Phú Hội –THE 128TH AVIATION CO. (ASSAULT)

Posted on August 25, 2019 by asknod

First of all, I wish to state that I am a person of color in addition to being an American citizen. I’ve been wanting to say that ever since they reminted the word ‘racist’. Look in the mirror. We are all persons of color. Here’s a cool story about my neighbor, Ed. We knew each other from way back in the 90s long before we finally realized we were both Boots on the Ground brothers. That happened about the time I won 100% in 2008. Today, we welcome Ed into the 100%er’s club. It took far longer than I would have ever expected and the B40 that got things moving was none other than the White House Hotline. Pop a cold one and sit down.

Ed signed up in ’68 and took the 67P20 MOS rotary wing repairman course in AIT. Next stop was Germany. He re-upped after a year and promptly drew a winning ticket and an all expenses paid vacation at Phu Hoi for a year with the 128th Tomahawks. He said one of his high points was flying the old D models. They tried to egress a hot LZ one afternoon with 9 grunts in the back. The Peter pilot pulled hard pitch to get moving and dipped forward a little too much too early. The rotors barely touched the dirt in front but it was too much. They barely made altitude and promptly lost pitch. Ed’s unbroken record of an equal number of takeoffs and landings went down the drain about 30 seconds later… outside the perimeter of the by now very hot LZ. They splatted into the tree canopy and toasted the Huey. Everyone made it to the ground and waited it out with the gooks all around them til the next morning to egress and hitch a ride out.

Phu Hoi Airpatch, RVN

Come on. To a VA rater, an M 60 isn’t really that loud if you have your flight helmet on, right? Wait a minute. Flight helmet? Like in aircrew? Huey jet engine scream? So how did the hearing loss claim fly out the window for the next eighteen years? Remember, Ed’s a combat Veteran. He has an ACM and an Air Medal.  §1154b  Combat presumption? Anyone? Or Moody and the sympathetic development of his claims?

I met Ed through another fellow who did my dirt work sometime back in the 90s. Unbeknownst to me, Ed began filing in 2001 for what was obvious- PTSD, skin conditions, hearing, headaches, peripheral neuropathy and persistent urinary tract infections. He managed to snag a 30% for Bent brain for a few shekels in 2003. In spite of filing for hearing loss, he kept coming up with a dry hole. Seems like DAV wasn’t up to speed on filing him for bodacious tinnitus. He knew he had it just like we all do except he didn’t get his from an IBM Selectric typewriter while flying a desk. He didn’t have a name for it and VA (and DAV) weren’t going to help him sound it out with Phonics™.

After his heart attack in 2005, he got 60% for IHD. He did all this with little or no help at all. We got together after I began legally helping folks here locally in late 2016. I filed his increase claims for the bent brain, IHD increase and tinnitus on 3/10/2017 and went ahead with a POA ahead of time just to be street legal. VA countered with an increase to 50% for bent brain and 10% for the ear ring …but reduced his IHD back to 30%. It resulted in a push- he stayed at 70% but it pretty much screwed up any chance of TDIU. I think that was their plan from the outset.

This “file and get reduced” game is a classic VA scare tactic. Most Vets- and most certainly their VSO representatives-always shit in their shoes when Vets go up for increases that put them in range of TDIU. They’ll even tell you how VA will take it all away from you if you get greedy. My guess is his own rep. probably told the VA rater they could get away with it. I’ve seen them argue against their client’s best interests more than once.

This is where we took off the nice guy gloves. We filed 12/7/2017 and got to work assembling a bulletproof NOD with a heart record showing LVEF below 50%. His private doctors  agreed it was really 49%. VA predictably had said 55-60%. And then the wait began. We’d asked for an increase on the bent brain to 70%, restoration of the IHD back to 60% and TDIU… and all we heard was crickets.

I’d call the DRO up in Boise every six months and ask whazzup with Ed? More crickets. I started asking my CMA Tina if she could jar it loose to ratings. No dice. Even more crickets. They were sitting on this like a constipated hen. The standard wave off was “We take every claim in the order it is received. Tell Ed he will just have to put on his big-boy pants and suck eggs for a while longer.” I didn’t buy it.

The White House Red Carpet Treatment

Last week, Ed called and said the savings account was getting a little skinny and how could we get this puppy rolling. I noted it had been twenty months-608 days. Considering we Vietnam Vets are at the top of the pile for priority decisions right behind the last WW2 guys and the Korean Boundary Dispute Vets, we should get top-drawer service.  The VA says 535 days right now is average for a SOC or a favorable grant on appeal. I suggested we take off the nice guy pants and supplied him with the White House Hotline Number ( 1-855-948-2311).

Ed called the WHH Monday morning, 8/19/2019  at 0800 sharp. And here’s where the bullshit gets pretty deep. The booth bitch took the complaint and promised to look into it with VA. Count ’em. Tuesday, Wednesday, Thursday go by. Friday morning at 0923 hrs, Sheila from Boise calls me and introduces herself. We exchanged pleasantries about the weather and confirmed my POA. Sheila tells me they had blisters on  their fingers nigh down to the bone diligently working Ed’s claim since (gasp) 8/14/2019. It seems they had gotten a nasty inquiry Monday the 19th about an alleged delay. Sheila wanted to assure me that was not the case. No siree, Alex. In fact, miracle of miracles, they’d been burning the midnight oil all week long and  just finished promulgating  his decision with a “favorable grant” and wanted to know if I would waive the 72-hour hold (sight unseen) to review it. I guess she thought I was a room temp VSO. I had VBMS online and pulled him up on the screen. Sure as shit, there it was. I played dumb about VBMS and said as long as it was “favorable”, I’d blindly agree to the rating in full and told her to push print. Of course, that would be against the law not to consult with Ed, but since I could actually see it was a real 100% P&T grant and not another bait and switch, I agreed.

The bullshit factor here is I can see every note and every action the raters take on any day, and often the hour and minute they take it. Ed’s NOD had been as cold as a dead mackerel in winter. There hadn’t been so much as a fingerprint on it since it was stored in VBMS on 12/17/2017. The note in “Go to Work” files said “initial development- NRTR (not ready to rate).” The truth is simple. Somebody looked it up and realized they had blown the suspense date for ackshun by about six months. But remember, VA employees do not lie. Never. Verboten. This is not the first time it’s happened. Since few of us have access to VBMS, they think they can blow smoke and we’ll just be no wiser forever.

I promptly put on my ignorant hat. Being a civilized litigator, I thanked Sheila dearest profusely and begged her to overlook my client’s incredible lack of tact, rudeness and impatience and his uncalled for WHH faux pas. Boy howdy, he sure hadn’t run it by me ahead of time or I would have forbidden it. Trump has a lot on his plate right now trying to buy Greeenland. Since she had promised the decision granted everything we wanted, I assured her we wouldn’t darken her door again. Well, not soon anyway. I’m sharpening up the SMC punji sticks as we speak. What about TBI for that unscheduled Huey landing in the upper canopy?  Jeopardy, anyone? I’ll take headaches for 50%, Alex.

No Mo’ Dough

An addendum to this.  It’s apparent VA has run out of dough for the current fiscal year ending 8/31/2019. The reason? I’ve been watching the posture of my oldest clients’ claims-including Ed’s-and the delay in adjudications is getting embarrassing. I have a Navy Vet over in Allyn, WA. He’s a SW Asia Vet from the Iraqistan misunderstanding so I get it if he isn’t at the front of the line. The problem is VBMS shows him RFD (ready for decision) on 3/18/2019. Do you mean to tell me with the National Work Queue (NWQ) in high gear, they can’t find someone to write this decision? It’s not a crapshoot. I got him a dynamite IMO for bent brain and they’ve been chewing on pencil erasers like bubble gum for a year trying to rebut it. He is just one of about eight or nine others in the same RFD status. VA doesn’t appear to have any money and their litigation posture seems to be “wait until after 9/01/2019”. If it goes past then, the WHH is going to really get some traffic.

I’ve also suggested you folks doing this yourselves (pro se) to let VA deny you before you go on the offensive. Let them show you their denial hole cards first. It’s easier to rebut the denial and argue each one of their reasons than to send in an IMO and let them eviscerate yours first.

Rope-a-doping the VA

I described this on the last Hadit.com radio show a few weeks ago. Remember (if you’re  my age) in 1967 when Muhammad Ali (born Cassius Marcellus Clay Jr.) went up against Sonny Liston? Ali did a “rope-a-dope” defense for five rounds and let Sonny bounce him off the ropes. He let old Sonny get plumb tuckered out. In the sixth, he came out and gave him a right cross to the noggin and TKO’d him. This is how you want to win.

Here’s my rope-a-dope defense. I file the bare minimum to begin with. I gladly fill out the VAF 21-4142s and send them in with all the info. Have you ever wondered why, after you do all that, the private records never get into your files? Newsflash. VA will not pay your providers for your private medical records. When the VA calls and says

“What’s the deal? We asked for JohnnyVet’s records and you haven’t coughed them up.”.

The transcription office assistant says

“Sure. That’ll be $151.63- payable to CHS for Mr. ____________’s medrecs.”.

VA says

“Sorry, no dice. We don’t ever pay for them, ma’m.”

Ms. Transcription assistant promptly says “No problem.  We don’t ever hand them out for free either. Ta Ta for now.”

You get denied and never know they didn’t obtain and review those requested files unless you get your c-file. That usually happens about six months after you lose and ask to obtain a copy.

My time-proven technique seems excellent-even more so with the new, improved AMA system. Unless you’re filing for a missing foot due to an IED and there’s absolutely no reason on earth to deny, it’s pointless these days to construct a beautiful 20-page brief explaining why your client is entitled to Hep C and you have all these wonderful cites with Internet links and 8 1/2” by 11” glossy photos in color. Let VA show you their two pair. Get the IMO, if necessary, and only then lay down your full house.

Here’s Ed’s brand new rating. The best part is his daughter is still within the magic age limit to get free college under Chapter 35 DEA benefits. I guess the thing that eats me is the interminable delay that increased my representation fees. VA could have had this thing out in January 2018 after everyone’s hangover had subsided. So much for nonadversarial.

Ed redacted 100%

Check this one out if you wanted to know what”air assault” looked like in Vietnam.

Or this:

https://asknod.org/2016/08/01/the-sound-of-a-huey-then-and-now/

 

 

Posted in 1154(b) combat presumptions, Agent Orange, All about Veterans, Humor, KP Veterans, Tips and Tricks, VA Agents, VA BACKLOG | Tagged , , , , , , , , , , , , , , | 2 Comments

VA’S AMA–I THINK I’M TURNING JAPANESE AT LEAST I THINK SO

Posted on August 21, 2019 by asknod

Great song and so à propos with the VA’s new Appeals Management Act (AMA). It seems no matter how hard I try to use the correct forms for filing, some VA jackwagon with a room temperature IQ and zero English comprehension will inform me it’s the incorrect form and insist I refile using what he purports to be the correct one. Well what the hey? There are only two possible forms you are permitted to employ. It gets humorous when you refile and they tell you a second time it’s still wrong. Today I’ll also tackle another quandary that upset me greatly and allow you all to vote on how arrogant I am (or appear to be).

WHICH FORM TO USE

With the inception of the AMA, VA has dumbed down the filing system so even Mojo, Homer Simpson’s pet monkey, can do this. Or so we thought. I’m a member of NOVA. They have a private page for us to communicate rant about our problems on all matters VA. One plaint I see over and over again is the one I mention above. It seems incongruous that we advocates are now always out of lockstep on what VA wants. As I mentioned, there are really only two choices now. The venerable VAF 21-526b has been relegated to the dustbin of VA history. Using the VAF 21-4138 was outlawed March 25th, 2015 (see §3.155). Amazingly, I  see VSOs were still using this well after 3/15/15 in VBMS with little or no flak from VA Poohbahs. God forbid we VA ambulance chasers tried to do this. It would have been instantly rejected. We’re supposed to know better.

The 526EZ-Yes or No?

As of February 19th, 2019, the only form permitted to be used to file an original claim-i.e. a claim you have never ever filed before- is the VAF 21-526EZ. I wish to thank that Secretary who reduced the 526 from it’s original 26 pages down the present 5. It’s still a bit unwieldy when you are filing it (again) for the Veteran’s fifth new, original claim. Let’s be serious. How many times do you need to capture the data of when you entered, when you separated, which branch you served in and whether it was active or reserve? Trust me when I say if you forgo even one of these metrics in spite of numerous prior submissions of same, it will come back like a boomerang in a week. And, dear Lord, please be sure you annotate each time that you have not been a prisoner of war. Apparently, they need to constantly update the c-file just in case you disremembered that hard time you spent at the Hanoi Hilton back in ’70-’73.

The 20-0995-Yes or No?

Conversely, if you have ever filed for a “condition” in the past and been denied, you must absolutely use the VAF 20-0995 Supplemental Claim form to “reopen” it. Likewise, if you have ever asked for an increased rating for a service connected (SC) condition, you may only use the 995. This gets interesting when I file for a brand new secondary to the original SC condition. The VA compensation gears come to a screeching halt and they reject the 526 as the incorrect form. Where this all gets terribly distracting is when you refile with the 995 and they again reject it by saying you already filed a 526 for this and can’t file twice. I call that the Joseph Heller response (Catch 22).

I think I’ve found the repair order for this and don’t mind sharing it. Due to the impaired IQ of the VA intake chowderheads, we apparently need to instruct them on why we are using the form we are submitting. I do this by including a little blurb in Box 13A under “Specific Issue(s) on the 995 or Section IV, Box 16 on the 526EZ stating:

“Veteran now files his supplemental claim for _____________ condition on the prescribed VAF 20-0995. Veteran filed for this on _/__/____ and was denied.”  Or…

“Veteran now files his supplemental claim for for an increase for his _____________ condition on the prescribed VAF 20-0995. Veteran previously filed for this on _/_/____ and was denied (or granted).” Or…

“Veteran now files his VAF 21-0526EZ for ________. This is a brand new condition which has never been filed for and VA requires it be filed on a VAF 21- 526EZ by operation of law.”

This forms insanity doesn’t stop here. VA came out with a new VAF 21-22a in 2018. It’s ever so slightly different than the older 2015 version. Woe betideth any who use that older form. Yes, folks. They will reject it. This also creates a damning domino effect on your attorney/client fee agreement. By law, if you don’t file both documents within 30 days of one another, the fee agreement is null and void. Oddly, your POA representation will remain intact. You’ll discover this problem when you win on appeal and VA refuses to hold back the 20% and pay you. At this point you are at the mercy of the client as to whether you were working for free or get paid.

Arrogance

I confess. I went to an all boys Preparatory School- Vermont Academy. It’s a good thing they didn’t go coed until after I graduated or I might have married early on. By the same token, I guess I’m condemned to being one of those indicted for White Entitlement. I disagree. I was incarcerated there for three years because my father went to Vietnam and my mother refused to let me reside with her. I graduated 59th in a class of 64 so no one can say I was trying to be snooty. I never did get to go to college for a number of reasons so no one can call me uppity or over-educated. In a word, I’m like the majority of my fellow enlisted Veterans. My only claim to something unique was an excellent education and a multilingual mother (French). It gave me a broad, multisyllabic  vocabulary. A good education should not, in and of itself, condemn you to being considered arrogant or prideful. Being smarter than the average bear is not a crime.

I have learned over the years that being able to articulate and convey what you seek is essential to VA litigation. As we all know, you can file for DM II and cite to peripheral neuropathy in all four extremities. With the new AMA, chances are you will  receive a denial that it wasn’t in your 1970 STRs and you would have been required to file for it within one year of leaving Vietnam. Aruu?

Recently, I was on another Veterans website where I offer advice. I was politely (as possible) trying to explain the difference between asking the VA to fix an obviously flawed decision versus filing a CUE claim. In a nutshell, you cannot file a Motion to Revise a “live” claim. A motion to revise can only be filed in conjunction with a finally decided claim. The operable word here is final. As in dead in the water. As in unappealed or past the one-year suspense date. Do you think I could communicate that concept to the parties I addressed? I was summarily informed I am rude, abusive, lower than whaleshit, arrogant, overbearing and not one soul likes me. Apparently, the others who find me distasteful were just too polite to say so. In fact. I am so despised there that I should roll up my prayer rug and go home. Well shoot. I apologized for coming across that way and begged for forgiveness but was thence informed that my apologies were shallow and meaningless, my advice was incorrect and I shouldn’t hold myself forth as an attorney. The list was far longer but you get the drift.

Here’s the gist of what began this. I attempted to teach CUE but was met with a refusal to accept my interpretation of §3.105(a) Revision of Decisions. Granted, when someone offers advice that is incorrect, I tend to step in and fix it. If the offender is is ignorant of the law and insists on propagating his errors, I sometimes become sarcastic:

Thread

 

[Redacted] states:  “I have to respectfully disagree, if I would have followed this advice verbatim I would not have filed my CUE and won it.” Sure you would have. You could have sent in a letter and said “You screwed up my rating decision. Please fix it-pronto.” Calling the color red black doesn’t make it black just as calling an error CUE doesn’t make it -ipso facto-CUE.

I read over your entire thread, sir. You mentioned that the award “correction” failed to mention the phrase ‘CUE’. This is exactly what I am saying. It is not a true CUE until it is poured in concrete (unappealable). That is why there is no mention in your award letter of any admission of CUE. It is also why [redacted] will never see any admission of CUE-if and when he prevails. VA makes errors all the time. We all know that. Are they CUE? Yes, in a colloquial sense but not a legal sense.

As for the comment our esteemed contributor [redacted] submitted in [redacted]thread : “38 USC is built on 38CFR which is built on Public Laws.”, you may want to go back to law school, sir. I, too, got a good belly laugh out of that chestnut. I also liked your comment about the “First Circuit” (We also know the BVA, CAVC, and First Circuit frequently take a dim view of that habit.). I’m going to assume you mean the Federal Circuit which is identified as “F.3d” on legal cites. Do tell. Where do you come up these legal revelations, sir?

I have said this repeatedly but it bears reiteration. Any here who essay to offer legal advice with no legal training can make matters worse. The legal axiom for doctors is  “First, do no harm.” [Redacted] (and many others of you) have learned quite a bit of VA law and some are even well-versed in CUE. I admire all of you for that. All of you are also free to disagree with me and I take no offense but I do ask that we compare apples to apples and not oranges to orangutans. I will repeat- [redacted] did not have a CUE. He had an adjudications error that was subsumed by a corrected ratings decision granting his TDIU. That, folks, is not a Motion to Revise. You cannot cite to §3.105a. The error was corrected before the appeal period expired. In VA law, as in any kind of law, proper semantics (i.e. legal terms) are the defining rule. One who files a Motion to Revise is not a Veteran, a claimant or an appellant. S/he is a “movant”. Feel free to bandy about the term “CUE” as much as you want but simply realize that until your time to appeal a decision runs out, it’s an “adjudication error” and nothing more. You can always resolve it just as [redacted] did-without resorting to a CUE filing under the auspices of §3.105(a).  And for the record, I strongly advise no one to use a HLR for anything-even an attempt to “fix” an incorrect rating.

VA will accept a CUE filing but may not CEST (VA term for “claim established”) it if it is not a true CUE. It depends on the rater and the VARO. Most will now, after the new AMA inception, refuse it and tell you to use a 996 HLR.  Best of luck and I mean that sincerely. If I could, I’d represent everyone on this forum before the VA. Unfortunately, I do not have the time. Besides, there are quite a few VA Agents in-the-making here who should apply for accreditation. Any one of the regulars here has 10 times the knowledge of a VSO service representative.

This provoked a contributor to opine on my obtuse personality:

“we all know you are proud of yourself. you make that plain. you also spend an inordinate amount of energy trying to belittle others, be intentionally insulting, prove (apparently to yourself) that you think you are smarter or better than others, and of course extol the (self-believed) superiority of AskNod. 

It is unattractive and unhelpful. In fact many of your attacks on other posters are childish and down right harmful.

If you don’t want to be helpful that is your business, but attacking others needs to stop.

As I understand it the focus of this site is to help and support other veterans. Your bile is the exact opposite.

Have a nice life living in your self aggrandizing echo chamber.”

Well, anyone who knows me would understand I couldn’t just let that one slide on by…

I did apologize in a round about way…

I apologize if I came across as superior in any way. I have a sarcastic streak and it appears it offends some.  I have studied how to win claims for 30 years. I have been bringing that knowledge here free to all who ask for it now-both here at Hadit and my own site- for over 10 years. I am not proud of myself. I chose to help other Vets the best way I knew how. I chose to learn VA Law and become a litigator rather than just sit here offering advice. Don’t confuse pride with commitment. The only thing I’m proud of is being admitted to practice at the CAVC without a Juris Doctorate. Only 46 have been accorded that honor. I’m proud of my three combat V’s for Valour above and beyond the call of duty in less than 2 years. If anything, I’m proud I managed to survive two tours back-to-back in Laos and Vietnam. Many of my friends didn’t. That’s why I predominantly serve Vietnam Veterans before the VA.  If you (or anyone) offer bogus advice, why sure, I feel it needs to be challenged. Do you suggest I just let you keep on misleading Veterans by pretending to be knowledgeable about VA law?  In your own words sir- As I understand it the focus of this site is to help and support other veterans.

Let’s cut to the chase sir. If I offer poor legal advice to my client and act on it causing my client to lose, the OGC will revoke my accreditation-forever. If you offer poor legal advice and the Veteran uses it to his or her detriment, you are free to just enter a new claim thread and continue offering more of the same. In short, you suffer no censure or consequences. My attempt here was to clarify what is, and what is not, CUE.  I merely try to correct that error using real legal cites and precedence. I will continue to gladly suffer your insults if it helps even one more Veteran succeed.

I helped over 750 Veterans attain a minimum of TDIU or 100% before I became accredited in 2016. Free. No charge. I did all the work and wrote the legal briefs-and not because I’m proud of myself. It’s satisfaction in a job well done. And, might I add, correctly done. As we live in America, you have a right to your opinions but you do not have a right to recklessly interpret VA law incorrectly. That is the crux of your problem with me. This isn’t about pride.

It saddens me when someone runs out of legal or logical arguments and finally resorts to hurling insults. That generally indicates they have no more cogent rebuttal to offer. Accept my profound apologies if I upset you. Were you to familiarize yourself with VA law,  I wouldn’t need to correct you nor apologize. I respect you as a Veteran and my motives are simple-to ensure you and others win. My advice was aimed solely at that metric. By my estimation, you are positive you are right. Had you been right, [redacted]rating narrative would freely admit a clear and unmistakable error had been made in his decision. VA is not adverse to admitting CUE. See attached below as proof of my statement.

When CUE exists, it is recognized-not glossed over or ignored in a VA ratings narrative. If you (or [redacted]) think the VA examiner just “forgot” to include the CUE discussion in [redacted] decision, you are sadly mistaken.

These rejoinders below, to me, indicate a possible medication management problem. I try to avoid a knock down, drag out fight when dealing with Veterans suffering from MDD. This is why I generally try to be gracious and apologize. This gentleman wouldn’t have it…

On 8/18/2019 at 3:28 PM, asknod said:

It saddens me when someone runs out of legal or logical arguments and finally resorts to hurling insults.

yet you do it with regularity.

  On 8/18/2019 at 3:28 PM, asknod said:

I have a sarcastic streak and it appears it offends some.

it offends almost everyone, and you know it.

  On 8/18/2019 at 3:28 PM, asknod said:

free to all who ask for it now

in this thread no one asked you. but you chose to start insulting the OP and then others in the thread.

  On 8/18/2019 at 3:28 PM, asknod said:

I apologize if I came across as superior in any way

you come across as arrogant, angry, tiny, insecure and as a bully.

  On 8/18/2019 at 3:28 PM, asknod said:

my own site- for over 10 years

i [sic] have tried to read your ramblings. The constant barrage of insults, snark, and down right arrogance make it difficult to get through more than a paragraph at a time.

  On 8/18/2019 at 3:28 PM, asknod said:

become a litigator

litigator is a term typically reserved for attorneys, but your choice of that word fits into what is an apparent desire to have the title of Esquire without going to law school.

  On 8/18/2019 at 3:28 PM, asknod said:

Do you suggest I just let you keep on misleading Veterans by pretending to be knowledgeable about VA law?

I have mislead no one. you however keep trying to apply the rules of the BVA and CAVC to a claim at the RO. You like to throw around terms like RIPE yet it appears nowhere in the rules of the RO and how claims are adjudicated at that level.

You cannot produce a single RO level CUE that was rejected for not being Ripe.

  On 8/18/2019 at 3:28 PM, asknod said:

If I offer poor legal advice to my client and act on it causing my client to lose, the OGC will revoke my accreditation-forever.

yet you are not allowed to offer legal advice to non-clients as you frequently post to dodge answering questions….so what you offer here could not be legal advice or you would be endangering your own credentials.

  On 8/18/2019 at 3:28 PM, asknod said:

If you offer poor legal advice

I am not offering legal advice. I am offering an opinion on structure, format and content. If you had actually read and comprehended what I wrote…where your ego did not get in the way…you would have noticed that….but then that would not allow you to justify your attempts to bully and brow beat others as you crow about your own ego.

  On 8/18/2019 at 3:28 PM, asknod said:

I helped over 750 Veterans attain a minimum of TDIU or 100% before I became accredited in 2016

Like one of Trumps claims, there is only your grandiose claim. I am sure you have had good suggestions for others who have been successful, and that is good. Your ego and your mouth however detract from any good you might once have done.

  On 8/18/2019 at 3:28 PM, asknod said:

right to your opinions but you do not have a right to recklessly interpret VA law incorrectly. That is the crux of your problem with me. This isn’t about pride.

once again an incorrect pronouncement by King Alex. I have not interpreted any VA law. I have said I believe he has a CUE but I don’t have time right now to review everything he posted. I also suggested to the OP that he file his appeal now, and work to perfect his CUE… note to your ego IT IS HIS CUE. not yours and he is not your client.

The crux of my problem with you is I don’t like bullies.

  On 8/18/2019 at 3:28 PM, asknod said:

That generally indicates they have no more cogent rebuttal to offer

yet as your wrote this you searched for more ways to insult people. You remind me of all those people who like to stir up drama and then claim their innocence. Beyond being a bully you are dishonest about your own intentions and actions.

  On 8/18/2019 at 3:28 PM, asknod said:

Accept my profound apologies if I upset you.

Your apologies are as shallow as the way you present yourself in your postings. But be aware of a real fact. You don’t have the power to “upset” me. All you are is an irritant, like a flea.

  On 8/18/2019 at 3:28 PM, asknod said:

Were you to familiarize yourself with VA law,  I wouldn’t need to correct you nor apologize.

You have no idea what I am familiar with and as for correcting me it is not your job, nor is it your right to insult people and expect they will not respond. All your complaints amount to your ego being bruised and like the beaten junk yard dog you want to bite something.

  On 8/18/2019 at 3:28 PM, asknod said:

My advice was aimed solely at that metric.

your advice amounted to insulting the OP, others, and then me. You tried to use non-applicable terminology and standards not appropriate for a CUE at the RO. Under your claimed finality rule no veteran would ever be able to file CUE at the RO until they reached SCOTUS or let their claim go for a year so the decision became “final”, which under AMA would mean they lose any chance at an EED for the claim under the normal Appeal Process.

  On 8/18/2019 at 3:28 PM, asknod said:

By my estimation,

that is a fatal and flawed tool at the very best. You demonstrate your lack of skill in that arena every time you try and insult people and then cry about how you are only sarcastic.

  On 8/18/2019 at 3:28 PM, asknod said:

Had you been right, [redacted] rating narrative would freely admit a clear and unmistakable error had been made in his decision. VA is not adverse to admitting CUE.

Considering he got is [sic] claim, this line is a joke. VA is most assuredly adverse to CUE or it would not keep touting it as a “rare” event no matter what the CFR says.

  On 8/18/2019 at 3:28 PM, asknod said:

If you think the VA examiner just “forgot ” to include the CUE discussion in [redacted] decision

I don’t believe they forgot, I just questioned why it was not there. Your claim is the rankest speculation on your part. You don’t know either.

———————-

Let me be clear Alex, you might have something to offer, yet you bury in vitriol and childish bullying. Your attitude and ego are on full display. Your arrogance is abominable.

This post of your is just more proof you are not man enough, adult enough or reasonable enough to just get out of your own way.

If you don’t agree with things I post, that is fine. Say you don’t agree. Just don’t have temper tantrums and insult people for your own self-amusement. it is unhelpful to other veterans and just demonstrates what a tiny, arrogant, bully you can be.”

This gentleman claims to be knowledgeable about VA law. He claims he’s a combat Veteran. Looks like a job for “This Ain’t Hell but you can see it from here.” 

So, this tiny 5’9″ arrogant bully asks you. Here’s a poll. You folks vote on it. I don’t even care if you stuff the ballot box Chicago-style. I’m sure not looking for sympathy. I started wearing big boy pants early on.  Give me your unvarnished opinion. If I am a total dick, at least have the decency to let me know. Hell, you can even leave in-depth comments on how horrible I am at the bottom below this post. I’m on a “Mission from God” to help Veterans (to plagiarize John Belushi). The man who says it cannot be done should not interrupt the man doing it (to plagiarize a Chinese proverb).

And that’s all I’m going to say about that.

 

 

 

 

 

Posted in Appeals Modernization Act, Complaints Department, CUE, Food for thought, Humor, KP Veterans, Stolen Valor, VA Agents, VA AMA appeals knowledge, Veterans Law | Tagged , , , , , , , , , , , , , | 28 Comments

VAROs–LOOKING FOR ‘LOSE’ IN ALL THE WRONG PLACES

Posted on August 16, 2019 by asknod

Boy howdy do I love litigating. I read recently that VA litigators experience a lot of angst, depression and despondency. I guess I get some of that when your Vet is dying and you’re just hoping to get it done so he can pass on with less worry. I won one like that last year. Bob passed on July 1, 2018. I got Seattle to grant 100% (but not P&T) on the 19th of June. It’s a battle for DIC now. We’ll win. We always win. Today I write of two dissimilar cases but with the common thread of inept misconstrual. The first is a bald attempt to shitcan a Vet’s appeal we’ve been nursing along since 2010. He began in 1986 and carried the water to 2010. I began helping around then. Before I could be accredited he signed with a NOVA friend. Charlie is retiring and handed him back to me. The second is a daisy. VA is trying to insist my Vet is an inmate in a Texas jail and illegally collecting more than his truncated allotment of 10%.  

Johnny Vet #1

Here’s the chronological fact pattern for Johnny Vet #1.

Jimbo (name changed to protect my ass) enlisted in the Marines and went to Vietnam as a grunt. It was pretty bad. A friendly airstrike took out a bunch of his buddies. He came pretty close to getting his name immortalized on the Wall in DC. He signed for a second tour but burned out at 20 months in country. Eating a hurried lunch sitting on the body bags of your buddies can do that to you.

He came home and spent a lot of time on the sixth floor (psych ward) of the new VA Medical Center in Seattle. By 1990, they had him on elephant doses of Thorazine… and about 15 other tranquilizers just to slow him down to 78 RPM.

Then the seizures began due to drug toxicity. So he filed for seizures secondary to his SC 100% Bent Brain. Pretty simple and inextricably intertwined. Harris v. Derwinski had just been decided so he was covered-right? Not. Seattle, on remand from the BVA to issue a missed SOC for the seizures, denied Jimbo and insisted he file a VA 1-9. Jimbo got the 60-day letter about 120 days later. His VVA rep had split for parts unknown. Jimbo knew a little VA law and figured he didn’t need to file yet another VA 9 so he wrote them a 4138 love letter explaining this. They took that to be a NOD objecting to them closing his appeal out as untimely. And off to the horse races they went. Jimbo filed about 10 more 4138s before he zoned out. Seattle kept rope-a-doping him until he gave up.

He kept filing for seizures through the decades and finally one last time in 2010.  And lo, one day in 2014 on appeal again, a VA examiner actually looked at his DD214 and noted he had a Combat Action Ribbon. Bingo. The Combat presumptive under §1154b kicked in and they gave him seizures for 100% effective on his filing date of 2010…but due to TBI.

He filed a NOD for the earlier 1990 date on a 4138 April 6th, 2015–just twelve days after the VA revamped §3.155. This meant he now had to use a VAF 21-0958. I got him lined out on that just in time and he refiled on April 20th, 2015 with just nine days to his one year suspense date. The VA accepted the NOD and it’s all there in the VBMS.

In March 2016, they suddenly said “Hold the phone, Ramone. The time to object to your 1990 appeal expired June 6th, 1992.” So, he filed another NOD objecting to them closing out his legitimate NOD from the April 28th, 2014 100% grant. Are you lost yet?

My attorney friend took over in late 2016 and tried to cut the Gordian Knot the VA had tied. He finally gave up on a formal DRO review and opted in to the RAMP program in January 2018 and asked for a HLR decision.

VA got around to this in March 2019-a year later(so much for Rapid). They mulled it over for a month and closed out the original legacy appeal because-hey- your appeal can’t be in both places at once. Now it was an AMA Higher Level of Review claim. VA promptly declared they could not do it in HLR because it wasn’t a compensation claim but rather an earlier effective date claim which was not in the HLR purview.

So they closed out the AMA HLR and poof. Jimbo’s  2015 NOD evaporated into thin air.  This is where I began sharpening punji sticks and fetched a shovel. I tried to get traction with my Supergirl  Change Management Agent  Tina here in Seattle. No dice. The Veterans Service Center Manager in Winston Salem VARO refused to budge. They were not going to fix it. I emailed a few hand grenades to Kimberley and let her know I was preparing the Extraordinary Writ. I also cc:’d Wilkie and the Head of the Appeals Management Office now called the Appeals Resolution Center (ARC). Mr. McLenachen was out on summer vacation and I got one of those “I’ll be back in the office on 8/12. If you’re thinking of committing suicide, please don’t.  Call Marge instead at (202)366-1234.”

So I bided my time. About August 5th, Kimberley finally returned my email and said “So I guess it’s too late to stop the Ex Writ. I reckon we’ll see you at the CAVC.” I sent another mail bomb over saying “Negatory, Kimbo. I’m just waiting for the ARC boss to weigh in.” And the next morning he  cc:’d “We’re looking it over.” This morning, I see a brand new EP 171 announcing Jimbo’s NOD of 4/20/2015 is legit and the suspense date for some Action Jackson on this baby is 8/25/2019. That’s only fair. Christ. The NOD is now four years and four months old. Problem solved thanks to the miracle of the VBMS. It tells you who owns it. And it has their phone number, too.

On behalf of the Asknod Corporation, my thanks goes out to Mr. McLenachen for being a man of his word. Two and half attaboys for cutting the  Winston Salem Gordian knot.

Johnny Vet #2

Johnny Vet number 2 was inches away from finally getting a five-year-old claim for Agent Orange presumptives from Thailand. We Thai Vets don’t get the AO presumptive regardless of what you heard. That was the Navy pukes who scored this spring. We still have to win them one at a time the hard way.

So I wake up one morning last week. The Claims Queue shows a transaction occurred. I see it’s Johnbo but instead of a 100% grant for Prostate there’s a prison report in Johnbo’s VBMS Documents section. Seems Johnny was arrested for peeing in a park in Texas back in 2010 out in the quasi-open. He got a misdemeanor ticket and was released the next morning. The charges were dismissed when he explained he had prostate cancer secondary to his military service in Vietnam, Laos and Thailand. As he was frequently incontinent, he tried to surreptitiously “let a little bit out” near a bush. There were no outhouses and it was about ten at night. Go figure America’s finest in Blue were out on a faggot perp patrol.

Check it out. Johnny Vet 2-2 redact

I had him call the White House Hotline and report that he just found out the prison report was in his VBMS efolder. I’m guessing those gals who work there at the telephone bank in West Virginia have heard everything. I bet it plum rolled down their socks to look in there and see he was right!

Well, faster than you can say Jack Robinson in VAspeak, I saw a note in there this morning that they had somehow figured this whole mystery out. Jimbo had never filed for anything until 2014. So he wasn’t collecting 60% while living the life of Reilly in the __________ County Jail for the last 9 years. No harm, no foul. Just a slight delay of eight days for nothing. Nonadversarial, you say? I don’t see it. Daddy used to say excuses are like assholes. Everybody has one and they stink. They were shopping for dirt which is against the law in the 56 Regional Offices across our fruity plains.

 

And that’s all I have to say about that.

 

Posted in All about Veterans, AO, Duty to Assist, Earlier Effective dates, Electronic Filing of Evidence, Humor, SOCs and SSOCs, TBI, Tips and Tricks, VA Agents, VA RAMP, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , | 3 Comments

HADIT.COM RADIO SHOW THIS PM

Posted on August 8, 2019 by asknod

Good afternoon, campers. Jerrell has asked me to once again join him and his merry band of Veterans on his Blogtalk radio program tonight. As usual, I am honored to be able to pass on my fractured faery tales of VA misdeeds and ways to surmount their foibles. 

 

Today’s show will discuss Independent Medical Opinions (IMOs) and ways you can obtain these letters without having to relinquish your firstborn male child. I was recently ostracized by a fellow VA litigator last week for what I surmised as offering my IMO services for far less than his. His argument was severely disjointed and I had a hard time with the run-on sentences and dangling participles. I finally asked Cupcake if she could decypher his bent.

My IMOs are authored by a group of doctors of various medical fields who work with Mednick Associates. The owner, Adam Taranto, is now a personal friend. He tries to help Veterans as cheaply as possible while still eking out a living. In this endeavor, he has succeeded beyond his wildest dreams. As I have mentioned, his doctors are able to do this for $1,500. In addition, they will opine on secondaries to the primary illness/injury at no extra charge-within reason.

Mednick’s last IMO for Hepatitis C and it’s residuals also included cirrhosis, esophageal varices and ascites (fluid buildup in the abdomen) at no extra charge to the client. The fellow VA litigator, who will remain nameless, feels I do the profession (VA attorneys and Agents) irreparable harm by charging such a paltry fee. What can I say? I feel it would be avaricious to mark up the cost of something I have no hand in. Moreover, if the fee is $1,500, that’s what I will charge-even if it upsets some of my fellow litigators.

As it is, when a Veteran approaches me for representation, I don’t ask for a bank statement of his checking and savings accounts. Many don’t even have $1,500 to pay for the IMO. In those instances, I pay for it myself out of pocket and ask for it back when we win. I have yet to have any renege on the fee.  But then we’re talking about Veterans-folks who agreed to serve their country knowing full well they risked bodily injury doing so. Seems they’d be stand up folks who wouldn’t sky out on a debt.

We’ll talk about that and anything else you callers dream up today. Showtime is 1600 Hrs on the westerly coast and 1900 Hrs on the easterly stretch.

The call in number is

347-237-4819 (push #1 to talk)

Thank you-all of you-for your service. I know that grates on your ears when some VA puke says it but I mean that genuinely. By the same token, I thank all you who have entrusted your claims to me and allow me to represent you. It’s a great honor and I do not take it lightly. As most know, I always answer or return your calls. I sure don’t want to gain a reputation akin to that of a Veteran Service Officer. Perish the thought.

Be there or be poorer for it. Here’s a link to the show:

https://www.blogtalkradio.com/haditcom/2019/08/08/hadit-podcast-with-guest-speaker-alex-graham-aka-asknod

 

 

 

Posted in 100% ratings, All about Veterans, Appeals Modernization Act, Humor, Independent Medical Opinions, KP Veterans, Lawyering Up, Tips and Tricks, VA Agents, VA Attorneys, Veterans Law | Tagged , , , , , , , , , | 2 Comments

VA SUPPLEMENTAL LANE–BEEN THROUGH THE DESERT ON A HORSE WITH NO NAME

Posted on July 19, 2019 by asknod

Fort Fumble, Georgia

Thank you Smoke. I needed a good tag line. A lot of us suffered for years in the era of Non A, Non B Hepatitis before they isolated it and gave it a real name. And, much like finally giving something or someone a name, an Independent Medical Opinion gives your Hepatitis C a name.  In VA jurisprudence, we call it service connection and with it comes a VA compensation check. Now for the back story on this horse with no name.

David and his wife began fighting in October 2014 to attain service connection for this beastly disease. Even after listening to me on Hadit.com radio shows and reading my offered advice, they were unable to come up with that killer Independent Medical Opinion (or nexus letter) that put this thing in the bag.

They had their representative file the opt-in to a RAMP Higher Level of Review (HLR) to  get a quicker win back in 2018 March. As fate would have it, their VSO rep. forgot to file it. This is one of those silver lining things but I’ll get back to that later. They kept going and all of a sudden it wasn’t a RAMP HLR at all but the BVA. Nobody explained it to them. Their rep had been fired about the time the RAMP opt-in was supposed to have been filed.

Fast forward to about 4/10/2019. David’s spouse called me and begged me to take this before it went up on the rocks. It went up on the rocks on April 16th, 2019 when the BVA Veterans Law Judge affirmed the denial of service connection. Unbeknownst to me, I filed the POA and it kicked in on 4/30- a wee bit late to help them.

We NOVA attorneys and agents just got the most detailed briefing available in March at the Nashville Conference. The new process is virtually untested at the moment.  The AMA is brand new. There is little data to study on success/failure vs getting a rapid decision on using the supplemental lane. There is endless conjecture whether VA would honor the AMA’s promise you can take the denied appeal back to the Regional level and file a supplemental claim with new and relevant  evidence-like a killer IMO. This avenue allegedly lets you avoid the Motion for Reconsideration at the BVA (which would easily take a year just to agree to a new decision) or the same one-year path to the CAVC but with no new evidence allowed to be entered. Much like untested ice, no one who walked out on it has come back to tell us if VA was lying -er- peeing on our collective leg and telling us it was raining. Looks like we’re good to go from this decision, fellow litigators.

My clients sometimes don’t last five years so I try to get the benefits awarded asap. The fee is not the reason we do this. With the new AMA, and the implication I could take the BVA denial to the Supplemental lane, win for the client … and preserve the effective date of October 2014 seemed like a bait-and-switch thing with more Catch 22s than a military enlistment form. To think I could pull off this gig in fourteen days was sheer effrontery. Look up ‘slow’ in the dictionary and there’s an 1899 picture of Gen. Custer’s widow holding up her pending 1876 claim for DIC.

So with great reservations, I launched a Supplemental claim on July 5th for reopen of Hep C due to jetguns and all the other risks. I submitted my brand new IMO from the medical wizards at Mednick Associates and 14 days later-i.e. today, July 19th- the narrative and the confirmed ratings sheet came out for 100% permanent and total. I was sure one of two things would happen. First, they’d say “Yep, you proved it was service connected, David… but only as of 7/05/2019 when you sent in that new claim with the IMO”. The flip side was they’d say “Yep you won but the agent doesn’t get any dough because this is a brand new “supplemental” claim. Your 2014 legacy appeal is final.” Shockingly, I was wrong on both counts.  No, I’m not being cynical. The Legacy track isn’t convertable to the AMA after a BVA decision. Perish the thought that’s coming into your head.  VA has now spoken. The presumption of regularity posits that they can make no mistakes. Far be it from me to disturb this. We’re all taught to sit there and smile. I’ve learned how to smile while I eviscerate their asses legally. Remember, I have an ax to grind. VA insisted I never served in the Republic of Vietnam for almost twenty years(1989-2008). For the record, I served two tours back to back (5/1970 to 5/1972). And, unlike Senator Richard Blumenthal, I have plenty of medals to prove it.

Lastly, the silver lining in this VA claims cloud is simple. A VSO signed a RAMP opt-in form and failed to file it in January 2018. That failure unfortunately cannot be used against the Georgia Department of Veterans Affairs. They are lawsuit-proof. You can’t sue them for providing free quasi-legal advice and assistance.  However, it appears to have sufficiently shamed the VA into promptly adjudicating the instant claim we filed July 5th, 2019. David’s missus also called her Congressman which helped, too, I’m sure.

Here’s the opening brief and the VAF 20-0995 I used as a template for your own DIY or legally assisted claims:

Robinson filed 0995 for HCV 7-13-2015 redacted

And here’s the decision at 12:34:58 Atlanta Time today. What a wonderful thing to read first thing in the morning over coffee on Pacific Daylight Time…

redact 7-19-2019 100% P&T

And the BVA decision…

https://www.va.gov/vetapp19/files4/19129407.txt

Granted, my client was flashed for terminally ill. He’s my age and my generation. He served during my Vietnam War. He enlisted like me. He’d do this for me if he could. Of that, I have no doubt. Leave no one behind. Not on a Jungle Trail. Not on a Desert Trail. Not on a Paper Trail®. That’s Theresa Aldrich’ tagline, not mine. It evokes my sentiments though. And yes, David and his spouse found me on Hadit.com. We’re all in this together. NOVA is just the uppercase “A” in VA’s ICARE mantra.

So… take a good, long gander at the IMO we submitted above, ladies and gentleman. This is the ammunition you’ll need to win. You cannot submit a letter from your doctor that merely says ‘he got blasted with a jetgun ipso facto he got HCV from the jetgun.’ That will not put the chicken in the pot. IMOs are a medical art form most doctors do not comprehend. They mean well but writing a good nexus requires peer-reviewed citations much like the ones the IMO author referred to in the above IMO. You cannot use internet articles because they don’t have your name on them. Anything from Wikipedia is useless because anyone can post on it. BVA decisions are not precedential. You can claim HCV is caused by alien abduction on Wikipedia and it might stay on there for a week. That may be plenty of time to print up a copy before someone comes along and takes down your artful attempt at subterfuge but it won’t win the claim.

And that’s all I’m gonna say about that.

 

 

Posted in 100% ratings, Appeals Modernization Act, BvA Decisions, BvA HCV decisions, HCV Epidemiology, HCV Health, HCV Risks (documented), IMOs/IMEs, Jetgun BvA Decisions, Jetgun Claims evidence, KP Veterans, Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA RAMP, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , | 15 Comments

HADIT.COM RADIO SHOW THURSDAY 7/18/2019

Posted on July 17, 2019 by asknod

Gotham City Commissioner Jerrel Cook has turned on the Batlight  on the roof of the headquarters of Gotham City Police Department. I spotted it and answered his call. It’s time for the Hadit Dot Com Radio Show again tomorrow at 1600 Hours Local on the Far Left-ward Coast, which is 1700 Hrs on the Least Coast, 1800 Hours in the great State of Texas, and Lord only knows what hour in Arizona, Mr. Cook and crew will allow me to teach you new techniques in the art of the Duty to Assist in the brave new Appeals Improvement  and Modernization Act or simply the AMA.

Most importantly, you will learn the “new” way of VA thinking about your claim(s), when you first filed them and what you filed for. And whether they even addressed all the claims. We’ll discuss how to navigate this maze of multiple-choice,  judicial disaster areas. If you aren’t careful, you’ll lose a lot of time refiling in the proper lane to get this ball rolling properly.

The call in number remains

347-237-4819 (push #1 to talk)

Here’s a recording of the podcast if you missed it.

http://www.blogtalkradio.com/haditcom/2019/07/18/hadit-podcast-with-guest-speaker-alex-graham-aka-asknod

Call in and talk to us. Ask a question if need be.

 

Posted in All about Veterans, Appeals Modernization Act, Duty to Assist, Earlier Effective dates, Independent Medical Opinions, Inferred claims, Informal Claims, KP Veterans, Nexus Information, Obtaining a C-file, PTSD, TBI, Veterans Law | Tagged , , , , , , , , , , , | 3 Comments

THE BVA’S “PURPLEBOOK”–THE LAST WORD ON STARE DECISIS

Posted on July 3, 2019 by asknod

Every once in a while, either someone sends me a great article or a link to one. Once, I got the Army manual on the care and feeding of jetguns.  Nurse Silvia went one better and sent me a whole jetgun. Last night I received the BVA Purplebook,  known in decades past simply as the BVA handbook. It isn’t a Top Secret/Crypto For Your Eyes Only document, but then again it isn’t exactly well-known outside the BVA. In fact, the 2018 version below is one of the few known to exist outside 810 Denial Avenue NW. I’m waiting for BVA Chief Honcho Cheryl Mason to call next Monday and ask me to take it down under threat of losing my license to torment the 56 Puzzle Palaces across our fruited plains. 

Oddly, even VA Veterans Law Judges have been known to cite to it. I ran across it several days ago when one of my friends deep in the heart of Texas asked me if I’d ever heard of it. This was in relation to an interesting new CAVC appeal ( Docket #18-6798) which is only now at the appellant’s brief stage. It’s going to be a barn burner class action suit with a panel on Hypertension due to Agent Orange herbicide exposure. See https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom

Type in  18-6798 in  the case number/ range box.

As most of you know, the VA was expected to include several new service connected presumptives to include hypertension by June 30th of this year- now  three days past. Due to matters beyond the VA Secretary’s control (think Procopio), that isn’t going to happen. The entry of the Blue Water Squids (just out to the 12-mile limit, mind you) is going to create a dent in the VA compensation coffers and there will be no money left for merit pay for a while until Shulkin Wilkie gets a new budget in the next fiscal year.

The Purplebook is numbered identically as the M 21 which is a non sequitur. The  BVA, and every Law Judge I argue in front of, categorically deny they will accept the M 21 1MR as “law”. I have been interrupted in mid-sentence at oral briefing and told to convert the cite to 38 USC or CFR for the record. The Purple Book is essentially a compendium of precedence compiled by the BVA from the ever-evolving decisions of the CAVC, CAFC and the Supreme Court. Procopio is an excellent example of how Haas v Peake was rendered obsolete in less than 12 years. Karnas turned into Kuzma and so on. Law changes and so must the Purplebook.

The Purplebook is a primer for the slew of new GS 14 BVA staff attorneys-many of whom are arriving from law school with their new degrees and can’t even spell Veteran. Most Veterans do not realize that Veterans law is almost alien to most FNG law dogs. They’ve been taught nothing about this venue. When they’re hired, they have to virtually go back to law school and learn its intricacies from scratch. Unfortunately, there is no true law school devoted to teaching pure VA law in existence except here at asknod. Concepts like deferential treatment to pro se Vets, the benefit of the doubt and far more require reading 38 USC and 38 CFR to comprehend we are a sheltered class granted all manner of special considerations.

I caught a fleeting glimpse of this Purplebook mention in a February 2019 BVA decision here:

https://www.va.gov/vetapp19/files2/19113625.txt

and here in an April 2019 appeal:

https://www.va.gov/vetapp19/files4/19124345.txt

Subsequently, it appears that jurisdiction over the claims regarding
the migraine headaches was transferred to the RO in Des Moines, Iowa.  However, because this appeal originated from the RO in Waco and does not involve issues dependent on different law and facts, it will be the subject of this decision. See BVA Memorandum No. 01-18-04; VA Purple book 01-18-v1.0.0. Moreover, the Veteran currently resides
in Texas; hence, jurisdiction should be changed as appropriate.

After spotting it again in Mr. Johnson’s brief at the CAVC, it became a quest to unearth this “adjudications manual”. While the document, in and of itself, is probably not earth-shattering, it’s one more tool in the Veterans law tool belt. I see it more as a guidebook to measure how a VLJ will approach your decision. Will s/he bend over backwards to give you real justice or will s/he merely pay VA law lip service and merrily proceed to adjudicate the appeal as they see fit? At least this way you might find a piton to drive into a judicial crack and prevail.

I find it disingenuous to have a document like the Purplebook in existence and have no one the wiser of its application to VA law. It just seems sleazy and underhanded to hide it or to avoid disclosing its existence. In my mind, our claims process is stacked heavily against us as most Vets are ignorant of VA law.  For the BVA to obfuscate and dissemble to the VA lawyer or Agent is even more egregious. It sounds like a book about Barney the Dinosaur.

Please thank all of those who work at VA who feel we need to know as much as we can behind the scenes judicially.

Et voilà- the Purplebook, courtesy of a good friend who will remain nameless.

BVA Purple Book

I also placed it up above in the widgets for quick access.

And that’s all I’m going to say about that

Or, in the famous words of one Sgt. Shultz, “I know nuffink.”

Happy 4th of July and many more to all my readership

P.S. I’m flattered. I googled the term BVA Purplebook and it comes up with asknod. Funnier yet, someone attached the links to a post on appeals over at one of our competitor sites known to have VA Veterans Benefits Administration DROs as moderators . They also 86’d me after I asked too many questions about 6 years ago. The link was promptly erased to suppress any mention of  asknod, Fergoogle or the Purplebook.  You can still see it here in the screen grabs:

As you can see when you go to the link, it’s dead. The site’s censors are careful to eradicate anything I author that might be helpful to Veterans. Pro VA or Pro Veteran? We report. You decide. Ask yourself why any Veteran or Veterans website would want to suppress information which might be useful to  other Veterans.

click on this to enlarge it.

 

Posted in Agent Orange, All about Veterans, BvA Decisions, BVA Purplebook, KP Veterans, M-21 info, VA Agents, VA Attorneys, vA news, VBMS Tricks | Tagged , , , , , , , , , , , | 6 Comments

CAVC- BLACKMON v WILKIE–SHRINKS? WE DON’T NEED NO STINKIN’ SHRINKS.

Posted on June 28, 2019 by asknod

Who else but Saint Margaret Bartley, of course.  This is an interesting read and will affect a large number of you who have been hornswoggled into a denial based on a Nurse Practitioner, psychologist (PsyD) or worse..a VES Certified Medical Assistant (CMA) bedpan changer. Worse, you probably blew right past it. That’s against the law at 56 Regional Offices across our glorious fruited plains.

Edited 6/29/2019 1240 hrs

Let’s cut to the chase. First, I’m surprised VLJ Ursula ‘the unmerciful’ Powell authored this one. She’s better than that. Second, there may be some harsh words between her and her pseudo-staff attorneys on how this one was developed. It’s not like they could rely on structured legal arguments put forth by Appellant Pete Blackmon’s law dog to build a grant in this decision. Hell, old Peter was pro se. He got the white gloves treatment at the CAVC. When was the last time you heard of a good pro se case at the BVA that prevailed without a killer Independent Medical Opinion?  Obviously, Judge Bartley’s staff attorneys are light years ahead of Powell’s. And, wonder of wonders, they get paid a shit ton more. The BVA has hired oodles of new sheepskins to wipe out the backlog. Instead of hiring a shit ton of Veterans Law Judges, they brought in FNGs  and are forcing them to do 70 claims a week (five days at Judicial Square). They’re getting GS-14 entry wages, not quality ES-00 pay for genuine hard work. That’s like $114 K a year with killer high rent around DC. In order to meet this grind, you have to take the work home to complete it. One of them emailed me and complained it’s a “Top Ramen” job- no time to eat and no money to afford it.

Our old friends the MK 82 GPUs. Few know we had to begin buying them back from Germany in 1968 for $900 a pop. We sold the bombs to them back in 1958 for $10 each-leftovers of the Korean Boundary Dispute.

Pete was a two-year incountry Vietnam Vet (68-70)  with real §1154b combat credentials-something BVA pukes would be wise to take note of. He managed to survive 5 mega stressors and finally got around to filing for bent brain in 2012. VA saw the light instantly and granted the PTSD. Like some of my clients, he came back in 2012 and filed for Traumatic Brain Injury. Seems like you get dinged up in war and unexpected things like explosions happen occasionally. Have you ever seen a 500 lb. Mk 82 go off nearby-like a quarter of a mile away (or less)? You can watch the concussion wave coming at you around 850 mph ahead of the sound. Trust me. It’ll roll your socks down and part your hair even if you duck. They dig a seventeen foot deep hole thirty five feet across. Most times, we dropped two at a time. They don’t always go off. Seems old Peter had a couple of these shake-and-bake experiences during his two-year fun-filled vacation. Remember, this is protected by §1154b. If you were stupid enough to go fight a proxy war and willing to die for “democracy” in the former Republic of South Vietnam, you are accorded the presumption of telling the truth. VA forgot about that.

VA denied Pete’s TBI claim and didn’t even see fit to give him a c&p exam. They made up for it by telling him some (or all) of his TBI shit was mixed in with his bent brain shit and to relax because it was all contemplated in his rating. Hell, they wouldn’t lie about something like this.

I love to argue that PTSD doesn’t give you tinnitus and headaches. Likewise I find myself arguing drug abuse doesn’t give you PTSD. It’s the other way around in spite of what VA contends. That’s always a chicken dinner winner on appeal. So… repair order #1- Give Pete another PTSD exam after two years of bitching, grant 100% disabled for the PTSD, pat him on the ass and send him home happy, right?  Well, ‘not exactly’ as they say at Dollar A Day Rentacar. Instead, VA used the old saw of “we reviewed your Service Treatment Records and see no mention of TBI in them during active service”. Well, duh. I doubt I could spell tinnitus let alone know it’s medical causation in 1972 after two tours and a few MK 82s that didn’t land anywhere near where we put our smoke. I knew I couldn’t hear shit again afterwards but that was beside the point. I’m not a doctor.

VLJ Powell and her merry band of acolytes did go Pete one better and say they actually couldn’t find any evidence of it in the STRs nor on appeal. They relied on the old saw that “VA’s duty to assist doesn’t require providing an examination in the absence of a current disability”. True enough but this is where they stepped on their necktie. Powell’s gomers  forgot the admonitions of McLendon Precedence:

The duty to assist includes providing a veteran with a medical examination and opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the
veteran qualifies; (3) an indication that the disability or persistent or recurrent symptoms of disability may be associated with the veteran’s service or with another service-connected disability;
and (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i) (2018). Blackmon supra

They also forgot Congress’ §1154b codicil that whatever flows from a combat Veterans’s piehole regarding what happened is unassailable, unvarnished truth absent any mention of alien abduction. Reading comprehension is essential for the Trier of Fact in this legal business. Ignore it at your peril. You don’t just copy and paste it into a denial. It has to be more nuanced like “if the glove doesn’t fit, you cannot convict”.

St. Bartley accurately summed it it thusly:

“The Court concludes that the Board erred in its duty-to-assist analysis in two respects. First, although the Board appropriately cited the four McLendon elements, it did not correctly apply them. Notably, the first McLendon element is “competent evidence of a current disability or persistent or recurrent symptoms of a disability.” McLendon, 20 Vet.App. at 81; see R. at 5-6. The
Board found this element was not met because the competent evidence did not establish that Mr. Blackmon had a current disability, R. at 6-7; however, the Board appears to have overlooked that the first McLendon element could be satisfied with competent evidence of persistent and recurrent symptoms of a disability.” Blackmon supra

What if Pete didn’t exhibit the symptoms on the day he had the c&p? Does this condemn his claim to the ash heap of VA ‘s 98% correct, nonadversarial adjudications? Not in the least and here’s why, padewans:

” To the extent that the Board relied on the April 2015 VA examiner’s notation of no diagnosis of TBI following an interview and examination of Mr. Blackmon as competent evidence delineating his symptoms, the examiner, contrary to the Board’s characterization, did not assess whether he presented with a residual TBI disability, but instead indicated that her review of the available records did not uncover a diagnosis of TBI. Moreover, according to VA, the April 2015 examiner did not possess the requisite specialty to determine if Mr. Blackmon demonstrated TBI upon examination. Compare VA Adjudication and Procedures Manual, M21-1, III.iv.3.D.2.j (identifying physiatrists, psychiatrists, neurosurgeons, and neurologists as those examiners qualified to provide an initial TBI diagnosis) with R. at 679 (listing the April 2015 VA examiner’s specialty as psychologist).  Blackmon supra

And:

Second, although the Board acknowledged that Mr. Blackmon served under combat conditions, R. at 5; see also RO’s grant of service connection for PTSD based on combat stressors, it did not consider whether his statements regarding in-service events, under the combat presumption, would satisfy the second and third McLendon elements. See McLendon, 20 Vet.App. at 81; see also 38 U.S.C. § 1154(b). The combat presumption under section 1154(b) “reduce[s] the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease” by mandating that VA “‘accept as sufficient proof of service  connection . . . satisfactory lay or other evidence of service incurrence or aggravation'” of an injury or disease “‘if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.'” Dalton v. Nicholson, 21 Vet.App. 23, 36-37 (2007) (quoting section 1154(b)). The combat presumption can be invoked to demonstrate not only that certain events occurred during service, but also that the disability occurred during service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).

 

Ruh oh, Rorge. This puppy’s headed back to  Ursula the Unmerciful for a do-over. I am having the same problem with my Vet at Fort Whacko, Texas. He was Dx’d with TBI finally- at 70%. He also wrangled a 30% for PTSD. A real psychiatrist gave him 50% for the bent brain on his NOD appeal. They continued to deny the headaches and tinnitus as not TBI-related right up until they got a peek at our IMO and then switched horses lickety spit when they read it. Of course, they tried the back door method of combining his TBI with the PTSD and effectively stole his brand new 50% rating (as well as the old 30% for it) in his SSOC. Pete’s problem is identical to Chris’. Chris’ doctors who did all this were psychologists, MDs and NPs-not psychiatrists. 

In spite of my calling Waco and explaining their screwup, they stand firmly behind their NPs, DOs and MDs. Now you know why it takes so long to win. I expect if the Petermeister had a good rainmaker, he would not have been caught up in this house of horrors for 6 years. But that is, as they say at Fort Fumble, pure speculation. Fortunately, he lucked out and drew St. Bartley instead of some others recently invested at the Court who seem to take a decidedly anti-Veteran bent. No names, folks. I have to practice there and do not want their  wrath to fall on me simply because of my contrary opinions.Remember, this whole gig is supposed to be nonadversarial- at least until we set foot inside 625 Indiana Ave. NW.

Congratulations, Mr. Blackmon. You should apply to the OGC for VA accreditation. You are a credit to all Veterans due to your stubbornness. A warm thank you to Judge Bartley and her merry crew for seeing through this travesty of justice and righting it.

Here’s the CAVC decision:

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp&caseNum=18-3011&incOrigDkt=Y&incDktEntries=Y

 

 

Posted in 1154(b) combat presumptions, All about Veterans, BvA Decisions, CAVC ruling, Duty to Assist, PTSD, TBI, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , | Leave a comment

Helping Veterans And Service Members: Tips For Loved Ones

Posted on June 25, 2019 by brewerkelli

Photo via Pixabay by Skeeze

Veterans and service members have played a big role in our country for many decades, defending our freedom and helping others as a way of life. Many individuals in the military don’t get what they need, however, when it comes to healthcare or financial planning. There are lots of resources out there for senior veterans and those who have served in various branches of the military, but it’s not always easy for them to find what they require. Fortunately, there are many things you can do to help your loved one get what they need to stay comfortable and healthy.

Figuring out healthcare can be complicated for senior vets, so that’s one area where you can help out. Look online to find out more about Medicare or senior benefits provided by the government, and look for the nearest veterans hospital so your loved one will know where to go when they need care.

Here are a few things to consider when you want to help someone who has served in the military.

Help them figure out healthcare

Healthcare can be extremely complicated for veterans to figure out, especially for seniors. Government benefits through the military require care via a veterans hospital, while Medicare requires care through a civilian healthcare provider. Help your loved one do a little research online to find the right doctor and to compare the pros and cons of each service.

According to MedicareAdvantage.com:

  • Having both types of coverage can give you more health care options. If you only have VA insurance, you are limited to receiving covered care only at VA facilities, but adding Medicare coverage can open up the range of hospitals, doctor’s offices, pharmacies and other types of healthcare locations in which you may receive covered care.
  • Having both types of coverage can benefit you in the event that an emergency occurs when you are not in close proximity to a VA hospital.
  • Most people do not have to pay a premium for Part A of Medicare.

Mental health

Veterans are often at risk for mental health disorders such as PTSD, depression, or symptoms associated with grief, so it’s imperative to make sure they are getting the right kind of care. Whether that means therapy or counseling, medication, or alternative treatments such as art therapy, helping your loved one find the relief they need for their mental health will allow them to feel better no matter what is going on in their life.

Assist with everyday tasks

Many older veterans have trouble completing daily tasks, such as grocery shopping or cleaning their homes. If your loved one has mobility issues or a health problem that makes performing these activities difficult, think about how you can help. Offer to stop by and clean up the kitchen, or bring over some groceries. You can also help them set up a delivery service for receiving all the ingredients and ready-made meals they need, which allows them to remain independent by enabling them to choose what they want.

Thank them

In many cases, veterans aren’t looking for gratitude for their service, but it always feels good to hear “thank you” after you have served your country. There are many little things you can do to thank a vet and honor them, from picking up their check at a restaurant to buying them a cup of coffee. You can also make a donation in their name to an organization that helps  Veterans and their families.

Helping a veteran comes in many forms, and it’s a personal choice. Think of  the best ways you can help the service members in your life when it comes to things both big and small, and keep them in your thoughts as you go about your own day. Remember that a little love and kindness can go a long way.

Posted in All about Veterans, Guest authors, vA news | Tagged , , , , , , , , , , | 1 Comment

THE NEW VA AMA–A CHUTES AND LADDERS GAME FOR VETS

Posted on June 11, 2019 by asknod

Yeppers. You read that right. But it doesn’t begin to describe what I’m trying to convey to all you aspiring pro se Veterans, freshly minted Juris Doctorates seeking an exciting career in VA law or older, more experienced attorneys looking to view a problem from a different, untrained legal aspect. Remember, I have no legal training in this arena but still am batting .1000 after eleven years.

What I wrote in my book in 2012 is just as on point now in 2019. Folks are still buying the Kindle download to this day and putting really nice comments in the Amazon ‘confirmed buyer’ comments section. It’s rumored I might break even on my investment by 2032 if this keeps up. No, seriously.  It’s a bargain at $3.99 and I get 10%.

One of my clients is an attorney so this is especially poignant. She came down with Multiple Sclerosis while in the Navy and made it almost three years before it overcame her. She took advantage of the GI bill and got a degree and followed up with law school. Sadly, the overwhelming burden of raising a husband and children and trying to cope with MS was too much. I gladly accepted her as a client. She described it thusly…

This is your Brain

This is your Brain after Law School

I get that. You have to learn a lot about law and it’s probably stuff like Trigonometry-shit you’re never going to use if you focus exclusively on being a Veteran Ambulance Chaser.  I know that’s a coarse job description but I heard it used by a DAV Poohbah once to describe us evil, bloodsucking agents and attorneys who exact our 20% pound of flesh from those we serve. Anyway, you’re not going to get much call for tort law, criminal law, patent law, divorce law and a host of others. Unfortunately, all brains have just so much capacity and stuffing in a heaping dose of tax law is a severe waste of available megabytes. You’re wanting to focus on becoming the Perry Mason of VA law but dragging that JD brain around with useless 0 and 1 algorithms.

So, by the time you graduate with the sheepskin, you don’t know whether to shit or go blind. Your brain is marching to the beat of another drummer. You have been taught to be too meek and nonconfrontational. You over-analyze every case and ignore human nature. You want to please. You are not in the habit of dealing with charlatans and folks who create law out of whole cloth. In a word, you are a Padawan. Few at this stage ever  dive in to VA Law solo. After about five or ten years of this, it’s like fishing with hand grenades.

Enough with the self flagellation. I can sleep well at night because I didn’t set out to make money. My joy is simply winning my claims for my Veterans. Ed and Leona just found out Saturday night that I managed to wrangle SMC at the R1 rate for them. I spotted it as a “Pre-promulgation” that needed  some more signatures on Friday PM.  I feel doubly honored to represent these folks as Leona is Dan and Signe Moser’s daughter and her husband also fought in Vietnam. He even has a CIB to prove it.

redact R 1

Eleven Bravo 20 Ed Dunn (right)

The Moser Family (Leona in center)

Boy howdy if that wasn’t enough, I was fortunate to win R1 for Dan as well before he passed. As for the bloodsucking legal fees- there are none. The Little Rock Puzzle Palace granted without a whimper. We filed mid-January and I managed to get my CMA to flash him for very seriously ill. VA’s attitude initially was :

” Mr. Graham. The M 21 doesn’t permit advancement on the docket when you’re already at SMC P (SMC L plus K plus §3.350(f)(4) advancement to the next higher rate of M). Mr. Dunn will just have to take his place in line.” Well, ‘not exactly’ as they say down at Dollar a Day Rentacar.

This is where not having been to law school really puts the mustard on the hot dog. Nobody has ever told me I can’t call up the White House Hotline on behalf of my Veteran and beg for advancement. Or look up the name, rank, airspeed, tail number and last known heading of the VA’s Change Management Agent (CMA) at Fort Fumble in Arkansas. Screw sending an email. Next, go to the NVLSP’s Veterans Benefits Manual published by LexisNexis and get the telephone number of the Regional Director and call her/him. They’re on Central Time I think. Tell the receptionist to connect you to the CMA. I love that cross between a splutter and a stutter when they finally blurt “Excuse me, wh-wh-who is this?” A quick “Alex Graham, ma’m. VA #39029. I need to talk to him about my client.” Every one of them has said ” Whatza CMA?” or “Sir, do you have a number I can give them to return your call?” The best one yet is “I’m sorry sir but you need to call the 800-827-1000 line and talk to one of our specialists.” Whatever. It works. The 800 number is for the VSOs, not us. They call me back- and most especially if I’ve called the WHH. I love to litigate via phone with these chuckleheads.

This telephone method is quicksand for VA people. It’s not in a preservable format like an email. Nobody thinks to have a tape recorder handy for these occasions. It’s hard to defer to M 21 when someone is asking you question after question without respite.

 VA Chutes and Ladders

 

Here’ the big story. The new AMA is nothing more than a cattle stockyard. VA drives the Vet into the preliminary chute with the first 526. S/he doesn’t have a clue whazzup. They usually are pro se or have a VSO who is equally clueless and paid to stay that way. The inevitable outcome is usually a loss or a minor win consisting of some old Mardi Gras beads ( Tinnitus and hearing loss for 0%).  However, the big ticket items like PTSD or lumbosacral strain remain denied. Now, with the new AMA, you have to find some new evidence or some new compelling medical theory which supports your first untrained argument. That first denial is effectively the end of the VA’s duty to assist. You are now on your own, cousin. A second denial after entering the next chute (the supplemental claims lane) will cause even more roadblocks. Pretty soon you’ve used up all your Buddy letters and the pseudo-nexus your VA doctor gave you that says it might/could’ve/ possibly/probably/ almost always is related to service.  Nobody will tell you of the need for a properly constructed, favorable medical opinion. So far, everyone’s told you you don’t need any fancy legal help. Those VA DBQs they hand out for your doctor to fill out don’t have a block to write in the nexus and describe why it’s probative. VA has their own DBQs for QTC, VES and LHI. Guess what? They’re waaaaay different and actually do have a block where the doctor/nurse/bedpan changer explains why you’re not going to be shopping for a new car this summer.

If you lose, most of these VSO pseudo-helpers will guide you into a Higher Level of Review and  another bitchslap. This is the old DRO review- as in- “What part of ‘No!” didn’t you get, sir?” An interesting facet of the AMA is it lets you continue to lose without any limits on the number and pathway of appeals. Thus you can go from the 526 initial rating, get a denial, file a NOD at the Board of Appeals and lose and still go back to the RO and the  supplemental lane and refile the same claim again with no loss of effective date. This is how the VA sold Congress on this rope-a-dope appeals thing. Since most Veterans will never get quality legal representation, VA can let them ping around inside this Hall of Mirrors cattle yard and never get anywhere with an original claim. The greater majority of Veterans give up once they see how it’s rigged against them. I did in 1994. It’s different when you’re dying. Hence, the Win or Die logo. was added to the VA claims game.

Veterans were confused enough after WW2 and Korea trying to understand why they were missing big chunks of arms and legs and only getting 10% for it. Or $20 a month for a lost eye. Vietnam Vets discovered much the same thing. VA wasn’t, and never will be,  a font of information about what you need to succeed. With the advent of the new AMA, the tunnel just got about 5 miles longer for most Vets.  If you had actually begun to understand the old system, you just got the ultimate whammy. You now have to go back to school to learn it all over.

I’m hearing from a lot of my fellow members of NOVA that VA is confusing Legacy appeals with the newer AMA stuff post -2/19 and illegally denying it or… worse yet, instructing us to file it on one of the newer forms for the  supplemental lane or HLR. The blind are now leading the deaf across town and vice versa. It will be some time before the dust settles on this. Meanwhile VSOs are still using the old 21-0958 NODs to file at the BVA instead of the new VAF 10182. It’s a zoo and VA loves to aid and abet the confusion.

Vets come to me and describe this as the ultimate conspiracy. Relax. It isn’t. It’s nothing more than gross ignorance and incompetence. I figure it’ll take several years before the  Legacy claims are all but extinct. When that finally occurs, the raters will finally learn the new method and we’ll start bugging Congress to fix the new AMA and make it more Veteran-friendly. Call it AMA 2.0 right now.

And that’s all I’m going to say about that.

 

 

 

Posted in All about Veterans, Appeals Modernization Act, Duty to Assist, KP Veterans, Lawyering Up, Lay testimony, M-21 info, Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA Attorneys, Veterans Law | Tagged , , , , , , , , , , , , , | 1 Comment