EASTER TRICK OR TREAT AT THE VA

Posted on April 21, 2019 by asknod

No, I’m not a conspiracy freak. I do not’ subscribe to Chemtrails Today or Deep State Magazine. I instead prefer light humor and get the news feed from the VAOIG Monthly “Highlights”. How about that discovery that all those VA whistleblowers (thinking they are anonymous) just discovered their bosses are the ones looking into their allegations of wrongdoing? Is that a hoot or what? That’s even richer than State’s Attorney Kim Foxx “colloquially recusing” herself from the Smollett hen house massacre. But wait. There’s more here at the VA that bears close examination.

(revised 1633 Hrs PDT; 4/24/19 @ 1001 Hrs PDT)

Having played VA poker for nigh on thirty years, I have watched the revamping of the denial process. It’s evolving like the cell phone. VA justice was crude like the old Motorola brick phones in the beginning. However, they were dual use. You could grip that rubber ducky antenna and use it like a blackjack when some chowderhead tried to steal your favorite red baseball cap. Unfortunately, you couldn’t whack a Veterans Law Judge upside the head. Unlike the old phones, now we can surreptitiously record video and conversations and bust folks doing what they insist they weren’t. We can also review a claims file and discover what we were never meant to see.

After the War of 1812, the Govt. found itself knee-deep in Veterans. Some method had to be invented to fence the malingerers and trailer trash out. This gave birth to the “acute but resolved before separation” excuse. It was lethal to claims but eventually, someone (the CAVC) spilled the beans in Caluza v Brown. Read it. From then on the acute and resolved gig declined in popularity at the VBA. Eventually, with the advent of social justice and real law, the Board of Veterans Appeals was forced to appear “equitable” and begin paying more than lip service to terms like “equipoise” and “presumption of soundness”. I actually toss in a blurb at the end of my briefs and insist on the benefit of the doubt. Of course, I use fancypants words like:

Appellant feels the appeal is in equipoise and asks for the time-honored pro-Veteran canon of statutory construction most recently espoused in Henderson v. Shinseki, 562 U.S.428, 441 (2011) (“We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.”). The pro-Veteran canon instructs that provisions providing benefits to veterans should be liberally construed in the veterans’ favor, with any interpretative doubt resolved to their benefit. See, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 220 (1991). The Supreme Court first articulated this canon in Boone v. Lightner to reflect the sound policy that we must “protect those who have been obliged to drop their own affairs to take up the burdens of the nation.” 319 U.S. 561, 575 (1943). This same policy underlies the entire veterans benefit scheme. Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (“[T]he veterans benefit system is designed to award entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.”

Perhaps it was Bill Clinton (I’m not sure on this one) who said “If you cain’t impress them with your alleged intelligence, baffle them with bullshit and jokes about how you didn’t inhale”. My point is I use every judicial tool at my disposal like a Bullshit button to combat this mayhem at the 57 Fort Fumbles across the fruity plains. And I have amassed plenty. I have a folder for briefs with all my Killer Cites to deflate bogus VA allegations and “findings of fact”.

What concerns me most is a growing trend in adjudications. I speak of the new (relatively) National Work Queue (NWQ). I created the analogy of a giant Lotto hopper with all the VA claims numbers in it and an air jet to swirl them around for the TV cameras. It begins thusly:

  1. Insert claim at the EIC in Cheeseville.
  2.  VA ‘technician” (and I use the term loosely) removes the claim from the tumbler and tries to decypher whatever it is you are claiming. After typing it up and assigning an End Product code (EP 020) in M 21-ese, s/he reinserts it back into the tumbler.
  3.   Yet another techie removes it several weeks later and decides if you need a medical c&p exam. And then throws it back into the hopper.
  4. You get a notification several weeks later to report  to QTC/LHI/VES or you local VAMC to be examined for these “alleged” illnesses/injuries.
  5. Three months later, the exam results are uploaded into your claims file. And here is where the new travesty of justice ensues. But first-back to the tumbler. Remember, I have only discussed five steps so far but more than 20 VA techies have put their fingerprints on this baby by now.
  6. A rater (#1) now “develops the claim”. By that, I mean they use OCR text recognition to cruise through mounds of VAMC CAPRI hospital paperwork, your VAMC files, your Service Treatment Records and anything you submitted. So, what happens if you’re like me- a Vietnam era Vet with a lot of hand-written records? Well, pilgrim, you’re plumb screwed to be honest. They haven’t taught cursive writing in 10 or more years. Worse, even if you were adroit at reading cursive, you’d need an advanced primer on reading contemporary doctors’ chicken scratch. Those VA techies blow this chapter off and proceed merrily on to getting it “Ready for Decision”.
  7. Finally, about the magic 125-day point, someone looks at the suspense date for cranking out a decision. Ready or not, here s/he comes with your M 21-derived rating. As we know, 85% will be denied. Often, this is the 3rd or 4th rater to begin the “promulgate decision” mode. Usually, they discover they’ve forgotten something and it has to be “reworked” to ensure it’s wrong. There’s a lot of this. The Houston rater knows it’s a shit show. S/he would rather find some minute error and stick it back in the tumbler for the VSR in Winston Salem to put out. It’s a game of ‘Not it!’.
  8. With the new AMA claims system, you now need either a sympathetic ear at the Higher Level of Review (HLR) venue or some most excellent new and relevant evidence to submit to the Supplemental Claims Lane. You can also go to the BVA and proceed to what we used to call a Notice of Disagreement based on the fact that the cursive handwriting was never part of the real record even though the rater said it was. I’ve given up at the Regional level other than to file the claim. In fact, I make no pretense of submitting any evidence. Why bother? Why not let them hamburger it first?

There’s another ploy to consider. If VA denies first off, then you can fulfill what you’re lacking and cure it. If they come back and deny on a different theory from the original one, why, that’s a post hoc rationalization  (see Martin v. Occ. Safety and Health  Council). Litigating positions are accorded no deference if they are merely post hoc rationalizations for prior Agency actions advanced for the first time on appeal.) You’ll see VA do this frequently and no one catches it. What gives?

The new VA claims technique is more subtle. The M 21 seems to have been reprogrammed to allow raters to ignore what appears to be exculpatory evidence and rely entirely on what the M 21 copier spits out into the ‘printing complete’ tray. Gone are the good old days of one rater (not 50) taking your file home with him at night and reading it after dinner. S/he would develop it from beginning to end and provide a rational answer. Yes, Virginia, there were problems with this like the Friday the 13th (July) 1973 NPRC barbecue on the sixth floor that magically burnt up records which wouldn’t be archived there for a decade or more. Worse, they sometimes float to the surface of the VBMS 40 years later when someone finally notices nobody ever actually wrote back to the NPRC  and asked for the STRs back in ’73. This is becoming the frequent “oh-so-rare CUE error” we were told about in Fugo v. Brown.

Essentially, the NWQ is modeled after the Detroit auto assembly model. As the car moves down the assembly line, VA ‘installers” complete preliminary tasks like c&p exams, pseudo research via Wikipaedia™, trying to ascertain if you “stepped foot” in Vietnam, if you smoked cigarettes to defeat lung cancer presumptives, denial if your dad had Parkinson’s so you had a genetic proclivity for it, etc. Instead of one comprehensive examination of all the assembled evidence and a truly exhausting review of the potential for extending the benefit of the doubt, we now have upwards of 50 yayhoos with their fingerprints all over your file from Buffalo to San Diego-before a decision is even made. And, like Detroit, if they forgot to associate the SSD records with your TDIU claim, it goes down in flames. Advance token to Go and lose a turn for remand.

It used to be we could call up our local Puzzle Palace and ask what they were smoking when they denied our claims (or our clients’ claims). Now I have to have access to the VBMS to see who was last assigned the claim/appeal in the Notes section. I have to call up the Change Management Agent (CMA) who serves attys/agents at the offending VARO and have him ask the rater to please call me or explain how they arrived at such a flawed conclusion. I usually get a polite email answer saying ” Well,  I asked for you and the rater looked it over but they are unable to grant. Fortunately for your client, he has innumerable options to seek a higher level of review ad nauseum. Please thank him/her for their service.”

There was a time we could barter over the phone or in person in the RO’s cafeteria (no recording devices permitted). They didn’t frisk you for a wire but it was almost that bad. If push came to shove, they’d deny it was them and the recording was fabricated. Those days are lost and gone forever. VA’s theme song is Paranoia Big Destroyer. So, too is the much-vaunted DRO hearing. At best, I can get a “higher level of review ” rater to call me back and almost pretend to listen to my diatribe. Pretend is the operable word here.

For all you attorneys and agents- beware the “Supplemental Claims Lane (SCL)”. As the name implies, this characterizes the old NOD in a new light. It is a new claim for all intents and VA’s purposes so newsflash-no 20% for a win. That will require a HLR or a trip to the BVA to get your baksheesh.

Now for a new scam. You have an IMO, You foolishly send it in with your shiny new claim. Well, boy howdy this ought to speed things up, right? Not. Va promptly goes out and finds a VA proctologist to opine on your TBI symptoms and you get the resultant “Unfortunately we are unable to grant your claim(s). The VA Examiner got a big bang out of your IMO but we determined ours was far more probative because we-unlike your doctor- read the claims file.” If they’d done their homework, they’d see your 3288 requesting the c-file and know that was part and parcel of the IMO data reviewed. Fat chance of that happening.

So, you think you’re smarter than the average bear and send the IMO in as a Supplemental claim. VA is now sending these to the Black Hole or the Appeals Management Center (AMC), renamed the Appeals Management Office (AMO) and now the Appeals Resource Center (ARC). Six of one and half a dozen of another. The last and newest name reflects the truth. They analyze the IMO for a weak spot and illegally shoot it down. We solved this problem initially with the ‘vague’ Mariano v. Principi  argument that you cannot deny if a Vet has all three elements necessary for a grant-i.e. 1)disease/injury/presumptive in service, 2) same thing now; and 3) the golden IMO. Fortunately, the CAVC came back and clarified that in Hart v. Mansfield. Here’s my killer cite for cut and paste in the brief.

Mariano v. Principi, 17 Vet.App. 305, 312 (2003) held that it “would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant’s case.” Id. (emphasis added). This single sentence, although rendered without further explanation, states a broad, general proposition, that was revisited by the Court in Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). Hart stated that additional development is not permitted “if the purpose was to obtain evidence against the claim,” and further noted that if the evidence was insufficient to make a decision on the claim, then the Secretary was required to obtain a medical examination.

For every VA denial, there’s usually a regulation or a precedental Federal case cite that will eviscerate it. Finding that sucker is the challenge. If you have Westlaw at $59 a minute, you’re loaded for bear. If not and you are a DIY pro se Vet, I’d use the BVA decisions for my cites. I did it for decades during my battles and it paid off handsomely. The repair order for an 86’d IMO is Hart supra (above). To avoid this conundrum of IMOs that are dead on arrival, I now only submit them to the BVA. There, they are received as real incontrovertible evidence and never rebutted. The BVA is constipated with a gazillion appeals. Hand a Veterans Law Judge a giftwrapped appeal w/ IMO and it’s a chicken dinner winner every time.

I find half the battle is reading the denial decision in excruciating detail. Take each sentence apart and analyze it for what it says- or more importantly-what it doesn’t say. If it sounds like bullshit, it probably is. No. Let me rephrase that advice. Most are bull shit and have no basis in VA law or congressional statute. VA is big on mission creep. The more they deny, the bolder they become.

Please do not read this as a screed against VA raters. It isn’t their fault. They are handed a file and expected to come up with a decision-more often wrong than right- in a very short time. Worse, they were not able to become acquainted with it and see incongruities that would jump out and bite a seasoned law dog’s eyeballs. The mantra seems to be “I trust everything done by my compadres before this ended up in my in-basket.” This is how the Challenger’s frozen O-rings escaped detection. This is how Apollo 13 ended up in a world of shit 200,00 miles from home. Assume nothing. How many times have you heard the plaint “I didn’t know it was loaded. It’s not my fault _____ is dead.”

I pride myself on not presuming I know everything. I recognize I’m not perfect so I review my work to the point of redundancy. I play Devil’s advocate and take the VA’s side of the claim to determine if I can find glaring flaws. This is what every Rainmaker should do. Just because you have a Juris Doctorate and the word Esquire after your name (I don’t) doesn’t give you a bye on intelligence. Remember, VA raters do not have anything close to a JD and many create denial logic out of whole cloth. They rely on you swallowing their hooey hook, line and sinker. Therein lies the fabled 98% accuracy claims they tout. You, or your VSO reps do not appeal 98% of the time-ipso facto, they (VA) are right 98% of the time.

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

Posted in All about Veterans, AMC or ARC, Appeals Modernization Act, C-Files and RBAs, Humor, Independent Medical Opinions, KP Veterans, Presumption of Soundness, Tips and Tricks, VA Agents, VA Attorneys, VBMS Tricks | Tagged , , , , , , , , , , , | 4 Comments

VA EXAMINERS–CHARTER MEMBERS OF THE FLAT EARTH SOCIETY

Posted on April 18, 2019 by asknod

I’m sorry I’ve been remiss. I have been a slave to the typewriter attempting to cure the misguided proclivities of VA raters across our rapidly fruiting plains this spring. It seems there is something in the water or left-handed tobacco has been legalized and they aren’t being dope-tested. Jez, where do I start today? Ahh, of course. All of you folk must be into that new business gig  LinkedUp®, right? About six times a day, I get an update to “Congratulate Bob on his reaching 90 days sober at Astin Mechanical.” My new influizers (sp?) are Honey BooBoo and Michael Avenatti. I was searched for 5 times last week by huge corporations who might want to buy me?  Cupcake signed me up on LinkedUp™ so I have no idea what she said about me. Look me up. I’m in the icloud somewhere. I have accountants who pay for it all.

Pickles has now doubled in weight to 11 lbs this AM. Puppy breath is still there.

 

I got my ass whipped by a couple of losses I didn’t see coming but this is what  we have to endure at the regional level. Always remember this is an insurance company. The  VA’s fisc is a clear responsibility they look at like the Huns (Veterans with alleged disabilities) at the Gate.  I draw the line when they start coming up with the following sleight of hand. Imagine you’re rated for two separate things-in the instant case here- TBI and PTSD. They’re two separate “disorders”- DC 8045 @70% and DC 9411@50%. They might share one or two overlapping symptoms but they generally have two entirely separate sets of “conditions”. Remember those descriptive nouns for mental “issues”.

Now grant some other increases to a banged up body like 50% for headaches and 10% for tinnitus for TBI they somehow overlooked for 50 years and…oh-oh…jez, he’ll be entitled to SMC S. Can’t have that. Quick, conflate two ‘disorders’ into one and disappear the PTSD into thin air. Yes, ladies and gentlemen. A rater pulled off this amazing trick of prestidigitation and then had the balls to say the VA, in its munificence, wouldn’t be filing to recoup the overpayment to the Veteran for the last 4 years.

Actually, the language in DC 8045 says rate the TBI shit under TBI and rate the bent brain shit under PTSD. That’s to avoid pyramiding. And here, the rater gets points for trying to bullshit a bullshitter. He gets plumb amusing for attempting to”reintegrate” two disorders into one. Reintegrate?

Well, hush my mouth. I thought it was a sub silentio reduction in rating.  I went on a writing jag and cranked out the most excellent rebuttal to an SSOC in all my years. Most times I wouldn’t get all in a tizzy and just take it to the BVA. Welcome to the new AMA folks.  That’s what we’re doing now. This was written, not for the 70 IQ GS 13 Booth Bitch in Jackson, Miss but for the edification of a learned Veterans Law Judge and his staff counsel.

Rebuttal of SSOC redacted

Now, if that wasn’t the biggest error they hoped no one would ever unravel, how about the same story in a different town a month earlier. This time, the Vet has a mess of 10s, 20s, and 30%ers along with a total loss of rt hand. The army operated on it to fix a finger. Five surgeries later, the hand was a feeder claw like on a lobster. The army sent him packing with 60% for the hand instead of 70%. Uh-oh. 1993 CUE. Well, they ignored the CUE and took away a 26 year rating of 10% and a 9-year rating of 10% (20% total) saying it was, well, nonsymptomatic dude and we can’t pay you if the boo boo got all better, now can we? And besides, we gave you 30% for your hip right before we took the 20% away. Since we really didn’t reduce your rating by 86ing the antique rating, you’re still at 80% instead of 90%. And oh, by the way, that TDIU? Nope. We tried but we couldn’t swing it with you only being 80% rated and all.

If you go down into the Go To Work section in the VBMS, you see the deferrals flying back and forth.

Rater #1: Increasing hip to 30% with increase in Left ankle results in 95% combined rating. Refer back to coach.

Coach: Add scars up. Do they equal 6″²? o%. Also. we have a problem. Veteran’s agent has access to VBMS and can see we’re fixing to screw him on a protected rating. You have my authority to promulgate. Screw the agent.

So here we go. The VA rater blithely takes 26-yr. old antique painful scar rating(s) and conflates all the scars into square footage. Uh-oh. You need six square inches to get to 10%. Way missed it by thaaaaaat much.

As for that pesky CUE, he’s right All the PULHES scores at entry were 1 across the board. The exit has a 5 on it for upper. Screw it. Call him left handed now and confirm the rating of the non-dominant (formerly right handed) hand at 60%. Next?

I can’t make this shit up. This is what happens when you have to crank out 10 decisions a day or get demoted. Or, God forbid, screwed out of your bonus Performance Pay Incentive Allowance.

Here’s my answer to dufus in Houston who has no idea how to spell 38 CFR:

Redacted CUE NOD pdf

Remember, if you are the CUE guy, you are a “movant. Otherwise you’re a claimant or an appellant. When you file an Ex Writ at the Court, you are a petitioner.

P.S. Here’s a little something  you and your buds could cook up this weekend.

Posted in 1154(b) combat presumptions, 3.156(c), Agent Orange, All about Veterans, C&P exams, CUE, Earlier Effective dates, Humor, KP Veterans, Reductions in rating, SOCs and SSOCs, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 10 Comments

THE NEW APPEALS MODERNIZATION ACT…AND MORE

Posted on April 12, 2019 by asknod

When we hit Nashville for the NOVA conferences 20-23 March, I actually though I had a good handle on the AMA layout. Well, ‘not exactly’ as they say over at Rentawreck™.  So, since the time we walked out of there, I’m still somewhat disflusticated as to whether I heard all that co-reckly.

Here’s the take. I compared it to a Mobius loop for the 4/11/2019 Hadit.com Blog talk radio show yesterday with Jerrell Cook. As promised. I’m going to draw one out here and then put in the dotted lines to connect all the possible combinations. Remember there are two forks of three paths each. Well, except for the fact that you can jump around like a hoarder in a flea market and go whither thou choose. Confused yet? Okay. I relent. here’s the Rand McNally roadmap.

First of all, as long as you meet all suspense dates, you can technically keep your original effective date forever or until you lose at the CAVC or the Fed Circus. Thus you lose at the SLR and then the HLR. You file your NOD to the BVA and get your front teeth kicked in. You then discover you needed a nexus/IMO all this time and get one. You go back to the Supplemental Claims Lane and begin again… but… with the original filing date. How  cool is that?

Now for the insanity. You put in three claims. Each one can have a certain path depending on denial or a desire for a higher increase. The problem is elementary. How do you present or provide evidence for a higher evaluation for a HLR? You can’t. You cannot submit squat in a higher level of review.  Your only option is to go to the BVA or back for a do over in the SCL venue. This eventually devolves into a game of being able to manufacture N&RE in vast quantities and hoarding it to insert as necessary.

I personally think the kicker is that you can  make a u turn after the BVA loss and begin anew at the SCL with more evidence and keep you filing date. As usual, we’re going to learn by error. My attitude about the HLR Lane is decidedly negative. I’m pretty sure it will be a “What part of ‘no’ don’t you understand, sailor?”

And boy howdy, if you even thought the BVA was more constipated than a sailor on a desert isle with a pallet of American cheese right now, well… you ain’t seen nothin’ yet, honey. This is going to be a fustercluck of epic proportions. They have 600,000 Legacy claims still sitting there.

So, in review, there are no more RAMP claims. They ceased on February 14th, 2019 at 1630 Hrs Local. On February 19th, 2019 at 0800, we commenced the new AMA. If you have a Legacy claim, you can keep it. I know that lead-in sounds suspiciously like the Obamacare promise but it’s true. You can drive your Legacy to the end and take it to the CAVC. Or….the moment the VARO issues you a SOC or SSOC, you can opt in to the AMA and go to the BVA for one of the three choices I discussed above. It’s a smorgasbord of choices-sort of a mix-and-match or a salad bar.

Most of my clients are very ill so I try to get Travel Board hearings whenever possible. If the schedule is too crowded, the option is there to go to DC and do it at 810 Yellow Brick Rd. NW. All my folks are in the Tidewater region anyway so it’s six of one and half a dozen of another. Kill two birds with one stone.

Posted in Appeals Modernization Act, BvA Decisions, Humor, KP Veterans, VA Agents, VA Attorneys, VA RAMP, VA suspense dates, Veterans Law | Tagged , , , , , , , , , , , , , | 11 Comments

HADIT.COM RADIO SHOW–THE AMA–A MOBIUS LOOP?

Posted on April 10, 2019 by asknod

Sorry I have been remiss but it seems VA has been bery bery productive in cranking out denials. Jez, wait until I opt in to an HLR. In truth, I’m ecstatic that some of these came out post-February 14th. I don’t have to tangle with the Jackson, Mississippi negative Nancys now. 

Tomorrow, the Good Howard willing, we’ll do a radio show with Jerrell and John. The same old Bat Time and Bat channel of course- 1600 Hrs on the Left Coast and 19oo on the Least Coast.

The subject, of course, will be the new Appeals Modernization Act. I’m sure they call it Ahmah by now at the ROs. Come on. If they call the D R Os  Droze, you know they weaponized it by now. How about Seeler for a suplemental claims lane or Heeler for a Higher Level of review. Shoot, we ought to call up the VA prize redemption line and discuss it with the VA’s “technicians”. Can you imagine walking into the VFW to see you service rep and asking “How’s my Heeler coming?” Chances are they’ll rename them into an intelligent-sounding acronym.

Pickles whelped 2/15/2019

We’ll talk about these interesting subjects, my new dog and more tomorrow. Imagine being able to jump from the RO denial to a BVA NOD. Better yet, imagine jumping from a BVA denial back into the Supplemental Review Lane and grabbing a SME IMO and managing to keep the same effective date? Is this crazy or what? I’m sure their Honors at the CAVC are praying Vets do so.

Enjoy life as best you can until tomorrow afternoon, kids.

The Call in Number is still the same

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

 

Posted in Appeals Modernization Act, Humor, KP Veterans | Tagged , , , , , , , , , , | Leave a comment

asknod MENAGERIE + ONE

Posted on March 15, 2019 by asknod

LZ Grambo will have a FNG after we get back from Nashville NOVA. Cookie (I prefer Pickles) will be weaned o/a my birthday on 4/01. We will be bringing her home then. She’s a silver Lab Retriever and loves my earlobe. 

Ladies and gentlemen, meet our new baby.

Don’t let those eyes fool you. She’s going to be vicious.

Posted in All about Veterans, Humor, KP Veterans, VA Agents | Tagged , , , , , , , , , | 14 Comments

BVA–MORE DECISIONS…AND BE QUICK ABOUT IT, MIND YOU.

Posted on March 5, 2019 by asknod

Ah, St. Nicholas est mort. We poor naive Veterans have been cheated, been mistreated, and just when we think Congress has finally heard our plea, we discover we didn’t get what we paid for… again.   Not only that, we-that Veterans group that can now file class action suits-  are being led to the gates of the BVA on a high-speed path to slaughter adjudications. Read on.

My good friend, former BVA Veterans Law Judge BJH, now a distinguished attorney in private practice with some of the keenest minds in the Veterans litigation world (CCK), sent me these links this morning. I found it on Google news about 8 minutes before I  began examining his email tea leaves and chicken entrails.

Say it ain’t so. Well, it merely confirms what a Court of Veteran Appeals Judge said about a decade ago that it appeared at least 75% of all BVA decisions were in error requiring remand or reversal. VA has an interesting way of “witching” statistics. In the instant case here, claiming 94% accuracy is fools gold and unfounded. 98% is right out.  I’d compare it to my first wife. She was obsessed with being skinny but loved the carbs. This led to some creative baseline measurements from which future increases were computed against. Git that?

How about if someone (like your spouse as an example) is down at the beach with you and said ‘I weigh 3 lbs less than I did when I first went on the two-week diet to slim down 10 lbs. a month ago’.  Quite obviously, my first big mistake was to attempt to figure how you divide a two week diet into a month. The second one was to open my mouth and use it to vocalize words instead of breathe in deeply….”So, how much do you weigh now?” The answer was “Well, I still have four lbs. to go.” Have you ever heard that rattle on a big ol’ 8 year-old sidewinder just before you step on it… in the dark?  The feeling of the ground starting to give down under you into the Punji pit?  Yep. 4 lbs. That’s the magic number. You just accept the statistic and move on. Nothing to see here, folks. Just some ordinary BVA statistics. Move along.

For years, Under Secretary for Benefits Allison Hickey assured us that the new 125-day miracle Fully Developed Claim (FDC) had an unparalleled, shiny 98% accuracy. See the similarity? Speed. Efficiency. Guaranteed results-but notably never so much of a hint of blowback from a DRO review, the BVA or the CAVC. If you remove ‘error’ as a setting or default, the success statistics come up dramatically, too. The operative word here is “rework” as in “The BVA returned it to us with a rework order. CEST  (Claim ESTablished)it with a EP 020 (new claim).” See? 98%…eventually. Or hell, just call it a new claim!

A year or more ago, Judge BJH told me he was being tasked with churning out 1.5 claims per day based on a five day work week. Before he left, this requirement was creeping up to contend with the 600,000 + backlog developing. Whether it had reached 2 or 3 decisions per day is immaterial. The new metric, with the exact same number of 90 Veterans Law Judges, will be tasked with producing 25-30 completed decisions per week with no corresponding increase in staff attorneys. Boy howdy does that just piss all over employee morale. Reminds me of that Lucille Ball vignette working in the Bon Bon factory. Better yet, it also conjures up visions of a huge, 25-oar Roman Trireme Warship rowed by slaves and some dude with a bull whip. The USS Vermont Ave. NW.

 

Well, anyway, here’s the wild and woolly story of how bean counters can make an elephant disappear up it’s own derriere.  Either that or the BVA Empress is clothed in invisible finery.

The Hill:

https://thehill.com/opinion/national-security/432196-when-the-va-misrepresents-performance-veterans-suffer

Quality Review of Mass Adjudications:

Click to access bva-main.pdf

And Stanford Law Review- Due process and Mass Adjudications: Crisis and Reform

Click to access CrisisandReform.pdf

If we weren’t shaking like a leaf on a tree before, we ought to consider taking a Protein Pill and putting our helmets on. This is going to be bumpy. I joked that they may need about 39 CAVC Judges pretty soon. I think I may have underestimated. One thing’s for sure. Pretty soon, them fellers are going to need a far bigger Courthouse than the 9th Floor of 625 Indiana Ave. NW. Come to think of it, valet parking would be nice, too.

 

Posted in All about Veterans, BvA Decisions, BvA HCV decisions, BVA records tampering, BVA Referrals, Complaints Department, DRO and BVA Hearings, KP Veterans, VA Agents, VA Attorneys, VA statistics, Veterans Law | Tagged , , , , , , , , , , , , , | 4 Comments

INDEPENDENT MEDICAL OPINIONS–WHO, WHAT, WHERE, WHY AND WHEN

Posted on March 3, 2019 by asknod

Once I discovered the recipe to VA claims, I set out to teach others. I started this website in 2008 expressly for that purpose. I have taught, and discoursed endlessly on the need for a true, well-constructed Independent Medical Opinion (IMO) to support your VA claim(s). The earliest warning we had on this was handed down in Caluza vs. Brown back in 1994. The CAVC finally enunciated the three prime ingredients necessary to prevail. Numerous decisions since (Shedden, Hickson etc.) have reaffirmed and expanded the language but the premise is still basic. You need three things-1) a disease, injury or exposure to a risk factor while in service; 2)  you need the same problem now, or what we call chronicity; and 3) a medical professional to state that #2 is related to #1. In this business, we call it an IMO. Granted, if you have a Purple Heart, you usually don’t need an IMO for an increase on the damage all the shrapnel caused or the injured musculature. But then, again, with VA, maybe you will.  

Nevertheless, there seem to be quite a few of you who are still confused on the where and the why. I have had Veterans come to me with the “Okay smartypants. How come I lost ?” -swearing they had the three magic coins. A hundred bucks says I can figure it out blindfolded. You tried to win at VA poker with two pair and they’re holding three-of-a-kind. You could get away with that until the VA began saying “our dude reviewed all the records-including his contemporary STRs from service. Therefore our medical expert’s opinion is far more probative and better.”  I’ve seen VA say that even when all the “STRs” they actually held were dental records. Vets get what they think constitute IMOs that say “probably, its’possible, couldabeen, it’s not unheard of, my Uncle Earl had the same thing and it was caused by that too” or the best- “I’ve never heard no one say it wasn’t caused by ________. IMO language is an art form. What is said must be perfect. What isn’t said can destroy the IMO’s probative worth. Worse, your doctor doesn’t know how to write it so that it will win the claim. Doctors do medicine. They don’t teach it or study it. They find out the cure and apply it. Knowing what caused it isn’t as important as how to fix it.

Now, we’ve learned to conquer that VA trick by filing a FOIA for a copy of our claims files and letting our truly independent doctor(s) “review” them too. You’re never going to get  your own VA-employed doctor to crank out a winner. Don’t waste your time trying. In 2010, VA told the VHA to do it’s job. Treat the Vet. You do not need to opine on causation to treat. The job of causation is the realm of the VBA and will remain there. VA examiners are far more savvy and have access to the big picture-the claims file. The VHA does not.

I have frequently updated the widget entitled Nexus Bible above but let’s delve into this more deeply. Each time we discover the reason or rationale for why VA denies us, VA trots out a new system or wrinkle that results in a new denial tactic. It’s time for a new review of their procedures and how you can go on the offensive and prevail far sooner in a win. I’m not going to invite you to a free dinner and try to sell you my technique. I’m too busy helping Vets. I’m going to reveal the latest trick I’ve invented. That’s not to say I invented it. I just happen to be employing it now with the latest revision to our appeals Modernization Act also nicknamed RAMP or AMA.

What a Good IMO Consists Of 

Any IMO you  submit must have certain ingredients. I’ll summarize the checklist.

1)  You need an intro that the doctor isn’t your next door neighbor. He has to say he’s not going to share in your winnings and wouldn’t know you if he met you on the street.

2) He has to state in no uncertain terms that he has reviewed a copy of the claims file dated xx/xx/xxxx  as well as other medical records from _______, MD and _____, MD. dated xx/xx/xxxx, lab reports and your best friend’s buddy letter.

3) He must explain he is independent, very knowledgeable in this particular field of medical inquiry regarding causation (oncologist, psychologist or whatever), and capable of presenting a well-reasoned logic for why his particular theory is the most compelling. He must use peer-reviewed cites of other studies confirming his theory with  real footnotes – not Wikipedia shit.  God, anybody can insert their ideas into Wikipedia. It is not a valid tool to support your claim.

4) Finally, he must use the magical incantation that it is his considered opinion “that it is at least as likely as not/as likely as not/more likely than less likely/most likely”  Johnny Vet got __________ when he was in the U.S. Army/AF etc.” Docusign is acceptable but kinda cheesy.  Last but not least, is the curriculum vitae(CV) of the author.  A CV lists every job this M.D. author ever had doing medical stuff. It will state pretty much that most of his/her work was in the same field of the particular illness/cancer/disease/injury s/he’s talking about.  A good CV would be three pages.

Remember, VA’s  local ARNP/VA examiner opinion isn’t even going to have as much smack as a real oncologist or psychiatrist. A Veterans Law Judge (VLJ) is going to look at that. Sometimes, if you do not have an IMO, the VLJ will order a new one.  VA may even try to pass off a proctologist or a podiatrist with an MD after their names as a noted authority on glioblastomas. CVs? We don’t need no stinkin’ CVs. We’re the VA. This is why you want to get that IMO in front of the Judge personally. You want to point out an ARNP is like two pair and your IMO is like a full house.

Here’s a good sample that won.

Johnny Vet Filed IMO to BVA 1-8-2018 redacted

IMO Timing

Having the correct IMO is just part of your game plan. I’ve had guys with  “workable” IMOs who deliver them with their introductory claim. I get that.  If you file 20 years after you get out, you’re gonna need a killer nexus. Submitting the IMO  at the beginning sounds pretty logical but here’s the problem. VA operates on ex parte justice. You file, they deny. You appeal. Remember Mohammed Ali? He talked of how he was going to beat Sonny Liston  before the fight. He explained his technique as “rope-a-dope”.  He let Sonny chase him and whack at him. He  just folded up and bounced into the ropes and the ref would have to break them up and move them back into the center of the ring. This rope-a-dope game exhausted Sonny and Ali came back to whack him good. This is what you’re going to do if you follow my advice. Lawyers and agents are well acquainted with Maxson vs. Gober (2000) .

The New asknod Technique

Go ahead and file with nothing. File your 214. File a doctor’s notes that say you have asthma or a bum knee.  You don’t need no nexus, senor. Not yet. Get that effective date established pronto. Check that box on the 526EZ that it’s a fully developed claim (FDC) just for shits and grins. Go out and buy that IMO and put it in the fire safe.

Okay. You get the c&p(s) and if all goes well, you get your denial in 125 days or less. If this happened on or after February 19th, 2019, you are a Chicken Dinner Winner now. Under the new system, you can file your Notice of Disagreement (NOD) directly to the BVA where real law exists. I told you earlier above that VA uses ex parte justice.  Well, here you go.

You now go get out the IMO and present it as new and relevant evidence at the BVA pertaining to the denial of your claim at the David Koresh Memorial Regional Office back in Wacko, Texas. If you’re planning on giving your house an all-over remodel from stem to stern and aren’t too worried about time, you can ask for a Travel Board hearing. Those take time to schedule. If you’re in a hurry, I’ve gotten over that hearing backlog crap by simply flying back to DC with the client and doing it there at the corner of Delay St and Deny Ave. NW. That’s certainly not cheap but it’s the asknod results-oriented napalm technique. They’re about three months out on a Face -to-Face for an hour with the VLJ who will decide it. No video cameras 10 feet away from you. This is ‘Fix Bayonets!’ distance- four feet away from his/her honor.

If you try to take the new supplemental path with a brand new IMO after  the denial and fight this out at the local Fort Fumble, you’re in for a stonewall at first. The Appeals Management Office (AMO) sits on these IMO-answered Legacy appeals and tries to figure out a way to deny them. I sent out a few and VA still has them boxed up  for close to ten months now with no action up or down. They’re all at the AMO.

Now, with the advent of the new appeals path directly to the BVA, I’m praying my Veterans will finally get real, timely justice based on facts and law and not some computer algorithm in the M 21 that computes the denial and how to rationalize it with 38 CFR. Remember, the M 21 is not law. It’s an assembly guide like the one you get from IKEA with your bookshelves or table. The BVA Judge is going to tell you they do not accept legal arguments based on M 21. Build your arguments on 38 CFR. Leave the M 21 cites and the crayons at home.

Timing Is Everything

My philosophy is simple. Present an IMO too early and you give VA time and the ammo to beat your IMO. Remember, ex parte justice is nothing more than getting the last word in. If VA commits at the beginning as to why they are denying you, your rebuttal IMO must defeat their presumptions. That makes it easier if you know why you got denied. Similarly, if you put down your IMO at the beginning, you just give VA plenty of time to figure out how to poke holes in it. You’ve used up all your IMO ammo at the beginning. That’s why you want to play VA rope-a-dope. This is a recipe- just like baking cookies. You don’t begin to heat up the oven when it’s time to put the cookies in.

The new 2019 RAMP/AMA program allows the BVA to issue a SOC if your appeal has no wings. Then it advances to the Judge just to keep all this street-legal. BVA Option #3 actually mimics the old Legacy appeal to a ‘t’  but bypasses all the chucklehead VA examiners at your local Puzzle Palace. You can even nail it down at the BVA with a Motion for Waiver of Review of New and Relevant Evidence back at your local RO. The lowest this will go is to the Appeals Management Office (AMO) for a legal tuneup.

Why Go to the BVA?

Welcome to the 21st Century, folks. Congress heard our complaints about how long it takes. They think, and VA thinks, claims will speed up here in Unicorn country. One thing few know is the  BVA needs, and wants to, drastically up it’s production output. What better way to accomplish this than a gift-wrapped present of an appeal complete with IMO? In VAland, one bummer IMO from VA against you versus one private IMO by a noted medical specialist equals a draw or a tie. Since the tie goes to the Veteran, you win. The VLJ is under the gun to crank these out. You’re giving him half his workload for the day with all the heavy lifting already done. If the IMO is solid and doesn’t involve alien abduction as the risk factor, you’re in high cotton. If you’re a doctor with an IMO factory and everyone at VA knows your name, this doesn’t work very well. Just sayin’…

The bad news is my new win technique will work for several years until VA finds a new way to deny us. The good news is we always find a new technique. It’s like trying to outwit zombies-entertaining but hardly challenging.

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

Posted in All about Veterans, KP Veterans, Lawyering Up, Tips and Tricks, VA Agents, VA BACKLOG, VA RAMP, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 13 Comments

HADIT RADIO SHOW 2/28/2019–EVERYTHING YOU WANT TO ASK ABOUT THE NEW APPEALS PROCESS

Posted on February 26, 2019 by asknod

Several-hell- 20 Vets have emailed me and said they had a comprehension problem about how I explain the new Claims Appeal Procedure. The short response was ” What in Hell did you just say?” I get that. This thing has more twists and bends than the Mississippi River. And like Ol’ Miss, there are some oxbow lakes that are now cut off from the main channel. That’s the fustercluck we were just handed courtesy of all those wonderful folk like the Vietnam Veterans of America. I expect I don’t remember them calling me up and asking me what I thought on the subject. For them and the rest of the Big Six VSOs to crow about “fixing it” is a cruel joke. About the only thing good to come of it is a direct path to the BVA after the Dear Johnny Vet letter. Best to present it to someone with real legal training.

Which brings us to Hadit.com and Jerrell. I have been graciously invited to come on and try to unravel the mysteries of RAMP.  As I said in my article, RAMP died February 14th. To make sure there were no mistakes, they took a week off and began the new Appeals Management Act on February 19th. Bright and early that morning, they denied my Vietnam Vet in Phoenix R2. So… he falls into the new AMA. Cool beans. We filed this afternoon for an appeal today directly to the BVA. We opted in to the new system because it occurred 1)on or after 2/19 and 2)it’s a SOC. We’ve chosen Option 3- advancement on the docket at the BVA with a  local Travel Board Hearing and submission of new evidence.

I look forward to answering questions on this complicated subject. Feel free to call in.

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

Jez, I know some day some group of crazy people will show up here and claim BlogTalk’s British spokesgal above is being “used” and it’s/I’m misogynistic yada yada. I’m declaring right now I’ve never dressed up in blackface either. I’m happily married, don’t hit on women and open doors for them. I think I missed all those alcohol-infused parties Justice Kavanaugh attended. I attended an all-male Prep school.

Thursday night 1900 HRS on the East Coast and 1600 out West here. John, Jerrell and I would love to hear from you if you’re planning a NOD and wonder which way to go.

 

Posted in KP Veterans, VA RAMP | Tagged , , , , , , , , , , , , | 1 Comment

RAMP–SCREW ME TWICE, SHAME ON ME.

Posted on February 24, 2019 by asknod

I was running into somewhat of a pickle on the 20th of February. With the inauguration of the new RAMP program (aka Appeals Modernization Act or PL 155-15), I was in a quandary as to what to do. I dutifully read Chris Attig’s thesis on which VA form to use but had to face this controversy on my own. I had a client whom I filed a supplemental claim for (loss of use of the upper extremities) on Saturday-well past the cutoff date for legacy appeals. This put me into the new program with that loaded moniker “Appeals Modernization Act”. That’s like military rations. Remember the misnomer (and three lies in one) of MREs? Meals as defined by whom? Ready as in “some preparation required” and Eat as in questionable cuisine versus high quality dog food. We used to sit around in Southeast Asia in the evenings idly conjecturing on what the “C” in c-rations stood for. Cardboard, contaminated and a few other sobriquets came to mind. I once almost opened and ate my personal favorite-canned peaches- until someone noted that the can was swollen and misshapen. Baaaaad idea- as in ptomaine poisoning. Gosh. What happened to safety in canning? The peaches were only eighteen years old. I’d eaten many with a ‘born on’ date of 1952. This one was 1956.

As with anything you do in VAland, it pays to read all the literature VA mails you. Gone are our old friends the VAF 21-526b and the newer VAF 21-0958-after February 14th. Yeppers. You no longer file a notice of disagreement (NOD) on a VA Form 21-0958… well, that is, if you got the decision before February 14th , 2019, yes you do..VA quit work on the 14th and began again on the 19th so any decision on or after February 19th fall into the new AMA system. The use of the 0958 ceased on February 14th, 2019 at midnight for what was then RAMP. Confused yet? You now have what appears to be two 21-0958-like choices. In reality, the truth is you are going to be funneled into two equally distasteful scenarios. Either one is a poor fit compared to the old method. But first, let’s look at the demise of our venerable VA Form 21-526b.

The New 526EZ as a Initial Supplemental Claim

At first glance, as Mr. Attig pointed out, you have to file another 21-526EZ in its stead because the 526b is no longer valid or recognized by VA.  Talk about a time waster. If VA can’t find their ass with a methane detector as it is, what hope do we have they will be able to “construe” your intent using a 526EZ refiling as a “supplemental brand new claim’ (which is inextricably intertwined) with your pending claim? I can see your earlier assigned effective date of claim going down the drain immediately. It will take six months of haggling to correct it. Meanwhile, while it’s in contention, your claim goes nowhere. Remember that intent to file you put in last July 2018? Gone with the wind, Cowboy.  Why, you just asked VA to reopen it last week with your new 526EZ. VA assumes you are abandoning the original filing and asking for a new reopening. Screw July ’18, dude. You clearly and unmistakably asked VA to start over. VSOs do this fairly regularly to speed up a NOD. In essence, you just abandoned the present claim and opted in to a new, Fully Developed Claim (FDC) to avoid that 24-month delay, a new denial and a SOC. Hoo, doggies. Welcome to the new AMA, Jose. Remember the Who song “Won’t Get Fooled Again”? Meet the new boss. Same as the old boss.

Phase II-the New “NOD” Format

The Supplemental Claim Path

The only thing that changed on February 19th, 2019 was VA’s introduction of three new forms- the VAFs 20-0995, the 20-0996 and the 10182. They also finally opened the path promised us a year ago to go directly from a denial at your local Fort Fumble to the BVA. This essentially is all that has transpired. RAMP and Legacy closed down on February 14th. A week went by and now we have the AMA. As most know, VA is fond of rebranding their products to make it look as though they have magically reinvented the wheel as we know it. I remember back in the 90s when McDonnell Douglas’ DC-9s began having troubles staying airborne. The repair order was simple-rebrand it as the MD 80. Poof. Gone was the onus of a problem aircraft and all the negative PR. It simply metamorphosed into a butterfly with a new name. As you will read below, this is exactly what is afoot. But worse, there’s a subtle difference between the legacy system and the new RAMP that does not portend well.

The duty to assist has taken a mortal blow. I speak of our first newly developed Appeals Management Act -AMA for short- VA Form 20-0995. Read the instructions below that accompany the new form and note that you now have to provide “new and relevant” evidence to continue your notice of disagreement. In the old legacy system, you could simply file your VAF 21-0958 NOD without any new evidence-material, relevant or otherwise- and complain of whatever inequity they had visited on you without the submission of new evidence to buttress  (and justify) your disagreement. VA says switching the term ‘relevant’ for ‘material’ is  merely an upgraded semantic reality. They assure us the terms are interchangeable. ‘Relevant’ is simply more 21st Century in VA’s mind and won’t confuse low-intelligence Veterans.  If so, why the need for an update? We’ve managed to stumble through this process since the War of 1812 without any semantic confusion. We shall see. There’s far more here than meets the eye as I point out. Summed up, to file your NOD, you need something new that VA has never seen before. If you have nothing new, the default setting is the new Higher Level of Review (HLR) lane. It doesn’t pass my smell test as being “modernized”. It smacks of a lack of due process. It reeks of a failure in the duty to assist. You can’t ask VA to go back to a VA hospital in West LA to retrieve ‘new and relevant’ evidence. No sir. Welcome to the new VA-inspired Fox TV series-Roadtrip…with children. You get in your car, drive to LA and get it yourself. Duty to assist? We don’t have no stinkin’ duty to assist.

I had you all going there for a spell. No, if you tell VA precisely where these records are at which VA hospital/medical clinic/psychiatric ward or other private provider, they’ll go get them. The kicker in the small print says they won’t pay for them. Obamacare started a huge new industry of records reproduction providers. VA isn’t going to pay Franciscan Health $150 for a complete, unredacted set of your medrecs so you’re doomed to failure by presuming they will. But, as I said, you can go to back there and get them yourself or figure out how to get them mailed to you.

Supplemental Claim Instructions

VAF20-0995 SCF

The Higher Level of Review (HLR) Path 

I fear the new HLR appeals track many of you Veterans are  soon going to end up taking by default. Not everyone has a reservoir of endless new and relevant evidence to delve into and present to VA. Remember the VA admonishes us to submit everything we have to them at the beginning. This is akin to asking for a Decision Review Officer review (the old DRO review)-with the notable difference that you are going to attempt to argue for a favorable decision with nary a shred of new evidence. Of course, if you suddenly find you have new and relevant evidence that might hope to convince her/him, you can’t opt out of  the HLR path and switch over to the supplemental path! I have yet to see a favorable DRO review without some new exculpatory evidence that will sway your rater into granting your claim. I make exceptions for CUE claims if you have a 38 CFR cite like §3.951 that is unequivocal. Twenty years cannot be construed otherwise. With that said, I had a Vet with 27-year protected claim reduced from 20 to 0% after a DRO review. I even called the DRO in Houston and told her what was going on. She said thanks and pushed the “Rating Decision Complete” button. That’s the new HLR reality.

Essentially, a Higher Level of Review (HLR) is nothing more than a new decision made by anyone higher (in GS rating) than the gomer who did your initial rating denial. How’s that for semantic sleight of hand? It certainly does not confer on you the former legacy model of rating by a true RVSR or DRO with much more experience. It might be (and probably will be) that you’re going to get that HLR from a GS-12, step 8 VSR  rather than the GS-12, step 2 VSR who did it the first time. In any event, it’s going to be far less than a true HLR with a GS-13 step 5 regardless of what that HLR moniker implies. This is what many experienced litigators call the “What part of ‘no’ is it you don’t understand?” VA attitude. HLR opens up vast ratings resources for waaaay more VA raters to pretend to be more intelligent and versed in the machinations of VA law. This is the ‘new’ way VA is clearing out the backlog of DRO reviews.  Everybody dresses up like a DRO and begins rating your claims like one. Bingo. No more backlog. Well, no more backlog at your local Fort Fumble, anyway. Keep in mind, also, that VA took 10 (count ’em- ten) Regional offices offline- out of the business of rating claims and appeals. Their production was focused only on RAMP appeals until February 14th. That was a pretty light workload for 3,000 raters because very few of you “opted in” to RAMP. Things will pick up now that the AMA is the only game in town.  Remember, RAMP and Legacy are now finished. There is no RAMP opt-in. Legacy is gone with the wind. The only game in town is now the AMA.

Boiled down to its essence, everyone above a GS-12 step 5 is now essentially a de facto designated HLR  reviewer and that’s all she wrote. I can’t begin to count how many pissed off Vets who suddenly came to the realization that switching over to RAMP last summer garnered them nothing more than an expedited denial by an inexperienced reviewer. The downside was that they had to sign their legacy appeals path away and are (prematurely) permanently stuck in the AMA with no exit. Granted, that is all water under the  RAMP bridge now as of February 19th, but opting in to the earlier HLR path mistakenly dissuaded them from staying in the legacy system or choosing to submit  new and ‘relevant’ evidence under the Supplemental claims path. Their only option after an HLR denial is to take the long road to a BVA-expedited AMA appeal, submit that new independent medical opinion they neglected to obtain  and wait all over at the BVA for what they perceived earlier as the pronto repair order for a two-year wait locally. Can you say bait and switch?

HLR Instructions

VAF 20-0996 HLR

The Transition From Old NOD to New NOD 

If you aren’t lost yet, hold on. If you are still in the old, original Legacy system, and recently  got a decision but have not yet filed a NOD, you will continue to use the old VAF 21-0958. You will have to wait for a grant or a denial and the issuance of a SOC or SSOC  in order to opt into the new AMA system. At that time you would logically choose the Board of Veterans Appeals option and get the hell out of your local Funhouse.

The New AMA BVA NOD Path

This reform is now essentially the most important new arrow in a Veteran’s legal quiver. I intend to use it extensively for all my claims- most especially CUE claims. Yes. I’m a sucker. Many of you come to me with really egregious examples of getting screwed back in 1970. You could have been creamed by a satchel charge or a 60mm mortar like Butch Long of LZ Cork fame and been given a 10% “gift” for a moderate SFW wound from your magnanimous ratings board at the Puzzle Palace in Whacko Texas. Whereas, in reality, you took SFWs in 8 muscle groups and the records are unequivocal this was the case. In Butch’s case. they solved this in 1970 by avoiding going back to St. Louis and getting his STRs from the NPRC. How his records avoided the Friday the 13th July 1973 barbecue was pure luck. Here’s the info on the new BVA direct NOD procedure. It’s the only substantial reform I can see that is positive. The other two above can only be seen as regressive measures to limit our ability to fight our denials equitably.

And be careful. You don’t send a BVA NOD Appeal to Janesville, Wisconsin 53547. No sir. You have to mail it directly to the Board of Appeals or it will probably end up in the dead letter office.

Here’s the address:

Board of Veterans Appeals

P.O. Box 27063

Wash. D.C. 20038

or fax 844-678-8979

And here are the instructions that come with the BVA NOD path.

BVA NOD Instructions

VAF 10182 BVA review

There’s a lot of debate on just how “expedited” the BVA process will be. Many BVA staff attorneys have been burdened with far too heavy an appeals load and suffer from burnout. Worse, the BVA taskmasters all but advocate their staff ignore de novo review and ‘gitterdone’- and be quick about it, mind you. I can’t imagine being sold down the river like this. The Big Six VSOs (DAV, VFW, VVA etc.) all pushed this AMA/RAMP crap hard. Congress, in 1989, via the VJRA specifically granted us “one review on appeal”. To me that ensures an unbiased, fair, de novo review-not the new ‘in by 10, out by 3’ Chinese laundry approach.

Speed of adjudications, and by extension, appeals, should emphasize correctness. As it stands, 67% of all decisions at the agency level in Regional Offices are riddled with errors. The CAVC implies it’s as high as 74%. Speeding up the process almost guarantees even more errors. The reason is simple.  Let’s say you live in Seattle. The National Work Queue (NWQ) instituted several years ago created a miasma of fustercluck  mini-adjudications. A claim is dumped into a Bingo Ball hopper where a rater in Sioux Falls, S.D. pulls it out and checks to see if you were boots on the ground in Vietnam to ensure your entitlement to Agent Orange claims. S/he promptly throws it back in the hopper as ineligible. Your 214 did not specifically say ‘stationed in RVN’. You could have a Purple Heart  listed on it and still lose. Another rater in Jackson, Mississippi pulls it out a month later and schedules you for a c&p exam- hopefully in Seattle- based on your qualifying under a “direct” Combee path. I’ve heard of Vets being asked to travel to Portland, Oregon to attend the c&p.  After the results come back 60 days later, another rater in San Diego pulls it out of the NWQ and anoints it as RFD (ready for decision). Note the San Diego rater doesn’t actually do the rating. S/he merely certifies it as ready. Several months later, another rocket scientist in Winston Salem, N.C. will state there was no evidence you had served in ARPAC. You file a NOD with evidence of your having “stepped foot on the landmass of Vietnam” (so much for VA comprehension of the English language). 26 months later , you get the 10% rating for prostate cancer as you are recovering from the prostate surgery that removed the objectionable gland. You file a new 0996 for the 100% temporary surgery rating and then the 40% rating due you and wait another 125 days (if you believe VA). If you’re lucky and the prostate cancer doesn’t metastasize into your bones and kill you, you might survive long enough to enjoy the money. Or… they give you the 40% but deny the 100% temp. rating for the surgery and you have to appeal to the BVA. The error possibilities are endless. That’s how the M 21 was constructed.

Haste Makes Waste

The RAMP cum AMA, coming on the heels of the NWQ and the FDC, is an ugly harbinger of things to come. VA was screwing this up before the advent of the FDC without any trouble. With the advent of RAMP last year, they proposed going to lightspeed.  As of Tuesday the 19th of February, I see nothing to prevent a 98% error rate. I will reserve judgement until I begin receiving BVA decisions under the new program. If the error rate at the AOJ level was any indication after the introduction of the 125-day, 98% FDC-guaranteed accuracy rate, the AMA may prove to be an unmitigated disaster.

How the BVA hopes to create a streamlined Fully Developed Appeal process that eliminates a 3-7 year delay is the million dollar question. I, for one, am an undying optimist but reserve judgement until all the facts are in and a track record is established. How VASEC Robert “Call me Bob 2” Wilkie intends to generate more decisions faster with the exact same number of Veterans Law Judges (VLJs) should be intriguing.  If you believe the BVA bean counters, we’re talking 137,383 backlogged (docketed) appeals in their refrigerator and an AMA avalanche building up at Regional Offices across the Fruited Plain. If VLJs are cranking out 2.5  decisions a day as we speak, explain how a new, expedited BVA appeals process that permits the exact same BVA hearing and submission of new evidence is going to be the panacea to the backlog. Anyone? How about we temporarily promote all the BVA staff attorneys to Brevet Veterans Law Judges and let them adjudicate their brains out until there are no more appeals pending. Problem solved. You can see they’re also going to have to expand the CAVC from 9 judges to 39 if they do. VA doesn’t seem to understand the concept of eighteen years of continuous war and a heaping helping of Agent Orange and Burn pits.  The present dilemma is the lump-in-the-python problem they’ve created. The FDC procedure simply pawed it off on the BVA and resulted in moving the lump up to the appellate level. It won’t be long before it appears on the front doorstep of the CAVC. What next? An AMA for the CAVC?

Remember, folks. I’m the one that predicted this insanity almost four years before it happened. Granted, it was more tongue in cheek back then-but not by far.

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

As usual, I thank Army Vet Dennis for the following humor he provides us so regularly.

Posted in Uncategorized | Tagged , , , , , , , , , , , , , , , , | 5 Comments

VR&E ILP–RESTRICTED ACCESS CLAIMS CENTERS (RACCs)

Posted on February 17, 2019 by asknod

Have you ever disobeyed a direct order and literally come out smelling like roses? Have you ever plunked a pair of MK 82 500 pounders right into the mouth of a limestone karst cave off Route 7 and gotten secondary explosions for three days? This one is better than that. A little music, Maestro while I discourse on my perennial battle for a proper greenhouse.

As most know. I filed for a greenhouse May 8th, 2011. Long story short, I fought through four years,  a SOC and several SSOCs to get to the VA 9. It actually took a Writ to extract the VA 8. After combining it with a disability increase in 2015, Veterans Law Judge (VLJ) Vito Clementi granted it (the greenhouse) but neglected to specify any particular size. No one could foresee, and certainly no one would expect, my VARO VR&E Officer to become even more vindictive and retaliate once the VLJ had spoken. Right. You don’t know VR&E Officers.

GS-14 David Boyd.

My nemesis was, always has been, and continued to be, a certain Army Veteran named Mr. David Boyd- until January 31st of this year. Davy told me flat out about two days after I applied for the ghouse in ’11 that a snowball in Hell had a better chance of remaining frozen than any of my ILP claims ever being granted. Poor Dave. Army folks are two dimensional thinkers. He’s never dealt with Air Force Veterans apparently. After the BVA remand to implement the claim, he spent four months in contact with VR&E VACO, VA Regional Counsel and the Office of General Counsel (027) diligently trying to overturn Judge Clementi’s award. Failing that, he then attempted to violate Karnas v. Derwinski by utilizing new M 28 “instructions”. All that must sound like a mouthful. Boiled down into Vetspeak, Mr. Boyd set out to award as little as possible and take as long as possible to do it. Some refer to it as delay, deny etc. or the VA hamster wheel. I finally began filing Extraordinary Writs of Mandamus (3) to force them to give me the properly sized, suitably equipped, mutually agreed-to greenhouse.  I was denied the Writs but that is immaterial. It shows a diligently pursued claim and appeal with no interim slacking off. The CAVC recognizes my situation and eagerly awaits my return if VA denies me again.

Each time I have been tripped up by not exhausting all my legal remedies.  I can only agree. I disagree with how the regulation (38 CFR §21.98(b),(c)) is construed but that is a Chevron/Auer deference argument which may become moot if Kisor v Wilkie is decided at the SCOTUS in our favor. Granted, I appealed all the way to the BVA for the greenhouse itself- but not the size. Mr. Boyd and our old VR&E Director, Jack “ringknocker” Kammerer attempted to give me a toy dollhouse/greenhouse with a hosebib, a  porcelain pull chain, 60 watt light and an outlet.  I have to appeal yet again for the specific size. Which is where we’re at now- sort of…

Restricted Access Claims Centers

Check these snapshots from VBMS I found on Friday out. Seems they’re going to want a VSR or higher to write the SOC.

This one shows they have to RACC it to St. Paul.

click on this to enlarge

 

Mr. Boyd’s foot (R dorsal)

First off, on September 12th, 2018. I filed a new VAF 21-0958 and expressed my displeasure by asking for a SOC/VA 8 in order to move this shindig back up to the BVA. I have received nothing but the deafening roar of silence, which, it turns out, was a fortuitous delay for me. Being an enterprising fellow, while I waited, I filed a VA Form 21-22a “Appointment of Individual as Claimant’s Representative” and began representing myself in an official legal capacity rather than pro se. Why not?  Next, I filed a VAF 70-3288 Request for my VR&E claims file. Lastly,  I called the White House Hotline (855-225-0709) to register my complaint of inaction. Whereupon, shit started happening. Saint Paul’s Fort Fumble pulled it out of the National Work Queue (NWQ) and couldn’t make head nor tails of it (Aruuu? Greenhouse?) and sent it over to Seattle (and our good buddy Vet David Boyd). Davy promptly buried it somewhere waaaay down in the in basket but you know VA computers-yep- some alarm bell went off and said “Danger! Danger! Will Rogers. You have a M 21-1  III.ii.4.A.4.a Level 5 emergency. VA Agent Graham has filed a POA… huh?… on himself? Wait a minute. Can he do that?  We don’t have to give him access to his c-file on VBMS, do we? Oh shit. Oh dear. He’s already inside the wire! Unfortunately. CWINNRS (VA VR&E) files are not in VBMS. But hey-everything else is. Including all their notes and activities (see above).

Right anterior view

Little did I know what I set in motion. VA will not allow me to be an agent and also have access to the Seattle Puzzle Palace. Who knows? Moreover, who cares? Maybe VA thinks I have kindred spirits there who will aid and abet me in some nefarious scheme to salt my records. Apparently, the moment I filed the 22a, the Seattle ISO had to promptly lock up all my claims file information-including the VR&E files for the Independent Living Program. Ol’ Dave got cut off quicker than a philandering husband. Worse, the Davemeister, by virtue of my representation of myself, now must relinquish this appeal to Saint Paul, Minnesota’s VR&E Officer to issue the VA 8. Bye bye, Mr. Boyd. All that denial work for nothing. But that’s hardly the end of the situation. Oh, Hell no. Not by a long shot. If Dave had whipped out that SOC like a good boy, I would be fenced out of the new BVA RAMP path.

 

Feb. 19th, 2019-The New BVA RAMP Lanes

If that were all there were to this story, it would not rise to the level of humorous or even intriguing. But note the Opening Day for RAMP hunting season on your VA calendars. Hoo doggies. That says the Rocket Docket path to the BVA for claims which have not yet been issued a SOC opens on February 19th, 2019. Ruh oh, Rorge. Looks like old Dave shot himself and the whole VBA in the foot. My plan is to jerk this out of the St. Paul VR&E Denier in Chief’s hands before he even gets a grip on it and take it directly up to a Veterans Law Judge. I can fly back to DC and do a Board hearing face to face and have this one wrapped up before Christmas. §20.900(c) provides an AOD for appeals which are antique. Mine’s almost eight years old from the original May 2011 filing. Dang. Wouldn’t that be a hoot if I got Judge Vito again?

thaaaaaaaat much.

I’m guessing Monsieur Boyd hasn’t even figured out the file is missing from his VR&E shop yet. He’s still out shopping for some new Punji sticks. By law, it now has to be kept in the locked up file room near the Director’s or Assistant Director’s offices with extremely limited access to anyone– until it’s shipped to Saint Paul. Davy will be having that Maxwell Smart revelation for years to come of having missed it by thaaaaaaaaat much. Better yet, my NOD explains I will be submitting rebuttal directly to the BVA with a waiver of review in the first instance at the Agency of Jurisdiction (St. Paul now) so I don’t get one of those 88-page SOCs. Shit. What am I saying? VA couldn’t pass up a chance to cut another tree down to get some pulp for this puppy.

I’d allow as I’m one fart smeller but I know VA better. All I did was to see if it was possible to get a peek at my own claims file. My CMA said it was strictly forbidden. Of course, she also said we’re not allowed access to VACOLS, too. When somebody throws out a double dog dare like that, you can’t walk away. I had no idea alarms would go off and drive the whole shebang off to Saint Paul though. God bless the Restricted Access Claims Center (RACC) clause in the M 21. Appears it’s good for more than outhouse reading. But then again, I never thought about the RAMP aspect of hyperdriving it up to BVA this coming Tuesday until a few days ago. I’m thinking about taking a folding chair, a sleeping bag and a pillow down to Fort Fumble and camping out in line to be first. There’s even a Starducks™ right across the street.

I’m now a firm believer that Howard works in mysterious ways. That or good shit happens.

Posted in All about Veterans, DRO and BVA Hearings, Humor, Independent Living Program, KP Veterans, Tips and Tricks, VA Agents, VA RAMP, VBMS Tricks, VR&E, Waiver of Review in the First Instance | Tagged , , , , , , , , , , , , , , , , , | 10 Comments