VBA PORTLAND–YOU KNOW IT DON’T COME EASY

Posted on December 29, 2019 by asknod

Ringo Starr didn’t do many songs but he nailed this one. My Vet Bob, who used to be my neighbor, finally nailed his PTSD claim, too. It was a great Christmas present over two years in the making. Thank goodness for Mednick Associates. Their psychiatrist hit this one out of the park. I wrote about this way back in 2015 before I became accredited. It took some coaxing to get Bob to file again-for the fifth time, no less. It’s hard to get back up after VA kicks your teeth in that many times.

Here was the original post in 2015

https://asknod.org/2015/08/20/the-good-humor-man-at-tan-son-nhut-ab/

It was a long fight from 10/2017. First we had to refile to get the denial as I’m getting wise to filing with an IMO first. All that happens is they go out and get their own to rebut it. Then what? Get another one? The art of VA poker is to get them to deny on a specific set of facts. Then you rebut it. In this case, they say Bob turned into a junkie at Tan Son Nhut and they had to dry him out back in the States. After rehab at Lackland AFB in Texas, they asked him to finish out his last year on active duty. Bob told them to take a flying f—- at a rolling donut. They did but they were nice enough to give him an Honorable Discharge.

After the denial, we rang up Adam Taranto at Mednick and he had his wordsmiths construct an extremely coherent IMO and put matters aright. VA contended he did smack and got PTSD. We contended the exact opposite. Were it not for all those coffins and horribly wounded troops Sgt. Bob loaded on the C-141 Freedom Birds, he wouldn’t have bent brain syndrome with a monkey on his back. Remember Everybody’s got something to hide except for me and my monkey? Another great song and I’m not much of a Beatles fan in their latter years.

The Puzzle Palace in Portland jumped after I complained about them taking nigh on to two years to do this and they scheduled a c&p exam. Then they forgot to tell Bob. Then they lost the request. Sound familiar? I finally sent a plea to DC and asked Saint Wilkie to intercede. That tipped the scales. Bob got his c&p on December 23rd and the DBQ opinion surfaced the very next day in VBMS. I figured a mid-January rating at the earliest. Well hush my mouth.

Magically, on Boxing Day ( the 26th), I arose and checked out the VBMS queue just for shits and grins. Lo and behold, there was the Bobmeister’s brand new 70% rating effective back to our filing date of 10/2017. They even sent me an email and said it was in ratings but the decision was already on the  books by the time the electrons arrived here at LZ Grambo. Sometimes VA shows they have a heart even if they hide it in their boot.

The Good Humor Man of Tan Son Nhut AB and author

Bob’s big problem is that he thought he had a confirmed diagnosis of PTSD when all this time he didn’t. Lots of shrinks at VA had said he did. Lots of folks with a string of initials after their names who were “counselors” said he did, too. Unfortunately, every time he filed and attended a c&p, they’d say the pot and the Jack Daniels was the problem-not the coffins and all the litter patients he helped the loadmaster strap down.

Here’s the winner DBQ. VA didn’t want to admit they were wrong about this so they decided to classify him as a “combat” Vet and gave him the 38 USC §1154b combat presumption meaning that everything emanating from his piehole was the God’s own truth. Boom-instant PTSD rating. Don’t give me any of that hooey that VA can’t crank out a decision in a hurry when St. Wilkie’s looking over their shoulder! I sure hope the next VASEC is named Nicholas something. We can call him St. Nick.

Bob’s most excellent DBQ redact.

Here was our version of how it went down:

Redact IMO for PTSD

And the magic paper:

Bob redacted narrative

It’s a warm, fuzzy ending to a long, long battle. After 49 years and 343 days, I can finally say “Welcome home, Bob. I’m sorry VA didn’t believe you all these years. Thank the Lord your sister lived two doors down from me or we may never have met.” It seems nothing comes easy in this business but boy howdy does it sure feel like a lot better Christmas now. I had another Vet who won the same day but I’ll write about Ken in anther blog here directly. This blog’s for you, Bob. And to think that if those VA jackwads had not told me I was never in Vietnam in 1994, I’d never have met Bob and been able to help him. I once had to leave some folks behind one day and fly off in 1970. Never again if I can help it.

Princess Pickles and author

Happy New Year’s to all of you, my readers. I sure hope you all enjoy reading about success here at asknod because I’m planning on servin’ up a heapin’ helpin’ of them this coming year. I leave for Washington DC on January 5th for a Board hearing at the VA Central Office (VACO) at 810 Yellow Brick Road NW (at the corner of Delay and Deny) on the 6th. We drew VLJ David L. Wight. I read up on all his R1 decisions and he seems to be pro-Veteran. As Forest Gump might have said, “a Board hearing is like a box of chocolates- you never know who you’ll get.” Some are real hard asses and border on rude. And then there are the chicken dinner winners like Vito Clementi and Matthew Blackwelder. The real trick is to have a rock solid case, of course. You can’t just bullshit your way to a win.

Sadly, if you now desire a face-to-face with the Judge, you have to fly back there for one. The AMA did away with Travel Board hearings. That’s okay. All my relatives live right down the pike a ways in the Tidewater region.

 

Posted in All about Veterans, ASKNOD BOOK, Humor, KP Veterans, PTSD, Tips and Tricks, VA Agents, vARO Decisions, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , | 3 Comments

Fast-Tracking Your VA Case

Posted on December 26, 2019 by kcraveiro

Are You Tired of Waiting on a Decision from the VA?

Getting the VA benefits you deserve can feel like jumping through hoops with no end in sight.  Generally, the VA decides cases in the order that a claim or appeal was received, which can take years. But, here’s how you can potentially fast-track your VA case – A Request For Expedited Processing.

When your case is given expedited processing, you move up closer to the front of the line of veterans waiting for a decision. The following types of veterans can get their cases fast-tracked:

  • Veterans who are homeless
  • Veterans who are a terminally or seriously ill
  • Veterans who are experiencing extreme financial hardship
  • Veterans 85 years or older with cases at the Regional Office OR Veterans 75 years or older with cases at the Board of Veterans Appeals
  • Veterans who are former Prisoners of War (FPOW)
  • Veterans awarded a Purple Heart Medal

How Do I Get My VA Case Fast-Tracked?

Getting your case fast-tracked depends on where your case is. For cases at the Regional Office, you can send a letter to the Evidence Intake Center asking for expedited processing. You should clearly state the reason(s) why your case should be fast-tracked. Remember, when sending anything to the VA, always be specific about what you’re asking for and why. Be prepared to submit documentation of your extreme financial hardship, for example, which could include foreclosure notices, eviction notices, or bills in collection.

For cases at the Board of Veterans Appeals, you need to draft a motion. Any motion to the Board should clearly state your name, VA claims number, and be addressed to the Board at the following address: Board of Veterans’ Appeals, P.O. Box 27063, Washington, D.C. 20038. Just like a request for expedited processing at the Regional Office, your motion should specifically state why your case should be fast-tracked, with documentation to support your motion. And always save proof (fax confirmation, certified mail slip) that you sent your mail to the VA.

A well-drafted request or motion for expedited processing could mean the difference between waiting months, not years, for your VA benefits. If you fit the above criteria for fast-tracking your VA case, don’t wait – send your letter for expedited processing today!

 

 

 

Posted in All about Veterans, Guest authors, HOMELESS VETERANS, Tips and Tricks, VA BACKLOG | Tagged , , , | 2 Comments

DOD Holiday Traditions & something new–U.S. Space Force

Posted on December 24, 2019 by Laura

Today the President signed the 2020 National Defense Authorization Act and with it, directed the establishment of the U.S. Space Force as the sixth branch of the armed forces.

Website:  https://www.spaceforce.mil/

“Maybe your purpose on this planet, isn’t on this planet.”

The maps are great. Click image to go to NORAD. Enjoy! “The North American Aerospace Defense Command is responsible for tracking everything that flies over and around North America. This means that come Dec. 24, NORAD has eyes on Santa.”

Merry Christmas and Happy Chanukah  (Dec. 22-30)

Laura (Kiedove-Guest author)

Posted in Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, Humor | Tagged , | Leave a comment

VA LAW–THE WAITING IS THE HARDEST PART

Posted on December 24, 2019 by asknod

Merry Christmas to you all. If you are not Christians, I apologize. Happy whatever. Let there be joy in these troubled times regardless of what religion (if any) floats your boat. This year has been very, very good to my clients. I write, however, to a much more vast audience than just Veterans. Or at least I hope I do. As most know, I belong to NOVA. Many of these members claim they read my blog. If so, I hope I provide useful information to them as well. 

It seems, regardless of what season we are in, we have trials and travails that seem insurmountable. I get that. If you have never had a denial by the VA, you could never experience the thrill of what it feels like to open that big, brown envelope and discover what’s behind Door #3. This is one joy of practicing VA law. I am honored to provide that ray of hope or financial stability in my Veterans’ lives.

VA claims victims

Many of us who practice law are appalled at the interminable delays in the process. Worse, statistically, only 12 to 15% of you Veterans win your claims at the outset. It should be far higher by my reckoning. I won’t brag but this year saw only two losses-both at the BVA. I pride myself on using the new VBMS to the utmost as a crowbar for my unparalleled success. It’s much like being the fly on the wall at the local Fort Fumbles across our fruited plains. For the most part, I can literally see the VSR, RVSR or DRO involved in an individual claim and its relative progress through the system. I can see when the c&p exam is scheduled, the parameters of what they are going to ask for and the expected outcome they are looking for.

VA raters tend to “telegraph” what they expect from a rating when they write instructions to the QTC/VES folks. It used to be a c&p for Hepatitis C would instruct the examining doctor to comment on the fact that Jetguns were not proven to transmit Hepatitis C-a sotto voce de facto request to deny based on the Vet’s claim alone. True. Jetguns were never proven to do so but that ignores the fact that the CDC suggested strongly about Yule time in 1997 that they were mighty darn suspect in transmitting the disease. Et voilá! No more jetguns and surprisingly, the  horrific number of cases in the military evaporated.

Towards that end, I have retired my Jetgun from BVA hearings. Science and the VBMS have made it possible. Nowadays, I just call up or email the rater and inform him/her to please proceed post haste to issue a decision-pro or con- so I can begin obtaining an Independent Medical Opinion rebutting their findings of fact. Twice now, this has induced them to rethink whatever denial logic they had planned and concede service connection for Hepatitis C or Agent Orange complications from service in Thailand. In another case, on a §1151 claim, I told the Coach she was wasting her time looking for a signed consent form to use Interferon. She ignored me and kept kiting requests over to the Little Rock VAMC for three months asking where in Sam Hill was the document? I guess I didn’t convince that one.

Chieu Hoi!

I plan to use this  technique far more in the coming year. At $2,000.00 a pop, I can save my clients money and stress and even substantial delay in most cases. I call it the Chieu Hoi technique. Chieu Hoi, as my Vietnam Brethren know, means  surrender in Vietnamese. It seems VA raters are beginning to see a major uptick in VA litigators using IMO outfits like Mednick Associates to supply them with viable nexus letters. VA has no defence against this. They can deny but by law they cannot go out and get negative opinions to keep on denying you. Check out Hart v. Mansfield, 21 Vet.App. 505 (2007) to see why. Also Mariano v Principi/ Kahana v Shinseki ad nauseum.

Read my wart!

As the title of this blog implies, the waiting is most definitely the hardest part of the stress and financial strain a decade-long battle with the VA does to you. Now, imagine what it does to your VA shield bearer (attorney or agent). I, myself am not quite as challenged financially. I don’t have to service a $200,000 Pell grant for a student loan debt. I’m a smug, over-entitled white guy on SMC S and SSA so I don’t have to watch the mailbox with 9X50 binoculars and bated breath for every check from VA to arrive for my 20% representation fees. In many cases, I receive nothing because I prevail at the outset without having to file those 20-0995s for a supplemental shot at a win. As for the newer 0996s, I don’t do Higher Levels of Review (HLRs). They’re worthless and I won’t give the VA pukes satisfaction with their grotesque caricature of nonadversarial justice. I prefer to go to the BVA with a new VAF 10182 and have a real judge adjudicate it using real VA law- not the M 21-1 abortion version. Unless it’s obvious as the wart on the Wicked Witch of the East’s nose, you’re wasting your breathe and the client’s valuable time.

VA attorneys and Agents, often are disenfranchised by the VA’s finance department. I’ve seen Attorney/Agent Finance Coordinators (AAFCs) take waaaaay over the allotted 60 days from a decision to issue the authorization for the release of funds. It usually takes another month to push “Print” and send it to me. In two cases this year, they came back and issued a change order authorizing disbursement of 20% over three months after claims I won on the first try. The VA rationale was the new AMA theory- that if you ever applied for a benefit under the Legacy system and were denied, any subsequent grant was a “successful” appeal of sorts-even 9 years later! This is dubious law but far be it from me to argue. I just wonder who pays. I can’t see any evidence my clients got  whacked post-decision for the error. Do they just eat it? Who paid for this? It sure don’t come out of the Christmas Party fund we pay for ($100 dealer prep and destination fees)

ATTORNEY FEES PAYABLE

Even funnier, for those of you who have VBMS access, I have noticed another aberration that telegraphs VA’s intention to grant long before we litigators or the client get the Magic Paper-or even see the grant posted in the VBMS. Allow me a little show and tell. Once you gain access to the client’s efolder with your Power of Attorney (POA), you can go to the Veteran’s Profile. Look in the upper right where you choose which tab to view (i.e. Veteran; Informal Claim; Documents; Ratings; Notes.  Click on it and it opens to mundane info like name, rank, airspeed, tail number and last known heading. Scroll down to “FLASHES” and click on the +. Several things are listed. If the client is terminally ill or flashed for hardship, that is listed. Likewise, since April 2019, any clients with a Purple Heart Medal will have that listed as well which also gives them a quicker adjudication. If the documents are very old or there has been no new claim in 30 years, they show as still being unscanned at the Records Management Center (RMC). If you were boots on the ground in Vietnam, it will list that, too. There are other inconsequential entries which are immaterial to this blog so I won’t address them.  Of most import to litigators, however, are three entries.

After you initially file to represent, you usually file a VAF 21-526EZ or a 20-0995 Supplemental to begin your client’s legal journey. At this point (but not always), the VA AAFC will enter “Attorney Fee”. The clear implication is that you have filed a POA and an acceptable Fee Agreement to qualify for your 20%. After a denial, I usually file a rebuttal and begin the appeal process with an IMO. At that time, I often see the entry “Potential Attorney Fee”. Lastly, when it’s fairly obvious the raters have no legal reason to continue to deny your client, you will see a new entry-“Attorney Fees Payable”.  Sometimes this appears prior to that. I have no hard and fast info on why but I merely report what I have observed over the last four years.

Typical Flash sheet

I filed a supplemental 995 and they decided it in 14 days for 100%. The fees payable showed up 9 days after filing.

This one’s at the BVA on appeal now. No Fees showing…

This one went as predicted w/ fees payable visible 2 weeks before decision.

This came back from the BVA on remand and fees entry showed up before the decision (Thailand AO Vet).

1/16/2019 Legacy denial. Got new IMO post-AMA and it went to decision in 26 days. Fees payable showed up 12 days after filing.

Brand new client. Just established the POA several weeks ago.

I’ m sure there are better descriptive terms to describe what this means. In Southeast Asia, during our war games fifty years ago, I once heard a Sargent tell a guy you could almost always predict when a gook was getting ready to launch a B 40 RPG at you. He’d pop up and try to get his range in the first appearance and promptly duck down. Ten seconds later, almost to the dime,  he’d  pop back up with the armed rocket in the tube cocked and locked and pick his target. Poof. Gone again. The third time he showed himself was showtime.  Sgt. Ralph described this procedure as “telegraphing” his intentions. Hence my appropriation of the term above. The agreed-upon procedure was to keep you rifle pointed exactly where he popped up the first time and get two tries to take him out. We had great success using this technique if you had the balls to expose yourself that long.

Conversely, I have begun representing clients and found  “Potential Atty. Fees” added before I begin my litigation in earnest with a NOD. One thing is for sure. You will rarely, if ever, see “Atty. Fees Payable” on anyone they do not intend to grant to in the early stages absent a trip up to the BVA. By the same token, I have clients who have already won and nary an entry about anything more than the initial “Atty. Fees” entry. It seems there are lazy AAFCs out there. Seems every Regional Office has two or three of these troopers. Considering how few of us win, it’s intriguing why they are slackers on data entry.

There are many little widgets to click in a Veterans VBMS efolder that unveil interesting trends. One notable one is important. VA rarely sends out for a new c&p exam after a prior denial unless they have already chieu hoi’d and are preparing to grant. The reason is simple. They need to know how disabled you are in order  to assign a rating. In the case of my Vets with Hepatitis C claims, I always see a new QTC/LHI/VES request for a c&p shortly after I see the “Attorney Fees Payable” populate in the Flashes section.

As I mentioned at the Fall NOVA conferences in Portland, one of the most intriguing sources of whazzup? info appear in the “Go To Work Item” widget up in the left when you open the Claims tab and click on the instant appeal. I’ve found preliminary rating decisions spilling the beans sitting there awaiting rater approval or a second signature. Look for sneaky deferral notes. Screen grab them to show claims gerrymandering as they will disappear after the rating fiasco.

 

Unfortunately, the 20% for the calf scar was 26-year protected…

Now, granted, almost all of my clients are combat Vets-the very least of which almost always have a Purple Heart. Most have a few CIBs, CARs and combat V’s or other giveaways as to their jobs in the military. For some reason, VA gives them added attention and a more deferential treatment-especially if they are filing for Bent Brain Syndrome.

Thank you, all of you who have entrusted your claims to me. On behalf of Cupcake and myself, I hope we pass the audition. I don’t need to go into particulars but I lost my religious beliefs about six months into my first tour during the War but I still consider doing this to be God’s work. I only hope my body (and mind) will continue to permit me to do this for years to come.

Again, a Merry Christmas to all of you who come here. Forget my insufferable ego that drives me to be so sarcastic. Remember that my end goal is the highest and best rating I can attain for my people. Money will never be the reason. I wear my insult from a National DAV Service Officer proudly like a Scarlet Letter on my breast. He called me a bloodsucking VA Ambulance Chaser. So be it. I’m probably going to go to Hell but I’m going to make life absolute Hell for the VA until I get there.

P.S. Now that I spilled the beans on the Atty. fees payable, I’m guessing it will be removed from the Profile flashes!

Take a moment to remember those who have fallen this season.

Posted in ASKNOD BOOK, Jetgun Claims evidence, Nexus Information, Tips and Tricks, VA Agents, VA Attorneys, vA news, VBMS Tricks | Tagged , , , , , , , , , , , , , | 11 Comments

THE REMF

Posted on December 14, 2019 by asknod

Once upon a time, in a land far far to the west, the military saddled us with REMFs-the first two letters of which stood for Rear and Echelon. REMFs were fearless after the shit quit flying. REMFs got all the medals because-hey-they were driving the typewriters and had plenty of time to do their own valor writeups and willing higher up REMFs who would sign off …if they got some of the medals action. I watched an arty fire mission kill 14 water buffalo one afternoon and zero dinks. Two months later, I heard the Light Col. in charge of the Firebase got a V for his 105mm prowess.

Attached please find a great Christmas video of what could only be a REMF. This old boy must have thought he walked into the perfect storm of hunting; a legend in his own mind with a story that would transcend the ages around the campfire.

Merry Christmas to all. As soon as I reload on some new cartoons, I’ll be back. Meanwhile, keep them coming. This particular one is obviously from our slight damaged LRRP with the Silver Star down in Oregon. Ed’s not sick. Hell, I would have put it up if I’d found it first. Bent Brain Syndrome gives you a killer sense of humor. No pun intended.

Posted in All about Veterans, Humor, KP Veterans, VA Agents, Vietnam War history | Tagged , , , , , , , , , , , , | 4 Comments

FRIDAY THE 13TH–WHAT ELSE COULD POSSIBLY HAPPEN?

Posted on December 13, 2019 by asknod

Time for a squirt of asknod humor on the squeaky, cranky soul. So far today I have had no calamities. Pickles, Widget and I all went to the Post office to launch some more VA torpedos. I finally figured out what to do to repair my BVA loss of Roberto’s claim. Remember Roberto down in San Juan, PR? Nurse Silvia of the old HCVETS  Delphi days sent him to me waaaay back when in about 2014. We got him SC for HCV–but at only 20% and then worked to get him up to 100% P&T. Sadly, that became all too easy to win on appeal when he came down with liver cancer. 

The problem is Roberto’s claims file shows all kinds of problems. Documents that VA averred burned up on Friday, the thirteenth of July, 1973 magically appeared from the NPRC ashes in 2013 …right before he won… I tried to do the §3.156(c) attack but the VLJ was too dense. I guess I shouldn’t say that. I had too many contentions going on at once. I violated the old, timeworn adage of keepitsimplestupid. I did a lousy job of trying to convey it on a video linkup with San Juan, Washington, DC and Seattle Washington. We lost the link 36 minutes into it. What? It was VA’s comm system-not AT&T. I guess I was expecting to get whiskey from a bottle of wine.

In any event, I struck out. I pondered going up to the Court and trying to present another version of a CUE. That cannot be done. We call that issue exhaustion. First, if you didn’t address it at the Board, and they did not rule on it, then it most definitely is not before the Court. The Court has, in limited instances of inextricably intertwined details and evidence, agreed narrowly to view the newer CUE contention. I doubted my theory would fly and I didn’t want to waste ol’ Roberto’s time left in the cockpit of life up at the CAVC.  I made a hash of this by not being anally specific . The judge misunderstood the premise and here we are.

Alexander’s big bellyflop at the BVA

 

I work with quick fixes. I attack. I don’t pedantically build bulwarks of defense and spend months studying the Rubik’s Claim cube. I call this style of law enfilading fire. Put your M 60 pigs on the flanks on full auto with tracers and let VA run into the incontrovertible evidence. Their own evidence, I might add.

I ascertain the path through the c file maze in a quick review, formulate the argument in my mind and build the cites around it. In old cases, you have to go a little bit farther afield to Federal Circuit decisions in the 50s-70s. Hey, it works. You are not limited by the inception of the COVA in 1989 to your cites. Shit oh dear. Where did you think the early Court got all their bathroom reading material from? Their own cutting edge legal minds?

Roberto’s repair order took longer to unearth. I decided to start from scratch and do a chronological timeline of his file. I went back to the very first document filed in his claims file and there lay the Rosetta Stone. It was too simple. All this time I was trying to fight to get an effective date that was approximately 15 months after he got out. That was the filing date of his VA Form 21-526—9/17/1971. He got out July 15th, 1970. I  incorrectly figured I couldn’t get the golden first year protection because he blew off filing until three months after that first protected year. Or did he?

The Golden First Year

I mention the golden first year. Congress, in one of their generous moments, gave us a little present. If you fell ill or discovered your foot rotting off from gangrene in the first year after separating, it was automatically service connected. Yep. No shit. Granted, with hepatitis, you would have to get infected pretty close to separation. The incubation period from infection to exhibiting symptoms of Hepatitis B ranges from 30 to 180 days (one to six months). Roberto entered the San Juan VAMC on 9/10/1970 with yellow jaundice. He complained of not feeling well for the two weeks prior. Cigarettes started tasting weird. Lots of gastric upset. Loss of appetite. 9/10/1970 was 57 days after separation-well within the accepted parameters of the golden year for hepatitis. 

That first document was none other than an informal claim on a VA Form 3101 Request For Information. Nowadays it’s called a PIES request (Personal Information Exchange System). The VA sends out an SOS to the military to give them records they need.This particular document glows in the dark. It has more information on it that you could pray for. In block 3, describing the type of claim, there are two abbreviations: Orig. is Original as in original claim for benefits; Hosp. is Hospital (San Juan VAMC) meaning the original claim was filed in the…wait for it…. VA hospital. It was filed 10/31/1970…seventy seven days after separation from Active Duty. And, as everyone knows, if you go into the hospital and are definitely sickie, they start an informal claim. They are legally obligated to pass it on to the Regional Office for adjudication. The only hitch is that you have to file the actual VA 21-526 Claims form within one year of the filing of the informal claim. Roberto got his 526 in with 43 days to spare.

The 3101 also has a shiny new 8-digit VA claims number which I am legally obligated to redact. This proves the claim exists. It’s the provenance I need to show its import. VA knows to within a minute when that claims file number was issued. It’s the beginning of the claims file. The very first document. It proves the claim number was issued for an informal compensation claim and not a VR&E -generated number to learn how to be a carpenter. To put whipped creme on top, the VA date stamped it not once but twice on 12/28/1970 and 1/05/1971. Now you know it’s legit.

The 3101 also supplies the needed benefit Roberto is claiming-hepatitis. As we all know now, hepatitis can be multifaceted. We have Hep A, B and C. We have steatohepatitis (fatty liver). There’s even a chronic Hep B. Ad nauseum. The point is it’s hepatitis not otherwise specified (NOS). Read my legal brief below and you realize how easy it was to unravel this once I found the defect. Remember, VA screws up everything. As a litigator or even a do-it-yourselfer, you have to find the loose thread and keep tugging. It ‘s childsplay to go shopping for more claims evidence in VBMS once you find the Golden Egg. Here’s the 3101 redacted. Roberto gave me permission to share this with you. If it helps even one of you Vets then He can die happier.

redacted 2

Here’s my brief. I hope it helps one of you. I decided to focus on several pieces of evidence that eluded inspection until 2013. One was sent to Roberto on about his 8th FOIA request for documents from the VAMC in 2001. That was the liver scan six months after an earlier one that showed “persistence of the active liver disease”. That’s longhand for “chronic”.VA can’t even remember to destroy the incriminating evidence. This is who you’re dealing with.

Roberto’s new CUE

I suppose there’s another theory of CUE I didn’t pick up on until redacting the above. What if this was an informal claim never adjudicated? Was there a phantom 526 at the hospital that was “lost” but somehow managed to get that claim number issued before the coup d’grace? Who knows. Let’s let VA chew on this one for a while… but not too long. Roberto is advanced on the docket of anything because he’s living on borrowed time now. I pity the poor VA Examiner who gets this baby in his in-basket. $100 bucks says they hot-potato this around the NWQ a few times before someone gets stuck with it and shits. 40% from 15 July 1970 to 9/12/2017. A dying man could cross off a lot of dreams on his bucket list.

VA Examiner

Hey it worked for guns and drugs. Why not?

 

Posted in 3.156(c), All about Veterans, CUE, HBV, HCV Epidemiology, HCV Risks (documented), hepatitis, Humor, Informal Claims, Tips and Tricks, VA Agents, VA Medical Mysteries Explained, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , | Leave a comment

HADIT.COM RADIO SHOW THIS THURSDAY (12/12/2019)

Posted on December 10, 2019 by asknod

I just got a call from Jerrell asking me to do a show this Thursday. I gladly accepted as I’ve piled up a ton of good things to talk about for an hour or more. I look forward to it. I hope to discuss some of the problems I’ve been having with VA and the shortcomings of the new AMA that are beginning to surface. It all sounded so cool when they announced it several years ago. The truth is far different from the promises but then we figured there was going to be a disconnect when the other shoe dropped. 

Not to worry. VA’s box of tricks is empty. All they have left is retreads of earlier mischief that we have learned to skirt around.

Be there or be an L7 (square). the call in number is still the same as far as I know and you can press one (1) if you wish to talk to any of us about an individual issue.

347-237-4819

 

Posted in All about Veterans, Appeals Modernization Act, KP Veterans, PTSD, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , | 6 Comments

12/07/2019–YOU DON’T HAVE TO LIVE LIKE A REFUGEE

Posted on December 7, 2019 by asknod

Great song. Great band. Great sentiment and it captures what I want to talk about today. 12/07/1941 was 78 years ago but the enormity of the event still resonates today. I utilize it every year, too. My wedding anniversary is tomorrow. All you have to do is read a newspaper or look at a newsfeed channel and there will invariably be a mention of the seminal date in history. Bingo. Drop by Albertson’s and get some killer flowers tomorrow for Cupcake…

This works very well for an established date but not so much for Easter, Thanksgiving or Fat Tuesday. But I digress. Today is all about the wonderful world of nexus letters-those elusive, sought after letters from your personal care physician about what’s wrong with you and how s/he, an M.D. mind you, is pretty positive your (pick all that apply: DM II, prostate cancer, IHD, NHL, porphyria, chloracne, PN etc. came from ingesting/inhaling too much Agent Orange for breakfast in (pick one- Thailand, Guam, Laos, Philippines, Korea) ________________.  Herein lies your error. You don’t ever want to dwell on how it was done wrong. You need the repair order. You don’t want to live your life as a VA refugee.

As I hope most know, you need three things to win-a disease/injury/risk factor/stressor in service, the same thing now and a well-reasoned Independent Medical Opinion. It’s also called the Nexus Letter. VA will offer their own c&p exam and it will find your malady is not related to service. They have a Cliff Notes© book full of excuses. It’s called the M 21.

I just received a Hep C referral from a good friend and major CAVC litigator to “fix”. The problem here is it never should have arrived at the Court in the first instance. It was appealed all the way up without any IMO. Or was it? The VA provided one for free. All IMOs are not equal. We usually come to find this out when we lean very heavily on our personal care physician (PCP) to write one. They don’t do nexus letters and IMOs. They do stethoscopes, oxycontin and malpractice. Hell, they can’t read their own writing. I’ve seen some daisies written by medical transcriptionists that are unintelligible or illogical. Depending on your own doctor to successfully do this is a crap shoot. Worse, you’ll never convince him to review all your service medical records and your claims folder. That would take weeks to accomplish. As we all know, VA’s favorite refrain is “We had our doc read all the records and your doc didn’t have them. Our shit is more probative”. And they’re right. They beat you fair and square- but only because they didn’t give you a copy of the rules in Dick and Jane Speak.

Option #1

Sadly, there are really only two ways to do this. Actually three if you count all the new VA “counselors for claims” specialists out there who will ramrod your claims for 40% of the total increase in  ratings percentage dollars times 6 months. Oh, and all those IMOs they wrote at $1,000 apiece you agreed to. Thus, if you went from 10% to 30% and your monthly check increased from $142.29/mo. to $486.69/mo. and you got retro back to filing in 10/05/2017, you have 40% of 6 months of the difference between the 30% and the 10%… or $2,066.40 plus IMO costs. But wait. You have to do all the filing. You have make sure you do it correctly.  All your “counselor” is going to do is set you up with a doctor or shrink to get an IMO to win with. The only good news I see in this is if you lose and your IMO falls flatter than a cheese souflé in a daycare center, there’s no charge. That’s option #1.

Option #2

Option #2 is to go with a VSO and accept the VA examiner’s IMO which pretty much guarantees a loss all the way to the CAVC and beyond. VSOs rarely win  unless you’re holding a CIB in one hand and a Purple Heart in the other. If you bring your own “real” IMO provided by your VA counselor/expert former DRO, you very well may prevail. As usual, VA will lowball you and phase two begins on appeal for a higher initial rating. If you win that, that VA counselor will promptly show up with his hand out again. Same gig- 6 months of 40% of the increase. And so on.

Your new BFF VA counselor will soon discover you have waaaaaaaay more wrong with you than you thought. He has you file for all those extras and gets you inspected and written up for all thoooooose contentions. You refile and if you win any of those, you have to pay the… yep-40% of the first 6 months plus the costs of any of those successful IMOs. The truth is one doctor sits down with you for 30 minutes and does 5 IMO examinations all together. You feel it’s basically one. When you win, you discover you had four more than you thought and they won… at $1,000 each on top of the 40% for 6 months.

Option #3

Option #3 is the best to my thinking-and not from my perspective as a VA ambulance chaser. You’ll be wanting to hunt down a good (read NOVA) lawdog for this project-not a run-of-the-mill, Yellow Pages, jack of all trades and master of none patent attorney. You don’t want a JD with a major in tax law or divorces doing this. You want someone who lives, eats and breathes 38 USC and 38 CFR. This is far easier said than done.

I know it’s becoming common knowledge as we spread the word on how easy it is obtain high-quality IMOs from top-dog specialists in the field. The problem is most reputable IMO companies will only deal with a professional like an attorney. Face it. Your red hot IMO written by your  RN roommate who’s still on her 6 mo. trial employment at Kaiser Permanente™ about your brain glioblastoma secondary to Camp Lejeune bathwater is pretty sketchy. Fortunately, a VA lawdog (or an accredited practitioner like myself) charges a flat 20% with VA looking over his shoulder.  Your representative charges you the cost of the IMO from their specialist(s) and I would pray they are as upright as me and don’t mark it up 30% for dealer prep and destination fees. There simply are no surprises in this nexus system. You pay for postage and copy fees. You pay half up front to research the IMO and figure out if a doctor can make it fly without lying. That is nonrefundable. If he agrees, you pay the second half upon completion and mutual agreement on the final draft language. Many times, I get my specialists to opine on the secondaries for the same price and then file after I win the service connection. I then resubmit the same IMO and point out the other diagnoses as my medical proof. I argue these were implied claims and the VA simply missed them. Hey, it works. VA caves in and grants. Since they didn’t deny it in the original decision, it’s basically pro bono. I don’t make anything off getting them up to SMC S. Win-win for me (less work) and for the Vet (more money in his pocket).

So here’s my Veteran’s SOC. Fast forward to page 23 for the  denial logic. For what it’s worth, I probably would have denied based on the new IMO#1.

VET SOC redact

The IMO- Dos and Don’ts

Now let’s talk IMOs. As I mentioned, not all IMOs are equal. VA makes a commitment when they deny your claim. They usually point to an IMO-like pronouncement by a proctologist or podiatrist that your  small cell carcinoma infestation of the brain is not related to AO  and importantly, why it isn’t. At this point, they’ve made a commitment as to the cause. They cannot change their reason/rationale.  Sadly, that is acceptable and usually passes muster even though it fails the smell test. The reason you lose is you have no IMO. But the good news is you now know what you have to have to win. Rebut the denial logic. You thought VA was going to provide you with a quasi-legitimate IMO. They did. It just wasn’t fair. You’re not a doctor so you now have to come up with your own IMO about 85% of the time according to VA win/loss statistics. Or, you go down the road as most Vets do and continue to bang your head against the wall with no IMO until you die or get a good law dog who recognizes what you need to win. Don’t feel bad. It took me 19 years to absorb this concept.

Chantelle

With that said, if you just go out and try to find someone who purports to do IMOs for a living, I think you need to do some research on them. I wish I had. Some of these “professional” folks will write one and it will fail. This is what just happened to me. I called the Shrink up and said “You augered in, Doc.” He says “Well, it’s your fault then. I worked with what you gave me.” This is not how it’s done. Let’s say you’re a baker. If you see you lack a naked lady to pop out of your client’s Bachelor Party Cake (and someone is paying you $2,500 to bake it), you don’t deliver it sans Mademoiselle Chantelle and then blame the buyer for the no sale.

A run-of -the-mill attorney who does divorces just handles your paperwork. He doesn’t go out and get an IMO. He has no clue how this works most of the time. He might if he does Social Security appeals but that’s about it. Same scenario. You law dog will probably author lovely legal arguments in your favor but doesn’t provide the Magic Paper. You lose and he revokes his POA and swears he’ll never do another VA claim again. Vets don’t understand that we do not have wheelbarrows full of cash to pay for IMOs. This is why it’s a two-stage process. If it cannot be done, you don’t have to  buy the whole enchilada and find out a year later you have a useless IMO.

I always tell all my prospective IMO writers to keep the law aspect out of it. The last thing I want is a shrink in a white Lab Coat waving a bottle of Valium spouting 38 CFR and that the client deserves at least 70% for his ______.  The law side is my job and I take umbrage with someone else muddying up the legal waters.  I find I can vocalize precedence better and avoid instructing the Examiner on how to correctly read M 21.  Bad form. Never dump on a mental midget. Besides, the CAVC has already spoken to certain lawyers who are also doctors trying to ride two horses simultaneously.

So here’s an IMO, written by a doctor of Psychology that flunked the VA audition. I’ll let all of you sleuths examine it and opine on what it has or doesn’t have in the way of compelling logic for the VA examiner to grant. I was less than impressed when I first read it and it doesn’t improve with age. VA said as much, too.

The blog today is my attempt at atonement. I was new to the IMO process in late 2017 and used it quite well.  I was contacted about the same time  by a psychologist who offered his services for PTSD/MDD claims. Shoot. He even invited us out to dinner to pitch his spiel. I promptly handed him off to my client to deal with directly. Boy howdy was that about wrong and two thirds as you can read below. It looks like I hired a lawyer to write it and he had to copy and paste it twice to make it look longer. Worse, I had to pester him to make grammar corrections-really simple stuff like missing/incorrect punctuation and spelling errors. He never did change the abbreviations like AVN. It took two weeks and they still missed half of them.  Expertise on a scale of five ?

*1/2

IMO No. 1 redact

I got the Legacy SOC back on October 9th last which gave me 60 days to shit or get off the pot and lose the client’s effective date of filing. I called my good friends at Mednick Associates and they came through yesterday (Thursday) morning. I assembled it with scant days left to do so.

IMO No. 2 redact

I am rather proud of my record as a litigator. I do not take defeat easily. I consider it avoidable. I promptly decided (with Cupcake’s concurrence) to buy another IMO on my own dime to right the wrong. As you can see, the author (#2)did some intense research on reams and reams of evidence and managed to cull far more that author #1. She was less expensive and did it in less than sixty days versus four months for the first grammar-challenged IMO. The quality of the finished product is Mednick Associates’  Hallmark. I have no doubt my client will prevail.

God I hate that when that happens

Posted in Independent Medical Opinions, Tips and Tricks, VBMS Tricks | Tagged , , , , , , , , , , , , | 4 Comments

CAVC– USING McWHORTER FOR FUN AND PROFIT.

Posted on December 1, 2019 by asknod

Every day I go on Google news in the morning to see what wild and crazy articles they have. It’s a potpourri of liberal and conservative thinking. Some are better than others.

Former WH janitor overhears President saying ______to_______!

Turns out it was President Eisenhower and the guy resides in an Alzheimer’s old folks home at 1234 Yellow Brick Road in Oz, Kansas. I’m getting rather tired of it. No one got this heated up about Benghazi. That was like forgetting the air cover for the Bay of Pigs invasion in ’61. Where’s the outrage about Congress raiding the SSA Trust fund and slipping in an IOU? And now they espouse $55 trillion for free college and Medicare for all regardless of your immigration status? Helloooooooooooooooo????

The subject above has nothing to do with McWhorter. It’s just that I keep seeing articles in this same news feed from my good friends at Attig Steel and CCK with all kinds of helpful advice on how to win your claims. Granted, imitation is the dernier cri in flattery. I began teaching the Caluza/Hickson/Shedden  theory in 2008 after my 28-year fight to a win and wrote the “What You Need to Succeed” book in 2012. I’ve done a bunch of shows with John and Jerrell on Hadit.com over the ensuing years on this subject-et voilà- the big guns are finally beginning to follow suit. Don’t get me wrong. Veterans need all the help they can get. That’s the primary reason I began this blog.

Every law dog or Johnny Veteran should have a list of go-to cites to insert in a brief or argument. Either you’re arguing case (law) or you’re arguing controversy (what the facts really are). You can’t just dial up Westlaw every time you need the perfect cite. That’s $60 a minute and most Veterans cannot afford this level of extravagance. I used CAVC and BVA decisions to find my perfect cites until I discovered NVLSP’s Veterans Benefits Manual. Nevertheless, I still use the BVA  because the search engine on the BVA site is extremely phenomenal. The CAVC search bar is so-so in my mind.

I now collect and assemble the perfect cites as I run across them at the CAVC. When I began this journey unassisted in 2007 (the fourth time), I read every single CAVC decision written from 1989 to 1995. By the time I reached  Caluza v. Brown, I  finally began to “get it”. Those early, formative years of the COVA contain some killer cites which, while maybe having been relitigated by panels at a later, more recent date, still base their logic on much of this 25-30 year old precedence. Almost all these golden oldies imported Federal Circuit precedence which became the early framework for conversion by the COVA and fashioned into Veterans law with a heapin’ helpin’ of Boone v. Lightner. Always remember, VA law has a thumb firmly placed on the Veterans’ side of the scale of justice. Or at least it should.

Every law firm, as I say, including the DAV, VFW/ YOUR VSO etc. has their favorite ten or so cases that embody certain presumptions or case law that give Veterans a leg up. In this day and age of the new AMA, we are encountering gross errors and proof that haste makes waste. Either that or the old adage that Idle hands are the Devil’s Workshop is still a valid observation. Regardless, we are seeing a race to the bottom for legal ineptness now at the VA. This puts an inordinate amount of pressure on HLRs and most especially the BVA. Sadly, they are failing us. There’s a new, post-AMA stare decisis format afoot that embodies and espouses the new, endless Hamster Wheel litigation method.

I get NWQ decisions back with wild and woolly errors every month. I have to track down and call up (or email) the DRO Coach and politely ask what they were smoking in the alley during lunch break that day. If they shine me on, I cc: it to the AMO Big Guy with the initials D.M. back in DC. Miracles of miracles, the promulgated decision magically disappears from VBMS and it’s back in the EP 499 NWQ hopper for another week to remodel it. Funny, I didn’t think you could “erase” anything in VBMS-or VACOLS for that matter. Boy howdy was I ever wrong. Gene Groves put paid to that lie ten years ago when he outed the VA’s “backdoor” to VACOLS.  That’s why I always screen grab it when I see it and save it as a .jpg. The evidence comes in handy later when the Secretary trots out his post hoc rationale for prior Agency action which, noticeably, doesn’t encompass his development actions.

This can be extremely valuable at the BVA when the WACO VSCM says the defective Rating Decision “never happened.” Of all precedence, I have been dragging out an Oldie to combat this notion that a rater can say “We denied you based on this”. Most recently, since 2/19/2019, if you resubmit anything new into evidence, they merely move sideways and change the logic for the denial to comport with defeating your new contention. Litigators used to combat this inane propensity with Martin v OSHC in the past.  This is why McWhorter now has more “punch”. It’s been sitting in the CAVC basement almost 30 years and rarely cited.

MacWhorter_90-935a

MacWhorter_90-935b

The accepted legal essence of McWhorter generally overlooks its extra inferences. Here’s the gist.  Let’s say you file a claim for Hepatitis C and claim alien abduction s/p brain transplant as one of your risk factors (in addition to the accepted HCV risk factors). The Secretary says it (the Hep C) isn’t related to jetguns, shared razors, unsafe sexual practices or shooting up with shared syringes. He says you were born between 1945 and 1965 and that’s what probably did it. However, let’s say he fails to rule out the alien abduction and artificial brain implant with unsterilized alien surgical implements as being the risk factor. On appeal you win because by not specifically denying infection of Hep C predicated on that risk factor, the Secretary essentially concedes the risk. That’s a very simplified explanation…

MacWhorter v. Derwinski, 2 Vet.App. 133, 136 (1991). “Yet,[w]here [an] appellant has presented a legally plausible position . . . and the Secretary has failed to respond appropriately, the Court deems itself free to assume . . . the points raised by [the] appellant, and ignored by [VA], to be conceded.”

see also Mari v. Shinseki, No. 08-1175, 2009 U.S. App. Vet. Claims LEXIS 1545, at *4-5 (Vet. App. Aug. 31, 2009) (nonprecedential) (“[T]he Court deems conceded ‘points raised by appellant, and ignored by the [Secretary].’”).

Now, I’m not saying being abducted by aliens is a viable, credible risk. I merely use it as a off-the-wall humorous example.  Look further.  How about once the Secretary says your claim for bladder cancer is not related to your exposure to Camp Lejeune water contamination, you bring out the direct service connection path and say working in the motor pool with excessive benzene exposure did it. VA can’t keep changing positions. Once they fail to plug a hole (read rebut) on a reasonably filed claim for benefits, it’s fair game. If they focus on the presumptive and ignore the direct, you yell Combee v Brown and hand them an IMO. Bingo. You’re a chicken dinner winner. Hart v. Mansfield/ Mariano v. Principi/Kahana v. Shinseki and its progeny prevent them from chasing down a Hoodoo Lane in search of a pliable VA examiner willing to accept 30 pieces of silver to rewrite a viable denial. Correction. It’s probably more like 36 pieces of silver due to COLA nowadays. I love Hart:

Mariano v Principi, 17 Vet.App. at 312,  states that it “would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant’s case.”  This single sentence, although rendered without further explanation, states a broad, general proposition, that was revisited by the Court in Hart v. Mansfield, 21 Vet.App. 505 (2007). Hart stated that additional development is not permitted “if the purpose was to obtain evidence against the claim,” and further noted that if the evidence was insufficient to make a decision on the claim, then the Secretary was required to obtain a medical examination. 

Even though the presumption of regularity of VA doctors is protected by Sickels v. Shinseki, as a litigator or a DIY pro se claimant, you should be begging for Chevron deference and  make the Secretary choke on his own 38 CFR. Never ignore Chevron. It can be your huckleberry in a lot of instances.

Justice Mary Schoelen w/ author

At Fall NOVA, during the Friday evening Adult Beverage Consumption Hour post-conference, I asked Judge Mary Schoelen what she considered her most famous legal contribution to Veterans Law. She confided that there were so many it was hard to pick a favorite. I get that. When you have 15 years devoted to the betterment of Veterans Law, it can be a daunting task to pick only one.

Distilled to its essence, my 10 personal favorites which I use  religiously, are the ones which confer lay credibility (Layno v. Brown), sympathetic development (Moody v. Principi), inferior legal assistance (Comer v. Peake), reasonably raised claims or arguments (Robinson v. Peake), agency deference(Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.) , you’re not a doctor so why would VA grant you that distinction when they don’t in Layno? (Clemons v. Shinseki), maximizing SMC (Buie v. Shinseki/Bradley v. Peake), going for the highest and best rating attainable (AB v. Brown)  and lastly the correct reading of 3.303(b)-[T]he regulation, 38 CFR §3.303(b) requires continuity of symptomatology, not continuity of treatment) (Wilson v. Derwinski) . I have more but these are my go-to barn burners. And of course McWhorter.

Patricia McWhorter’s epic saga is becoming ever more useful now based on the recent  proclivity of the Secretary to change or alter his decision rationale on your claim after the  initial denial in the subsequent 0995 Supplemental claim denial. It’s becoming ever more difficult to keep the claim/reopening on point short of filing a VAF 10182 NOD and taking it up to the BVA. Even then, I recently hit the wall on this with VLJ Cherry Crawford. She refused to talk about tinnitus secondary to getting blown up by a 60mm Gook mortar round. The logic? Why, he didn’t file for tinnitus. He filed for perforated eardrums (bilateral). If he wanted SC for tinnitus (which he couldn’t even spell), he should have said so. No tickee-no laundry. So what if he stated at the C&P exam that “I have ringing in my right ear”. So what if they noted in the EENT exam four days later that he indeed did have tinnitus. No dice. He didn’t file for it. No sympathetic development here. Move along. Nothing to see, folks.

VA Justice should not require a VA lawyer in our nonadversarial, Veteran-friendly ex parte justice system. If your records show a clear causation for your ills in service, you should not have to engage in a 5-year battle over acute versus chronic. My greatest joy was finding Caluza v. Brown and the VA’s Rosetta Stone for winning my claims. This is why I enjoy such an incredible win/loss rate (1500-ish/2). An IMO is like an American Express card- Don’t leave home to litigate without one.


Pour votre amusement:

Posted in All about Veterans, Appeals Modernization Act, CAVC Knowledge, CAVC/COVA Decision, Humor, Inferred claims, Informal Claims, KP Veterans, SMC, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , , , , | 9 Comments

Pres. Trump spends Thanksgiving in Afghanistan with the troops

Posted on November 28, 2019 by Laura

Today, let’s forget politics!  This trip is a welcome morale booster for tomorrow’s veterans.

Presidential Proclamation on Thanksgiving Day, 2019–released 11/28/19.  (LINK)

….This Thanksgiving, we pause and acknowledge those who will have empty seats at their table.  We ask God to watch over our service members, especially those whose selfless commitment to serving our country and defending our sacred liberty has called them to duty overseas during the holiday season.  We also pray for our law enforcement officials and first responders as they carry out their duties to protect and serve our communities.  As a Nation, we owe a debt of gratitude to both those who take an oath to safeguard us and our way of life as well as to their families, and we salute them for their immeasurable sacrifices….

Happy Thanksgiving, Laura (Kiedove/Guest author)

Posted in Uncategorized | 3 Comments