LET’S GIVE THE MAN A CHANCE FIRST

Posted on March 9, 2025 by asknod

For some unknown reason, a lot of you have been emailing or calling me to ask my opinion on the new paradigm of “government reduction” in regards to the VA. Everyone wants to know how our new VA Secretary, the Honorable Doug Collins, is going to behave and the possibility he will destroy the Department of Veterans Affairs as we know it.

First, and foremost, I’d begin with “Do I look like that cartoon dog called Mr. Know-it-all? Do I emit some aura of prescience around my noggin?” Of course not. What the hey? I graduated 59th in a class of 64 from Vermont Academy in ’69. My biggest claim to fame was my deflection shooting of Officer Rohrbach’s unmarked car with an egg and trying to outrun him and his buddies four days after I graduated. As you can see, that resulted in a change of college plans and an emergency plea for a waiver to enter the USAF before the Hampton, Virginia Draft Board sent me the Lotto news.

To me, this whole VA gig was, and still is, a nonstop, full-blown car wreck (see below) from Day One. Who dreamed up all those suspense dates that went off like a short-fused M 26? Considering the VA was ostensibly a nonadversarial, Veteran friendly outfit plagiarizing Abe Lincoln’s Gettysburg address (For he who hath borne the Battle), I thought it was waaaay overdue for some updates… like electronic records. I had to wait about twenty three years more for that miracle to occur.

I’ve been playing VA poker since the modern inception of the VA in 1989. I’ve litigated my own claims under Secretaries Derwinski, Brown, Nicholson, Peake, General Shinseki, Gibson,  McDonald, Snyder, Shulkin, Wilkie, O’Rourke, Tran and McDonough. Oddly enough, in all that time, none of them have sought me out to seek counsel. What I can say is as many times as I’ve denigrated Secretary McDonough in my blog posts, he’s always responded to my emails and cut the Gordian Knots of the Veterans I represent.

So, from that miniscule viewpoint, I’m a satisfied, happy camper. As for Secretary Collins? I confess. I sent him an email last week over the intractably long period my good friend Calvin has waited patiently (10/31/2023) for some semblance of finality. Eighteen c&p examinations should be sufficient to ferret out anything he doesn’t suffer from related to service. Our new Secretary promptly announced the bozos down at the 317 DROC have until  COB (close of business) 10 March 2025 to resolve this paradox.

Far too many Veterans take this new administration personally and fear for their privacy. Secretary Collins is not going to go snooping in your records in a dumpster dive attempt to reduce you. Actually, nobody at VA does this. They have a computer that looks at your records automatically to determine if your knee got better or your loss of lower extremity below the knee grew back. On the other hand, if you’re TDIU and get a neighborhood paper route, your income gets reported to the SSA and the IRS. Well, duh? And yes, VA gets a feed from SSA and will send you a friendly reminder about that being a Bozo No-No if you want to keep the IU.

Think of VA as an auto insurance outfit. You come to them with a fender bender -or a total- and ask for a settlement. VA is naturally going to low ball you and provide an Earl Scheib $99.95 paint job with lumpy bondo.  Most Veterans have to go back a few times and demand it be fixed properly. One thing is certain. Whatever they do initially is not going to leave you all warm and fuzzy feeling.  Unless your disabilities are so severe it’s undebatable, you’re going to spend some time getting your due. We’re talking third world medicine at VAMCs.

Each and every VA Secretary we- you and I- have litigated under since 1989 seems to feel he has to defend the VA’s purse strings. At least that’s the way it seems. Some feel there aren’t many Appeals that moved the needle since the inception of the Court. I strongly disagree. From just the limited standpoint of SMC, every case a Secretary has argued has been a lost cause. In the course of the last thirty six years, we’ve made tremendous strides in how VA views our  evidence… or doesn’t. The gomers at the OGC are the impediment. They’ll defend an adversarial presumption of soundness decision at the drop of a hat and lose every time.

However, with the advent of VBMS, finding error has never been easier. What’s more, with AI and Optical Scan Resolution (OCR), discovering it is a snap. Codicil Number 1 to that is to know what you’re looking for. Codicil Number 2 is the presumption you’re wise to the ways of VA and have access to VBMS. Otherwise, you might as well be asking your auto mechanic what he thinks you’re chances are on getting 70 for PTSD. “Well, dude. I looked it up in the Chilton’s Guide for ’62 Ramblers and I’d say you gotta shot at it.”

As for Secretary Collins, I firmly believe he wants the best for us all. I’m also aware that he takes orders from on high. He is also limited by what Congress permits. With the demise of Chevron/Auer deference, our odds went astronomically higher. The major impediment now is an outdated How-to-Rate Manual. Face it. The M 21 is woefully deficient either in the way it’s interpreted or how it’s applied. Secretary Collins has the ability to fix that. Innumerable Secretaries who preceded him haven’t even attempted it. In spite of the clear M 21 mandate of “If…, then…, we still see VA make world class bonehead decisions.

The advent of the AMA should, by rights, have cured all this insanity but only made it worse.  Either we used the wrong form to file or we forgot to ask for a Williams Waiver. Filing for anything requires a Sherpa but it was all supposed to be so much easier…. Now we have illogical denials for a&a based on some nebulous denial logic followed by

Favorable Findings:

 You need Aid and Attendance of another for your disabilities.

Your efolder is rife with proof of service in Vietnam but you get denied for SC for Parkie’s because… your service records failed to show service on, or in the territorial waters of the Republic of Vietnam. Two years and some change later, the BVA contradicts that and grants. Your surviving spouse gets the low ball treatment on the accrued claim and it begins anew with another Appeal. Newsflash. This ain’t no way to run a railroad. Yet it’s been that way since the War of 1812.

In conclusion, I see one thing no one else sees. In government, they come up with some new regulation or benefit. Take the PACT Act. When Congress passed that abortion, VA promptly hired about 80,000 more employees-some of them Vets- to speed up the process. The PACT wave has swept through the system and is now manageable.  But did VA say thanks and give them all an attaboy and a pink slip? Oh hell no. They want to keep them all on even if it means paying them $60 K a year + bennies to arrange paperclips all facing the same way and keeping the pencils sharpened. Guess who suffers? Yep. You the Vet because the budget is going to force them to short sheet the Vet to pay the paperclip boys and girls.

Now, let’s carry that over to the VAMCs. Instead of hiring a shit ton of psychiatrists, psychologists, MDs and Nurses of all flavors, they have a top-heavy cadre of bedpan changers, patient advocates and God only knows who else struggling to look busy. The VA cops all attended the Third Reich’s SS Basic Training classes and are totally unsupervised. We’re spending untold sums on FTCA claims to settle that one alone.

VA also has Major Depressive Disorder/PTSD Workshops and pays untold numbers of unskilled Mental Health personnel to supervise Tuesday night Kumbaya circles where you relive your “experiences” and talk it out with your buddies. How cool is that? From personal experience, I can tell you the very last thing any Combat Vet wants to relive is what got him into this predicament. They should be teaching Vets how to suppress these thoughts and pass the Thorazine please. These Vets need psychologists, not bedpan changers cum pseudo psychologists. Don’t get me started on Tennessee VAMC employee Group orgies to explore your sexuality.

Frankly, politics should never be a part of this business. VAMC employees are there to help you. By rights, they should be hired based on their capabilities to do the job. Far  too often, it appears obvious they have “connections” via a relative or friend that ensures hiring. What probably bugged me most during  my own brief four-year experience with VA medical was the holier-than-thou attitude and indifference of many frontline “greeters”. I’ve had them continue to gaze at their cell phones texting for minutes while I stood before them waiting. They knew I was there. They could also see the line behind me but it didn’t faze them one bit.

I’ve listened to hundreds of Vets who are tickled pink just to get VA medical- even if it entails waiting six months for a CT or an MRI. How many times did I schedule an appointment for 0745 due to my incontinence and then sit in the waiting room for several hours for my name to be called. I’m sure somewhere across the VA’s fruited plains there are VAMCs where doctors and nurses are more plentiful than the grass on the lawn out front. I’m sure they all run right on time, too. It’s just that I’ve never seen it.

In closing, I’d ask all of you Veterans to give the FNG some slack while he feels his way into this job. If it took you two hours to get in to see the doctor (or PA-C) before Secretary Collins took the oath, don’t expect it to get better soon. They’ve had decades to fix it and they haven’t. That tells me that no matter how many bodies you hire, the service is not going to improve unless you change the general attitude, the lassitude and the utter indifference to our plight.

Posted in All about Veterans, VA Secretaries | Tagged , , , , , , , , , , , , | 6 Comments

EXPOSED VET– THE NEW, IMPROVED VERSION-ZOOM.

Posted on February 26, 2025 by asknod

Yeppers. You read that right. John and Ray have taken it up a notch and now offer their famous radio show on Zoom.us. Join with us this Thursday (tomorrow evening) at 1900 Hours East and 1600 West for an hour of discussion on the ins and outs of SMC and other paradoxes. Live and in color. Meet the wild and crazy guys behind the microphones.

Here’s the link:

https://us06web.zoom.us/j/83969411495?pwd=qtl3SkUrikcS6Vkam3mOfpReOLqOGd.1

 

 

Posted in Exposed Veteran Radio Show | Tagged , , , , , , , , , , | 5 Comments

PONDERING PERPETUAL MOTION IN SO. CAL.

Posted on February 23, 2025 by asknod

Good Afternoon. I guess you are wondering why I called you here today. Just kidding. We’re babysitting my son’s dog for a 4-day stint while they go on a minivacation. As you can see in the video below, Daisy is pure 120 Volt AC. She doesn’t have any off switch as near as I can tell. The house is a wreck but hey. She only pooped inside twice and it’s because she hasn’t developed the ability to hold it in for a while. I reckon my digestive system would be working overtime too if I was running around at 78 RPM. 

I wrote our new VA Secretary this morning after reviewing a client’s file. Calvin won his HCV claim with extras at the Board but they remanded a few things that were ambiguous in their minds. Keep in your mind the idea that Calvin uses a VAMC. They know more about him than he knows. That means the VBA also knows more and is in constructive possession of same. VA also knows it would be a fool’s errand to use 2015 records to finally rate him in ’24 but that’s what they do and that’s what they did. Why? Because then they have to do brand new adjudications and get even more points for more work accomplished.

Redact BVA win 10.31.23

Redact RD 12.15.2023

Here we are sixteen months after the BVA decision waiting on them to grant. Now they want yet another c&p. We even went and got another addendum to our original IMO to include the Diabetes and the thyroid thing. Imagine filing for hyperthyroidism. You get that from using the Bug Juice (Interferon)  to kill the Hep C. Of course, the Interferon kills you, too, but it’s in that skanky fine print on the paper flyer that comes with it. The pharmacist throws that away before they hand it to you. After about 35 years, hyperthyroidism  turns into thyroid cancer. Who woulda thunk it?

 

Calvin had filed for the hyperthyroidism. After the 2018 surgery to remove the thyroid during the pendency of his claim filed in 2015, he now suffered the exact opposite-hypothyroidism. To add to the confusion, he filed for “brain fog”. It’s a fairly common term among those of us who were 35 years or so into advanced Hep C and a side of cirrhosis. It’s due either to a major depressive disorder or equally to hepatic encephalopathy. When the liver isn’t filtering out your blood, you get an ammonia buildup. In the brain, it manifests as -yep- brain fog. Thinking becomes hard work. You’ll find the term ‘hepatic encephalopathy’ under §4.114 DC 7312. That’s a doctor’s way of saying brain fog. But then, hypothyroidism creates cognitive dissonance or…. brain fog in laymen’s terms.

To supersize the confusion, let’s throw in arthritis. There’s three kinds. But, because VA’s Hep C rating is imported from the old Hepatitis B Diagnostic Code (7345), VA uses the antique ‘arthralgias’ which means ‘joint pain’. Since none of us are doctors, we really don’t get to say one way or another what it is. We can’t win because of this Three-card Monte game. If you choose arthritis not otherwise specified, it’s arthralgia. If you picked osteoarthritis, it’s rheumatoid arthritis. It you picked rheumatoid arthritis, then it was psoriatic arthritis. Heads I win. Tails you lose.  Shit. I thought all you Veterans were hip to this game.

Calvin’s now-diagnosed hypothyroidism has been inspected, detected and rejected because…duh.  He didn’t file for hypo. He filed for hyper. The c&p clinicians have been carefully writing it all down in their c&ps but VA’s ICU2 magic scanning computer doesn’t pick up on the difference between hyper and hypo. Hypo doesn’t fit the search parameters. Neither does brain fog or arthralgia for that matter. Calvin’s been up shit creek for sixteen months and eighteen -18-  in-person c&ps, medical opinions and ACE reviews. And each time it comes back, it goes to a different VARO where a different coach looks at it and says ‘what the hell does hypothyroidism got to do with any of this? He’s hyper.  Run it through the TERA/ ILER computer, check his MOS and deny it. Send the Vet a letter and tell him to file a claim for hypo.’

 So, I did what any self-respecting representative would do. I went to the top, apologized for my forwardness and pointed out the Emperor was naked. In 2008, I got three c&p exams. One for the Porphyria, one for the GSW scar through my thigh and one for the residuals of my HCV. If I was filing for all this today, I can only guess it would be a whole bunch more exams and then the “clarification requests” and ACE reviews would begin to trickle in. And then the next battle of low ball ratings taking another 6 years to appeal up to the BVA and win.

And just to be a complete dick, I cc’d the jackwagon Coach who’s been riding herd on this off and on for all this time. Sometimes, you just have to cut the Gordian Knot, shoot the engineers and commence production. As they say in Rome Tempus est pecunia, baby. But hush my mouth. We know them Coaches all have been awarded Arthritic Tortoise Medals with several Oak Leave Clusters for Meritorious Delay Above and Beyond the Call of Duty.

Posted in Complaints Department, Jetgun BvA Decisions, Jetgun Claims evidence, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

BVA– WORKIN’ IN A COAL MINE

Posted on February 16, 2025 by asknod

Well, pilgrims. It’s Sunday morning and I feel that spirit moving me to bore you all to tears again with my drivel. But if even one TBI’d or PTSD’d Veteran read this blog and came to me, I’d be plumb honored to represent him (or her). Bear with me here. If I have another conjunctive of ‘him or her’ later in this blog, I’ll reverse the order to ensure dignity, equality and Title IX compliance to avoid being cancelled.

I always try to keep in mind that 42.6% of you folks don’t exactly cotton to what I preach according to statistics. For some reason, all the major Veterans help sites have banned me. Was it something I said? To be fair, I guess if I had time, I’d get me a Utubeâ„¢ station and grow a bodacious Amish beard, wear tacky cowboy hats and dark three-piece suits with a turtleneck sweater. I could invent and recite absolutely bogus Vet rules from a teleprompter and charge ungodly prices to join my Army. I could even invite you to my most inner circle for a couple thou more. You’d have unlimited access to me every day of the week from 0900 to 0905 Local (subject to availability).

I’ve been writing this blog since 2008 when I won. I’ve helped a lot of people -some of whom have become fast friends and some who have passed away enroute to their win. As I am fond of saying, “If the shoe were on the other foot and you had been blessed with this knowledge I have absorbed, I know without any doubt that you would do the same for me.” Brothers in War do not change their stripes when Peace breaks out. Or at least  Enlisted ranks don’t. It’s a thing the Marines started way back when about not leaving anyone behind.

My day job in 1970

Which, of course, brings us to Lee Dorsey’s classic 1966 song. Imagine a Veteran- let’s call him Johnny Vet- E 3, FNG USAF Military Police. Johnbo gets his orders for Tuy Hòa in ’69 fall and arrives just in time for Monsoon. He gets one of them plumb job of Pig gunner on the perimeter in the back of a M 151 jeep. Nothing like getting some cool wind in your hair on a dark jungle highway and a sit down job, huh? About this time, Johnny started getting a rip snortin’ good case of chloracne. Lather, rinse and repeat from  0001 Hrs to 0849 Hrs Local (Saigon time) for 365 wakeups.

Lottsa times in the morning, the dead Gook sappers were still hung up in the concertina coils. Even their comrades couldn’t get them out, picked up their guns and beat feet. So,  Johnny and his  chauffeur were often drafted to stop and help extricate the bodies, throw them in the back and take them to a collection point for Intel to rummage through the clothes. Lather, rinse and repeat for 365 wakeups- less three days at Vung Tau getting drunk, laid and an absolutely nasty case of VD that required a million units of ice-cold Penicillin in each buttock to tame.

And then back to the world… and… no job and old friends say you’re weird as shit now. And then the dreams begin. And the smells. And the voices. Pretty soon we’re talkin’ a full-blown psychosis. Stir in a few visits to the Funny farm and the suits that tie in the back and by 1984, Johnney files for Bent Brain Syndrome. VA says you’re just having a bad hair day and blows you off. Lather, rinse and repeat the VA blow offs for ten years.

In those ensuing years (1984-1994), Johnny Vet lands another cush-ass job as a Prison Guard. About a year in, the prisoners go bugfucky and take over. They lock the Johnster up and threaten to kill him about ten times a day. He gets beat to a pulp. He decides maybe that wasn’t his cup of tea after all. From then on until ’94, Johnny had a mobile zip code due to his “unhoused” and unemployed status.

In 1994, Johnny Vet wins 100% schedular for his Bent brain and VA comps him free room and board at the VAMC down in Loma Linda on the psych ward. He’s on a high five, first-name basis with most of the staff after his third or fourth “visit”. Lottsa Droperidol and Trazadone  make Johnny a right-on agreeable guy. Of course, each time when he gets out, he quits eating all that shit because it makes him foggy. Lather, rinse and repeat for another 22 years.

Johnny’s using a well-known VSO outfit with the initials PVA. From 1994 to 2016, nobody even thought to file him for Aid and Attendance. They piddled away his life on chloracne ratings (max 30%), 10% for tinnitus (due to an itchy trigger finger on the Pig), hemorrhoids – I guess from trying to sit in that Jeep seat. And of course, brief stints on SMC S for the hospital visits over 21 days. Add in about ten other Zeros for Heroes ratings over the years and here we are- no aid and attendance. To me, this was the crime. In ’16 he got some temporary help from an attorney who did a bang up job getting him a retro 100% back to 1984 because they forgot to do the VA 8 and certify his NOD to the Board. That retro evaporated faster than you can say Jack Daniels, dextromethamphetamine and a shit ton of killer ganja.

At some point, Johnny discovered he was sterile after his all-expense paid vacation in Vietnam. By now he’s single after a two-year disaster and homeless again. Along about 2023, he gets Jesus in his heart and meets his “goddaughter” in church although I doubt there’s any backstory of a baptismal font and Holy Water. Could be but who’s worried about semantics? He’s still a little bit unpredictable so the designated goddaughter- let’s call her Sarah- says he can bunk out back in the Motor home. Sarah found me through word of mouth and called. I couldn’t not take this one. A quick dumpster dive into his VBMS folder confirmed my worst fears on the virgin a&a status.

Just as I began, Johnny came down with a bodacious case of Ischemic Heart Disease (IHD). It’s on the list of Agent Orange shit but Johnny had been dining exclusively for years on fast food. He had waaaay more than ten thousand missions over Micky D’s but VA overlooks that kind of behaviour. Unless they could actually prove he’d done it to himself with fast food, he was golden.

I filed him for a&a for the bent brain and an increase plus a&a for the IHD. VA artfully denied the a&a for the IHD first because-well, silly boy- he ain’t SC for the IHD yet. Duh. Then they denied the IHD, too. He had the audacity to have his heart attack and forego using VA’s vaunted medical facilities. Translated, that means the medics that responded in the Meat Wagon motored him to the nearest hospital to save his life instead of getting on a toll road and driving 46 miles in rush hour traffic to the VAMC. And yes, a&a was not needed for the PTSD-just more (and stronger) tranquilizers.

I got Sarah to scare up the ER hospital medical records, filed them and they gave Johnny a 60% and continued his SMC S. VA didn’t even bother to discuss a&a for the McDonald’s Disease because they still insist you need a 100 or TDIU to qualify. Just so you folks know, discussing SMC at a HLR Informal conference is like discussing the finer points of Trigonometry with your dog. They nod their heads sagely and 28 minutes later, you see the denial pop up in VBMS.

So, it was off to the BVA. Thank the Lord that Johnny is over 75 so we got this in front of a VLJ  fairly quickly. But then it sat…and sat…and sat for six long months.  Johnny had also filed for IHD back in 2010 when he’d had one of  those moments of paralyzing fear from the bent brain and its residuals and blew about a 210/155 on the BP meter. A VA doctor said he might have it, ordered a MUGA scan and the VAMC disremembered to  do it. Mighty convenient. No diagnosis equaled no dice. Denied.  Merci Beaucoup for your service, Johnny. Next?

Six months is a lifetime if you’re advanced on the docket but one thing I can say is a denial doesn’t take nearly that much time so I had a good feeling about this one.  So, it was with great pleasure that last Thursday I spotted the magic paper in Caseflow. The VLJ did an admirable job of following the paper trail back to the 1994-1996 staycations at the Loma Linda Home for Wayward Vets. It paints a pretty powerful picture of deceit on VA’s part for saying all these years that Johnny’s mental state would clear up and resolve itself if he’d just stop self-medicating and eat more of their medications.

Granted, I could not convince the Judge to grant the IHD back to 2010 but winning the A&A back to 1994 subsumed it anyway so it’s a push. And besides, Johnny was already at SMC S in 2000 so the added 60%  for his heart back to 2010 still wouldn’t have moved the needle. Needless to say, Johnny Vet now has a pretty serious chunk of retro to make a down payment on a house. And he allowed that if the shoe was indeed on the other foot, he’d have my 6. Check it out.

Redact BVA R1 retro to 10.1994 2.13.25

Truth be told, I’ve filed a number of appeals for two a&a entitlements much like a VSO who throws 26 claims like spaghetti at the wall all at once in hopes of getting 10% for even one of them. Asking for two a&a claims can happen when you’re already at SMC L loss of use or an earlier a&a win and trying to get to R 1. Granted, you only need one more L but it always helps to have two hand grenades instead of one.  But this one was a first for me in that the VLJ granted two a&a ratings in one appeal-let alone one going back thirty one years. Whooooo doggies. This one calls for three fingers of Johnny Blue with my buds in Minneapolis- St. Paul in April.

Interestingly, five “VA experts” on Reddit said this is impossible and can’t be done. My riposte? At asknod, we don’t practice law. We perform it. Lather, rinse, repeat. And that’s all I’m gonna say about that.

P.S. Here’s a peek at a new Appeal coming up. Imagine you asked for a simple bump from L (loss of use) to M under §3.350(f)(4) for a new 100% rating for your IHD back to 2018. VA comes back, says you never had loss of use of the lowers but relax, it’s not a CUE and changes your SMC L to a&a. Here at asknod, we make lemonade with the lemons we’re handed. Sometimes we supersize it with vodka to take it up a notch.

redact R1 10182 filed 2.15.2025

Posted in Aid and Attendance, Food for thought, SMC, Tips and Tricks, VBMS Tricks, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , | 5 Comments

UTUBE©– POKING THE BEAR 101

Posted on February 9, 2025 by asknod

One of the most absolutely hilarious VA old wives’ tales is the perennial  “don’t rock the boat” speech given to aspiring disabled Veterans by countless VSOs over the years. I got one from my first protracted foray into VA benefits in 1989. I tried in spring 1974 but couldn’t stomach the way they were treating us post-Vietnam folks at West LA VAMC. I walked away for fifteen years- as was intended by their rudeness and indifference.   

Anyway, after my big victory of 0% for Tinnitus and 0% for hearing loss in left ear only, I was eager to follow this Yellow Brick Road to Bucks Boulevard and get VA Disability. I returned to the DAV office a week after getting the BVA decision and asked when a good time was to schedule an appointment to go over the next attack. My minder Derrick’s eyebrow’s just about sailed outta sight right over the back side of his hair-challenged noggin. He stretched out the word “Whoa” for about 3 full seconds followed by “there, sonny.”

And I was given the “briefing” about how you lay low after you get that service connected tinnitus and hearing and sit tight. The normal schedule was to just cool it for at least three or four years and act nonchalant. Whistle as you walk past the graveyard shit.  Then, and only then do you ask for an increase for your hearing issues- through DAV, of course. The reason was simple. VA might get this misguided belief that you were being greedy or even faking it to get their money. VA was well-known for coming after Veterans and taking away their benefits for cheating and faking their hearing tests or bad backs. That’s why you needed a reputable, well-respected firm like DAV because VA trusts them.

It took a while for that speech to wear off. About fifteen years or so. The speech wears off when your disabilities start piling up and hearing loss is about the absolute bottom of the problem list. I fell prey to a succession of AmVets  and MOPH VSOs who included the same speech about the dangers of bear-poking.  Thirty years later it still appears to almost be an article of faith among Veterans over at the FacePlace© group Vietnam Veterans-The Best of the Baby Boomers. One of the Admin guys is on a feeding tube and barely survived his latest battle with cancer. I pointed out to him that he should be at R2 and Tier II Caregiver PCAFC. Then the comments began.

He was really interested but afraid it might endanger his TDIU. He was advised by others  to wait ten years to get it “protected” before he filed for anything. I find it’s best not to antagonize folks like this with the truth. They believe in Chemtrails and cameras mounted in the door of your refrigerator that transmit every word you say to the Black helicopters you see flying around in your neighborhood. I reckon even Jesus had to concede at some point He wasn’t gonna get everybody on board with that Water to Wine trick.

But, for those of you who don’t believe everything you hear in Social Media, the truth is vastly different. I’d already learned of the Special Monthly Compensation (SMC) benefits available to the very severely disabled by 2008 and decided to see how far I could push this bear crap. And boy howdy, did I poke the living shit out of VA trying. Turned out the bear story was a nothing burger.

In eight years, I wound up winning my earlier effective date for SMC S back to 1994, and with it a 20-year protected rating for not one but two 100% ratings. They didn’t reduce me to Private E1. They didn’t take away my benefits and put me in the Fort Leavenworth Home for Wayward Veterans. My wife and my dog didn’t leave me. USAA didn’t come and repo my Dodge Power Wagon. Doomsday came and went. My kid went on to college on VA’s DEA nickel and VA didn’t come back and ask for the tuition later.

A friend recently sent me a link to a U-tube© video of some city slicker with an ascot or turtleneck all decked out to the nines teaching us the dangers of “Poking The Bear.” Had to look it up. Mr. Jordan Anderson is the Sherpa. I won’t badmouth him. Everyone’s gotta have a Schtick. He means well. Commando Kraig is another who preaches this same Bear Harassment hooey. The only flaw I can see in their thinking is they’re using too small a sampling of VA claims. Did VA ever come after them for bear-poking their own claims?

Think about this logically. Neither Anderson nor the Kraigmeister  are VA-accredited. This is not to imply they are claims sharks. They may skate pretty close to the thin ice of §14.628 -36 but that isn’t my department. I’m pretty sure the new Administration is going to plug the eternal mystery of what constitutes breaking the representation rule soon. But back to the Dynamic Duo above.

Logically, by operation of law, each of these gentlemen has really only done one claim apiece- their own. So, by extension, only they, individually, have seen, litigated and won one big adventure apiece. VA considers that you really only have one claim. The claim may exhibit different facets at different times like Parkinson’s and DM II with a side of pes planus. Nevertheless, it’s still one claim with a varying level of financial remuneration. In VA’s mind, it’s dynamic and subject to change up or down. Mostly down if they can find a way, too.

I’ve read on Redditâ„¢ about VA raters opining on all manner of VA law. Again, in reality, what have they litigated? They used a flawed device call the M 21 1MR (Manual Rewrite) that has to update every month to try to stay abreast of current VA law. What we do know is 75% of all VA decisions have a remandable error of some sort at the CAVC. If you let a computer make your decisions, it cannot be said you have litigated it- right or wrong. What can be said is you, as a VA rater, input  a lot of data about Vets and the computer invariably comes up with the wrong conclusion. With luck, it’ll get sorted at the BVA on appeal if litigated by knowledgeable representatives.

  Put another way, if VA’s work was flawless and truly computer driven with high-quality AI intelligence, we litigators would become an anomaly. Demand for us would dry up and we’d all have to seek work selling used cars. Above many a library in Rome was Seneca’s immortal phrase Experiencia Docet. Experience teaches. While I’m sure all the Sherpas teaching us VA law on Utube® are convinced they are the cat’s pajamas of VA law in this game, I’d beg to differ. Doing a claim for Multiple Sclerosis for a Vietnam Vet would appear to be a fool’s errand to a VSO. Why? Because MS isn’t on the list of AO diseases in §3.309(e). So what? Get an IMO. But what about one for a brain glioblastoma due to Camp Lejeune contaminated water? How about the impossibly high legal standard for SMC T? If your claim to fame is that you won yourself a 70% for a MDD/PTSD, I don’t think that makes you proficient in the art of doing TBI claims.

VA law is crazy. Where else can you get a do over (CUE)? Where can you get a guaranteed bill of good health that can’t be disputed later (Presumption of Soundness)? Where can you prevail in a Federal Court of Law based on the evidence being in equipoise (benefit of the doubt)? In spite of the deck being stacked in our favor, Veterans lose their claims and appeals at a horrendous rate due to litigation ignorance. Why is that? Too many Vets poking the bear? Nope. Not enough experienced litigators and a dearth of good knowledge.

That ignorance sword cuts both ways. I’ve had innumerable VSOs call me a liar insisting 100% or TDIU is the end of the road. They deny the existence of SMC. When I ask what they call SMC K and S, they categorize them as ancillary benefits like Specially Adapted Housing (SHA) or  an automobile grant. Some even categorize SMC S Housebound as aid and attendance “light”.

By the same token, I’ve had bigwig lawdogs at brand name law firms tell clients to ignore my SMC Blog babble as wishful Rainbow/Unicorn thinking because I have no legal training. About the only thing you can say with great accuracy about lawdogs is they don’t preach that bullshit about bear baiting. Think about all I’ve discussed today. Wouldn’t it be a piss poor business model for us litigators if all we told our client is we don’t think it’s a good idea to file for their 100% lung cancer just yet- right after we win their claim for a bum knee for 30%?

So, Veterans. Ask yourself why VA Agents and Attorneys are so successful at poking the VA bear and winning their clients TDIUs, 100% cancer shit and Permanent and Total? Why is that? Even stranger in this discussion is who’s paying Jordan and Kraig to shout “Don’t Poke the Bear” from the Utube rooftops and to never file claims for SMC benefits after they win P&T? Perhaps more à propos as an admonition would be Nothing Ventured. Nothing Gained.

I’ll leave that question for all of you to ponder. Something just smells weird here… like a load of Bearshit. Happy Super Bowl LIX Sunday to you all.

 

Posted in All about Veterans, Complaints Department, Duty to Assist, Nexus Information, Public Service Announcements, Tips and Tricks, VA Agents, VA Attorneys, VA statistics, Veterans Law | Tagged , , , , , , , , , , | 1 Comment

BVA TRIP NUMBER 3–I’M BEING FOLLOWED BY A MOONSHADOW

Posted on January 27, 2025 by asknod

As has been the case for well over a tenth of a century, I continue to offer advice for free. There is no special $99.95 Bootcamp for Beginners fee or the $199.99 Advanced Infantry Course for SMC where you actually get to break bread with the Exalted One. Pay walls are forbidden here as are advertizements for Viagraâ„¢ or Russian wives. My website is free partly because I married a rich girl and in equal part because VA pays me for my disabilities. I love doing VA claims for one reason- revenge. For twenty eight years, VA insisted I never served in Vietnam. How many of you has that happened to?

They called me a liar. But to us, Luang Prabang (L 54) was sort of the furthermost westerly terminus of the DMZ for all intents and purposes. Some Poohbah at the Vientiane Embassy changed my status from Airman First Class in Communications to Employee (French teacher) of  the US Agency for International Development (USAID). In the military, you go where you’re told to.

Every Vet I get service-connected now is one more twist of the knife in their ribs. Nobody should have to wait that long. Yet here I find myself nine years into a claim/appeal and seven years post mortem of the Vet. What’s insane to me is how the Agency of Original Jurisdiction (AOJ) -aka the Station of Jurisdiction (SOJ)- can blithely blow it off and blatantly ignore that which the Board asked for in the remand back in 2021. To me, this is one of the greatest flaws in the transition from Legacy to AMA.

Each VA claim or appeal now is a one off “transaction” with a 365 day fuse on it. Think of it as a very slow M 26. Each appeal, once heard, decided and remanded et cetera, is like an Amazon package delivery. If it ain’t what you ordered, it’s off to the local UPS avec your return label to get it fixed. If you don’t bitch for a year, then you have to start over again. If you do bitch, a DRO review usually takes forever. You’re better off going to the BVA to win due to administrative error.  But let’s talk about Bob. https://asknod.org/2018/07/05/milestones-9-24-49-7-1-2018/

Bob was an avid hunter and lover of exotic guns like me. He was also a two-tour Vietnam Vet like me and washed off a lot of Agent Orange that was sprayed on him out in the Iron Triangle of I Corps. Unlike me, however, he had a Purple Heart and an ArCom with an OLC, three Bronze Stars and he wasn’t even an 11 Bravo. He was one of those 95 Bravo 40  military policemen in the wrong place at the wrong time. Later, when he got out, they conceded the CIB so he did at least get that- but no Blue Fourragè.

Along about 2016, Bob found me and I took his claim(s). Bob’s heart was going south fast and he needed his wife to be covered for DIC- like RFN.  It got worse when he added that the chronic sinusitis from getting hosed out in the field w/AO had turned into cancer in his nose. I reasoned this was part of the respiratory tract. VA insisted it wasn’t on the main chute from the nose to the lungs and denied again and again. While we argued back and forth, Bob augered in. That was July of ’18. I got an IMO from Mednick and took it to the Board in ’19. I needed the win to get the surviving spouse DIC because he’d only been at about 70% for Bent Brain syndrome and tinnitus.

I got the positive BVA decision for cause of death being Agent Orange and accomplished the primary objective of her DIC and accrued claims but VA just had to tweak it to short sheet the SMC entitlement. I’d filed Bob for 100 for IHD because he was blowing a 23% on his Left Ventricle Ejection Fraction (LVEF). He was popping Nitro pills like Tic Tacs for his angina symptoms. A week later when the sinus cancer was diagnosed, I filed for that too.

So VA gets the BVA decision granting service connection for the cancer back in ’21 and gomers it out. The front page of the Rating Decision (RD)  announcing the award said:

“Entitlement to aid and attendance of another is established as of 12/17/2017″ which was the date of the 526 request for increase for his Ischemic Heart disease.

Right below it,  the rating decision said:

“Entitlement to aid and attendance of another is established as of 12/26/2017.” which was the date of the 526 request for service connection for sinus cancer, brain cancer and liver cancer.

But, in spite of that clear and unmistakable English, on page 7 the RD, the Gomers said

“Entitlement to being bedridden is granted as of 12/17/2017.” followed by…

Entitlement to increase in the SMC from the Statutory rate of SMC L to M under §3.304(f)(4) is granted as of 12/26/2017.

Redact 2.25.2020 RD_

And… Poof! Suddenly, my carefully laid SMC O/R 1 punji pit was gone with the wind. I’d been outwitted by village idiots. A quick survey of the Notes section on the EP in VBMS confirmed the skullduggery. As most know, §3.103(a) says in no uncertain terms that they have to give you everything they legally can short of giving away the farm. Here, the conversation in Notes centered on lowballing a dead man. Alex is an Agent which, IQ-wise, is slightly above a VSO but decidedly way below a Juris Doctorate. He probably won’t even notice we screwed the widow.

Granted, we’re talking about a period of about seven months from filing the claims to Bob’s death but you have to realize SMC is due and owing when the evidence supports the award-not the date of the claim. His heart had been going downhill pell mell for the last six months. The RD jacked him from 30% to 100% but they didn’t consider aid and attendance other than the bedridden determination. That’s how the M 21 works…

So, I strapped on my typewriter guns and proceeded to fight for his wife. If the shoe was on the other foot, I’m sure Bob would have done it for me.

redact 2021 brief

This ended up with the BVA asking for clarification so they could decide if he deserved a SMC rating of R1…

Redact 3.10.2021 BVA remand

The VA’s response was simple- SMC L for bedridden was confirmed and continued as was the increase bump from L to M. Which meant I had to file yet again to get the BVA to force them to tell us the truth. Four years later, the BVA finally got around to cutting the remand again…

redact 7.2.2024 2nd remand from BVA

And finally, after mulling this one over, the OAR decided to answer  six months later (last week). It makes me wonder if they were debating whether to even admit the truth or keep on stonewalling.

redact 1.13.2025 RD

So, it’s back to the drawing board again to get it sorted. Bob must be up there in Heaven apoplectic as all Hell by now over this but at least he can see I haven’t given up. The funny thing is I got a notice from BVA this AM early saying the Appeal had been docketed as of this morning but the docket date, which always mirrors the date of the legal brief submittal, is dated the day BEFORE the rating decision-i.e., January 12, 2025.

redact 10182 No. 3 filed 1.24.2025

My patented ‘make them shit or go blind’ technique even provoked a real boner this time. The RD insists he’s at R1 already and that’s confirmed and continued. But the code sheet still says he got Poor Man’s R1- SMC P at M+K. That’s a fer piece from R1 as the crow flies. I will give them this. They finally answered the VLJ and admitted the bedridden rating was strictly for sinus cancer, brain cancer and liver cancer so that should put a fork in this once and for all. But you never know what the VA’s Clown Corps can come up with.

This Notice of Disagreement will be my third attempt to summit R1. My guess is the BVA is getting a bit put out by the Secretary’s laissez faire approach to litigating and answering with bullshit responses. I’ve never had to ride the BVA Hamster wheel three times just to get it sorted. God forbid there’ll be a fourth.

This video is a great one. I wish Bob was still here to watch it.

Posted in 1154(b) combat presumptions, Agent Orange, BvA Decisions, Complaints Department, Food for thought, Lay testimony, R1/R2, SMC Bedridden, SMC School, Special Monthly Compensation, Tips and Tricks, VA Agents, Vietnam Disease Issues | Tagged , , , , , , , , , , | 6 Comments

BVA–§3.156(C) JUSTICE OVERDUE

Posted on January 12, 2025 by asknod

I’ve written a few articles over the years about Chris the Door Gunner, my now good friend in addition to my client. We’ve almost “gotterdone” after seven years. But not quite. VA screwed him for so long and so hard that he (and I) both now heartily subscribe to the Veterans Shakespearian Diet Plan on how to serve revenge. How ’bout I serve about four of ’em?

This all began with a VA Form 9 back in December of ’20. We’d found new §3.156(c)  records stashed at The famous William G. Beaumont Hospital in Texas since ’68 where he’d been air-medivac’d there from An Khe. We had an IMO from Hell and VA refused to look at it. I had to take the whole thing up to the Board on a hearing with the new evidence + IMO to get the win back to October 1972.

So, we fly to DC. Say hi to Dad. Go visit the Wall and go to a face-to-face Board hearing down on I Street.  A month later they call and say they screwed up the tape and it didn’t record. Six months later, we got another hearing and fly back again.  The Judge split it into two separate appeals. The §3.156(c) case was open and shut thanks to the Mednick IMO.  I asked the Veterans Law Judge we drew (Diechert) if he would try to be the adjudicator. As most know, with the passage of the AMA, they snuck in that codicil that the Hearing Judge might not be the one who wrote your decision… but it’s still legal. Personally, I think that sucks. If I conduct a hearing for my client, that Judge can see the earnestness and responses commensurate with a real person – a Vet-not a legal word salad describing him or her. She or he should be the one who decides. I always throw that into my hearing testimony at the end for what it’s worth. I don’t see any reason they can’t start doing that. They shouldn’t be allowed to make the hard decision and just hand it off to a FNG to write up. There’s a reason they’re called the “Trier of Fact”.

redact BVA ED =10.30.1972

In spite of VLJ Deichert’s grant of the earlier effective date of 1972, the Gomers at Fort Whacko granted it back to the day Chris began his fight to go back to 1972- that would be in September ’15. So, back to the BVA with hat in hand to ask the Judge politely to “re-give” Chris that which they had already given him several months before. God bless the Board. Somebody there finally blew an ass gasket and put the dee-dee mao on it.And in no time they granted this in no uncertain terms so it couldn’t be misread. Or they thought they did.

Part One of the revenge comes with the dependency and three kids from 1972 through 2013- something VA  has constructive possession of in part. Somehow, they just disremembered to reconsider that part of §3.156(c)(4).

Part Two, served on a separate dish, is the not-so-small matter of the diagnostic code. Back in 1972, they were a mite bit more generous with intervertebral disc disease. Chris’ code sheet seems to say VA is trying to rate him on DC 5242-5237 straight through from ’72 to the present. But…DC 5237 didn’t even exist back then and neither did 5242 for that matter. I suspect somebody named Coach suggested the VSR write it up using the 5237 which would result in a 20% versus 5293 (1972) which would permit 40%. I’m sure it’s just a little mistake and logically, VA would never purposefully deprive Chris of what was rightfully owed him. We’ll get it straightened out one of these years. The Presumption of Regularity says they’re right on people, dude.

redact CS 10.31.2024

Part three of this seven course meal is the small matter of VA trying to a) assign a date for SMC S of March 25, 2024 when the code sheet shows TDIU plus 60 from September 2015. That’s some serious folding money where I come from VA seems to consider it a harmless rounding error.  But at the hearing, we argued for b) SMC at the L rate under §3.350(b)(3) back to 2018 and the psychologist and the neurologist concur Chris is one hot mess. Nowhere in the rating decision is there even a mention of aid and attendance.

Part four is Chris has a hole in the roof of his mouth into the nasal passage due to that jeep trying to put him on the VietNam Wall at 35 MPH. A quarter ton of M 151 can do that to a feller. VA finally sent him to a dentist for his c&p. She threw up her hands and said hold the phone Ramone. I’m a dentist, not an orthopedic surgeon. It’s waaaaay above my paygrade. Not it! VA took that for a hard no = asymptomatic= 0%- mandibular fracture but again, in 2024 0% ratings criteria instead of 1972.

Just when the VSC DROs and Coaches down at the David NMI Koresh Memorial Regional Office are patting each other on the back, fist-bumping  and high fivin’ over getting rid of Chris, more reality (Part One) is going to arrive soon on their doorstep. The BVA docketed another pair of these culinary contentions on December 26th and both have already been distributed to the Judge. If this was a Hollywood TV show, they’d be cueing up the Badge 714 theme music about now.

 The recurrent theme synonymous with all these cases is that VA could have settled up with Chris in ’72 at a paltry 20 or 30% and they’d probably never have seen hide nor hair of him ever after. But by being a total dick and denying him for all these injuries, instead they just set a demon loose on the earth. When Chris saw what took me 28 years to do, it inspired him to seek justice again, too. Can you imagine how much money was spent litigating this fustercluck all these years?  Surely as much or more as was spent on them fighting me to the Court. And any number of others I’ve drawn some serious blood on. Fact is, if they ever straighten up and fly right legally, we’re all out of a job.

 To me, the OGC seems to be an employment tool to soak up extra juris doctorates who need work. The work created is 76% anti-Veteran judicially. With an error rate that high, it creates even more work. AOJs will stay bustling- even more so if there’s a depression or recession in progress. The new AMA encourages 10182 NODs to the Board as evidenced by the record numbers and the backlog. The CAVC has even had to hire more judges and use the senior ones to fill the gap.

Nothing like a few 20-year long wars to create a a shit ton of  disabled Veterans, huh?

P.S. The real reason I decided to write something today was I went out to the garage to get some plumbing tools for Cupcake’s Sunday Honey Do list. Deb keeps the horse food out there to keep mice out of the barn. And if she ever keeps the garage door shut, we probably won’t have mice in there either. Of course, if I point that out to her, I’m being a dick. Heads she wins. Tails I lose. I get that.

Anyway, as the overhead door goes up, a cartoon character mouse waddled away from the feed bags across the floor in slow motion in front of me. I could swear he glanced up at me nervously as he went by. The poor guy looked like he’d swallowed a ping pong ball.  He was making about 3 knots on a 090 heading across my bow at 100% military rated thrust but his landing gear was down and his flaps were still extended. Pickles immediately went over and gave him a sniff and he didn’t even kick it into afterburner. It must have thrown her into a quandary as to why he wasn’t at Mach II yet.  She let him go. Must be because it’s Sunday.

Amen.

Posted in 3.156(c), §3.156(c) claims, DIC, How to Qualify for VA SMC, Humor, Independent Medical Opinions, SMC, VA Agents, VA special monthly compensation, VA TBI, Veterans Law | Tagged , , , , , , , , , , , , | 2 Comments

2025– WHAT VETS HOPE TO SEE THIS YEAR

Posted on January 11, 2025 by asknod

I love the New Year hooplah and all it promises. A new, clean slate upon which to write. The promise of finally losing weight must be a big one because every year about now, Weightbegone©, and a bunch of other outfits like Marie Osmond’s  Nutriloseitâ„¢ show up on TV. Now we’re getting bombarded with prescription weight loss drugs to combat too many missions over McDonald’s. Seems I’d default to the primary cause- failure to keep you mouth closed except for three very short periods every day. Better yet, let’s sue the manufacturers of knives, forks and spoons.  

This morning I went to FacePlace® and marked myself safe on The Wildfires of Southern California page. Yeah. I know. I live west of Seattle but you know how this shit spreads. When the housing down there all finally burns up, you know where the refugees will head next. Interstate 5 leads right up here like the Yellow Brick Road. Don’t get me wrong. I feel compassion for Angelinos but when the voters keep re-electing these Bozos and they cut your fire budget to the bone, don’t be stupified if the fire hydrants run dry. Why would anyone be surprised?

I received a few emails from a poor Aftstan  Vet telling me about his case. He said he has to go up to Seattle for a MRE on his lungs. I’m trying to visualize that… Why would you have to go to Seattle to dine on that? What’s wrong with Tacoma?

While on Face Place this AM, I saw that Kommando Kraig© is now offering Independent Medical Opinions (IMOs or nexus letters) for the low, low price of only $499.00. There’s an asterisk next to it indicating that speshull price applies to those who are paid members who have attended his ‘Boot Camp’. Perhaps one of my gentle readers can enlighten us as to the entry cost of the boot camp so we get an apples- to- apples comparison cost versus all the other claims sharks out there marketing these things. Asking for a friend.

In the VA News Feed, I see VA is touting they are magnanimously extending extra GI education benefits to Veterans as if Congress just got a bad case of remorse and offered us more. Turns out to be nothing of the sort. Way back in the days of Legacy, groundpounder Jimbo Rudisill qualified for both GI Bill benefits in that intercurrent period spanning the end of the Montgomery Bill and the newer, more generous one for Post-9/11 benefits.

Student Veterans Of America who helped win Rudisill.

Denis the Menace’ forebears (Shulkin and Wilkie) denied him over and over. After getting his ass kicked by the AOJ, he marched smartly up to the Board, the Court and the Fed. Circus in succession and got his ass re-kicked. He decided to seek certiorari at the Supreme Court and succeeded. The Supremes not only agreed with him but reversed and remanded his appeal and granted him both benefits.

So, how in anyone’s wildest imagination can the VA misconstrue this as a generous accommodation that was mutually arrived at by all stakeholders? Well, if you’re a stranger to VA litigation,  this might make sense but to us, as longsuffering Veterans, this is par for the course. Interestingly, if you research VA law, you’ll discover the biggest names you see in VA precedence all lost on appeal. Look up Norm Gilbert’s denial in 1990. Ditto Joe Fenderson’s staged rating appeal. Benito Layno’s independent medical opinions. All the big guys lost. What they left us was the valuable blueprint on how not to make the same mistakes in the future.

Rudisill should be filed under the same hubris as the West LA Medical Campus uproar where VA Poohbahs decided to rent out this huge place (388 acres) to Hertz Rentacar, the Brentwood Private School and UCLA (for athletic fields), a few oil pumpjacks and a commercial laundry (not the famed French Laundry). The only problem with this was they were busy putting up concertina wire and trip flares to keep homeless Veterans outside the perimeter of a piece of property donated specifically for the use of America’s Veterans in 1888. In fact, my very own grandfather, old Alex Graham, was a resident of the old folk’s home there during WW II until his passing in 1948.

In spite of a hollow promise to build housing specifically for homeless Veterans, by 2022 they still hadn’t even broken ground and defied the Courts to tell them they had to comply. So, when someone says VA has just come out with some generous program that makes all kinds of wonderful promises of entitlements, I tend to pry that VA gift horse’s mouth open and take a gander for myself. Forgive me if I just trust but verify.

Folks I litigate with over VA claims all ask me why I refuse to even look at the strictures and rules of the M 21 Adjudications Manual. I defy any of you to show me a printed copy of the Manual for one simple reason. VA doesn’t print it because it changes, on average, about 135 times a year. The reason is elementary. Look no further than Rudisill, Laska or Barry. VA seems to have a decidedly defective method of decyphering the meaning of our benefits such that the error invariably goes against us.

You’ll never hear of the OGC deciding arbitrarily (unasked) to change some regulation so as to make it more liberal and grant Veterans benefits long denied due to confusion on how to read the statute. Each and every one of our wins at the Federal level occurred because we had litigators who were willing to fight to obtain benefits that were rightfully ours. Just think how many years VA Secretaries misread §3.350(f)(3) to say you only got one (1) half-step bump under SMC P. Do any of you think that was a one-off? Just a comma in the wrong spot that caused a shit ton of confusion? Oh Hell no.

We inhabit a small, closeted legal system that is more convoluted than any other. Congress enacted statutes that shelter us and grant us untold presumptions- the presumption of soundness when we enter is a big one. When you enter the service, every mole, scar and tattoo is surveyed and recorded. If you have a bum finger, it’s recorded to make sure if it gets worse in service, you won’t get any baksheesh for what you had before you entered. But what happens when the examiners say “NCD”? That stands for Not Considered Disabling. Imagine my surprise when one of the Vets who came to me had a 10% deduction after service in spite of VA saying twelve years earlier that it was NCD? Sound like a Bozo No-No? You betcha. Read these.

redactVA 9 filed 4-26-2020

BVA denial 12.30.2024

Another big one for Veterans is called the combat presumption under 38 USC §1154(b). If you have a PHM, ArCom or a CIB/CAR, it’s presumed you’re telling the truth. Well, presumed in the sense that if it entails a screwup back in 1953 about whether you were in combat, then they blow it off because it will cause them untold financial loss. They’ll turn your file (or what they haven’t shredded up yet) upside down and say you lied about your age to get in early. That makes your testimony tainted. Liar! Liar! What in Sam Hill does combat have to do with it?

VA has lots of presumptions guaranteed by Congress they are supposed to obey. Getting them to obey Congress seems to be the problem. It’s the old game of “Presumptions? we don’t gotta obey no stinkin’ presumptions unless you take it up to the Feds and they specifically tell us to”. That’s how we ended up with all the James Rudisills, the Laskas and the Danny Barrys of the world. We have to fight these fights over and over again.

Never come left on final in front of artillery on a fire mission at a fire base.

The homeless down in West LA, if they haven’t been asphyxiated by the recent turn of events, had to learn this the hard way and fight to get what anyone of sound mind could clearly see was their right. Seems I recall this phenomenon when I was in the military. We were considered guilty until proven innocent- the exact obverse of normal civil law (or criminal). In spite of having it drilled into you about the wonderful nonadversarial world in which we litigate, history speaks volumes as to how the Agency tasked with our wellbeing seems to spend an inordinate amount of time litigating in a ‘develop -to-deny’ posture. Here’s a good example.

Every Veteran knows (or should) the rating for ALS is 100%, right? Look it up. It’s automatic. If you have it, §3.316 says you get service connection for it. Period. Shoot, it even says to consider the need for aid and attendance or loss of use of the extremities. So take a gander at the rocket scientists (or should I say the village idiots) who manufactured this piece of work. They’ve taken each and every extremity and rated it at less than a total loss. Coincidence? I don’t think so. Somebody named “Coach” told the VSR to use the Part IV §4.124a schedule for nerve paralysis and rate on remaining function. It’s called lowballing. They’ve been doing this since the War of 1812.

redact RD ALS 11.25.24

redact CS 11.25.24

I can’t make this stuff up. It actually happens out there in the real world of VA Sports. If this is what the year 2025 portends for us litigators, I can only hope the new VA Agency Poohbahs recognize their employees need some serious remedial training in the basics of ratings.

And that’s the way it is… January 11, 2025. The best news is that three years after shooting that idiot who tried to run over me with my own car, the Prosecuting attorney is returning my S&W Model 19-4 .357 Combat magnum. I carried it up in Laos so I have lots of fond memories attached to it.

PS. After watching the following, I’ve decided to follow suit and cut alcohol for the New Year, too.

P.P.S. As an additional postscript here, I wish to make sure no large unaccredited legal entitles who charge Veterans unheard-off fees for representation before VA get the idea I do not like them. Asknod.com/asknod.org is a news entity akin to the Babylon Bee® and is pure humor. We do not advocate for any particular outcome. Much like Fox News©, We report. You decide. We do not offer functional legal advice simply because we cannot by law. Asknod.com/asknod.org/asknod Inc. do not have any attorneys to do so. So if you, a large company who “consults” with Veterans and offers Independent Medical Opinions in aid of their claims, feels we (asknod) harm your business, all I can say is we’re all village idiots here and merely flapping our lips as the First Amendment permits. It’s not like we’re yelling Fire! in a crowded theater. It’s more like we’re yelling “This theater doesn’t have fire sprinklers!” so Veterans can make their own decisions.

Posted in BvA Decisions, Claims sharks, Combat Presumption, Presumption of Regularity, Presumption of Soundness, Reductions in rating, VA Agents, VA Claims Sharks, Veterans Law | Tagged , , , , , , , , , , , , | 6 Comments

THE MYSTERIOUS EVAPORATING TDIU PARADOX

Posted on December 29, 2024 by asknod

Okay, using GenX vernacular, let’s unpack this puppy. What in Sam Hill is Alex talking about? In VA land, as litigators, we get to see your Code sheet. Lotsa you Veterans, especially all the Commando Kraigâ„¢s and that city slicker with the cute ascot around his neck on U-tube, seem to think the drivel VA hands you on va.gov actually is your code sheet. I’ll plant one here directly so you can see how this TDIU bait and switch happens. The VA game plan is simple and I’ll also lay out the why of that punji pit for you as well. The long and the short of it is a shit ton of you fellers out there are getting short-sheeted on SMC S. Read on.

TDIU Code sheet 4.26.23

This all begins in a carefully orchestrated manner where you advance (slowly) up VA’s percentage ladder (unless you’re plumb totaled from the git go like a car in the junkyard). You usually begin this when you separate these days via BDD (Benefits Delivery at Discharge) by getting a 30% for bent brain, some 10% and 20% Mardi Gras beads for flat feet and tinnitus and the like adding up to 50 or 60%. Most of you won’t even notice you deserve lots more in percentage until you go on Readit® and discover all the folks laughing at you for being so naïve.

Mr. Willy Pete

Of course, everyone there (on Readit), including the VA employee experts, admonish you not to poke the bear. That’s an old wives’ tale from the 1980s DAV/AmLeg/VFW camp. How are you supposed to get to permanent and total? Go to church on Sunday and pray to the VA Gods of Good Fortune to smile on you? Obviously, there are those of us who walk erect among you who are P&T so the bear-poking story is obvious bearshit. Right? Shoot, look at me. I experimented after I got my first 100% and fiddlefarted my way to 100+100+60+40+30+30+ 10+0+0 just to see if I could. Could be there ain’t no bears in the woods to poke hereabouts but I tried.

The VSO technique is to eventually file you for anything and everything in hopes that enough shit sticks to you to get TDIU and get you out of their in-basket permanently. In all my years of doing this, I disremember seeing guys with Parkinson’s get better. Or DM II with all the peripheral neuropathy improve. Or the lung cancer or the Ischemic heart disease go into remission. The fact is, you’ll just gradually get there via age or from jumping out of perfectly good C 130s with 90 pounds of shit on your back or… eating too much Agent Orange for breakfast. Or your PTSD gives you megaroad rage. Or you enjoyed warming yourself next to a burn pit in the evening.

So, fast forward to your shiny new TDIU. You’re looking good in the neighborhood, right? Got that 70% P&T in your pocket and the $4044 per month married. The only hitch so far is you are forbidden to work for the most part. If you had your code sheet like the one above, you’d see you have one of two scenarios. Either you have at least one 40% and others adding up to equal 70% or more TOTAL… or a single disability rated at 60% or more. You might have some other nothing burgers for 10 or 0% but this is the basic TDIU scenario.

Now, let’s add on a few new ones or increase one of your existing ratings. Let’s say your heart takes a gigantic shit on you and the IHD makes your Left Ventricular Ejection Fraction (LVEF) drop to about 33%. The c&p says 3-5 METs. VA grants 60% and you’re thinking “wow, I wonder if I’m entitled to a higher rating?” You’ve heard through the grapevine about Special Monthly Compensation but your VSO says that’s for Winky not working any more or a masectomy for breast cancer. He’ll tell you there’s no such thing as SMC and you’re getting the max award as it is. Don’t be poking the bear.

All your Readit buddies are telling you to file for SMC S- what VA used to call the “Corvette Payment”. Actually, it won’t cover a Kia now due to the cost of living. It works out to about 4 Benjamin coupons extra per month. VA says “No dice.” If you had the code sheet, you’d see your TDIU has metamorphosed into what VA calls a “combined” 100% rating disability. TDIU is in the rearview mirror now. Gone with the Wind. But it ain’t, cowboy. That TDIU still exists. By rights, in the above scenario, you should get SMC S.

Once you get TDIU, it’s a “finding of fact” that you are unemployable. Fact is, your Bent Brain Syndrome would probably have you telling potential Time-Share condo customers if you want any shit out of them you’ll squeeze their heads if they ask too many questions. No sir. No $12 K a month in your spare time for you from the comfort of your own home.

But… what if you get more ratings, say, a bright shiny 100% for your ticker on account of the METs sinking down to 1-3 METs and the LVEF down to 20%? That would technically mean you have a single disability of Bent Brain at TDIU (70%=100%) and a new 100% solely for the Ischemic Heart Disease. VA will add the 70% for the brainbox to the 100% for the heart and give you… yep…100% total (combined). This is what we call VA “math”. Your SMC S just flew out the window. The only way to fix it is to go up to the BVA and demand they grant the SMC S based on one single rating of TDIU plus additional rating(s) of 60% or more separate and distinct from the bent brain. You’ll win every time.

You can read all about this in Buie vs. Shinseki here: https://asknod.org/2011/09/27/cavc-buie-5-v-shinseki-0-2011/

VA, for some reason, never got the email on this one or it just slipped through the cracks and they forgot to revise the M 21. Mighty convenient how their memories get a gigantic brain fart when it comes to SMC anything higher than K.  Either way, you’re never going to see them suddenly see the light, CUE themselves and grant you the SMC S without some serious bitching. Now, just imagine how many of you might have been hornswoggled by this crap and are deprived of the one document that could spill the beans? It sucks and I see it every day. But my clients don’t get to see the implied denial.

Possibly even worse is Johnny Vet who actually gets the additional award of a total 100% and VA actually remembers to give him the SMC S. He figures he’s in high cotton thinking ‘right on, dude.’ But the truth is they should be trying to figure out if they can line him out on SMC L for aid and  attendance. That’s Akles v Derwinski (1991) and the Court’s holding that if you get a total rating, it automatically demands they examine you for the highest and best possible SMC. You have a better chance of winning the Powerball Lotto than getting VA to be proactive on SMC.

People ask me how they can get their code sheets and I have two suggestions. Go see your VSO or attorney (or VA Agent) and beg them to go online in VBMS and print one for you. Even then, you may need a Sherpa to lead you up the SMC Mountain because VA sure as hell ain’t going to take you there on an all-expenses- paid guided safari. Or, you can request a copy of your entire C file on a CD and wait about six months for it to arrive.

 I had a VBA Decision Review Officer once swear to me that VA’s  motto was “Grant if you can. Deny if you must.” Considering the M 21 makes this decision regardless of your best intentions as a rater, his credibility is in the basement. His bosses are bearshitting him. I really don’t think VA employees are taught to have a negative attitude about it. Think of it like one of those old Magic Eight Balls where you ask it a question and turn it over to get your answer. Trouble is, VA’s M 21 Eight Ball is gonna say “No way, José. ” one hundred times out of one hundred. It’s VA’s M 21 computer programming- garbage in-garbage out.

And to all the folks who have emailed me saying they expect the absolute worst of the new Administration vis-à-vis the VA system? Relax. I did a longitudinal review of which party was in power during my compensation journey from 1989 to 2016.  It was dead equal. I got denied equally by both persuasions and conversely won equally during the period in question. So that tells me there must be two versions of that Magic Eight Ball. The fact is, our government needs to convert over to drones RFN and end this stupidity.

Happy New Year’s. Thank you all for allowing me to bore you to tears with my blog. Keep sending in the pictures. Let us never forget what we raised our right hands for… or regret doing so.

Posted in TDIU, VA Agents, VA Medical Mysteries Explained, Veterans Law | Tagged , , , , , , , , , , | 10 Comments

CVN 65–LISTEN TO THE STORY ‘BOUT A MAN NAMED STEVE

Posted on December 15, 2024 by asknod

Naw. Steve wasn’t from Bugtussle. He was from Pennsylvania for what it’s worth. What’s important is he raised his right hand and signed on for 4 years as a Squid. Now why anyone would voluntarily submit to a vow of sexual abstinence for untold months at a time almost rivals those who insist they’d much prefer to march there rather than fly. As for Marines, we haven’t figured out what makes them tick yet. No, life in the Air Force is much more civilized and orderly. We know what an ice cube is. But let’s talk about the USS Enterprise- the real one, not the NCC 1701.

This was a late submission that missed Halloween.

The Steverino signed up in ’68 and did some time after AIT in the USS Constellation (CVN- 64). From his STRs, it looks like he made the jump  over to the Enterprise about late 1970. I gotta hand it to the guys with gill slits. They do a credible job in their sick bays. They have actual rubber stamps that  say “CV 65” on them so this is pretty credible evidence. A Village idiot on a bad day could figure this out.

Nevertheless, after President Trump signed off on the Procopio Blue Water Expansion Act in June 2019, the VA was forced to begin identifying the new inductees into the Nehmer Club. That began in January of 2020. Steve immediately signed up. And this is where it gets shitty. Steve has really bad problems- cardio, Parkie’s, some radiation stuff causing loss of leg above the knee, cataracts and bad surgery to the point of legal blindness. You get the picture.

All the VSOs’ horses and all the VSOs’ men couldn’t put the Stevemeister on the Connie within twelve miles. He paid his dues and made the rounds. DAV, AmLeg, VFW and WWP all said no sweat and they all came up with a dry hole using his DD 214. Steve’s ship assignments weren’t on his 214 but they sure as shit were on his STRs. But nobody looked. Nobody sent in a 3101 to get everything from the NPRC.  He was a virgin. He’d never filed  for anything but a VR&E gig in 1972 with Cleveland Institute of Electronics to learn how to fix TVs. Steve’s mind is not what it could be, either. Nobody knew he had dementia… yet.

Steve had that old 8-digit VA claims file number starting with a 29 so it threw everyone off. They pulled up his archived files from the Records Management Center (VBA STL376) but there wasn’t anything on him. Now, if they’d filed an actual 526 provoking the duty to assist, this might have had a completely different ending before now. Instead of a fishing expedition to find out if he was a Nehmer candidate before filing him for herbicide, they blew it. Every last one of them. They told Steve to hit the road. He was never going to be recognized. The Constellation was last inside the 12-mile limit in 1966 and never again until June of 1972-six months after he separated.

For Steve’s purposes, lets concentrate on what the Enterprise was doing in 1971. If Steve was really on her, there was only one Bingo date for his Procopio moment – November 25, 1971. That’s the only listed date in 1971 that shows definitively that she was within the magic 12-mile limit. I use Hill and Ponton’s interactive map. It’s probably the most reliable. https://www.hillandponton.com/blue-water-navy-vietnam-map/

When I did my initial intake with Steve in person, he’d initially said the Constellation but after comparing the 214, even I could see the futility. So, knowing about the recent diagnosis of Lewy Body dementia, I played devil’s advocate and asked if maybe-just maybe, he disremembered and had the Connie confused with the Enterprise. He said “No, I served on the Connie but that was directly after AIT up in Great Lakes, Illinois. I transferred to the Enterprise in early 1971 and we sailed to Viet Nam in June 71. We were running combat flight operations up at Yankee Station until I left in early January and came home to separate. I told those folks to look up the Enterprise but no one would listen. Check my 214. I have the VSM and the VCM.” He does but ever since the old days of Haas v. Peake in ’08,  ‘I-was-there’ medals didn’t prove shit.

I could see he doesn’t have a lot of a gas left in the tank so I shotgunned a 526 to cover the major stuff at the same time I took the POA. When the STRs and the military personnel folder showed up in October, the Wizards of the 12-mile limit came up with a dry hole again. I had to file one of those Hansel and Gretel 4138s to lead them to the STR’s where Steve the Squidster reported to Sick Bay with a cold, sore throat and a fever of  99.5° F…. wait for it… on October 15, 1971. Even better, another entry in his inoculation record showed he got a cholera booster and flu vaccine on January 5, 1972… aboard the USS Enterprise. But the search parameters said Enterprise, not CV 65.

Steve joined the Nehmer Club officially on Wednesday morning last, the 11th, and has his first c&p exam on 12/23 as a recognized herbicide exposure Vet after almost five years of false starts. And if even one of those chowderhead VSO outfits had filed him back then and he’d been denied, we could still have gotten him that earlier effective date under §3.816(c).

Sometimes you just have to piss on the fire and call in the dogs. Is anyone going to put you in jail for filings claims and later finding out the Vet didn’t meet the parameters? Hell no. I don’t suggest cheating but I trust my Vets. If they say they deployed to RVN, I’d believe them and try to help immediately. I dang sure wouldn’t hold back and try to find out if he did before I filed him. I’ve had mixed success in these cases but fortunately this was a cake walk.

Merry Christmas to you all. It’s been one hell of a year for Veterans. That dang PACT Act is a nothing burger for 99% of you out there and it held such promise when it was first advertized. I guess we shouldn’t be surprised after earlier promises like PCAFC and Procopio… and how the AMA was going move so fast you’d have your rating in less than a fortnight.

 

 

Posted in Blue Water Navy, Duty to Assist, research, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , | 6 Comments