SCOTUS-KISOR V. WILKIE–CHEVRON UNDER THE MICROSCOPE…FINALLY

Posted on December 13, 2018 by asknod

In the Rainmaker business we often are forced to swallow the VA Secretary’s interpretation of what he is trying desperately to translate into regulation from what Congress enacted. In Veterans Blogs and many legal decisions, you will often hear several cases mentioned which all stem from  Bowles v. Seminole Rock & Sand (1945). The most famous follow on was Chevron v. National Defense Resources Council (1984). It was followed by Auer v. Robbins in the same vein in 1997.

Now, in 2018, our old law dog Ken Carpenter of NOVA fame and a lot more, is going to go to the Supreme Court with Vietnam Veteran Marine James Kisor. He (Ken Carpenter) has been busy representing  Mr. Kisor since he first came up to the CAVC in 2016. It’s an interesting case to use to try to  overturn Chevron/Auer insanity but everything has a backstory.

Kenneth “Mr. Mellifluous” Carpenter (right)

Jimbo Kisor came home from the Southeast Asia Olympics with PTSD as a lot of us did. He had to wait for VA to “invent” PTSD in order to file for it in December  1982. He lost and filed his NOD but probably got hornswoggled out of completing it when it came time to file the VA 9. Shoot. Nothing new here. I’ve played that Country and Western Song a few times in my career, too. DAV convinced me to fold up the tent, forego the CAVC and take 0% in 1992.  In 2006, the Jimster came back for another bitchslap and wasn’t disappointed. This time he decided to use his Marine training and hold his ground. He won 50% in 2007 and got a low ball rating which pissed him off even more. The final score was 70% with a kicker up to TDIU 100%. Oddly, and here we find the Chevron issue, he filed his NOD for a higher initial rating as well as a CUE insinuation that the VA had failed to give him an earlier effective date based on our old friend 38 CFR §3.156(c)(1). VA was all smiles on the ratings but there was not going to be any talk of 1983, thank you.

§3.156(c

For those in the dark, §3.156(c) allows us to go back in time and force VA to reconsider an old decision if they (or we) find old service department records that are “relevant” to any claim we put in way back when (as the Jimmeister did in 1983). Many a Vet has gotten some serious baksheesh using this regulation. VA continues to refurbish it every several decades and add a few more requirements and restrictions. The last batch was to “fix” that pesky problem of finding records via the Joint Services Center for Uniform Records Research (JSCURR). Every action or event a military unit encountered is immortalized somewhere in the records. The Jimster got his stressor verified that way and subsequently got his service connection for his bent brain syndrome. VA now insists that if you forgot to tell them what unit you were assigned to back in Nam- why, it isn’t their fault they couldn’t go look for your records.

In Jim’s case, they denied an earlier date of 1983 because, even though the records showed he had what certainly qualified as a  PTSD stressor in 1966, he didn’t actually have a diagnosis of bent brain by a doctor when he filed in 1983. VA has humorously nicknamed this the “you weren’t born on Tuesday so you don’t qualify” rule- or simply the Tuesday rule. They have used it to great effect over the years. Monsieur Kisor decided to employ the §3.156(c) proviso and promptly hit the wall.  He appealed to the Board of Veterans Appeals and got the same treatment. He did try to argue the VA only adjudicated it as a CUE contention rather than a §3.156(c). He lost. Surprise , surprise, surprise as they say in the Marine Corps.

He went up to the CAVC with Ken Carpenter carrying his shield and got pretty much the same bitchslap from Judge Alan Lance. that was 2016. They armored up and took it to the Fed Circus last year and lost again. And here we are at the Supreme Court. Now, watch closely.

Mr. Carpenter was careful to argue this with all the cards on the table to preserve a lot of options-one of which is the dreaded Chevron deference VA is so fond of dredging up to defend themselves and their reprehensible adjudicative practices. Herein is the chestnut. Does, or did VA(and, by extension, all federal agencies)  write their regulation(s) to be purposefully ambiguous such that Courts will grant Chevron deference to their interpretation or was it simple misfortune and  poor semantic choices?  At what point are Federal agencies, and even the Executive branch, required to be anally specific so as to avoid these contretemps in judicial interpretations? Given VA and most other agencies have more law dogs than common sense, it stands to reason that they, of all folks, should be able to construct a cogent sentence devoid of ambiguity or uncertain meaning.

Worse, from our standpoint, is the inevitable loss when the higher courts defer to the VA and grant this asinine deference. In the instant case with Mr. Kisor, the Supremes are going to disassemble §3.156(c) and more specifically the term “relevant” as in records. The whole concept of deference is going to be revisited by an inquiring Court.

I have several of these types of claims in the queue at asknod and they all have met with somewhat the same response.  Gee, Alex, we looked at Butch’s 1970 claim and we agree the old service dept. records you found are relevant but nothing we see would induce us to change out minds about what we decided in 1970… so there was no CUE. Ooops. Wrong legal standard of review. They are supposed to “reconsider” it based on the new found evidence rather than try to find error with the earlier decision. Try telling that to them. You’d have more success herding cats for a living.

At any rate, this is going to be a daisy. Mr. Carpenter only drew blood on one facet of granting deference but it will be telling. If any agency is so word-challenged such that they manage to hamburger a translation of statute into a regulation, isn’t that error in its own right? Could it be they did it purposefully so as to always get the last word in edgewise? Mr. Carpenter posits that perhaps Chevron deference has seen its nadir and is falling into judicial approbation as a legitimate interpretation of regulation.

Of even more note,  it should be axiomatic that the VA is a nonadversarial, paternalistic, pro-Veteran agency where every benefit supported in law must be accorded the Vet. The Tuesday rule should never enter into the discussion. The purpose of §3.156(c) is to right a wrong and put the Veteran in the same place he was before they screwed up and lost the records (or burned them).

I have likened winning VA claims to winning the Lotto but that is a piss-poor analogy. It’s easy to win them if you know how. Going back in history to fix the VA’s errors using their very own regulations is more à propos as the lottery analogy here.

More humor:

Posted in 3.156(c), All about Veterans, Earlier Effective dates, Tips and Tricks, VA Attorneys, Vietnam War history | Tagged , , , , , , , , , , , , , | 4 Comments

DVA–FERGOOGLE–FOR FERGETFUL RVSRS

Posted on December 8, 2018 by asknod

I don’t automatically hurl deprecations  about-especially now that I have come in contact with numerous VA employees who really wish to do their jobs right. I do find it interesting that 38 USC and 38 CFR escapes most of them. We (attorneys and agents) are required to be cognizant of statute and regulation. I suppose I should add a side note and say VA employees seem to think we are also (or should be) conversant in M 21speak. Why bother? I don’t like to waste a good brief written in M 21ese that will be ignored at the BVA. 

One of my numerous readers, Troy, found this gem out there in the Wide World of Web. Amazing. I would have expected all these things to be on the other side of the VBMS curtain. Whoa, hoss. They are. All but the “bibles” are in the accessories section of the VBMS. https://www.fergoogle.com/

The M 21 is a living organism. It is always out of date even though it needs to be revamped almost daily based on the machinations and precedence handed down by the CAFC and CAVC. VA did make a valiant attempt to revise it back in 2006 but the precedental changes occurring as mentioned above would have rendered it unusable almost moments after any official completion. VA now makes no attempt at presenting it as current law. It’s a polite chuckle like rolling your eyes and discussing the family’s crazy aunt with the prefrontal lobotomy your parents keep locked up in the attic and only invite down for Thanksgiving and Christmas dinner.

The M 21-1 is essentially a guide with no force of law. Imagine putting together a bookcase from Ikea™.  Analogously speaking, the M 21 is the set of instructions you find inside the box pertinent to the article of furniture you wish to assemble. In that regard, it attempts to mimic 38 CFR but instead of a regulatory holding, it dictates if and when you can grant entitlement to the claim. Thus, rather than learn law and employ it, you learn how to insert claim A into the M 21 computer, answer a list of questions concerning the medical aspects of the claim, the service connected aspects and any definitive evidence that “at least as likely as not” confirms the debility exists currently and walk around to the other side of the printer and collect the fruit of your labor. Granted, that is a vastly simplified version of what happens but it conveys the general idea. Another comparison would be a Detroit automotive line. Each section adds an engine, wheels, body, ad nauseum until it exits the building completed.  I like this M 21 version:

Click to access m21-1_complete.pdf

Back in the day (1975), a rater, who was often a Vet himself, would sort through the pile of paper and come to a legitimate decision. The outcome was usually the 0% ice creme cone with a scoop of air. Occasionally, you’d snag a 10% for fifty scars from a hand grenade. In those days, I could take my denial or low ball downtown to the RO and discuss it with the rater. I got to know Mr. Peterson really well over this and my VA loan. He eventually became the Director about 16 years later and even signed my letter for the 100% schedular.

Nowadays, the claim is disassembled into small, component facets and shipped all over the country via the National Work Queue (NWQ) for piecemeal completion. I had a Vet at the David Koresh Memorial RO in Waco get this wash and wax job technique by a gal in Detroit last week. I think she had the NOD since late 2015 and finally jumped on it last week. In between, I’d obtained a professional IMO from a neurologist, filed several new claims and had another NOD in the pipeline. She never looked into the VBMS from what we can ascertain. Hellllllllll no.  She just picked up the efile and continued right after the 1/12/2018 c&p for PTSD increase and lowballed him up to 50% from 30. The actual c&p examiner had used the language verbatim for granting 70%. Nevertheless, RVSR Jody strapped on her PhD. degree in Psychology and determined he was 50% with some M 21 massaging. Had she reviewed the e-file, she would see the newer c&ps, the IMO and oodles of other info such as the TBI for 70% which would have prevented her from even trying this stunt. I’m into it two weeks and finally found out the authorship (Detroit). A DRO Coach called me to ask for enlightenment after I emailed him with a WTF?. He actually started writing it all down when I mentioned the PIES request and got into the 3.156(c) part of it.

So. Now we have a wonderful, expensive new tool (VBMS) thanks to Allison Hickey that no one consults. Idiot’s delight. One repair order on how to get all this  right the first time  comes from a techy RVSR who has gradually built a RVSR Bible of “how to” to interpret the M 21. That’s no small task. You next have to wonder if anyone reads his Fergoogle site.

RVSR Bible rvsr_bible (2)

Given the document (M 21) is flawed from the outset, our RVSR can only dispel the errors and teach how to override the system and do what is supposed to be done… the second or third time after the NOD and VA 9 have been filed and DRO review has been requested. A bandaid on a sucking chest wound?

Another enterprising VSR in Denver has even made his official contribution. One wonders if he created that beautiful cover below for his pièce de résistance  on his own time or with the blessing of his Coach on VA’s dime.

denver_development_guide_2014

Regardless, I’m overjoyed to see VA ratings personnel attempt to imply ( and teach others) they achieve a 98% accuracy rating in a short (125 days or less). My guess is that a lot of you folks don’t contest your denial and it stands undisputed as correct. If we were doing this with real statistics, any BVA grant would wipe out the denial and reverse the statistic. Using that more truthful metric based on CAVC jurisprudence shows that the accuracy rate falls to 27%. I’m going to go out on the little branches and posit that if we were doing claims for GEICO and only got 27% right after two or three stabs at it, we and our “Coach” might be politely asked to seek employment elsewhere. Not to worry. The VA even has work incentives in the form of $$ (but never called bonuses nowadays).

Perhaps that has something to do with the VA RVSR who contacted me with a shiny new email from ag@cantfindme.com last month and cryptically wondered how much I make being a VA agent annually. Ruh-oh, Rorge.  If s/he’s calling me, they just lost another rater… Come on. If you’re going to be expected to make life and death decisions which turn you into a raging alcoholic to maintain your composure, and only get paid about $68 K a year with no wild and crazy Christmas parties, if you’re 35 you probably keep an up-to-date resumé  on the desktop-just in case a better job prospect arises. From what I gather, that happens far too frequently at our 56 Alma Maters. Only the real assholes find any joy  in camping out there and becoming DRO lifers. I know. I’ve met them across our fruited plains. I can count the good ones on my hands.

Enjoy you Christmas/Hanukkah season.  Thanks Troy. Two attaboys and one free counseling session.

Sadly, the owners took this one down or couldn’t finance it last year. A great link gone. 2/7/2023

 

VBMS

P.S. The perfect gift for that special DAV VSO in your life.

Posted in All about Veterans, KP Veterans, research, Tips and Tricks, VA Agents, VA Attorneys, VA Conspiracies, VA Medical Mysteries Explained, vARO Decisions, VARO Misfeasance, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 8 Comments

VETERANCLAIM’S BLOG–ONE MORE TOOL IN YOUR VA POUCH

Posted on November 30, 2018 by asknod

I feel remiss in forgetting to share this earlier-like about five or six years ago earlier. Some who have mastered the art of Google Search must have inevitably run across this gentleman’s blog. He and I converse on the great matters of VRE ILP and VA law fairly frequently. Sometimes, when I just can’t find that perfect cite, he can. That man is uncanny. He’s even more famous for being one of the very few who have won an Extraordinary Writ. He makes Westlaw look like dialup and then idiotsearch.com. Even single-judge memorandum decisions! I use many tools, including his. Among my favorites is Casetext but I am not above using any source with a stable link. Why sift through ECF if you have VCB (Vetclaim’s blog)?

Mr. Veteranclaim’s Blogs are on point for ferreting out the nuggets of law that give us our rights-especially due process. My favorite forte, as most know is the Almighty Presumptions. There are more presumptions than you can shake a stick at, folks. Ignore the basics like soundness at entry or the fabled benefit of the doubt. There’s a whole new world of presumptions out there waiting to be cited-the most precious of which is the presumption of regularity. It’s been Supreme Court tested (Rosenthal v. Walker, 111 U.S. 185, 193) (1884) so VA can’t start chipping away at it using post hoc rationalizations.  Rios v. Mansfield and then Rios v. Nicholson cemented it in VA law just to keep the Secretary from coloring outside the lines. Mr. VB delivers these goods faster ( and waaaaay cheaper than many alternatives. I think he ought to put a Go Fund Me™ clicker up there next to the search bar. Scratch that. He has a donate button. Use it. He really earns his keep.  Shit oh dear I can think of about 35 FNGs who’d give their left nut for that in those smaller VA designer firms. I hope they read this. You just can’t pack enough hand grenades and five five six in this business. I’ve been known to illustrate it (presumption of regularity)  for an old CUE by delving clean back to 1926…

From a brief:

[T]he legislative history of the Presumption of Regularity did not manifest with Miley. (See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Rizzo v. Shinseki, 580 F.3d 1288, 1290–91 (Fed. Cir. 2009) (“what appears regular is regular and what appears irregular is irregular- the burden of proof of irregularity falling on the appellant to rebut.”

Examples of contemporary case law prior to 1972 expounding on the presumption of regularity are below:

-Turberville v. U.S. 303 F.2d 411 (D.C. Cir. 1962)  (Applying the presumption of regularity where government offered evidence in form of detective’s testimony that appellant was advised of his right to silence, contrary to Turberville’s assertions)

-U.S. v. Baker 416 F.2d 202 (9th Cir. 1969)  (Applying the presumption of regularity where the Government need not affirmatively prove that a Selective Service registrant was irregularly selected out of order but may rely upon the presumption of regularity surrounding official proceedings to establish that fact). See also Greer v. United States, 378 F.2d 931 (5th Cir. 1967); Yates v. United States, 404 F.2d 462 (1st Cir. 1968).

-Citizens to Preserve Overton Park v. Volpe  401 U.S. 402 (1971) (Applying the presumption of regularity where  Government (Secretary of Transportation) decision to route a federal highway through a park was  entitled to a presumption of regularity but that the presumption did not shield his action from a thorough, probing, in-depth review). See also Pacific States Box Basket Co. v. White, 296 U.S. 176, 185 (1935); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926).

 Just as the CAVC was forced to cite to Federal Circuit decisions in its early, formative years in order to fashion Veterans law, so too does appellant/movant rely on similar case law here that was precedential case law at the time. Hence, the presumption of  regularity must be similarly applicable to Veterans Law just as Gilbert v. Derwinski (1991) relied on the CUE standard in United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); cf. Anderson v. City of Bessemer City, 470 U.S. 564 (1985). (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous”). United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949).

Asknod has always been a refuge for last-ditch Vets in their claims appeals. Maybe I’m using the wrong “key words” tags for Google search. Between the three of us (hadit.com, VCBlog and asknod), you have allies in this quest. Yes, there are other Veterans sites who offer advice but you will find very few who can offer real-time assessments and on-point law that supports your claims. Not conjecture. Not honest, misguided opinions- but real help. If we can’t help you or point you in the right direction, I wager to say it involves alien abduction or NSC MDD. And of course, if you don’t ask, you’ll never know. Remember, we were all FNGs once.

I try to point out to prospective clients that it doesn’t help you to walk in and preach about what VA did wrong in 1987. It doesn’t help anyone to tell about how they got shafted or the records got lost or about the Drill Sgt. who crammed them into a trashcan and beat on it. If the Drill Sgt. didn’t write it into your military records or the Doctors on sick call didn’t annotate it…. then it didn’t happen. VA attorneys have gradually opened a window for women Vets to attain Service connection via a Major Sexual Trauma defense (MST). I have a few of those, too. I’ll let you all in on the big secret. There is a simple rhyme and reason for how this all works.

THE BIG SECRET TO WINNING THE VA CLAIM

This is how we win. “We” being the few VA attorneys who think like me. Certainly, this is my technique carefully shaped after 29 years of bent spears and dull swords. I have to presume, in the absence of a Juris Doctorate, that other VA law dogs are at least this erudite and conversant in the art. Sit and listen Padewans. Here’s the Earl Schieb $99.95 method.

First you file. These days you have to use a VAF 21-526EZ. Gone are the days of paper towels and scrap paper. I haven’t put any Tickle Me Elmo stickers on any of my briefs since I got my accreditation but don’t let that inhibit you. Just make sure the evidence intake technicians can peel them off in Janesville, Wisconsin before scanning.

You don’t file with any evidence. Screw that. It’s VA’s duty to assist in this and they are getting totally slack about it nowadays. They’re going to go get your Service med recs even if you do supply yours. Shoot, Cowboy, your copies might be fakes. They are not going to trust you when you say you have TBI from the IED. So let them do all the heavy lifting. Face it. 85 % are going to lose and the remainder are going to get low-balled anyway. Send in a DD 214 and grab an IPA. Put on some Rolling Stones and chill out.

So, six weeks/ two months later you have a lowball/noball ( underated/denial). What now? You hire one of us to run this show. Don’t laugh. This is like baking cookies. The oven is always on at the right temperature. The dough is kneaded and ready. All we do is pour in the claim and stir. By law, we cannot elicit your business. You have to come to us. We can only enter (legally) to defend you (for $) after you receive a denial or lowball. I help a lot of guys win at the local level and they owe me zip. Why not? Pay it forward, right? It’s one less claim choking up the machine.

In order to win, you need a nexus letter or what we call an Independent Medical Opinion (IMO). This is the same exact recipe used to win Social Security claims. You are limited by your wallet and the propaganda you hear from the Disabled American Veterans and all the other VSOs. “Those damn lawyers will suck you dry”. They’re right. Some will. Some will ignore your claims or milk them for years by inaction. Be careful. It must be something they put in the water at law school. As one of my clients who is also a lawyer said. “This is your brain. This is your brain after law school.”

 

The IMO/nexus letter you need  costs $1500.00 nowadays. That’s the latest price quote from my broker. I don’t mark it up. Some lawyers have high overhead and a glorious view of 810 Vermont Ave. NW. Location will drive the cost up. I don’t need to screw you. I have a beautiful territorial view of my horse pastures and the Olympic Mountains. This is not an advertisement. I don’t do that. My website here is devoid of advertisements. These IMO providers will only work with lawyers or agents. I didn’t make the rules. I dislike it but this isn’t my parade.

My recipe now involves writing up the Notice of Disagreement and enclosing the new IMO. This provokes the benefit of the doubt. I have an IMO that says my client’s __________ is caused by the __________  which the medical records show he incurred in service. It’s at least as likely as not he’s all screwed up and here’s why:__________________. Throw in about five good cites to peer-reviewed articles in JAMA and a Curiculum Vitae that has American Universities and familiar names like Mayo Clinic and you have “equipoise”. Your IMO counterbalances what the VA said in their denial. Who’s telling the truth? VA or your rainmaker (me)? Who cares, really? Your IMO makes you a Chicken Dinner Winner. Really, folks. It doesn’t take three witches stirring a cauldron throwing in dried lizard eyeballs. It’s way simpler than that and won’t cost you your first-born male child.

The next phase is the most boring. By rummaging through the VBMS and watching my “repaired” denials progress, I can see a pattern of disposition. The local yokels can’t write an SOC denying you because, well, duh- you have a winner. They hem and haw and finally send it up to the AMO in DC. The giveaway in VBMS will be in the Notes section. You’ll see a reference to “referred to AMO” (Appeals Management Office) or “Ewwww. Send to 372” or something similar. All of a sudden your appeal has porcupine quills sticking out of it. Eventually, (a year plus) you’ll get the decision. I have yet to see anyone in the National Work Queue (NWQ) pull an IMO “rework” EP 170 winner out and write it up. I’m sure it happens every day. Just because I’m oblivious doesn’t mean it’s untrue to say that.

Now, on the other hand, when the decision is granted, be it at the AMO or the BVA, start the Alex Trebek theme song. I have an appeal I began last Christmas. We won with the new IMO March 18th. It took the White House Hotline to prod Atlanta or Columbia or whoever into writing it. That finally happened in late August. Disbursement of funds was authorized in mid-September. That starts the 60-day clock. In late November, which is about now, I’ll get a notice saying the 20% payment is “being processed”. This starts the 30 day clock. Realistically, I’ll be lucky to see it by mid-January. It’s a good thing Cupcake has a day job or we’d be on the Rice-a-roni, tubesteak and Pepsi diet.

Now, you can apply this compensation claims formula to any claim, be it PTSD or DM II.  I exclude CUE claims and §1151 claims from this. About the only requirement is that you actually suffer from what you are filing for. I’ve had guys come to me and say they want to file for Hepatitis A or B. I ask what their residual symptoms are today and they have none.  The diseases are “acute” rather than chronic and do not qualify for financial compensation once you recover. Even if you are cured of Hepatitis C by the new direct-acting antivirals like Harvoni or Zepatier, you will invariably have secondary illnesses such as Fibromyalgia, Sjogren’s syndrome, Cryoglobulinemia, dysthemia, cognitive dysfunction and even DM II. The list is probably far longer. That’s why we have IMO doctors to help us.

The teaching moment here is simple. If you have a legitimate claim and you have not won it yet, it’s because you lack one of the three ingredients. Most often, you are lacking one or more. The IMO is the most elusive because Veterans labor under the misconception that they can just state they had X happen to them in service and be believed. Veterans Service Representatives from the Big VSOs do not tell you what, why or how to overcome the denial. We do. You buy it-just exactly the way the VA buys it. They hire doctors who will say whatever VA wants them to say for $273,000.00 a year and a covered, reserved parking spot close to the entrance. So, being an efficient business model, we figured out how to do it for far less. Everyone is happy and the IMO doctors can sleep at night knowing they didn’t just collect 30 pieces of Silver.

I won’t go into a long list of folks who can provide you with those IMOs. There are several well-known gentlemen who are both attorneys and doctors who perform this function. There’s an outfit down in Florida that does it for a “commission” of sorts. The Florida outfit does not involve a lawyer but if you hire one, you end up with a pretty skinny retro payment. The beauty of my system I describe here is elementary. It’s a fixed price. A prompt VA adjudication is the only impediment to a timely payment. I help a large number of terminally ill Vets and it is usually accomplished in short order…unless it’s Atlanta or Houston or Jackson or Columbia or wherever. There’s nothing I can do about that unless you’re terminally ill or well on the way down that road. In those cases, I getterdone in about four or five months from filing to money in the bank (theirs-not mine).

The real beauty of this system for the average Vet is we do not have to wait four or five months to get your claims file. I generally can see it in VBMS within 3-4 weeks of my VAF 21-22a Power of Attorney filing. As I may have mentioned in the past, the e-file is all sorted out chronologically and a piece of cake. All we need is to see why you were denied, fashion a defense and obtain your prepaid IMO. The rest is a cake walk. Sure, you’re going to run into some chucklehead RVSR or DRO who will never give you R1. They are prevented by the M 21. Somewhere in there it says “Thou shall not award R 1/2”. So what? That’s what the BVA is for. The BVA  doesn’t use the M 21 claim assembly instructions. Why would they? It’s yesterday’s fishwrap judicially. The DVA still hasn’t absorbed the import of the Jensen decision re R1.

And there you have it. The VA Claim according to asknod. It didn’t cost you a dime. Sometimes, what you find for free by diligently searching here or over at Mr. Veteransclaim’sBlog has great value.

Today’s show is brought to you by the Letters I, M and O.

And that’s all I’m gonna say about that. Time to feed the horses.

 

 

 

Posted in Independent Living Program, Independent Medical Opinions, Inspirational Veterans, KP Veterans, Lawyering Up, Presumption of Regularity, Tips and Tricks, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , , , | 2 Comments

FY 2018 DARWIN AWARD WINNERS ANNOUNCED

Posted on November 26, 2018 by asknod

It makes me shudder to think we older folks are only an absentee moment away from all these winners. Well, some anyway. I sure don’t fault that poor gomer for the plexiglas mishap. I’ve been there. Fortunately, I didn’t eat the rock. It wasn’t even close. It caught my good friend Stephen’s earlobe. Two stitches and I did two weeks on bread and water. As for the Zimbabwean bus driver, I don’t feel he should be singled out for ridicule. His improvisation solved the dilemma-albeit for three days. Darwinism, by it’s very definition in this contest, should result in the demise of the mental midget ( with suitable, politically correct apologies to any of you offended height-challenged folks).   

At any rate, without further delay, allow me to introduce our carefully culled circle of distinguished winners.

First Place

When his .38 caliber revolver failed to fire at his intended victim during a hold-up in Long Beach, California would-be robber James Elliot did something that can only inspire wonder. He peered down the barrel and tried the trigger again. This time it worked.

Second Place

When a man attempted to siphon gasoline from a motor home parked on a Seattle street by sucking on a hose, he got much more than he bargained for. Police arrived at the scene to find a very sick man curled up next to a motor home near spilled sewage. A police spokesman said that the man admitted to trying to steal gasoline, but he plugged his siphon hose into the motor home’s sewage tank by mistake. The owner of the vehicle declined to press charges saying that it was the best laugh he’d ever had and the perp had been punished enough!

Third Place

An American teenager was in the hospital recovering from serious head wounds received from an oncoming train. When asked how he received the injuries, the lad told police that he was simply trying to see how close he could get his head to a moving train before he was hit.

Honorable Mentions

The chef at a hotel in Switzerland lost a finger in a meat cutting machine and after a little shopping round, submitted a claim to his insurance company. The company expecting negligence sent out one of its men to have a look for himself. He tried the machine and he also lost a finger. The chef’s claim was approved.

A man who shoveled snow for an hour to clear a space for his car during a blizzard in Chicago returned with his vehicle to find a woman had taken the space.  Understandably, he shot her.

After stopping for drinks at an illegal bar, a Zimbabwean bus driver found that the 20 mental patients he was supposed to be transporting from Harare to Bulawayo had escaped. Not wanting to admit his incompetence, the driver went to a nearby bus stop and offered everyone waiting there a free ride. He then delivered the passengers to the mental hospital, telling the staff that the patients were very excitable and prone to bizarre fantasies. The deception wasn’t discovered for 3 days.

A man walked into a Louisiana Circle-K, put a $20 bill on the counter, and asked for change. When the clerk opened the cash drawer, the man pulled a gun and asked for all the cash in the register, which the clerk promptly provided. The man took the cash from the clerk and fled, leaving the $20 bill on the counter. The total amount of cash he got from the drawer… $15.

Seems an Arkansas guy wanted some beer pretty badly… He decided that he’d just throw a cinder block through a liquor store window, grab some booze, and run. So he lifted the cinder block and heaved it over his head at the window. The cinder block bounced back and hit the would-be thief on the head, knocking him unconscious. The liquor store window was made of Plexiglas. The whole event was caught on videotape.

As a female shopper exited a New York convenience store, a man grabbed her purse and ran. The clerk called 911 immediately, and the woman was able to give them a detailed description of the felon. Within minutes, the police apprehended the snatcher. They put him in the car and drove back to the store. The thief was then taken out of the car and told to stand there for a positive ID. To which he replied, “Yes, officer, that’s her That’s the lady I stole the purse from.”

The Ann Arbor News crime column reported that a man walked into a Burger King in Ypsilanti, Michigan at 5 A.M., flashed a gun, and demanded cash. The clerk turned him down because he said he couldn’t open the cash register without a food order. When the man ordered onion rings, the clerk said they weren’t available for breakfast… The frustrated gunman walked away.

Posted in Humor, KP Veterans, VA Agents, VA Attorneys | Tagged , , , , , , , , , , | 1 Comment

HAPPY THANKSGIVING 2018–PERPETUAL THANKS

Posted on November 24, 2018 by asknod

Having joined the 30,000- Joules club three times in 90 seconds one morning (and graduated), my perspective on life is probably different than many of yours. As near as I can tell, I’ve used up 6 of any 9 potential, mythic lives and my 24&More® DNA test shows I’m barely 10% cat… so I have that going for me, too. It’s positively glorious to be alive. Greeting the morning is as exciting as childhood Christmas Mornings, your first 8X7-point buck, or that fond memory of the perfect 40 Mike Mike from your thumper down the throat of that moron gook sniper that had been been bugging you all Thanksgiving afternoon back in ’68…. all rolled into one. Mostly, being alive really beats the shit out of the alternative.

Nowadays, I spring out of bed, grab the coffee and crank up the VBMS to see what havoc and dismay I can create. I’ve discovered you can click on “Claims” up in the upper right and  then click on “Go to Work Items” in the upper left of the next window and view a DRO at work on a document such as a SOC in real time. I can even view it before it comes out as a pending decision that gives you that mythical 3-day window for a VSO-requested “reconsideration”. Yes, Virginia, reconsiderations are real. I’m told attorneys and agents are forbidden to request a recon, but then again, I was told my request for access to VACOLS was never going to be permitted. Ruh-ohhh, Rorge. Gee , don’t tell anyone.

In VBMSland, you’re either an eeeeevil attorney sucking money out of a Vet’s wallet or you’re a kind, stupid, benevolent, harmless VSO. VA personnel don’t know how an “agent’ fits in. Most think we’re some kind of SuperVSO and let us wander about unhindered. There are only about 360 in the system.  Hence what appears to be my ability to engage in reconsiderations. In fact, they are appalled when I refuse to file a VA 646 Statement of Representative before referral to the appellate level. I told my CMA here in Seattle, Tina, it’s like signing the terms of surrender or a Catholic Priest’s final confession. I turn it into a supplemental answer to a SOC and make them issue a SSOC if I’m out of sorts. Otherwise, it’s a 26-page VA 9.

There’s no consistency in VBMS. In Atlanta, Cleveland, Detroit and a few other ROs, all my decisions announce me as an attorney. What the hey? Everything coming out of the BVA is that way too. I didn’t get a pay raise with the promotion but I’d do this for free if I could get Lt. Dan or Jeff Bezos to finance it. Imagine, a free Vet’s law clinic and we’d buy the IMOs ? Would  that be too cool for school or what? We could break VA’s budget in six months and create some serious backlog.

After ten years of this, I virtually have to put up the best stuff sent in by my membership annually. Remember, no membership numbers, no dues, no requirement to have fought in a war to join (like VFW). Nothing. Maybe it’s time for asknod bumper stickers with a Green and White background like the VCM? I declined advertising as we don’t want the money or the Viagra commercials. Besides, WordPress would slam me with other NOVA attorneys’ advertisements.

Here are a few of you folks’ most priceless- old and new over ten years. Keep sending them in. Yeah, some are photo-shopped but so what?

Happy, Happy Happy. And still alive after all these years. And let me put you all at ease. I have an onboard AED now so I’m bulletproof.

Hold on to your hats. Rumor has it Chevron Deference is soon to die a long-overdue life. With the new Supreme Court lineup, its days may be numbered. And you heard about it here -just as you did about the Fully Developed Appeals Program (FUDAP) 2.5 years before VA dreamed up RAMP. I don’t get no respect. 

P.S. I was talking to another Vietnam Vet the other day in  the local Cheapo Depot™ about “stuff” and he asked for my card.  Get out of here, Dude! You’re asknod? Shit, oh dear. Somebody’d heard of me out there in the world. What a hoot. He asked me to add comatoast to the Vet’s Dictionary. I did.  I added Pig without being goaded. I had forgotten that nickname over time.

Posted in All about Veterans, Humor, KP Veterans, Thanksgiving and war, VA Agents, VA Attorneys, VA Motions for Reconsideration, vA news, VBMS Tricks, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , | 4 Comments

CAVC–COOK v WILKIE-ADDITIONAL BVA HEARINGS

Posted on November 18, 2018 by asknod

That which is not forbidden by law is permitted. Somebody at the Office of General Counsel is going to have to go back to the Drawing board and put out a new blurb in the Fed. Register to prevent this insanity. Can you imagine Veterans running back and forth willnilly to the Court and the BVA on numerous hamster wheel expeditions-all the while being granted a new hearing every time? Are you mad? Surely this path leads to madness.

It seems the Secretary’s argument against multiple hearings was nonadversarial treatment is all well and fine but let’s not take paternalistic to the extreme.  One hearing is probably one too many in the eyes of the VA hierarchy. In the olden days, it was form over substance. A Vet got his Dog and Pony Show Hearing before a Board of three JDs with one also possessing an M.D. The Standard Operating Procedure was long on words and short on ratings. Most of us lost-myself included in 1992. Were this 2018, I could make short work of this one and get myself a back disorder w/ radiculopathy. Unfortunately, I couldn’t pronounce radiculopathy let alone comprehend the medical implications. To me, it was pain shooting down my legs from my lower back. It actually felt like a bilateral hip problem. In 2018, I could win this hands down with an Independent Medical Opinion and Clemons v. Shinseki.

Here’s the case: Cook_17-2181

But that’s not why I called you here. Last night I had a London Broil barbecue anomaly that might have turned into a disaster. It closely resembled one that occurred in 1979 and bears repeating. This is a man thing-nothing misogynistic about it but its humor is ageless.

Several of my friends and I assembled one evening in 1979 after work  across the alley in my neighbor’s kitchen. We were having an impromptu Happy Hour with a few drinks and some cannabis. Roger, the friend, was home alone. His wife and kids were off to Thanksgiving in the hinterlands and Roger had to complete a job before departing. Being inlaws, I’m sure the job metastasized into  a nightmare that precluded departure until the last moment. Hence, Roger was putting a steak on in a frying pan to begin dinner as we Happy Hour’ed.

Unbeknownst to all of us, Safeway Grocery Stores, as had many others, began putting a “steak kotex” (for lack of a better name) under their steaks in the little saran-wrapped Styrofoam containers. They’re virtually invisible when you pick them up and they sizzle just like a steak when you toss them in the frying pan. This one had done its job admirably and there was little or no blood in the bottom of the container.

Roger took another hit off a joint and turned to the business of checking the progress of dinner. By now, we all could detect the unmistakable smell of burning plastic. A quick check of the trashcan confirmed no one had failed to extinguish a cigarette. One fellow went out to the living room and confirmed the stench was in the kitchen.We all looked at each other and had another toke. Much thought was given over to where this aroma could be emanating from until Roger flipped the steak.

This is where the misnomer  ‘steak kotex’ was born. To this day, spotting one brings back giggles. In a mixed group of these same friends years in the future, it’s been known to almost result in wetting your pants if you’ve had too many beers and neglected to relieve yourself. Roger, of course, was nonplussed. His mind could not grasp the burnt plastic firmly embedded in his meat nor how it arrived there. Little balls of melted white plastic were dancing around in the pan. By now, pandemonium and gales of laughter ruled. Someone choked while trying to hold in a hit of the joint. Unfair comments were made about Roger’s bizarre choices in steak seasoning. It was implied that his vision was defective and more. His parentage was called into question vis a vis wolves. And more.

A year later, Roger moved to Montana. We’re not sure if that was to escape the inlaws or the inability to live down the culinary moment.

Happy Thanksgiving to all and always check under the meat.

P.S. From Dennis:

 

Posted in CAVC Knowledge | Tagged , , , , , , , , , , , , | 1 Comment

FEDERAL CIRCUIT JUSTICE

Posted on November 15, 2018 by asknod

Cupcake asked me to blog about this anomaly. Imagine filing your VA claim at the local Fort Fumble.  You wait 125 days (right!) for your denial. You are then in for a long wait for an appeal. We’re talking six years currently on a downhill claim that is sustainable. How is it that a CNN reporter who is disenfranchised from his job reporting the news (Mr. Jim Acosta) can obtain a court date before a Federal District Court Judge in Washington, D.C. a week later and have the case heard? I’ll wager they issue a decision within the month.  

Conservatively, it would take you or me eight years to get it docketed at the Court of Appeals for Veterans Claims which, incidentally, is also a Federal Court of Appeals. Were it to go to up the CAFC (Court of Appeals for Federal Claims), it would take another year minimum for just a memorandum decision-perhaps longer for a panel.

What’s wrong with this picture? First, I am not viewing this through the lens of politics. I personally find it abhorrent that anyone, press corps or otherwise, would be so rude, crude, socially unacceptable or boorish as to treat another (let alone a sitting President) in such an abusive manner. In the same vein, I find it equally abhorrent that the President can be so intractable and socially inept in these situations. Ignoring bad behaviour is far superior to drawing attention to it- or worse- holding the individual up for a lip-whipping.

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

Thank you Dennis for the humor. Man cannot live without it. Vets certainly cannot.

Posted in BvA Decisions, CAVC ruling, CAVC/COVA Decision, Complaints Department, DRO and BVA Hearings, Humor, KP Veterans, VA Agents | Tagged , , , , , , , , , , , , , | 13 Comments

HADIT.COM RADIO SHOW FOR 11/15/2018

Posted on November 13, 2018 by asknod

I just received a request for my appearance on the Hadit.com podcast two days hence. We’ll be discussing an SMC client of mine with an interesting fact scenario. We’ll also be discussing an interesting precedential decision from the CAVC promulgated waaaaaay back in 1991. I attach it below so all of you can digest prior to Thursday afternoon.

We need every tool we can assemble in our “toolbox” of cites to win our claims. I guarantee you’re going to like this one (MacWhorter).

Same Bat time. Same Bat channel. Thursday the 15th at 1600 Hours on the Left Coast and of course 1900 on the (l)east coast.

Call in to listen and push 1 if you desire to ask us a question during the show. I am personally look forward to this one. Hadit.com and asknod.org  are like peas and carrots.

347-237-4819

Attached here are the discussion items:

MacWhorter_90-935a

Breniser_09-728_published_opinion_September_19

MARLOW v Brown 90-956

As a postscript to the show last night, thank you- all of you- for calling in. I know that VA law, and the all the terms and abbreviations we use, can be confusing. I try to reduce it to DickandJanespeak when possible. The subject of attaining service connection is more than I can summarize in any one radio show. I try to show you techniques and strategies to employ that VA cannot defeat. I hope all of you benefit from these. John and Jerrell are a gold nugget in Veterans claims and the radio show gives me an opportunity to share what other VA attorneys would consider valuable secret methods they would rather not share. What the hey? I sure don’t mind sharing my tricks with all of you. I’ll probably have Vets lining up for claims representation at my funeral on the off chance I may rise from the dead.

Posted in ASKNOD BOOK, CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, Earlier Effective dates, KP Veterans, SMC, VA Agents, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , | Leave a comment

Veterans Day 2018

Posted on November 11, 2018 by asknod

By some miracle, I’m still alive to celebrate again this year. Thank you Gilead Sciences. With Hepatitis C, that which doesn’t kill you nevertheless kicks the shit out of you forever. I think the same applies to VA health care but that is the subject of another blog on another day. Today is a celebration of being alive. Many who served are not. Today is a day for the living and to honor their faithful service. Europeans are free to mope around and put wreaths on graves. That isn’t what this is about. It’s a celebration of the end of a period of man fighting man over politics and religion. Those two subjects are the third rail of civility. 

My joy, as it should be, is devoted today to celebrating being alive with all my Veteran friends who are also as lucky. Far too many confuse Memorial Day as part and parcel of this gig. Today, we celebrate the end of a war and, by extension, all Veterans who have served to preserve America and its sovereignty. Some who served in peace feel their service is not as glorious. Hogwash. How many of you signed up on September 1st, 2011 only to shit your pants on the 12th? None, I venture.

Being a Veteran nowadays is becoming more the rare exception rather than the rule. No longer do we have cattle drives to the AFEES station a la draft or due to an attack on us. With the exception of 9/11/2001, things have calmed down somewhat. According to the poohbahs at the VA, there are 20.4 million of us. Given the VA’s inflated self-worth of themselves and their statistical veracity on any subject Veteran, I don’t buy it. Here’s Pew Research’s take on it. I would prefer a Remington Rand Think Tank statistic. They are always willing to spill the beans. Here’s one about AO from the Chinese. They have an excellent field laboratory next door in the DRV. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5126552/pdf/srep38012.pdf

I suppose it’s accurate but the fact remains we are becoming more exclusive than the fabled “Entitled White Misogynist Male” club. In point of fact, the numbers of my fellow Vietnam Veterans-those who actually served on the land mass of the Republic of South Vietnam- continue to decline in astonishing numbers. I personally watch in sorrow as the numbers of those who served there decline. Incredibly, every year I google this question and the number seems stuck at 850,000. Notwithstanding that, I know for a fact 28 of my Brothers-in-arms have departed since 2010. Seems they’d revise the list downward to 849,778 to comprehend the loss. Therein lies the problem. What good are stale statistics? How do you adjust the needs or finances of the VA’s medical system if the number of patients remains static in spite of their known demise? Seems similar to Chicago’s voter rolls last week. I do so wish  Roseanne Roseannadanna were still alive to opine on this phenomenon. She always brought an open mind to the table.

Fortunately for us “real” Vietnam Veterans, there are a new cohort of stolen valor pseudovets willing to step in and restore equilibrium. About the only place you don’t see them is at Veterans Day parades.  Perhaps that’s why the percieved numbers remain static. The 2010 census was a hoot. The DoD insists to this day that our numbers never exceeded 2.7-3.0 million. In spite of that, the 2010 census declared 9-12 million were absolutely sure they set foot on the easterly portion of the Indochinese peninsula fronting the South China Sea. That’s a extremely large number of delusional thinkers disremembering where they served-assuming, arguendo, that they served at all. The most fascinating thing about this is its recentness. Most of my fellow Vets who served in-country (including me) didn’t come out of the closet until after 2001. It wasn’t fashionable yet. It sure wasn’t something we bragged about or regaled our civilian counterparts with tales of when we arrived home.

I lucked out and arrived at SF International in camo fatigues fresh out of the jungle at 0200 on May 17th, 1972 after two tours back to back. I was greeted warmly by the Hare Krishna swing shift. Who would have thought they man the tambourines 24/7? Many of my friends, like Butch Long, Bob Lockett and Chris Dellinges, were deprived and came in on Medivac flights foregoing any warm welcome from their fellow citizens. I certainly don’t feel slighted in the least for missing out on my Flying Spit Medal with two Oak Leaf Clusters. I also don’t hold a grudge towards these folks. Everyone is entitled to an opinion in America. From what I can gather, most have issued their politically correct, obligatory mea culpas and now circulate at Veterans Day parades and utter inane phrases like “Welcome Home, sir!” or “May I shake your hand? I’d like to honor you today personally.” Thank you for your service grates on my ears worse than fingernails on a chalkboard now. Somebody ought to point out that’s passé.

Congressman Derek Kilmer

To my way of thinking, real Veterans don’t need to seek accolades. We don’t need to wear hats proclaiming our affiliation or bravery. We don’t need free dinners at Applebee’s. We’re smug in that inner satisfaction that we kicked ass and took names when other wimps chose to be all they could be in Canada. We bask in the warmth of a fellow Veteran’s handshake and genuine feelings of camaraderie. We don’t need “stand downs” and handouts. We don’t need quotas or special dispensations for our service. From what I can gather, real combat Vets are not “parade” kinds of guys. We mostly shun being dragged on stages for political purposes by eager politicians wanting to be perceived as “Veterancentric”. Fortunately, I have a great Congressman (Derek Kilmer) who is pro-Vet 24/7/365 rather than motivated on a specific day. His crew is always ready to step in if a problem arises in our district. He is an anomaly in this regard and revels in it. Look at all the congressmen who seek out your votes only to evaporate into thin air a week after an election to become rarer than hen’s teeth. I’m blessed in my little pied-a-terre here at the ass end of Washington (state).

Veterans are the 3%er crowd. We know how rare we are. We don’t need to put on our old uniforms and hang out in airports hoping for praise.  We understand the concept of Keeping America Free. We are not inherently racist as we all served in a post-segregation military. We are not weirdo White Supremacist wannabes. We got our yah yahs out in a real military setting-not in psuedo-military organizations that profess hatred.

In a word, we are the perfect, quintessential American. The Citizen Soldier who returns to his plowshare after bearing arms for his Country is one who basks in his mental self-sufficiency and needs no attaboys for his former one-time profession.

Ronald Reagan, a Veteran himself, summed it up best in my mind.

Some people live an entire lifetime and wonder

if they have made a difference in the world.

A Veteran doesn’t have that problem.

Happy Veterans Day to you my Brothers. Live long and prosper.

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

Posted in KP Veterans, Veterans Day | Tagged , , , , , , , , , , , , , , , , | 8 Comments

Veterans’ Day, Centenary of WWI 1918-2018

Posted on November 11, 2018 by Laura

U. S Embassy Twitter -Click

Image: Vimy Foundation, Canada Click image to go to their Twitter

BBC article-Click

A melange of resources:

UK Royal British Legion–Poppy Legion Twitter (Link)–They went all out. 

White House Twitter (Link)

Battle of Belleau Wood Wikipedia (1–26 June 1918) (Link)

White House Flickr photos (Link)

VA Twitter (Link)

It’s a big weekend in France and while mainstream journalists are busy putting their tedious political spins on the events, we think about other things.

From U.S. Embassy French Twitter

” …Over 68,000 U.S. service members are buried or memorialized at American cemeteries in France.”

Aujourd’hui au Cimetière américain de Suresnes, le président Trump a rendu hommage au sacrifice accompli par nos militaires. Les cimetières américains en France conservent les tombes ou la mémoire de plus de 68 000 militaires américains.

From BBC

“…Armistice Day takes place on 11 November each year and marks the end of the First World War. It is a day of commemoration, an occasion to remember the some 8.5 million soldiers who died across the world during the 1914–18 war – as well as those lost in the conflicts that followed.”

Younger Veterans, welcome home and enjoy your day.

Kiedove

Posted in All about Veterans, Food for the soul, Food for thought, General Messages, Guest authors, Inspirational Veterans, Uncategorized, Veterans Day | Tagged , | 2 Comments