not “made a concerted effort to figure out what was causing” the extraordinary delays in the claims process. James Terry, Chairman of the BVA was equally unable to explain the inherently long and interminably slow Appeals process in his bailiwick. 

The Federal Circuit court found “The record before the district court suggests that errors made by ratings specialists at the Regional Office level play a significant role in the lengthily delays that veterans experience in the adjudication of their claims”. (emphasis mine) 

On average, the BVA affirms a RO decision 40% of the time, grants the appeal 20% of the time and remands the case back to the RO 40% of the time. Between 19 and 44% of these remands are so-called “avoidable remands” defined as occurring when “an error is made by the RO before it is certified to the Board”. (emphasis mine) 

The district court found that almost half of the “avoidable remands” were caused by failure of RO employees in their duty to assist veterans just between January 1 to March 31, 2008 alone. 

75% of claims remanded to the RO by the BVA are appealed back up to the BVA a second time. 

It takes the BVA an average of 149 days to readjudicate a remanded claim once it is received back at the BVA. Transmission of the claim back to the BVA from the RO is not included in this number.

It takes the RO an average of 499.1 days to grant or deny a remanded claim or to return it once again to the BVA. Remanded PTSD claims require an average of 563.9 days. 

     I will let Veterans draw their own conclusions as to how or what the VA is doing to spruce up these statistics. The habit of addressing the pig with a simple lipstick makeover in order to conceal its lineage doesn’t seem to work anymore. That seems to be the consensus of an en banc review of this case by the 9th Fed. Cir.  As I stressed numerous times, these are 2008 statistics and do not reflect the reality of 2011. They are taken directly from the filed case decision. I am not embellishing anything and the facts can be cross-checked in the event anyone thinks I am stretching the truth or inflating the numbers. Please also consider this an FYI and not a rant. Venting one’s displeasure with the process does not resolve the underlying problem. Voting does. 

     I apologize in advance for any run on sentences, misuse of tense, misspellings or dangling participles. Every effort was made towards brevity as well, but the laundry list of mistakes or inequities is quite lengthy.

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Agent Orange and the Nasty Guard-2011

Posted on September 29, 2011 by asknod

Pity all the Nasty Guard pilots and aircrews that inherited the leftover C-123s from the Vietnamese War. Most were “bought” or transferred for a dollar to Air America, Byrd Air or their successor, Southern Air Transport. These , as we all know now, were just fronts for the CIA. A significant number still made it into the U.S. for National Guard duty in 1972 and replaced their venerable ageing fleet of $1.19s (C-119s).  They were finally phased out in 1984 to make way for the antique C-130As being surplussed by the AF.


     More than a few were workhorses for Operation Ranch Hand, the code name for the Agent Orange herbicide application program. The Air Force took out the tanks and associated plumbing, sprayed some Febreeze inside and handed them over. No pressure washing. No wipe down. Nothing. The aircraft stunk of old pesticide in 1970 and they still did in 1984. One example which was to be preserved and displayed at Wright Patterson AFB was tested and was so toxic that they had to seal off the interior and the workers were forced to wear full hazmat gear to gut it.  

     So, guess who’s coming to dinner with prostate cancer, diabetes 2, peripheral neuropathy and a host of other AO symptoms?  And guess who’s staring at the ceiling and whistling “Danny Boy”? The military says “Gee. Nobody knew back then” and VA’s staid response is “Well. If you weren’t in Vietnam, well, ah, then you can’t be, ah, service connected for AO.  The rules are very clear on this. But we’re looking into it and we’ll get back to you. Hear?”

     Meanwhile a new class of Nehmer has been born with no presumptive entitlement. How will VA ever dig themselves out of this? Simple. By the time they figure it out and pass a regulation with a special bye for the Nasty Guard, the boys will all be dead. VA can afford to be magnanimous when most members of the class action lawsuit are busy dieing. I’m sure the claim will die with the Vet and the spouse will piss into the wind for several decades before being afforded any meaningful remuneration. Gosh. Wait a minute. That sounds like what happened to all of us from that war. Deja Vu. anyone?
P.S. Here’s the kicker. The aircraft were then surplussed to little South American grasshopper airlines and oil exploration companies- still with no mitigation for the contamination. It’s like Chanel No. 5- the gift that keeps on giving.  
 
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need guidance

Posted on September 29, 2011 by asknod

squid_with_dragonRegistered: 08/15/10
Posts: 132
05/09/11 #1
I just have no idea how to handle this situation. I have always been in control of what happens to me. This time I feel that I am no longer in control and I just don’t know what I should do.While I was on unemployment I became sick every day. I went into the VA because that was the only healthcare I had access to and was diagnosed with Hep C. I had virtually no idea what the disease was or how I even got it. That was 18 months ago. The VA had me talk to person (not a doctor) who “handled” HCV and diabetes cases. I virtually got no information from that person. She merely said that I had 2b and that it was treateable. She set me up for a panel of stress tests to see if I could handle the chemo. She said they won’t do a liver biopsy unless the treatment fails. She also stated that she didn’t think I was into chirrosis because of the blood test results.

I did all of the stress tests, but my liver was never examined at all. They were going entirely off of the blood test. In the mean time I was appointed to a GS-11 position with a Federal Agency in the DOI. Which was good timing since my unemployment had just run out. The government moved me to my new job in a small town 900 miles to the West. That was last November 2010. I immediately signed up for Health Insurance and planned to work my HCV through the Federal Health Care Plan.

In the mean time I went into the VA outpatient clinic (small town) to get the results of the stress tests. The VA came back with a diagnosis of Stage 3 and that I passed all of the stress tests and should begin INT-RIBA treatment ASAP. Well as it turned out, the GS job there was a scam, a set-up whatever one chooses to call it. They had planned on getting rid of whomever was the unfortunate soul to walk through the door. It was a small jobsite and they aren’t the ones who hire for the positions. I was sent there by the State Office.

I was harassed from day one in order to force me to resign. I was stuck. I couldn’t leave for the obvious reasons. They fired me after being on the job for about 30 days. No mis-conduct. They merely stated in the termination letter that I was too dumb to learn at the pace that was expected of me. What-ever that was supposed to be! I had no money to move back to where I came from. I hocked my van to get a loan to pay for the move.

I came back to the small town that I left and rented a small house with my last paycheck. Now I am trying to find a job to somehow make some money before I become homeless next month. I signed up with the DOL DVOP program as a Disabled Vet to take part in their “intensive services” whatever that is supposed to be. I didn’t work there long enough to get unemployment benefits. The State DOL/DVOP rep is trying to connect me with people that are hiring, but I need some rent money like today.

On the upside I am getting some job interviews and one company has expressed an interest beyond the interview. So I am pursuing viable opportunities. The thing is I need to start the chemo soon and I have no idea how that will affect my ability to work. I am an office worker so the physical demands are not a problem with the job. At least the VAMC in Sheridan was willing to give me treatment. The PA there told me it could be “dicey” for the first couple of weeks, whatever that means! About the only information that I have been given is that the treatment will last for 6 months and I need to take a pill every day and get a shot once a week.

At least the VAMC in the other place was willing to treat me. Here at the VAMC in where I am now, they shut the windows and locked the doors! I talked to the DOL/DVOP rep today and discussed my health. I said: “okay I get a job, then what do I do? I need to start treatment as soon as a I can. I have no idea how the treatment will affect my ability to do the work or if I need any time off from work.”

Thanks to Mr. Nod on this site my claim for SC is on track. I just need some guidance on what I should do right now with no job and no income and no savings. I also don’t know how the treatment will affect my ability to work or what the risks to my health are. I have heard that the treatment is brutal and affects people differently. I have heard that having an auto immune disease when treated could kill a person. The VA is already compensating me for Rhuematoid Arthritis, but then recently they have tested and the VA now says I don’t have RA.
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AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
05/09/11 #2
Squid …….

Rough spot you are in but you are not alone.  I would file for Vocational Rehab with the VA.   They can assist you with job options, dental care while you are in their program and medical care (which you are already receiving).   As for the treatment, it’s brutal for some and others its a cake walk.   The single most important thing is attitude when you go into this.  If you can assemble a support team to help you with things you might need done try and get that into place.   You will receive support here and you can receive support from VA Services.    If I were in your shoes, I would go to the nearest VA medical center and ask to speak with the Patient Advocate, they can assist you in finding out what is the right road for you to go down.    Good you have your claim filed and NOD is providing the assist.   My husband did 3 courses of Interferon therapy/treatment, he worked through all 3 but not as much…..we were lucky to be self-employed at that time and unlucky in that department as well as we had to hire someone to do his job within the company.   it wasn’t easy….the 3 treatments (122 weeks total) were 3 different times, 3 different phases of the drug and the same outcome…..however, had he not done any of it, I would be single today.   He is Stage 4 and cirrhosis now with many side affects of the cirrhosis but man, he keeps moving and somedays I don’t know how.   He has learned what his new “feeling well” level is and it ain’t what it used to be that is for sure, but the alternative (no treatment) was pretty grim.
We are here for you in any capacity we can be.   (((((((( Hugs ))))))
If you have more questions, post them.   I will be out of commission for a couple of days but I will check in.
AZeeJensMom
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squid_with_dragonRegistered: 08/15/10
Posts: 132
05/10/11 #3
Thank you…I apologize for the self pity. I guess sometimes a person can work themselves up into a tizzy if there isn’t anyone to talk to about it. The DOL / DVOP rep gave me the name of the patient advocate here so I left him a message. Just got a bill from the VA for $25 for a bottle of Vitamin D that I got in the mail but never asked for. The pills are 1000u and I am already taking good vitamins that have 600u of Vitamin D. Now that it is spring time and I am actually getting some Sunshine, I don’t really even think that I need them.I really would like to see a gastro doc as I’ve never been examined by one yet, since all who have seen me for this disease so far are genereal pracs MDs or PAs. I have a feeling the VA here doesn’t want to treat me because they keep nixing my appointments to get something going for my treatment. I think I could go into treatment with a positive attitude if I could just get rid of this anxiety about no money to live on and start getting adequate care from the VA.

I got a call from my grand-daughter (Skype is a wonderful invention). Yesterday I took a drive out in country with my dog and watched nature. The hills are greening up and the trees are finally getting some leaves now. I really enjoy life just that the roadblocks to living a fruitful and happy life become frustrating at times! Thanks for the guidance and thanks for being here! 🙂
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NODManager
Registered: 11/22/08
Posts: 654
05/10/11 #4
WWVD- What Would a Veteran Do?  

     SW/D- you have, quite possibly, one of the finest inventions of God (if there is One and I have no reason to believe otherwise). A dog has a memory of about five minutes with the possible exception of my Lab. She can find a tennis ball left under a sofa a week later.Dogs are marvelous for people in our circumstances. They are not judgmental and forgive you when you are mean or rude to them. I was in the VAMC for almost 9 months and my Mollypop was distraught beyond belief. As amazing an invention as they are, they do not deal well with your stress. By the same token, they will go out of their way to resolve your stress by trying to divert your mind from it. Whether this is intentional or not is immaterial. The results are what matters. Count yourself lucky in one respect if God has blessed you with one of these marvelous companions. 


     We certainly will do everything in our power to make sure your claim stays on track. We ask that you do everything to maintain your mental acuity and health. It’s not easy during this period of Obamanomics to obtain and hold a job. HCV is an insidious disease that often creates a miasma of despair and depression. Recognize this and prepare for it. AZ’s advice is very good. I would not have thought of it. That’s why I contacted her and asked her for advice on you. Women think beyond five minutes into the future unlike us.

     We are a family in this together, not an archipelago of individual islands isolated from one another. While I may not have a lot and struggle financially, I would be honored to assist you if it becomes necessary. While a lot of other Veterans help sites offer what they purport to be assistance, none that we have come across care as deeply for our members as we do. We are probably the smallest Vet’s assistance group due to our singular, myopic focus on one facet of VA claims. Because HCV is in a different league from  hemorrhoids, bunions and ingrown toenails, we tend to have a different perspective on it. Left untreated, the outcome is very predictable. 

     I received a call from a mother in N.Y. Sunday telling me her son- one of our members- had passed several hours earlier. What a horrible thing to have happen on Mother’s Day.  He was 52. VA refused him a liver transplant until he had been cancer free for 2 years. He had less than 7 months to go. I had the privilege of helping him go from 10% to 180% and attain some small measure of dignity before he passed. 

     If your circumstances become overwhelming, please do not waste a minute getting in touch with me via the Private Messaging  function we have established here. I would be proud to share that which I have with any Vet in dire straits. Usually that entails information, but desperate times demand desperate measures. At the end of the day it is immaterial whose fault it is that we find ourselves in the predicament we are in. The important thing is to survive until you get justice. Your dog will help you more than you know. 

      Get out in the sun, take the Vitamin D back and say “No thank you”  and avoid concrete abutments. Your responsibility to your dog demands no less. 
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squid_with_dragonRegistered: 08/15/10
Posts: 132
05/10/11 #5
Thanks for the picture! :-)I am really fortunate to have my dog for sure. He is a Brittany and he likes to use his paws. But he is the typical pointer “ball of energy”. His favorite game is Soccer. He does good batting the ball around except sometimes he cheats by picking up the ball with his teeth and running off with it. The ideal situation is to get my youngest grandchildren out to play with my dog. Then I can sit in a lawn chair and relax. 🙂
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NODManager
Registered: 11/22/08
Posts: 654
05/10/11 #6
 Sorry. I had to hide Molly’s face so the VA wouldn’t recognize her. I still have claims before the BVA and I use her as a fake Service Dog for entertainment when I go to the VAMC. I’m sure you understand. I’m paranoid about these things. A man can never be too careful.
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squid_with_dragonRegistered: 08/15/10
Posts: 132
05/11/11 #7
In looking over my medical records it appears i’ve got the smoking gun with the EMG tests. I had a third EMG test done at Balboa Naval Hospital in San Diego. That is 60 different needles from three different hospitals, two hosptials in Japan and one in CONUS!The needles if you don’t already know, are about 8 inches long and quite thin. Each needle is actually an electrode attached to a wire. There are 20 needles/electrodes. This ball of wires is attached to a machine that graphs nerve transmission. Today the needles are replaced if the patient is known to have HBV,HCV.HIV. Well, back in the early 80s they didn’t have replaceable EMG needles and they didn’t have the modern sterilization methods for the needles either.

Come to find out that sometimes EMG tests are needed to determine the extent of liver damage with Hep-C patients. It is entirely possible that they could fail to replace one of the 20 needles after an HCV patient is tested. And it is entirely possible that they could replace one that wasn’t properly sterilized after the last use.
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NODManager
Registered: 11/22/08
Posts: 654
05/11/11 #8
     Well, actually you have two smoking guns. The genotype is a dead giveaway. The needles are irrefutable proof of percutaneous risk, just as much so as if you had engaged in acupuncture. Just for shits and grins, throw in the jetguns as well. In for a penny, in for a pound,eh? When the evidence is decidedly in your favor, always pile more on. It’s just like dropping napalm. It’s the perfect exclamation point after a BLU 26/49. VA will undoubtedly fight this with an IMO. Getting the evidence in front of them early on is paramount.  The genotype defense will soon become another presumptive or at least a determining factor in your and all Vets favor. It’s damn difficult to rebut that kind of coincidence. Most importantly, it worked for me so there’s ample proof it can win your claim.
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squid_with_dragonRegistered: 08/15/10
Posts: 132
05/21/11 #9
Senex Senis DecrepitusWell I have exhausted all means available to me for getting financial assistance to keep from being homeless. As a Disabled Veteran I qualified for the Dept. of Labor DVOP program and was available to have access to their  “intensive services”. Which has amounted to two suggestions:

1) That I color my hair before going into an interview

2) That I reduce my resume to two pages

I contacted the VA to see what I could do and it has been:

I’ll call someone….who will call someone else…..who will call someone. But no one has called since the last guy who said he was going to make a call.

I just don’t fit on their decision tree. I have six years of college and 30 years experience as an engineer and scientist. No mental illness, no substance abuse, highly educated with extensive work experience with numerous service excellence awards. No trouble with the law. I think I got a speeding ticket once. And I am a highly decorated, disabled Vet with an honorable discharge.

So I fit in the category of 1.6% of those Veterans who will become homeless and thus society says I am not in need of assistance. Not old enough to get social security and not disabled enough to get disability. I already have a college degree.

Since this last recession, depression, whatever, the corporations have figured out that they can hire people half my age who will stay at the job longer, for half the salary.

So I am in the process of getting my pup tent out, camp stove and sleeping bag and then climbing into the van with my dog and hitting the road. I will put my things into storage, have a rummage sale for what I can’t hock. Stop in to see the grand kids, get some food and just wander from there.

Two years ago things just started to go wrong. First my wife dies suddenly and tragically, then I lost my job because of the recession, then I got sick and was diagnosed with HCV. It has been a downward spiral from there. I moved around trying to find work and in the process my savings and investments were wiped out.

On the upside, the Government owes me a lot of money. The Government is hoping that I will give up or die off before they have to pay up, but I am planning on surviving to collect. Also, my liver isn’t in the best of shape but it isn’t that bad yet either. I will be alright during the summer, but may need to head South with the geese this fall! 

 
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NODManager
Registered: 11/22/08
Posts: 654
05/21/11 #10
     Senex senis aka decrepitus. You have dueling nouns. PM me with a timeline of your departure so we can at least get you some walk about funds. I’m serious. Nod’s motto is Discedere Verba et Opera VA (to learn the words and works of the VA).
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squid_with_dragonRegistered: 08/15/10
Posts: 132
05/21/11 #11
Actually I have 40 days and 40 nights before this carriage turns into a pumpkin. Anything could happen between now and then. I am just preparing for the worst right now. The worst case back-up plan is what I have described. I still have some stuff to hock so I need to go beat the bushes and turn that stuff into cash.I was just really disenfranchised about all of these “Veterans Programs” that supposedly I qualify for are really just smoke and mirrors. These people are getting a pay-check from the Government when there really isn’t anything they can do. I think most of them are decent, good people who would if they could but that BS just ain’t in their manual!

Well if anything came out of this at least the VA gave me a doctor’s appointment to a general practice MD in August. The way things are going; I won’t be here for the appt but golly-gee I actually got one! 🙂

Sent my NOD off today…certified mail, return receipt requested! And I thank you for that Sir! 🙂
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NODManager
Registered: 11/22/08
Posts: 654
05/21/11 #12
     Most importantly, you need a go to address for this claim or something will fall through the cracks. If you do not have one, get one or try to arrange one. We have assets if need be.


      I have your address so I will send the aforementioned funds Monday. I hope it helps. Keep a positive mental attitude (PMA) about this. It’s a drag waiting for resolution but it will be forthcoming. I cannot speak for the time element so there can be no prognosis

     This whole thing may be immaterial as I’m expecting the shittohitthefan shortly. The end of the world is today so I need to get to the liquor store. Earthquakes and Armageddon  are best enjoyed shaken, not stirred.
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squid_with_dragonRegistered: 08/15/10
Posts: 132
05/21/11 #13
I will keep a viable address for sure…thanks for the heads up on that.I may have a cave in the badlands Fung shui ed before this is all said and done.

Just don’t slug down any booze BEFORE the big one hits! 🙂
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squid_with_dragonRegistered: 08/15/10
Posts: 132
05/25/11 #14
Well, I guess Armageddon gave us a pass this time. So I fathom to guess that the VA still has to deal with our claims. Got the green slip that the VARO got my NOD. Now it is a matter of getting some breathing room and playing the waiting game. My sister called yesterday and when she learned of my plight, she wanted to make me promise that I would go stay with her. That maybe an offer that I can’t refuse. She has a large ranch home out in the country. My dog would have plenty of rabbits and other critters to chase. Mr Nod should be happy to know that I will be within a hundred miles of the VARO, so I can make my hearings and such. That is relatively close for this part of the country.In reading some of the other posts here, I have come to realize that there are others who are less healthy and generally less fortunate than I am. I just want to say that I am sorry that you folks have to deal with this type of life event. When I get back on my feet and I will, I want to help out in whatever way I can. Thank you for being here and thank you for your time and effort when you all have your own pain and suffering to deal with. I will continue to pray for you and yours! J

 
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NODManager
Registered: 11/22/08
Posts: 654
05/25/11 #15
     Wheeeeeeeeeeew, Doggies (in the immortal words Jed Clampett). That sure takes a load off our minds, sir. We worry over our members’ health, both physical and mental, when going through this phase of a claim. The waiting can become almost unbearable. Thank your lucky stars that you have that 4PD Brittaney that goes anywhere. You will survive this. We all do. It’s just one of the scary things about the disease that creates despair. Well, that and unemployment. Keep the email address up and running and be prepared to assemble the docs for the nexus to Dr. Ben. The rest is like waiting for the corn to fill out. Very, very slow. You should  receive my snail mail today or tomorrow. I hope it helps. 
 
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38 USC versus 38 CFR.

Posted on September 29, 2011 by asknod

 Something that has been discussed numerous times in Veteran’s self-help forums is the difference between Chapter 38, United States Code and Chapter 38, Code of Federal Regulations.  We are often asked to clarify the difference. Here is the easiest way to remember it.

     38 USC is like the Second Amendment. It (the 2nd Amendment) allows you to keep and bear arms without any codicils. It’s simple, straight forward and covers one subject-guns. 38 USC is a compendium of laws expressly formulated by Congress to deal with Veterans Law and Compensation. These are generic like the 2nd Amendment…                                                    

 

http://www.law.cornell.edu/uscode/38/

      38 CFR is a set of regulations modeled loosely on 38 USC and clarifying the meaning as it applies to individual cases. Imagine the states all having unique laws associated with keeping and bearing guns. There are certain restrictions to the Federal Amendment. Where you can carry (bear)these arms is somewhat restricted for the safety of all. 38 CFR simply empowers the VA Secretary to implement the US Code written in Chapter 38, USC. The VA Secretary writes 38 CFR as he sees fit and must publish any changes in the Federal Register in advance before effecting change. If Congress doesn’t wig out, they are incorporated into 38 CFR. Later on if a Vet feels he is getting screwed, he appeals to the BVA and on up to the Court. The Court then is tasked with determining if the regulations, as written and interpreted by the VASEC, are too strenuous or simply being misapplied by the Secretary. If they find for the Veteran, and they do 70% of the time, the Secretary is henceforth required to do it their way and sometimes even rewrite the regulation to comport with the Court’s holding. Nowhere in VARO decisions will you find references to CAVC holdings. They don’t speak Latin and seem disinclined to learn how. 

http://www.law.cornell.edu/cfr/text/38/chapter-I

       M21-A1, the VA rater’s bible, deals only with 38 CFR. The BVA will discuss regulations in their decision and quote both the CFR as well as the USC statute it is predicated on. They will also incorporate holding of the Court into their decisions and cite to them for authority.The Court deals only with the US Code and bases all its rulings, for the most part, on how a statute is written and what is stated versus whatisn’t stated.  They compare the statute to the regulation and woe betideth the VA Secretary who reinvents a regulation. The Court only cites other CAVC and Federal Circuit cases. Occasionally they cite to the Supreme Court. 

     Cops like to complain about how lenient judges have a proclivity to let criminals walk free.  So too do the VASEC and the BVA/RO complain about how the Court constantly creates “loopholes”, windows, or unnatural interpretations that are harmful to Vets. Yes. You read that correctly. That’s the party line. Keeping in mind that the VA Secretary’s stated mission is to administer benefits to Veterans, how is it that he is always in an adversarial relationship with us? The unvarnished error rate hovers at 70% and no one argues with that figure. Is it poor judicial advice from his “czars” or the political posture of the current administration? We discount the latter suggestion because we have had this adversarial posture since the inception of the VJRA in 1988. Being in a Democratic or Republican administration seems to have no bearing on your claim success. The VASECs collectively have been working tirelessly since 1988 to deprive us of legitimate benefits that we inevitably win on appeal. Relax. Nothing has changed or gotten measurably better yet. We’ll be sure to let you know when that happens.

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Winning! Soon The VA Will Have To Admit Service Related Exposure As A HIgh Risk Factor

Posted on September 29, 2011 by asknod

 From HCVets.com founder Patricia Lupole

Winning! Soon The VA Will Have To Admit Service Related Exposure As A HIgh Risk Factor

And Stop Making Vets Prove It!

Three Cheers to HHS!! Maybe we have a chance to get the dragon back in it’s cage after all.

Nod, check out this video…. big difference tween now and then. Will it work as evidence?

Submitted by HCVets founder Patricia Lupole:

“The current data highlight the urgency to train providers in infection control practices,” said Howard K. Koh, MD, MPH, assistant secretary for health. “We’re hoping this video tool will help eliminate preventable infections.”

access the Partnering to Heal training video, see http://www.hhs.gov/partneringtoheal

Healthcare-associated infections harm many patients, causing injury and raising costs. On average, 1 in 3 patients admitted to a hospital suffers a medical error or adverse event and at any given time about 1 in every 20 patients is affecte…d by an infection related to hospital care. On average, 1 in 7 Medicare beneficiaries is harmed in the course of care, costing the government an estimated $4.4 billion every year.

To help address this public health challenge, the HHS Office of the Assistant Secretary for Health developed Partnering to Heal. This training program permits viewers to “become” one of five characters who can make decisions that impact health risks, and then view the results of those decisions and learn from the outcomes. It is designed to be used by students in the health professions, early-career clinicians, and other healthcare personnel, as well as patients and families to help prevent infections acquired in hospitals and other healthcare settings. Available online at no cost, Partnering to Heal promotes a team-based approach to reducing preventable infections and deaths in the United States.

“The current data highlight the urgency to train providers in infection control practices,” said Howard K. Koh, MD, MPH, assistant secretary for health. “We’re hoping this video tool will help eliminate preventable infections.”

The video teaches viewers how to prevent the most prevalent hospital-acquired infections by sharing knowledge of universal and isolation precautions to take in healthcare settings. The training is designed to increase knowledge, alter attitudes, and shift the behaviors of clinicians and patients by focusing on principles of teamwork, communication, hand washing, flu vaccination, and the appropriate use of antibiotics and medical devices. Partnering to Heal is designed to be used as a facilitated training session or by individuals as a self-paced learning tool.

Partnering to Heal seeks safer and better care for all patients, which is consistent with the recently launched Partnership for Patients: Better Care, Lower Costs initiative. This new national public-private partnership with hospitals, medical groups, consumer groups and employers will help save lives by preventing millions of injuries and complications in patient care over the next three years. HHS has set a goal of decreasing preventable hospital-acquired conditions by 40 percent (compared with 2010 rates) by the end of 2013. Achieving this goal should result in approximately 1.8 million fewer injuries and illnesses to patients, with more than 60,000 lives saved over the next three years. The Partnership for Patients has the potential to save up to $35 billion in healthcare costs.

access the Partnering to Heal training video, see http://www.hhs.gov/partneringtoheal

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got a NOD

Posted on September 29, 2011 by asknod
squid_with_dragonRegistered: 08/15/10
Posts: 132
05/07/11 #1
I filed a claim for Hep-c (2b) last fall with DAV – NSO. I tried to get my med records with an SF-180 but received all of my service records without any medical records. DAV filed my claim and the NSO rep said that the VA in San Diego should have my medical records. Well the VA came back with a NOD saying they could not find my medical records  and therefore could not give a determination and I was denied.When I was moving I found some of my military medical records in the bottom of a filing cabinet. I had a neck injury while on deployment and was treated for it at the Naval hospital in Yokosuka. While I was there as an outpatient, I was subjected to two different EMG tests. A third EMG test was conducted by a civilian hospital in Tokyo. However only the first two EMG tests were recorded in my med rec.

Back in those days (1982) each EMG test was accomplished by having the torso poked with 20 long, thin needles attached to an electrode. My google searches found that at that time the needles were not replaced, just sterilized and re-used. It wasn’t until the late 80’s that EMG needles were replaced. Today, it is common pratice to replace the needles with patients who are known to have hep b, c and HIV. I am without a job and poor so all I have for health care is the VA. Trying to figure out what stage my liver disease is in has been a daunting task with the VA.

I finally got a VA – PA (not a doctor) at a small VA clinic to do a cursory exam of my liver and she put it at stage 3 (close to a stage 4). She said since I have 2b that I should be able to start chemo (Interferon riba) since all of my stress tests came back okay. I said that I had a MEB for nerve damage but it was denied. Yet the VA came back with a determination of RA. So since 1986 I have been getting paid at 40% for Rhuematoid arthritis. When they diagnosed me for HCV, they said the tests for RA were negative. The VA-PA said that it was common back then (1986) to get a false positive for RA when a patient actually had HCV. But then she also said that most people who get HCV do so by passing a straw around, go figure!

So I called the NSO rep and he said to give him a copy of the med recs that I found. I mentioned to him that I think I should get a doctor to look over my records to get Nexus? The “more likely than not” nexus! He thought I should, but my financial situation is grim and I can’t afford any other healthcare. The only healthcare I have at this point is the VA. He said I can try to get nexus from a VA doctor but good luck…well lady luck hasn’t given me a smile for quite a while! 🙂
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NODManager
Registered: 11/22/08
Posts: 654
05/07/11 #2
Dear Squid w/ Dragon,     WWVD? That’s What Would a Veteran Do? I know what you guys are thinking. I wanted to name the site that, but the owner refused.

     There is a lot of good news mixed in with your tale. First things first. Go to the DAV VSO and make copies of the medrecs, but guard them with your life. Put them in a safe place. A very safe place.  They are what’re going to win this case. We know how to get you a nexus so put that concern aside, too. There are a lot of dos and don’ts to consider immediately. 

     Start with this. File, if you haven’t already, a Notice of Disagreement. This establishes that you intend to fight your denial. You can always assemble your evidence as you move along, but this is the big moment now.  

     You can add to your NOD with the new records you have discovered now, if you want. What is important is that they be accepted as “original service Dept. records that existed but have never been associated with the file”. This makes them new and material contemporary records that show you were: 

(A)- in Yokosuka when you say you were;

(B)- Were percutaneously pierced by unsanitary needles which had the potential to transmit the HCV virus; and

(C)- It identifies the source of the HCV genetically. There are 11  recognized strains (or Genotypes) with alphabetically lettered subgroups. Hence your HCV is labeled “2” and the subgroup is “B”. Herein lies the reason you are going to win your claim, Mr. Squid.  Hep. 2A and 2B were generally found in Korea and Japan in the 70s and 80s.  1B is more prevalent in Japan and Okinawa now, but at the time you were there, 2A and 2B were.  Oddly 2B as a subgroup is now the most prevalent in Sub-Saharan Africa. Go figure. I guess they migrate like whales. Look at this website to ascertain the prevalence of 2b in Japan:

http://www.wjgnet.com/1007-9327/12/784.asp

     Stage and Grade of your disease is best measured with the Metavir scale. It’s linear and numbered and now become the most accepted. Each stage of liver disease generally runs 10 years and then slows down as it approaches S4. Not always, but in 50% or more of cases. This is why we’re all blooming now. I’m Stage 3.9 and at 40 years. I quit drinking and smoking but will still go S4 eventually. If you add from 1982 that would be 30 years and Stage 3.  Grade deals with how actively the little buggers are munching up your liver. If you did IFN therapy you might end up with S3,G1 or G0. The damage is done, but you can arrest its forward progress towards Hepatocellular Carcinoma(HCC).

     I suspect the VA will send out for an IMO with QTC about the genotype being indigenous to Japan in the 80s. It wouldn’t hurt to submit that( an article about the relationship between the two is attached) with the medical records you found.  At all cost, keep the originals of your records. Do not give them to anyone-not even your NSO.  I personally wouldn’t let them out of my sight.  I’m not a certified Mel Gibson Conspiracy Nut, but that evidence is valuable. I filed my first claim in 1989. The VARO I filed with requested my medrecs. The NPRC sent their ONLY copy to VA. I lucked out and got them back in 09 when I asked for a complete copy of my C-File. If I were you, I would write to the RO in San Diego with a FOIA for your C-File pronto-or a request for just the medrecs. They have them. They just don’t know where they are. VA has that problem. I hear the Cleveland RO has a problem with the paper shredder prowling around after hours on a really long extension cord eating Vet’s files. God, I hate that when that happens.

     CYA is the game here, Squid. Assume the REMFs will do what they did when you were in-Lose things, come to the wrong conclusions, etc. In fact, plan on it. You may have to appeal this, but the prognosis looks really good if you write your response to the SOC properly. That and a nexus will wrap it up nicely. Not all claims have this simple a resolution. Your battle has just begun, but the evidence is enough to rebut their denial.   

     One last admonition. I’m sure your NSO is able and knowledgeable. However, the fact that you told him you should get a nexus rather than him telling you to concerns me. You cannot win it without one. Just so there is no misunderstanding here, this assumes you have no UCMJ violations for drug use or possession and no history of alcohol dependence or abuse.  Those are claim killers, but occasionally have been rebutted depending on the circumstances. Feel free to share this with your NSO. Let him know that you are making a list and checking it twice. My motto in VA claims is like Reagan’s: “Trust, but verify.” You are responsible for this at the end of the day. Depending on anyone to carry your water is a fool’s errand. Do it yourself or make sure the one assigned doesn’t spill it. JOVO

     Here is the gentleman(Dr. Cecil) you should contact for a nexus. Write him and tell him your circumstances and that we sent you. You may need access to a fax machine or, better yet, a scanner, at a Kinko’s or UPS Store if you have none. This way you can transmit a copy of the medrecs to Dr. Cecil.

bdceci01@iglou.com

Godspeed, sir and a warm thank you for your unswerving devotion to America and her Freedom.
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squid_with_dragonRegistered: 08/15/10
Posts: 132
05/07/11 #3
Thank you very much Sir!Words just cannot express my appreciation and gratitude. And thank you for going into harms way to protect our freedoms.

I have a scanner and I plan on scanning the medrecs into PDFs for sending and then backing them up twice. You gave me a glimmer of hope. Sometimes it is difficult to discern things from a haze of ambiguity.

I recently met a man who was a marine in Da Nang. He has the bad bug from Vietnam. He got it when a medic plugged some blood into him. He is in good spirits and active but his liver is in bad shape. He said that he had been trying for years to get service connection for his HCV but has given up. His wife has passed on and his daughter became weepy eyed when he talked about his condition. I tried to talk him into reviving his claim but he became quite emotional about it and just doesn’t want to go through with it anymore.

I got with his daughter and gave her a phone number to a VSO in the area. I told her at least you can find out the status of his prior claim and then take it from there. I also pointed her to this website. I said that there are others like us, he is not alone. She hasn’t called me recently so hopefully she is getting some traction. Thank the Lord for people like you Mr. Nod. If there is anything I can share about my experiences along the way to help others, I won’t hesitate to do so.

  
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NODManager
Registered: 11/22/08
Posts: 654
05/07/11 #4
      We’ll stay with you through the pendancy of your claim. That’s what we do. We offer an insight bred by 22 years of joy and despair. We won’t settle for anything less than a win here. Close only counts with Claymores. No, our desire is to walk you through this correctly regardless of whether you have a NSO or are barefoot. We sure don’t care who claims the win as long as it happens. Our hope is that you will share your story when you finish and hopefully teach others or give them hope. I filed in 94 and lost. I waited until I was really sick to refile. Thirteen years in the desert sucks. I know how Moses must have felt. 

     When you get a chance, I would ask you to look in the mirror and tell yourself you wouldn’t do this for another Vet. Can you? I flipped every rock over in my quest to win. Taking that knowledge and going home isn’t an option for me. The VA pissed on my parade in 1989. They cheated and I wasn’t smart enough to see it. My NSO from DAV didn’t either and he, of all people, was trained for this. No sir. They will be prying my cold dead fingers off this keyboard if I have my say.  I  look forward to the day you write us to say your quest has born fruit. 

     Ask your friend to sign a POA granting his daughter the right to represent him. This way he can go about his life without that crushing despair and she has a Holy Grail to pursue. Winning is not easy. It takes more time and patience than some have. We simply increase your odds. 
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old records

Posted on September 29, 2011 by asknod
RDMURPHY
Registered: 07/31/10
Posts: 49
04/28/11 #1
This is for the moderators or mngr. In my military records prior to discharge in 1983 the army drew blood for a”hepatitis survey”. never told me why. Their hospitilazition records  claimed that I had vrial hep. Does this give me any leverage with VA down the road as far as proving deception? I am unsure exactly when the medical community had IDed the hep c as a seperate disease. Not sure if I will even need this information as the QTC report says all secondary ailments that I filed for are “as least as likely as not” secondary to hep c. these claims are under review ha ha. opinion sir
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/28/11 #2
     Ah, Mr. Murphy. You are why Vets have such a good reputation in America. So, you have your hands on your contemporary SMRs and you can clearly see where they state you had ” viral hep” ? A word on this. Viral hep in 1983 was Hep B. This was determined with an Australian antigens test. What the testdidn’t say(but implied) was the disease was not Hep A. This is an important distinction. If the test had been negative and you had jaundice, it would imply you had Hep A. End of claim. But it didn’t. Hep C (aka non A, Non B) was not expertly identified prior to 1989. There were a lot of false positives( and negatives) until about 92-94. Your positive results indicate Hep B, but do not exclusively rule out Hep C. You certainly have leverage and a lot more than you think. A really good nexus from a Gastrodoc stating that the Hep in service was at least as likely as not also Hep C is the glue that will cement this win. B & C are both blood borne pathogens. Hep A travels the oral/fecal route. Ugh. Not sure what you mean by “proving deception.” Do me a favor and read Groves vs. Peake in the Important CAVC Legal Rulings (page 2) to understand the significance of having hep diagnosed in the service. While it can be said you had hepatitis of some kind in the service, it cannot be said with any certainty that you did not have Hep C. That is an important distinction.


     Now, to dispel a horrible misconception. QTC may tell you anything. They may give you the winning lotto numbers for Saturday. What they will not give you is a nexus. The VA sends you there to do one thing only and that is to determine a)if you have the disease you are claiming and  b) how badly you have it (what %) . If you think, or gather by what they say, that they are going to provide a nexus to the VA for you, you are in for a shock. VA raters do this. They gather all the info and make a decision. Usually it is wrong, but 14.7% of the time they get it right-eventually.

     Time and time again I have heard this old wives tale that the Vet comes back and tells us the QTC people are in their court on this one. They may well be, but with that and $4.25 you can get a good iced latte with all the frills or a good heated B&B after dinner in an upscale restaurant. If your QTC doc had stated that it definitely and positively was SC, it still wouldn’t influence the RO decision.  They might look at it as one more piece of evidence, but wouldn’t accord it any more weight than any other piece. No, you’re going to win this on three prongs. One is disease in service which it would appear you have nailed; Two is the same disease (or a reasonable facsimile) currently; and lastly Three- the all important nexus from either a M.D. or an ARNP stating at a minimum that “it is at least as likely as not that the disease the Veteran has now is the one he had in the service”. The doctor has to state that he has read and reviewed not just your medrecs , but also your milrecs to make sure you do not have any UCMJ drug charges on your record. If you peruse 38 CFR § 3.303(B), you will see how that bears heavily on a claim where you had a potentially chronic disease in service that has now resurfaced. that is the crux of what Groves stands for. The QTC doc does not have your medrecs so his opinion is good for kleenex.

     I do not prognosticate on Vet’s claims. I will give you my honest opinion without resorting to tea leaves and chicken entrails that your chances of success are light years ahead of Vets claiming jetguns as the salient vector. Your nexus will be the single most important ingredient in the C file. A weak one is worse than none at all. It simply becomes the springboard for the VA examiner’s denial. As in “while the veteran provided a nexus from Doc. A, it wasn’t very probative because the Doc did not discuss the veteran’s ETOH addiction and homeless status in 1998 nor did he review the contemporary medical records”. VA is good at this. They do it for a living. You do it only once in a lifetime. They look for one mistake and deny based on that. So much for benefit of the doubt.  Just One Veteran’s Opinion (JOVO), sir
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menalteed
Registered: 09/08/09
Posts: 37
04/28/11 #3
Went down to the VVA today to retrieve some records prior to my peripheral Diabetes QTC and also gather some things to share with you..They lost all my records but took my picture and asked me to give them a nice letter on how helpful they were in my claim winning SC for Hep C by air gun injections. What! hahahah….In any case was nice and agreed..they need the kudos. Vet in the office day prior to me  wasn’t a happy camper, went home and called Patty Murry and made threats. Last I heard he was barricaded in his house surrounded by federal agents. I had a mental grin and thought maybe they should ask him for a letter and picture…I still have the home records, not as good and not as orginized as it shoud be but will go through them and find enough to be helpful.  I may have other questions before my QTC on the 12th…..peter
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/28/11 #4
Jez. Tell them to contact the VARO and get a copy of your C-file. I wouldn’t give them anything. Just for shits and grins, did they do all the work to get you where you are now or did you do it yourself? I’ll bet they held your coat while you fought. I really respect VVA because they are light years ahead of other VSOs but the truth is all VSOs are not ready for prime time. I’m sorry if I sound like Negative Nancy. I call them as I’ve seen them in the past. Prove me wrong, Peter. Tell me it ain’t so. I want to be wrong.
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menalteed
Registered: 09/08/09
Posts: 37
04/28/11 #5
Really all they did was typing the forms but some of them now I have found were not correct, case in point my wife is not covered yet. In any case I did call them a lot and had them pester anyone who would listen up in the VA office. The first person I delt with became very I’ll over the last year and retired several month before my case was rated. He was always blown out by my information and thanked me many times telling me how helpfull my information was going to be in helping other vets, “your supplied information  found on NOD”. The new people in the office will take some time to get up to speed but I think they cleaned out all the files to lightin up the office….a mistake I believe…peter
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RDMURPHY
Registered: 07/31/10
Posts: 49
04/29/11 #6
mr mngr, brevity got in tne way again. My claims for hepc have allreadt been approved in 2008,currently sparring with big brother on date of claim. wondering what help if any the doctors statement about drawing blood for a hep survey might do for me in a court of law. They clearly knew something was wrong in 1983. Have filed with VA as far as date of disability a copl of 38 USC 3.157,b,1. this seems to clearly state my right to date of claim from my date of hospitializationin a uniformed services hospital. have read the information fowards and backwards and don’t see how they can slide out of it
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
05/01/11 #7
     This is how the system works. If you file a claim, they will either consider or deny. If you have medical evidence from service, but did not file until now, they will not go back to then.The theory is you file within one year of separation to get SC virtually automatically. Absent that, your claim date is when you file. If you are in a hospital and want to file, you can express your wishes to do so. If you file when you get out, they still use the date of when you entered the hospital. You have one year to file this claim after discharge (see  § 3.157(a):                                                                                                                 

Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of §3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.

The “uniformed services hospital” to which they refer is a military hospital if you were on TRICARE and retired after 20+ years. It isn’t a reference back to any military hospital you ever were in. VA pays (assuming they grant your claim) from date of filing and up to a year earlier if you can prove the requirements listed in § 3.157 re hospitalization (informal claim).
     Does that compute? VA is not generous and neither are their regulations. It mimics civil law in that a claim cannot be imputed. You have to file to obtain benefits. They cannot read your mind, nor will they blithely grant SC back to some ancient time when you had evidence of something amiss but failed to file. Were VA to do this, the government would be in deeper doo-doo financially than it already is.
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RDMURPHY
Registered: 07/31/10
Posts: 49
05/01/11 #8
Thank you, I do not have a complete copy of 38 USC as pertaining to vet benefits. Took your advice and filed a staterment with big brother as far as witnessing my 2006 claim being mailed. My wife has a saying’when it seems to good to be true it usually is’. will continue onward and upward, wish all brothers and sisters good luck in their ongoing battles. Thank you
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
05/01/11 #9
I suggest you not worry about 38 USC. 38 CFR are the regs on all this- specifically Part 3 (adjudications) and Part 4 (diagnostic codes and ratings). They can be accessed by clicking on Federal Code to the left. Best of luck and thank you for keeping America safe. We served 24/7 /365 w/o any overtime pay. It would seem VA would be willing to go the extra mile for us now as we did did for America then. Amen
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The Frequent Flyer Program

Posted on September 29, 2011 by asknod

A week or more ago I did something I’ve never done before. I perused another Veterans Benefit site to ask a question on a subject even I am unsure of. I am not above admitting I don’t know everything. I don’t. What I happened to observe there was disconcerting for two reasons, neither of them related to one another.

The first observation was that a FNG had posted an innocuous question that was rudely answered by another Vet. It was the rudeness to a fellow Vet that struck me as completely out of place. The first Vet appeared to be lacking a lot of the knowledge one would assume a Vet with many disabilities would have accumulated by now. This led to the second observation that the newbie was a “frequent flyer”. By that, I mean this Vet has more ratings than you can count on your digits. I will paraphrase as I do not like to identify these individuals and heap scorn on them. Perhaps the moniker of Frequent Filer would be more apropos.

The post started off innocently enough. It was a question about a rating for bunions. After a tirade from Vet #2 about   how to post on their forum, the first Vet expanded on the question. Here I liberally paraphrase without embellishing. It  seems this enterprising Vet had a rating for 10% for a “bunionectomy” and has recently been rated at 20% for Major Depressive Disorder(MDD), secondary to the bunion issue, has Tinnitus (10%), hearing loss (0%), DM2 at 20% and a pearl necklace of other little ailments like hemorrhoids(10%), abnormal menstrual cycle 10% etc. The burning question was if anyone could point her to the Diagnostic Codes for MDD. It seems she was desirous of learning the requirements for a 40% rating in order to qualify for TDIU. Yep. I added it up- 40 +20+10+10+10 would get her 65% rounded up to 70. As we all know, the minimal requirements for IU are 70 with one at 40 or one at 60 or more. This is where the term frequent flyer arises. This Vet is shopping for a TDIU! While I feel every deserving individual should be amply rewarded for his/her injuries, diseases and disabilities, I feel nothing but disgust for this person. Her gender has nothing to do with it. If anything, I have more compassion for my sister Vets because I feel they have a much harder row to hoe. Unfortunately this cannot be said for the woman above.

There are just so many dollars available for Vets. I certainly don’t advocate a means test or Triage for this, but it stands to reason that if someone is gaming the system it deprives others of their fair share and occupies valuable RO time better spent on Veterans with far more severe injuries.

An example, if you will. Several months ago I was sitting in the ROI lobby awaiting my turn to obtain some of my medical files. I was talking with another Vietnam Vet who had the misfortune to step on a Bouncing Betty. His buddy in front of him didn’t make it, but miraculously this fellow did. He lost both legs at the knee and was rusting from all the Shrapnel that’s still in him. He was allowing as how he might get TDIU this time around because now he was over 60 and had been denied 3 times since 1968. He had a rating of 60% for the legs, 10 for tinnitus and the same for injuries to one of his muscle groups. That’s 60+10+10= 70%. This gentleman had no legs below the knees and still couldn’t get TDIU. Perhaps he didn’t have an eloquent VSO. Nevertheless, of all the injured Vets I have met, he would get my vote for IU. I think he almost deserves it more than I do for my hep. As for how he stacks up against Miss menstrual irregularity, I will let the reader be the judge.

So how can a system as equitable as ours be rife with Vets picking the low hanging fruit? I have one easy explanation for it. There are some who join the Service with one thought in mind- retirement after 4 years. These are the same people who “slip” and fall down in supermarkets and then sue for exorbitant damages. They know they’ll be granted a small settlement without a trial and can do this again and again. Insurance companies have nicknamed them frequent fliers. This Vet I describe is doing the same exact thing. They can go on sick call three or four times to prove an ailment or symptom in service and then file after discharge. Some injuries are subjective in nature like Tinnitus. Doctors cannot measure it with a thermometer and audiometer or a visualize it with a magnifying glass. Its your word against theirs. Here it appears the Vet is seeking to learn the path to a higher rating and thus IU via what it takes to be rated at 40% for MDD. I  submit that MDD is another of those subjective ailments. What’s more the pity is that she must have discovered that amassing innumerable 10% ratings will never add up to 100% or even TDIU, hence the query on getting one 40%er.

And we wonder why VA examiners are so cynical and treat us all like lazy boobs seeking something for nothing? I, for one, am embarrassed to be associated or related to malingerers. We should not aid and abet this type of Vet. Fortunately, it appears we don’t get any of those types here at this site. It seems everyone here actually has a disease and a life threatening one at that. I feel much better going to sleep at night knowing I am helping Vets get SC for Hep rather than hemorrhoids. I’m sorry if that sounds uncaring or callous. My Vet friends have diseases that are killing them-literally. That, somehow, is a more worthy calling. Nobody ever died of hemorrhoids.

 

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Reenacters Needed

Posted on September 29, 2011 by asknod

I was reading about all the War of Northern Aggression reenactments scheduled for this year as it is the  sesquicentennial of the War. For those of you from St. Petersburg, that’s one hundred fifty years. Thinking about this sent me woolgathering back to 1961. January 9th, to be exact. That was the chosen date for the beginning of the “Vietnam Conflict” as Walter Cronkite called it then. Up to then I though a conflict was a disagreement your parents had about where to go out for dinner. The idea that two disparate groups of the same parentage could try to annihilate one another like we did from 1861-65 and call it a conflict intrigued me. It sounded way more civilized than what our northern cousins did to us inVirginia. I was 10 years old in 1961. War was COOL.

My father had gotten out of Dien Bien Phu on March 5th, 1954 by air. He had been sent over from Japanwith a group of AF, Army and Naval officers to see if we could learn anything from the French or get some training for our troops. They didn’t leave a moment too soon according to what he told me later. He compared it to what Custer encountered-way too many Indians.

When he came back from his second “official deployment” as Vice Commander of 7th AF under  Bill Momeyer in ’68, he told me we were never going to win that war. McNamara could build cars, but he couldn’t figure out the supply requirements for a war. Pilots were dropping 250 lb. bombs by then because we were out of 100o and 500 lb. GPUs. If fact, we were buying back 500 pounders fromGermanyat $900 a pop that we sold them in the early 50’s for $15 each. It was about this time I decided I just couldn’t miss this shindig. It looked like the last war we were going to have for a while and eau de gunpowder was my kind of perfume. I was 17 in 1968.

Vietnam was the first war we ever lost. Some would put a better face on it and say we took a silver or a bronze, but its the first war or “conflict” that we didn’t take a gold in. Screw that Peace with Honor bullshit Nixon was selling. 58,209 KIA  and 153,303 WIA was not a “conflict”. It was a war. Although that number is counted from 1955 when we decided to start tinkering with politics over there, the Defense Department marks time with a different calender. We officially started spraying AO on January 9th. 1961 according to the VA. If you look closely at the little silver bar on your Green and White “I was there”medal it has a 60- on it. I’ve never seen one with 60-75.

Which brings us back to the 50 year anniversary of the start of the Vietnam war. I was thinking of putting out a call for reenactors of a few memorable battles from that era. I doubt I’ll get any Marines who would like to relive Hué during Tet 68. In fact, I doubt I could convince anyone who was there to relive a moment of that life.What I don’t doubt is that everyone who never went to Vietnam, but said they did, would show up.

While I did spend two years over there, I would never do it again if I knew what I know now. My draft number was 39 in 1969. They took all the way to 70 something.  I joined the AF when my notice from the Army came to report to AFEES inHampton,Va. September 1st. I never would have gone to Canada. Everyone in my family has been in the military. Its in our blood. My Uncle was captured at Corregidor and did the 550K Bataan fun run with a bullet through his ankle. He was a guest of the Japanese Army for 4 years. My father was a P-51 ace (16 1/2 kills) with 27 Air medals. My future brother in law was a 90 day wonder with gold slats in 69. Hell, my great great great  grandfather fought in the American Revolution (Maine Volunteers- part of Massachusetts then). My great grandfather fought for the South from South Carolina. So you understand why I couldn’t walk away from this one. It sounds like Lt. Dan from Forest Gump and in a way it was. Only I wasn’t supposed to die slowly from it 40 years later.

What must go through the minds of reenactors? Reliving history? Wanna be confederate or union soldiers?  I have spent a lot of time helping and listening to Vets in the last 4 years while I learned how to win at this VA thing. Virtually all of them were in SEA. None of them who experienced combat had or has any desire to relive that period. Most would prefer to bury it and walk away. Absolutely none would pine for a do over. Its very  embarrassing to go to a war and lose. It would be like losing a football game in your senior year to the worst team in the league- inTexas. You just don’t get over those things. I haven’t.

So, I suspect there would be no interest in a Vietnam Reenactors Society. There would be that big problem with BATF over the M-60s and the M-79s not to mention the grenades. Finding period aircraft to drop the napalm is going to be a big hassle as well as finding pilots still on flight status. I suppose Claymores would be right out. I don’t think they make dummy ones either. Finding Vietnamese reenactors here would also be a non-starter because they all fought for the losing side, too. No, I guess this will be one for the history books.

We all know that those who forget history are doomed to repeat it. I just didn’t expectAmericato forget it so soon, though. When I go to the VAMC now, I see kids my age when I fought. Real Veterans- not reenactors with boo-boos. More collateral damage again and no end in sight. Dammit.

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date of claim

Posted on September 29, 2011 by asknod
RDMURPHY
Registered: 07/31/10
Posts: 49
04/14/11 #1
attempting to puzzle this one out and figured finally to ask for help. Trying to determine how far back my claim for compensation can go. Exposed to hep c in service in 1982{hospitalized on active duty}. Struggled thru untill diagnosis by civilian doctors in 2005. attempted 1st claim in 2006{VAclaims to have no record}. restarted claim process after transplant in 2008.Approved SC in 2008 and filed for appeal on date of disability immeditley. VA states my hepc was comtracted in service, my QTC physical states my militaty records show symptoms in 1982. Reading statement of case sent me in 01/11 38U>S>C> clearly states that after a claim has been aproved or denied a report of hospitalization will be accepted as date of claim. Also have filed for UI form 2006 when SS disabled me. Have documation out the wazoo,given to VA. opinion please sirs.
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/14/11 #2
     Here is the rule as promulgated by VA. Then we will address your 2006 attempt.A claim for injury/disease can be no earlier than the date of filing unless you have been out of the service less than a year. You get a one year presumptive on everything post service, and a sliding scale for other illnesses too numerous to list here like TB etc.


      Now, in the real world, we file claims and the gentlemen at the VARO sometimes misplace these filings. Some Vets in Cleveland would have us believe their claims have been routed to the shredder room and there is ample proof of that according to the VAOIG. Moving on, if your claim was filed via a VSO or other entity such as a lawyer, there will be proof of it at the RO. If you filed it pro se and did not send it certified mail, return receipt requested (CM3R) then you basically have no proof that you did so. You can overcome this problem if you had someone with you when you mailed it at the P.O. Or, if you are kissing cousins with the postmaster/mistress, he/she can sign an affidavit that you did this and they witnessed it. Merely trotting out to the mailbox and running up the red flag is not evidence that will stand up in court. This is called the common law mailbox rule. There is a very informative CAVC decision we posted entitled Rios v. Mansfield that tells all about this. We don’t want to spoil the story for you so we’ll let you read it. Its in the Important CAVC Legal Rulings section.

      Lets us revisit 2006 though. Did you file this or was it via a VSO? You state you “attempted 1st claim in 2006” but do not entail what that consisted of. If it was not a “formal” claim on a Form 21-526, it could be as an “informal” claim- one voiced to a VA doctor and desirous of seeking service connection. A VA doctor is obligated to forward this request if it can clearly be decided that you did so. Merely stating  to the guy taking your temp. and B/P that “VA like so owes me, dude and I’m gonna get justice some day” is not an informal claim. It has to be more specific. 

     Here’s an actual example one of our moderators finds himself in. He filed a claim for hearing loss, and while being examined for this, he voiced the fact that he was severely depressed about how much trouble he was having getting a job due to the hearing loss drawback. Very clearly, this is a classic example of an informal claim for depression. We will find out how VA rules on it sometime in the future when the VA sees fit to address it. Its on appeal. 

     A report of hospitalization can and is often used as a point of reference for a claim filing. What better way to file than to collapse and go to the hospital? That’s a pretty clear statement of the medical facts. 

     Filing for IU (or TDIU) involves a lot more than just filing based on a SSA finding. While VA recognizes SSA holdings of disability, it is not held to any legal standard to honor it. VA is an agency unto itself and is not affiliated with the Social Security Administration. We haven’t determined which drummer’s beat they march to yet, either. Absent a rating that will support a TDIU grant, there can be no foundation for it. Merely applying for it based on an SSA determination gets you very little as you might have found out. My VSO did this in 07. I had a 0% for tinnitus and another goose egg for left ear hearing. I was circling the drain with an AST/ALT of 595/650 and said “What do I do? I can’t work. I’m too sick.” He handed me a TDIU form and said “Here’s what I’d do”. I pointed out that I didn’t qualify with a double ought rating. His immortal rejoinder: “Well, you’ll never find out if you don’t try.” My wife was with me and leaned over and asked if Clarence Darrow was who I was pinning my legal hopes on. She suggested the Publisher’s Clearinghouse Sweepstakes had much better odds. Don’t you hate that when your wife is soooo right? I went home, composed my revocation of Power of Attorney and started studying VA law in earnest. I did file my PCH form, but never ran into the Prize Patrol on the front lawn. 

     Given the information you have supplied so far, this  constitutes our best guess on what awaits you. I had hep in service in 1971, but VA will never pay me back to that date because I didn’t file when I got out in 73. My hep was not apparent then either- just the AO symptoms. But AO wasn’t recognized for another 11 years so again- zip. Life is unfair, but VA takes it to a whole new level of  deprivation. We are stuck with the rules we are dealt. With that said, its important to investigate every action on their part in 2006 that lead to this unadjudicated claim. If you feel uncomfortable discussing it in front of the world, PM me in the upper right link. If they did something stupid like receive your claim and drop the ball (and they often do), we can show you the legal maneuvers necessary to attack this and establish your effective date as 2006. It’s not impossible. As  my SO said those many years ago; “You”ll never know if you don’t try.” 

     I personally don’t believe in “trying” anything. Trying, by its very meaning, implies ultimate defeat. As Yoda said once “Do. Or do not do. To try is to fail”. Lacking a positive mental attitude (PMA) is another harbinger of failure. Mr. RDMURPHY, when I arrive in Hell, I will have some interesting arguments in my NOD. Trust me.

      

     
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RDMURPHY
Registered: 07/31/10
Posts: 49
04/15/11 #3
Thank you for your swift response, don’t have any problem putting this out to the world,so here goes. 2006 claim was filed formally, mailed by my wife as I was in civilian hospital with complications from hepc. was not return receipt as I waS FOOLISH in beliveing that VA was here to help at the time. Have witnesses who went with her to mail, so may be ok there. still pending response to my challenge of SOC. AS far as date of claim ,38USC 3.157[b,1]   states once a formal claim has been accepted or denied a report of hospitailzation from VA or a uniformed services hospital WILL be accepted as date of claim. I was hospitilazed with HEP in jan of 82 on active duty. As for unemployability I have submitted to VA civilian records from 2005 showing me with active and chronic hep c as well as hospital reports from 2006 onward thru my transplant in 11 2007. Reading the funny papers they send with each award or denial letter VA states that your effective date is determined by either when they received your claim OR when the evedence shows a level of disability under the rating schedule. Am I misreading these statements?
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/15/11 #4
     I see your dilemma with deciphering what you are reading. VA does not speak English. They speak TDIU and SOC. They hate dealing with individuals who represent themselves. They much prefer the Good Ol’ Boy network of VSOs with a little Congressional Interest thrown in every once in a while. That had been the status quo for years prior to the internet explosion of sites like this that offer as good or better than what you can get at VFW and the like. VVA is the exception to that rule but it means getting up and driving down there. In spite of what women think, men can multitask but they rarely expose this attribute for fear that it will bring on new responsibilities and cut into their “guy time”. No, its better to be perceived as the Village Idiot and have more time for reloading for bird season.


      If a guy is going out for groceries with a side trip to La Depot pour la Maison to check out the new line of John Deere lawnmowers, he could easily throw this VVA side trip into the mix. But if he can watch a ballgame with the c-box in his lap plotting his VA legal strategy, that too, is multitasking-for fun andprofit. You are saving the planet, creating less global warming by not driving and learning more about VA. Many of us are ill and the option of just jumping into the rig and motoring over to VVA is not viable. 


     VA decides your date of claim strictly by when they receive it unless they use the hospital date. That is a claim for new illness/ injury never filed previously-ever. If and when you are service connected for a disease/injury, your existing medical records are used to determine an appropriate % of disability. We are referring to contemporary records already in existence at the time the claim was filed and newer ones. VA will not retro to your date of separation absent a filed claim. If you win your claim for a filing in 2006, your newer records can be introduced as evidence and the claim posture becomes one of the adjudicators sitting in 2006 observing evidence from the future. This is a win win for you if it happens.

     The second phrase “or when the evidence  shows a level of disability under the rating schedule” is a generalized legalspeak also  pertaining to a filing for increase where you prove to them you are far more ill than they think you are. This usually prods them into writing a slightly larger check to you each month for the disease/injury. All this evidence is absolutely meaningless until you file though.

     Most Vets are not aware of this  but there are two classes of Veterans. Class #1 are all veterans who are not service connected for anything. VA treats you like a welfare cheat trying to claim 10 more Dependants than you have. Everything you say is suspect. If you say anything at a VA medical center to a VA employee about anything having to do personally with the VA, it will be written down verbatim. As in: Patient states”….

       Class #2  is composed of Service Connected Vets. They are inside the concertina wire and are not  a threat. They are legally on Welfare now and can’t really cause any more unexpected financial harm to VA. Getting in is the trick now, isn’t it? Only 14.7%  will ever succeed in gaining membership to  this elite club. Getting there is most easily accomplished by following the adage; “When in Rome, do as the Romans do.” Figure out the labyrinthine rules and regs (or ask someone for assistance) and then use it to prove or win your case. 

     Reading the funny papers is entertainment,sir. VA usually gets the wrong doctor’s name associated with the wrong injury. I have been described in the AO rating decision as  “A veteran of the Vietnam War” and in the hep decision as a “A veteran of the Vietnam Era”. I think they depend on computer-generated software too much and do not inspect the finished product for continuity, accuracy or spelling. Best of luck on busting open the 2006 claim. Your evidence will certainly prove the claim is valid.
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RDMURPHY
Registered: 07/31/10
Posts: 49
04/15/11 #5
Thank you for the clarity. Spoke to VA today, seems my calls to congresscritters have borne fruit, now showing my secondary claims  being reviewed as of early april. My heart goes out to all the men and women fighting this fight. I have been fortunate,if you can call beening infected with this illness lucky by being hospitalized with hep on active duty and than having the govt actually finding my records 22 years later. good luck and good fortuneto all. THANK YOU
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