Decision Review Option under 3.2600

Posted on September 29, 2011 by asknod

I had a private message from a member asking about the ins and outs of a Decision Review at the RO level prior to a filing of the Substantive Appeal and moving the claim to the BVA.


     My thoughts are not in harmony with others on this subject so I offer some insight. If the Vet has additional evidence to submit that he feels may save the claim, this is a good idea. It can actually be accomplished by asking for reconsideration of the original denial before a Decision Review request is submitted. When you receive your denial, they always offer the Decision review as an option prior to filing the Form 9. This is standard practice. Submission of new evidence before filing the appeal triggers 38 CFR 3.156 (b) and a new review of your recent denial is required by law automatically.

     Here is where the dichotomy, or schism occurs in our thinking. A DR will consume a minimum of 12 months of your time and advance your case 0 miles towards Washington, D.C. If you submit no evidence and ask for no hearing before the Decision Review Officer, you will lose and have also lost a year waiting for your turn in the docket line in D.C. That is 3 years right now assuming it rolls downhill properly. VA has nothing but time. You, on the other hand, usually don’t when you are dealing with this disease. The sooner you can get this adjudicated, the happier (and financially better off) you will be. VA is not vindictive. They do not have a grudge or a chip on their shoulder. No, Ladies and Gentlemen Vets, what we have here is apathy and lots of time. In my business building houses, when we called in for trusses, we had to have the house braced, plumbed and lined. If it was Friday afternoon at 4 and we weren’t ready, we stayed until we were. The Truss truck wasn’t going to sit there Monday morning at 0 dark thirty and waitfor us to do it. They’d throw the trusses on the ground and beat feet with an admonition that the second visit was going to be $135.00/hour. VA doesn’t live in that world. They will not hold your hat and coat while you fix it. They’ll “get back to you” when they please in the event of  a new submission of evidence. This means more delay before the potential DR. 

     A decision review is also only valuable as a tool if you have a golden tongue at the hearing you can request. That hearing will also set your eventual appeal back, too. It usually takes a minimum of 6-8 months from your date of request to get one. Then start adding the year or more for the actual review following it. 

     Use my claim is a yardstick- it was 16 months from filing to reopen to granting of SC. It was 13 more months from filing of NOD with request for a DR to denial and issuance of SOC on the hep. Another 8 months for the PCT DR. They were then both appealed to D. C. That took a year. Then the Travel Board hearing-3 more months (expedited, no less). BVA has had it since April 2011. So you can see how timeless this process is. If I was ordinary Joe Blow Vet without medical issues, I would be awaiting a April 2012 Travel Board Hearing and a 2 year delay for a docket after that.

     Sum total? 4 years and 4 months with the DR and still no resolution in spite of advancement on the docket. In retrospect, I would gladly have avoided the one year + detour for the Decision Review. We can’t always get what we want, but we damn sure can learn from our mistakes. VA will not suddenly “see it your way” absent some mighty strong evidence. Keep this in mind when considering the DRO route. It has its uses, but I’ll be damned if I can find them.

     Getting back to Joe Blow Vet, we could envision a 16 mo. delay from filing to denial. Assume no new evidence and there’s 7 months to the hearing, and a year for the new review decision denial. 3 years and finally a Form 9 filed. Another year to certification and transfer of records. A Board hearing a year later and there’s 5 years. 2 more for the BVA  docket and you’ve invested 7 years with what to show?  2 more for a CAVC appeal?

     I think the sooner you get this project  in front of a BVA Judge, the better your chances of success. The Regional Office  folks have a different mindset on claims. I suspect they have the word “deny” tattooed on the inside of their left upper arm like Hitler’s SS. JOVO

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The VA as an Insurance Co.

Posted on September 29, 2011 by asknod

The VA as an Insurance Company

  Most Vets view the VA as an extension of the military in that they take over responsibility for you and any issues relating to your service. This is true to a certain extent. The VA is also tasked with the job of providing health care for millions as well.  It is divided into two entities which are loosely connected. The VBA, or Veterans Benefits Admin. deals solely with the compensation and pension end of it whereas the Veterans Health Admin. is the medical arm. They work in tandem in that the VBA utilizes the VHA’s medical info accumulated on Vets to make compensation decisions. When Vets only use private medical providers, they must relinquish these records to the VA in order for a claim to be processed or sign a release of Information form.

Veterans have the unrealistic expectation that the VBA is compassionate, caring and created to help them. I’m sure it was at one time in the past. Due to the greed and competition among different agencies in D.C., there is always a fight over limited resources for Americans with “problems”. Be it the inability to work (SSD), retirement after 65 (SSI), extreme poverty (Welfare and Medicaid) or simply retirement from government (pension), the amount available is always being fought over.  Each agency wants to expand and be more powerful. The VA is no different. And like other agencies, they make no effort at economy of size or consolidation of services and assets. Faced with $26 billion a year, there is absolutely no incentive to be a good steward of the taxpayer’s monies. As there is always more where that came from, and they don’t have a conventional profit/loss sheet such as  private enterprise does, they feel no need to husband their resources. Would you? During fat years, VA spreads the largesse around to upper management on the theory that it’s “really hard to attract good help”. During the lean years, they turn the sweater inside out and say that any reduction in employee benefits will result in an exodus for the door to private employment. Huh? Right now there is no private hiring going on to mention. The private sector is in a holding pattern and anyone with common sense isn’t stampeding for the exit to obtain a six figure salary at a private law firm. Nevertheless, the bonuses to VLJs continue unabated.

The maximum most Vets can attain is $2823.00 per month with a spouse($33,876.00/yr.). He can, with an additional 60% or more in disability, obtain an additional $320.00/ mo (SMC-S). For more serious disabilities such as paraplegia, there are other compensation tables. In the event of the Vet or his spouse being severely incapacitated, there are Aid and Attendance allowances. The most remunerative is SMC R.2 which grants $7800.00 a month to a Vet and his spouse. A/A would be on top of that. This gives you an idea of the largesse that VA rewards us with for our disabilities. Ah, padewan. Tax free it is, Yessssss. But anyone in that tax bracket doesn’t pay taxes. Hell, they probably get earned income credits or a refund.  See tables below:

http://www.vba.va.gov/bln/21/Rates/comp01.htm

http://www.vba.va.gov/bln/21/Rates/comp02.htm

With that in mind, look at the remuneration afforded active employees of the VBA. For sitting at a desk as I am now and typing without utilizing more that 30% of my brain, most of those people pull down in excess of 66K/year. If forced to use an Adobe Acrobat pull down menu due to mental underdevelopment, and construct custom denial letters, the rate creeps up to $80K. A 20 year senior employee can expect $105K to 118K.  I do not wish to denigrate VA employees or their work product. Inflation has cut into wage figures harshly over the years and causes financial stress. I only ask you the reader to look solely at the amount tendered to someone injured in defense of his country. These sums are paltry and below the government’s minimum wage figures. That is defined as Poverty with a capital P. Think about the fellow recently awarded a CMOH for fetching a hand grenade and saving his buds. He lost a substantial chunk of his arm doing it. That will net him a 40% rating if he’s lucky. With retained shell fragments and scarring, he may hit 60%. That’s $974.00/mo. or $11,688.00 a year. Whoo-hoo! He won’t have to worry about that pesky slice he used to have. He’ll probably have to sell the clubs to eat eventually so its immaterial anyway.

     The VA would have us believe they are under siege and funds are at a premium. They wring their hands and say that government controls their purse strings. I understand the VA Secretary is a busy man and has a lot of responsibility. I agree that all his minions are similarly situated and have mortgages to pay. In fact, if put to it, I submit that all employees can probably justify their salaries and perks. I would ask them to explain and justify our pay scale in that same paragraph without changing the subject or digressing on how our medical needs are being met. Please spare me the theatrics.

     Like any insurance company, VA is tasked with separating the wheat from the chaff. For obvious reasons, there are those who seek a free ride. Unscrupulous Vets are apparently far more numerous that we were aware of judging by the numbers denied. According to statistics, 85% of you bozos file claims that cannot be substantiated or are patently false. Oddly, this figure is far higher than civilian insurance claims. Is the VA simply a convenient shopping place for deadbeats? Are Vets so financially challenged that they consider defrauding the government at the VA trough rather than the SSD one? Something is amiss.

   When analyzing data, one must realize how easily it can be manipulated. Binoculars actually work in two different directions. Depending on the end employed, the observation can vary. VA, and by extension VSOs, encourage us to file claims for injuries or diseases sustained in service. Unlike their civilian counterparts, we are not allowed legal counsel at this initial stage except for a service officer trained in the legal arts of the VA system. This is an oxymoron. There are none so trained. Were there any, the rate of success would climb dramatically. Stymied in the first instance, the VARO, as trier of fact, is allowed to pretty much run roughshod all over your claim. This they do with utter abandon. This is called ex partejustice. It consists of “show us what ya got”. They then proceed to craft a denial with no rebuttal. You are only accorded a voice at the end to protest or disagree. Occasionally (15%) you prevail. In the eyes of the VA, many of us win on a fairly regular basis. In their mind, we rarely supply the evidence needed to succeed. If you are not a litigious person and have poor legal counsel, it follows that this will be the outcome. VA states that they don’t view their claims process as particularly onerous or complicated, yet it takes them forever to adjudicate a claim because it is a difficult process. VA doesn’t focus on the 85% denied but rather on the 15% approved. An automobile insurance company that only paid out 15% of claims submitted based on the VA criteria would go out of business in short order. People would shop for another provider who provided a true umbrella. Faced with this dilemma, we get abbreviated justice. The BVA, also a trier of fact, permits legal counsel, but artificially limits the amount the attorney can recoup to 20%. It used to be $200.00 max. That was instituted in 1865 and didn’t change until the VJRA of 1988. We now have the EAJA (Equal Access to Justice Act) which, if you prevail, will also pay the attorney a little more. It’s no wonder that there are so few attorneys willing to represent Vets.  Why bother if the pay sucks? Ambulance chasing is far more lucrative.

     In summary, dealing with the VA Insurance Co. will require a change in mindset. Please press delete when caring and compassionate appear on the screen. Consider them a foe rather than your good buddy. If they smile and tell you everything will be okay, move your wallet to a front pocket and sit with your back against a wall. If you want legal help, please do not feel you will get it at a VSO unless you are already well-educated on VA law. There are exceptions to any rule, but experience shows otherwise.  And lastly, in the event you win your claim, do not automatically assume you will be granted a rating that is commensurate with your injury.  $974.00 a month for life-even tax free- for donating an appendage to America is small compensation for the trauma, both mental and physical, that a Vet went through. Trading in a liver to HCV along with the last 20 years of your life for $2823.00 a month is not compensation. We do not advocate for exorbitant  payouts. We simply feel current rates are woefully insufficient in this day and age much like the $200.00 max to an attorney was.  This isn’t the same as SSD which you paid into. Veterans paid with body parts and they have no price attached to them. Currently, they appear to have very little value. Wars do that.

     Unless and until America begins treating her Vets as an asset rather than a liability, we will soon see a marked recalcitrance towards serving. Artificially suppressing compensation pay while extravagantly rewarding employees will eventually be viewed as grossly unfair.  Until the news media focus on that, we are condemned to being viewed as welfare cheats and freeloaders by the VA.   

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board appeal

Posted on September 29, 2011 by asknod
RDMURPHY
Registered: 07/31/10
Posts: 49
07/27/11 #1
  when appealing a denied claim, must you wait for a statement of case before filing form 9 or can you file 9 directly upon denial?
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
07/27/11 #2
    The rule is this. You file a claim and get denied. You file a Notice of Disagreement (NOD) and await a Statement of the Case (SOC). Once you receive the SOC and not before, you may file your Form 9 which completes the Substantive Appeal process. You have 60 days from the date stamped on the SOC to complete this or the remainder of a year from the date of denial, whichever is later. If you submit new evidence with your NOD they must complete a new decision on the claim [3.156(b)].
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RDMURPHY
Registered: 07/31/10
Posts: 49
07/27/11 #3
 thank you sir
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No HCV in 1973

Posted on September 29, 2011 by asknod

  In this thesis (because I don’t like the word blog) I’d like to go over something with Vets that will help them immeasurably  with their filing of a hep. claim. You want to head this particular misconception off at the pass before it starts rolling downhill like a giant, cartoon-sized snowball getting bigger by the minute.  The best way to do it is to address it up front in your filing. Find an article on the internet that tells when (what year) Hep. C was definitively identified and the year they started calling it “Hepatitis C”. This is important. Then, when filling out your Form 21-4138 or on your 8 ½”X 11” Standard white computer paper form (SWF 8.5X11) state the history of the disease and that it most obviously will not be found in your military medical records (SMRs or STRs). Below I will show you just how prevalent this practice is and what a devastating effect it can have on your claim.  Remember that once they get this listed as “non-evidence” the rest of the crap they throw in there will seem natural. If you blow up the bridge, they can’t cross the river.

 

     Examine this one:  http://www.va.gov/vetapp11/files1/1109040.txt

The Vet in question was in the service from ‘66 to ’68 (he was drafted):

At the time of the March 2003 rating decision, the RO determined that hepatitis C preexisted service and that there was no evidence that the condition permanently worsened as a result of service.

At the time of the March 2003 rating decision, the competent evidence on file included the March 1966 pre-induction examination, which contains findings that the Veteran had a history of hepatitis C in May 1965 with no recurrence.  At the May 1968 separation examination, there is no abnormal evaluation referable to hepatitis C.  At the time of the March 2003 rating decision, there is no competent evidence that any hepatitis C began during service or was the result of service, or that any in service symptoms of the Veteran constituted a permanent worsening of any pre-existing hepatitis C.

Can you believe they handed this down as serious medical evidence? With a straight face, yet? These people are “finders of fact” and dead serious. $5 says they never tested him for HAV or HBV so they couldn’t testify that it could have been one of those. No sir. We wouldn’t want to conflusticate the narrative with all that.

Nexxxxt?    http://www.va.gov/vetapp11/files1/1108537.txt

You are going to love this one:

The Veteran served on active duty from June 1971 to June 1973.Also, as there is no competent evidence during service or since service that hepatitis C, was noted, that is, observed during service, the principles of service connection pertaining to chronicity in service and continuity of symptomatology after service under 38 C.F.R. § 3.303(b) do not apply.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)In November 2010, the Board obtained an expert opinion from the Veterans Health Administration (VHA).  The Board had asked the VHA expert, a specialist in infectious diseases, considering accepted medical principles and the medical literature and a review of the Veteran’s file, to express an opinion on the following question: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), or an opinion is not possible without resort to speculation that the current hepatitis C was related to the Veteran’s exposure to blood and body fluids as a trainee in mortuary science in service?

In formulating the opinion, the VHA expert was asked to comment on the clinical significance that the ELISA test with western blot in 1987 was negative and whether the ELISA screen would detect hepatitis C.

In November 2010, the VA expert, a board certified infectious disease specialist since 1986 and a physician in the infectious diseases section at a VA Medical Center, after reviewing the Veteran’s medical records and a literature search, expressed the opinion that it was less likely than not that the Veteran’s current hepatitis C infection was related to service including exposure to blood and body fluids as mortuary science trainee in 1973.  The VHA expert explained that the negative result of the ELISA test in 1987, the first-generation screening test for detection of hepatitis C, had a sensitivity rate of 54 to 84 percent, citing three medical references.  And that the negative western blot, also a first generation test, made the sensitivity even greater.  The VHA expert therefore concluded that the likelihood that the Veteran acquired hepatitis C before December 1987 was low.

Houston, we have a problem. An ELISA test (even with western blot) is, and always has been a test for HIV, not HCV. So the “VA expert”, a board certified infectious disease specialist at a VA medical Center, has just demonstrated that he has HIV confused with HCV. We wonder what three medical references he cited. This caused our Vet buddy from Columbia, South Carolina to lose his case. Spookyshit, huh? Conspiracy? No, stupidity. Here’s the ELISA smoking gun. We certainly didn’t have any trouble finding it and about 20 others similar to it and we are not a medical expert in infectious diseases.

http://adam.about.net/encyclopedia/HIV-ELISA-western-blot.htm

Nexxxxxt  claimant, please?http://www.va.gov/vetapp11/files1/1100026.txt

The Veteran served on active duty from April 1972 to May 1973.

The Veteran contends that he is entitled to service connection for hepatitis C because it was incurred during service when the Veteran served as a medical corpsman. A review of the service treatment records shows no complaints or findings with respect to hepatitis C.  The service separation examination is negative for any findings or complaints withrespect to hepatitis C.

    The man was a tramp. He had sex with at least 15 partners whom we will assume were of the opposite sex. Well, there you go.  He couldn’t have possibly picked this up in service around all those bloody, wounded troops. Nope. No flies on him.  Besides, he was only in the service for 13 months so he obviously didn’t have time to get it there.

     So the pattern has been established. First, point out the obvious- no HCV reported in service; second, find a  post-service risk or two that fits in to his history like having sex (even once) and then say that it didn’t materialize for 30 years.  VA has to pole-vault over salient theories in order to get to the alien abduction risk. Once there, they can drag in homelessness, drinking more than one beer a day and smoking left-handed tobacco as risks, too.  This is the snowball we described above.

     I can’t remember whose operations manual its in (Air Force or Army) but to paraphrase the advice, it imparts: If you find yourself in a fair fight, you didn’t plan your mission properly. Do not expect this adventure you are going to enter to be fair. The people you encounter will all smile and treat you like their best friend.  You will think y’all are getting’ along like peas and carrots right up until the denial arrives. It’s a rude awakening- rather like a “Huh?” moment followed about 10 seconds later with a “That’s impossible. There must be a mistake”.  Armor up, bubba. You are in for one hell of a firefight. Following our advice on this just levels the playing field a little bit.  We don’t guarantee you a win-we just guarantee you won’t go into it  with that warm, fuzzy, stupid grin on your face.

     We picked the first three decisions randomly so as to make it impartial. If you think we’re kidding, proceed apace and start reading:

 http://www.index.va.gov/search/va/bva_search.jsp?QT=Hepatitis&SQ=vetapp11&RPP=100&LC=0&ET=&UA=Search

The site is littered with these mangled decisions based on shaky tenets. 

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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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