VARO SHINANIGANS-DENIAL BEFORE THE C&P

Posted on August 7, 2018 by asknod

Before I inveigh on the Winston Salem chowderheads for their transgressions, I wanted to pass along some valuable information to you guys. When you’re a) down to your last four eggs,  and b) you’re planning on serving them scrambled anyway; and c) you accidentally drop them on the floor (which is incredibly clean), I discovered you can’t pick them buggers up using a spatula. All is not lost, however. I rescued mine with a turkey baster. Yeppers. Sucked those puppies up, I did. I just thought I’d pass that helpful homemaker tip along to you guys. Where was I? Ah, yes. The Cigarette RO. Boy howdy is that going to become politically incorrect one of these days like Confederate statues.

This is bigger news than that old boy who had to sleep on the floor at the Alvin C. York Memorial VAMC in Murfreesboro, Tennessee.  Imagine filing a claim for nasal cancer due to AO. It’s a small cell carcinoma in the nasopharangeal passage on the way to the lungs which makes me think it’s fair game. If you get SC for lung cancer (which is a small cell carcinoma) due to AO, what’s the distinction? Cancer isn’t too particular as to where it manifests.

I asked for a Flash on his VBMS folder as terminally ill. This gets your foot in the door for a pronto adjudication. In the old Segmented Lanes Model, this was sent to the Express Lane for a 78 RPM decision. In the New World Order of VA claims, they send it to Winston Salem for their VSR(s) to pontificate on and say it ain’t so. In fact, the W-S gal even called me on June 21st to give me the good news and bad. They were granting P&T for his IHD but denying the nasal cancer. As he promptly died 9 days later from the cancer, any hope of DIC immediately flew out the window. Funny how that works. I can almost hear Maxwell Smart opining “Missed the 10 year requirement by thaaaaaaat much, boss”.

That much, boss.

But here’s the glitch. With our new ICU2 TV set called VBMS, I  “saw” Winston Salem  enter the decision and the Confirmed Ratings Sheet in real time (June 19th). Quite coincidentally, I had been haggling with the Seattle VA over Bob’s inability to attend his C&P exam. You know how that works, right? You’re just too dog-ass tired to drag yourself out of bed, peel off that Fentanyl patch, get dressed and chug some coffee to counteract all the morphine sulfate you’ve been hosing from the eyedropper.  Throw in that you’re semi-comatose and lost your cognitive abilities weeks ago anyway and that c&p really isn’t up there in your wheelhouse. Hospice shit will do that to you.

My Angel of Mercy (CMA Tina) at the Seattle Puzzle Palace was able to induce the VES doctor to do the unheard of- make a house call. She (the doctor, not Tina) dutifully arrived on- wait for it- Tuesday, June 19th bright and early. The good doctor opined in no uncertain terms that Bob’s cancer was at least as likely as not due to dining on too much Agent Tang during his two tours back-to-back in country. We call it the Dioxin Diet now. Helps eviscerate strong bodies 12 different ways. I was on it for two years as well. I pray fervently every night I, too, don’t join the Carcinoma Club.

Due to the vagaries of getting a c&p uploaded into VBMS in a timely fashion, Bob’s diagnosis wasn’t dutifully entered until June 29th, 2018. It didn’t go unnoticed. I called up my RO director’s secretary (Laura) on July 2nd and pointed out the dichotomy of deciding a claim ten days prior to receiving the results of the c&p. Laura immediately hammered out the VAF 27-0820 Holy Shit Batman report and uploaded it into the HAL 8000 VAICU2 TV.  VA doesn’t seem to think anything is amiss. I still haven’t heard back on it. Perhaps the NOD will be the wake-up call. I filed that daisy yesterday alleging misfeasance and demanded an a) reconsideration based on all the evidence; or b) a motion to revise it.

I filed the notice of disagreement yesterday. I had to wait to get his widow substituted in his stead. VA even went so far as to 86 my access to his VBMS record in the interim. Here’s what I missed in my forced absence. These Bozos actually uploaded the 4 DBQs for the c&p not once but 8 more times in the ensuing two weeks after the June 29th entry. Talk about constructive possession from Hell of the documents a la Bell v. Derwinski. No flies on these ol’ boys.

One thing I love about VBMS is the transparency. This is one of those rare instances where it occurs with notable frequency. VA can’t camouflage their machinations any better than the Palestinian donkeys cum zebras.   How about these daisies…

Harvey in Sioux Falls filed in ’92 for a header he took on the high seas in ’84. They couldn’t find his records because somebody entered his SSN wrong. Fortunately, the VBMS caught the problem in 2013 when some chucklehead put two and two together. What are the odds you’d have two Vets with the exact same name and DOB who served in the Navy at the exact same time but with dissimilar SSNs with one digit difference? So, what happens? They SC him lickity spit but neglect to tell him they’ve just associated Service Treatment Records from 1984 into his claims file. Ruh-oh Rorge… Here comes §3.156(c). Or…

Chris , who uses the David Koresh Memorial Regional Office in Whacko, Texas has been denied SC or lowballed for 40 years. He points out he was medievac’d to CONUS in 1969 after losing an altercation with a jeep going 35 mph at An Khe when he hopped out of his Huey gunship for a smoke break. PSP is softer than concrete- but not by much. He happens to remember he was seen (and indeed an inpatient for 3 months) at the William Beaumont Army Medical Hospital back then. He even noted in his contemporary 526 that the records were there.   The Rocket boys at Fort Waco immediately send out a PIES request for the records- albeit in 2018 and not 1971.

This is what a PIES request is going to look like in your c-file.

Bingo- incoming. 53 pages of Service Department Records never before associated with the claims file appeared magically from Beaumont Army Center. Do you think they bothered to tell Chris he gets a reopen with reconsideration of all his claims clean back to 1971? No way, Jose. Yep. §3.156(c) all over again. Counting Butch, that’s three (3) §3.156(c) claims for 1970, 1971 and  1992 in less than two years. Do you see a pattern or do I have the Force? Omniscient, I’m not.

My all time favorite currently up on a Motion to Revise is the one where they say John had a bunged up finger in 1983 when he entered service. They did four surgeries to “correct” the severed ulnar nerve and ended up destroying his right hand and wrist.  So often we forget Murphy’s First Law- “No good deed goes unpunished”. Yep. Loss of use-but with an interesting twist. They deducted (as in simple subtraction) 10% for the bonked finger from the LOU of right upper extremity. In VA mathematicsland, apparently, 60+10 = 64% which rounds down. Similarly, 70% minus 10% would yield 67% which rounds back up to, ruh-oh- 70%. Repair order?  Oh, bother! Screw §4.25. 70%-10% = 60%. Next? Look it up in §3.310(b)…

 The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.

Gee, does that mean using VA’s own math in 38 CFR Part 4 as in §4.25? Reverse interpolation (extrapolation?) would be my guess. 70%-10%= 67%  in VA’s convoluted math but they make up the rules as they go so it probably is only applicable in Alaska, Puerto Rico and Hawaii… but only if it occurred on a Thursday… in an odd month… with a full moon… and you were an Aries.

So, folks, and especially all of you out there who have retrieved your claims files from the maw of the shredder, keep your eyes peeled for those VA PIES requests for Inpatient Treatment Records from hospitals. Remember, they were not kept on the 6th floor where the Friday July 13th, 1973 records barbecue was held. Chances are two things may happen. You might find they disremembered to include them when they contacted NPRC for your STRs way back when or… they plumb forgot to tell you they just found them and that’s why they suddenly had a change of heart over granting that reopened claim for ______.

Today’s show is brought to you by the letters V and A.

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

 

Posted in 3.156(c), Agent Orange, C&P exams, C-Files and RBAs, CUE, KP Veterans, NPRC 1973 Fire, Tips and Tricks, VA Agents, VA Medical Mysteries Explained, vARO Decisions, VARO Misfeasance, VBMS Tricks, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , , | 2 Comments

ROBERT WILKIE-QUO VADIS?

Posted on July 29, 2018 by asknod

Well now, campers. We have a new VASEC but is it a Hallelujah moment or one more akin to a continuing series of disappointments? History provides us an endless parade of incompetent, well-meaning Secretaries that demonstrated a pronounced proclivity to say one thing and do something entirely different. Not that I’m appalled by their actions, but it does fly in the face of their professed mantra of  ‘to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. (§3.103(a)). Ahruu? Seems they got that regulation ass backwards and inserted “protects the interests of the Government” at the wrong end.

Really, folks. Let’s take a tour through recent VASEC history. Lest we forget, our dear Secretaries Principi and Peake were the progenitors of QTC via Lockheed Martin. Draining the swamp at the VA is going to require a bigger mudhog than our Mr. Wilkie. General Shinseki, in spite of that galaxy of stars on his shoulders, couldn’t sail this ship into calm harbors. I grant ‘Call me Bob’ (with Ranger Tabs)was closer to the mark and I would personally liked to have seen him stay. As for Shulkin, what can I say? Those wives will sink your career every time with side trips to Stockholm. Call it a Mermaid too far. I think he could have explained Wimbledon if he’d hung in there  long enough. Tennis? VA benefits? Surely you all see the similarity of subject?

Keep in mind, all the years we’ve been breathlessly awaiting some resolution on the plethora of VA’s  medical mishaps, surgical suites contaminated by cockroaches, unsterilized endoscopic gear transmitting Hepatitis C, infected VA dentists transmitting Hepatitis C via unsterile procedures, ad nauseum, we’ve been told relief is just around the corner. An endless parade of whistleblowers have come forth to expose the grief, fraud, misappropriation of narcotics and collusion between employees and their relatives. The outcome has been what? VA whistleblowers lose their jobs. Just like the Roman Colluseum-Lions 5, Christians 0. Those who come forth and try to expose the egregious excesses become the focus of VA’s ire rather than being thanked and promoted for their farsighted approach to conserving scarce resources for Veterans.

Today I read that Secretary Wilkie has promised to relegate the very employees trying to curtail or effect change at VA to the back benches. Granted, they are being referred to as Trump sycophants but remember they were the first to try to drain the VA swamp and succeed in making the law stick on firing the bad apples. Apparently that doesn’t sit well with the AFGE.  Is Wilkie mad or is he trying for the world’s shortest tenure in office as Secretary? VA is rapidly approaching ridicule status among federal agencies. Some would contend it leads the parade of Government excess and waste.  Anyone showing an ounce of backbone is shown the door. The President has promised change- but what? Can you imagine defending  spending $16.9 billion (with a B) in an effort to build a computer compatible with the DoD’s to ensure a smooth transition of STRs from military care to Veterans Administration care? How about this? We issue everyone separating from service a thumbdrive of their medical records. The Veteran makes a copy of it (if he’s wise) and submits it with his fancy dancy Fully Developed Claim for benefits. Problem solved. VA copies and pastes the thumbdrive into VBMS. So, do I qualify for a consultant bonus of $3.5 million for this $5.59 money saving approach? Never happen, GI.

The VA’s problems are myriad and not extremely complex. VA puts an inordinate effort into making itself complex-or to appear so to Congress. Therein lies the problem. Let’s take my request for a greenhouse back on May 8th, 2011. My VA counselor ($96,850.00/year with full medical/dental) explained to me that this was never going to happen. VA did not have an ILP program for ‘avocational’ pursuits- just vocational ones. I guess he didn’t get the 1997 email from OGC in the form of VA OGC Precedent 9-1997. He claimed he’d worked there for over 24 years. The more motions I filed to attain the greenhouse, the deeper they dug their heels in. He just retired to avoid having to fall on his sword over this. Now it’s someone else’s tar baby!

In September 2015, VLJ Vito Clementi agreed with me and awarded the greenhouse. VA has done everything in their power to ignore, defeat or renege on this award. The VR&E Officer spent 4 months after the award researching how he could refuse to comply. The OGC finally had to tell him to shut up and push print. The VR&E Officer is a grand poobah and gets $114,000.00 a year with the afrementioned medical benefits. The two of them have effectively been paid $798,000.00 and  $672,000.00 respectively (One million, four hundred seventy thousand dollars and some loose change combined) to deprive me of a lawful entitlement. Am I the only one who sees the problem? Fortunately no. Since I have no whistle to blow or a job to jeopardize, I can’t be suppressed or silenced.

Thanks to the far thinkers in Congress back in 1988, we were given a voice at the Federal level with the creation of the CAVC. I have partaken of their services six times now. I guess that makes me a Frequent Filer. Last Fall, I figured if I was going to be pestering them so frequently,I should ask to join the Sky Club on the ninth floor. So I did. The bigger surprise was they accepted me.

Finally, on the third try (CAVCs #16-2098, 17-1450 and 18-938), I think I may have gained traction. As most who have aspired to the lofty heights of winning an Extraordinary Writ know, it is no easy task. Climbing Mt. Everest is far easier. To date, and I could be wrong, I believe that honor has only been won by eight or nine individuals. One aspect that forebodes success or failure is the time from the last submissions of the petitioner (you) and the Respondent (the Secretary) to the time of a decision pro or con. In most cases, Extraordinary Writs are handled by single judges and are therefore not precedential in their conclusion of law. On the contrary, a protracted delay can often mean a convocation of a panel and an earth-shattering pronouncement for the ages. In sum, most Extraordinary Writs die a quiet death by dismissal or denial due to their nature. Most entail asking VA to do something they have neglected to do. The Secretary promptly “fixes” it and the Writ is declared moot. On the other hand, if what you have asked for is totally outlandish, it will be denied.

While I am only mildly optimistic in this endeavor, it would seem from the delay from my last filing to rebut the Secretary on May 29th, the ensuing silence from the Court is telling. Many of us in the Veterans Advocacy arena view this as a last stand for Veterans’ ILP benefits. VA has been chipping away at this program continuously at every turn for over two decades. The latest “revision” of the M-28 manual on March 31, 2014  inserted substantive new rules and catch 22s to further decimate the ILP. Nowhere in 38 USC §3120 can these new interpretations be interpolated nor extrapolated. The revisions are simply made up out of whole cloth and VR&E folks know it. Surely no one wants to be the whistleblower and piss on that $90,000 paycheck by calling them out on it. Worse, they are trying to pawn off these 2014 changes to the M 28-R retroactively back to my May 8th, 2011 filing. That’s a Bozo no-no at all 56 VAROs across our fruited plains.

Speaking of 56 VAROs, I had to call up Fort Fumble in Fort Harrison Montana about one of my terminally ill clients.  Valerie answered the phone with a cheerful ‘Salt Lake City Regional Office. How can I direct your call?’  A week later I contacted the Sioux Falls, South Dakota Puzzle Palace and lo and behold-Valerie answered again. Seems they’re downsizing with the advent of the VBMS. Valerie was rude, crude and socually unattractive-not to mention boorish and told me I had the wrong number. I had to explain to Valerie why the VA has Change Management Agents. She tried to tell me I had to call the 800 dial a prayer line. Valerie and I will probably never become BFFs but at least she treats me with a modicum of politeness now that we understand the Veteran is of paramount importance rather than her.

Come Monday morning, the Court will have been mulling this ILP conundrum over for sixty two days-an inordinately long time for a Writ. Either they are formulating the Mother of all Denials or treating it as a matter of first impression deserving of a panel. My quandary is whether to beg Ken Carpenter to argue it for me at the Court with his mellifluous voice or do it myself. I relish the idea of eviscerating the OGC’s attorney on the matter. I’ve been preparing for this discussion for seven long years.

The argument comes down not to whether I get a greenhouse but size it will be. I have asked for a 24′ X 28′ with hydroponics and new low-energy LED lighting. I also asked for a 240-VAC composting toilet as I have “issues” that are sometimes suddenly pressing. Just to be an irritant and see how far I could push them, I also asked for several years of the Lexis Nexis VBM at about $350 a pop. Shoo doggies. They agreed-right up until they didn’t. Therein lies the problem. Why would a VR&E Officer not only agree to, but indeed formulate, an ILP for me for a 24X28 greenhouse only to renege and say “Well, we warned him we could never get it through Washington and the Central Office. He knew his request was unreasonable. No flies on us.”  Yep. Under threat of perjury and 28 USC 1746 he did. Baaaaaaaaaad idea. You don’t lie to the Court. They call that “post hoc rationalizations” and frown on VA’s aftermarket excuses. It’s simply not done at the Court.

Unfortunately, my undereducated and overpaid VR&E Officers (who sit on bonus-calloused derrieres) are not acquainted with VA law and regulations. The Table of Organization shows the VR&E is under the aegis of the VBA-not a power unto itself. Thus, by extension, they have to adhere to §3.104 :

§ 3.104 Finality of decisions.

(a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 and § 3.2600 of this part.

I’m going to leave it to the Court to decide if the VR&E Officer is a ‘duly constituted appellate authority’ or even ‘a duly constituted ratings authority’. Since the Grand Poobah in DC (Jack Kammerer, VR&E Director) has neglected to call a CUE on this “finding of fact” by the VR&E Officer, it is, by rights, a binding decision. Further, §21.98(c) says he can approve or deny it. I fail to see the term “modify” or “revise”. Ruh-oh, Rorge… Yep. The Catbird seat.

The teaching moment is simple here. VA screws up everything. They are a rule unto themselves. They make regulations up as they go. It is only correct because you do not contest it. If you do, you’ll be pleasantly surprised (eventually) at the outcome.  Remember, Chevron Deference can only extend to that which Congress has not addressed explicitly. In short, hunt diligently among their numerous regulations and hang them with one. There is no dearth of ammo. To add stupidity to a poor education, they put all this damning evidence in the claims file. It’s too easy.

Here’s a copy of the last filing. I love the Comer v. Peake jab. “It always goes to show it’s somethin'” in Rosanna Rosannadanna’s own words.

Graham Rebuttal of Respondent’s rebuttal

Yeah, baby.

Posted in All about Veterans, CAVC Knowledge, Equitable tolling, Extraordinary Writs of Mandamus, Food for thought, Independent Living Program, Inspirational Veterans, KP Veterans, Tips and Tricks, VA Agents, VA Secretaries | Tagged , , , , , , , , , , , , , , , | 5 Comments

WINNING WARS-THE ESSENTIAL INGREDIENT.

Posted on July 12, 2018 by asknod

Dilley! Dilley!

The (l)east coast branch of asknod sends us this important observation that may sway our military’s hellbent rush towards drone usage in combat. What might be overlooked is drones never get hangovers (but the operator might), go AWOL (except that one in Iran) or demand a costly sex change operation (Spec 4 Manning). Outside of that, they would seem to be a welcome panacea to the collateral damage of combat-related injuries.

Think of the possibilities. We could save millions on all those medals and the concomitant cost of dog and pony show awards ceremonies. We could eventually do away with the Veterans Administration and all their insufferable baggage. The possible exception might be numerous compensation claims for operators’ carpal tunnel syndrome or incurable STDs. Success in war would essentially devolve down to the old adage of “He with the most toys wins.”

The downside would be increased global warming and starvation due to the explosive growth of populations normally decimated by war. Another vewpoint:

This just in from Ace Jewell, CDR, USN (ret.) now about 88 years old and a fighter pilot in three wars.

 

” Drones will not be late to briefings,

start fights at happy hour,

Destroy the Officer’s Club Stag Bar,

attempt to seduce others’ dates,

purchase huge, garish watches,

insult other military services,

sing ‘O’Leary’s Balls’ whilst dancing on tables,

yell ‘Show us yer tits!” or do

all the other things that win wars.

As such, I see no future in them”.

Wiser words were never spoken. Dilley! Dilley!

 

Posted in Future Veterans, Humor | Tagged , , , , , , , , , | 2 Comments

VA kidney doc refers to shocking chronic kidney disease (CKD) VISN 2 study (New York region)

Posted on July 5, 2018 by Laura

“Dr. Anna Jovanovich is a nephrologist at the VA Eastern Colorado Health Care System in Denver. Her research focuses on cardiovascular health in Veterans who have chronic kidney disease. (Photo by Shawn Fury)” VA text and photo CLICK to see abstract, then choose full text.

 

Sometimes VA emails contain information and news about their research that is valuable for us to read.  For example, 34.3-47.3% of veterans in VISN 2 network have chronic kidney disease (CKD).  The ROs are located in Buffalo and New York City and Buffalo was very involved in this targeted regional research. The BVA also seems unaware of these remarkable and terrible statistics based on the decisions I’ve read.

Study population: VISN 2 individuals seen.  Number: 75,787  Scope: One year in 2007.

Study title:

Prevalence of various comorbidities among veterans with chronic kidney disease and its comparison with other datasets  (link to study in Journal Renal Failure Volume 38, 2016 – Issue 2–published online Dec. 15, 2015.)

“The prevalence of CKD varied depending on the number of eGFR values used. Based on the MDRD equation using two values of eGFR, the prevalence of CKD was 34.3%, while it was 47.3% by MDRD equation using one eGFR value. The prevalence of CKD in the veteran population is much higher than estimated in US population from the NHANES and KEEP datasets.”

VISN 2 New York area CLICK IMAGE to go to this

Definitions:

Definition of CKD calls for two consecutive measurements of eGFR < 60 mL/min per 1.73m2 that are at least three months apart… we have also calculated prevalence of CKD as the ratio of patients with at least two outpatient eGFRs less than 60 mL/min/1.73m2, at least 90 days apart, prior to the end of March 2008 (the numerator) to the total number of the study population (MDRD-2).

Ten years on–How are the RO’s applying this information, if at all, for VISN 2 vets?  With up to 47.3% of veterans diagnosed by the VA with chronic kidney disease, are they getting justice or are they likely to live long enough to get justice?

Let’s look at four kidney cancer BVA decisions based on claims originally rejected by VISN 2 ROs.

RO NYC:  Citation Nr: 1815713 ( 03/16/18)  Kidney cancer; DAV did not do their homework;  RO lost his records;  Vet suspects asbestos exposure; Had two IMOs.  Benefit-of-the-doubt? Denied by Lesley A. Rein, VLJ

Buffalo RO:  Citation Nr: 1734058 (08/18/17) VVA–renal (kidney) and prostate cancer +

Remanded by Michael Martin, VLJ.

RO NYC/RO Kentucky Citation Nr: 1806565 (02/01/18)

Atty, Stephen J. Wenger, Camp Lejeune CUE WIN with

Matthew W.  Blackwelder, VLJ

Buffalo RO–Citation Nr: 1749918 (11/02/17).

kidney cancer, secondary to prostate; VVA

” Veteran may establish service connection based on exposure to herbicide agents with proof of actual direct causation.”  Second remand
Nathan Kroes, VLJ

Somehow I doubt that this old study is going to be updated any time soon–it’s too damning.  With statistics like this, CKD should be presumptive in VISN 2 and would be if similar studies have been done elsewhere.  There may be unpublished and published studies out there.  How likely are non-VA kidney doctors to know about research?

This year we learned that my old Marine has stage three kidney disease and therefore his diet has had to change. We are in VISN 1.  Plattsburgh NY is about 26 miles from our place by road, causeway and ferry.  My guess is that VISN 1 also has high CKD numbers because it takes many weeks to get an appointment with a private specialist.

Thank you to VA Dr. Anna Jovanovich for your interview and for your work in Denver, Colorado.  We need more people like you to help veterans. If you’re shocked at the data, so should we be.  This study provides backup for the VISN 2 veterans who suspect that their CKD is service-connected.  They are probably right based on the 2007 statistics in comparison with the civilian population in their region for the same period as shown in the study tables.  If anyone thinks I’m reading this all wrong, do comment because I have zero training in any field related to medical science.

Kiedove

Posted in All about Veterans, BvA Decisions, Camp Lejeune poisoning, CUE, Food for thought, Future Veterans, General Messages, Guest authors, Lawyering Up, Medical News, non-va care, Remanded claims, research, Uncategorized, VA Health Care, vA news, VA statistics, VSOs | Tagged , , | 11 Comments

MILESTONES–Bob 9/24/49-7/1/2018

Posted on July 5, 2018 by asknod

Agent Orange claimed another of my brethren Sunday. We will lay him to rest today at noon. Bob came to me after he discovered his VSO had been funning him for a few decades. I was fortunate enough to get him 100% P&T for all of six days before his passing. Now the real battle begins for his widow. Leave no one behind, gentlemen. None.

Sgt. (E-5) Vietnam Service Medal with three Bronze Stars, Purple Heart Medal, Republic of Vietnam Cross of Gallantry with Palm, RVN Campaign Medal, Combat Infantryman’s Badge, National Defense Service Medal, Army Commendation Medal with OLC and Good Conduct Medal. 11 Bravo

Posted in 4th of July, Agent Orange, AO, Inspirational Veterans, KP Veterans, Milestones | Tagged , , , , , , , , , | 8 Comments

JULY 4TH, 2018

Posted on July 4, 2018 by asknod

While this may be America’s day to celebrate our Independence, it always brings back a fond memory of old. After arriving on the Indochinese Peninsula in early May ’70, I discovered vast quantities of  5.56 mm x 39 mm tracers in ammo cans scattered about at our operating location. Seems the troops weren’t overly fond of them and stripped them out of the magazines. Ours were loaded in the 16th, 17th and 18th position in the 20-round mags to remind us we were on the verge of shooting our weapon dry. Considering we were Air Force, we were presumed to know how to count. I don’t mean that as an affront to the other military services, but it was somewhat of an insult to the cream of America’s fighting forces.

Being a fond adherent of all things explosive, I racked my brains trying to find any possible use for all these wasted pyrotechnics. I liked irritating my fellow servicemen by throwing them into the fire in the evening occasionally. This has an important, twofold purpose. It keeps you at a high level of operational readiness and primed for combat should the need arise. A lot of folks seem to think this is dangerous. Not true. The round merely explodes harmlessly and gives you PTSD. There is no downside as far as I can see.

click to magnify. click twice to really magnify

Shortly before the 4th, my sister sent me a brand spanking new Model 19 S&W .357 and  500 rounds of 158-grain jacketed hollowpoints.  $85.38 new in that signature blue box with splendid Cherry grips. Being in that certain neutral country to the north of Thailand that rhymes with ‘mouse’, we pretty much carried whatever we wanted for personal defense and certainly weren’t limited to using GI-issue ball ammunition. I chose the .357 for its knockdown power. All my friends seemed to think Browning Hi-Power 9 mms with thirteen-plus-one in the chamber were the dernier cri in self-defense. I disagree. From my experience, all a 9 mm did was piss a gook off if it didn’t hit something solid. Murphy’s Law of Ballistics guarantees it won’t.

.45 ACP’s were the cat’s pajamas for sheer blunt force trauma if you could manage to hit anything with them. As near as I could tell, the only reason they put sights on a .45 was to make it look more aerodynamic. The downside to all semi-automatic weapons, both long and short, was the insidious, fine red clay powder that gummed up everything- including our fuel lines in our aircraft.  Before monsoon began, every time a chopper came in to land it stirred up tons of the dust. The dust gummed up everything it got into. You could blow it out of your nose every evening and see just what you were inhaling. In addition, all that fine particulate carried our old friends Agents Blue and Orange. But that’s another story.

For that reason, and the fact that in a pinch there were tons of .38 ball ammo lying around, I chose a .357. You couldn’t jam a wheel gun.  Quite simply, it couldn’t get a smokestack round at the worst possible moment and what’s more,  I noticed folks who encountered a hit anywhere on their body tended to stay put.  Pathet Lao didn’t just get up and keep running after being inoculated with a JHP. I don’t think I need to remind any of you who were participants of the  Vietnamese Boundary Dispute how disconcerting it is to have your weapon jamb. In those moments your brain seizes up and you just keep pulling the trigger and wondering why you’re not getting any reciprocal bang. It takes about ten seconds to sink in.

Back to all those tracers. Included in my care package from my sister, I found several 30-round mags for an M-16. These were becoming available back in the World about that time. We wouldn’t see them in the military for another decade. The gun shop in downtown San Francisco, which went out of business (or more likely was run out on a rail later), threw them in as a bonus for buying the ammo and a nice shoulder holster. Several months later, I bought out their entire stock of  30-rounders. You could barter them for 5 cartons of Marbs or two fifths of Johnny Walker Black.

Well, it didn’t take me more than a few seconds to think up a nifty way to celebrate the Fourth. I promptly packed both mags with tracers and awaited nightfall. As expected, they created two of the most gorgeous rainbows of bright orange. Everyone thought that was cool beans. It’s too bad we didn’t have tracers like the gooks. They had bright green ones. I used to watch them arc up to greet us as we flew over with envy. After I emptied the mags, I noticed the barrel was positively glowing like the element on a stove turned up to high. I even lit my Marb on it. The three-pronged roachclip on the end of the barrel even had a slight glow. Remember them? I always admired Colt Industries for being thoughtful enough to put that accessory on there for us.

The next day I broke the rifle in two and began cleaning it. After swabbing out the barrel, I dutifully looked down it to make sure it was clean. Boy howdy was it. Clean-as in I’d shot the twist clean out of it. We’re talking smooth bore here. One of my buds was preparing to clean his weapon too so I volunteered to do it seeing’s as I had the Hoppe’s #9 and the patches already out. Since Larry wore glasses thicker than coke bottle bottoms and was blind without them, I switched out our barrels. I doubted he cared one way or another.  I never did figure out if it was the tracers or just 60 rounds in 8 seconds that erased the twist.

click to magnify

I love tracers. I even found an outfit down in Las Vegas that manufactures red and green .223s but they’re pretty pricey at 75¢ a pop so we save them for special occasions like… yep, the Fourth of July. My next door neighbor doesn’t share my enthusiasm but what the hey? I’m not doing it for his entertainment. Who says shit stays in Vegas?

When I DEROS’d in ’72, I was offered $200 for the revolver. No dice. I still have it. My son tried to hornswoggle me out of it, too. I found another at a gun show and bought it for him. My attachment to this weapon is complete. It’s like an American Express card. Don’t leave home without it. I’ll be buried with it if I have my druthers. I’m not sure how that works if you’re cremated.

click to magnify

Congratulations to my new Veteran 100% P&T Chicken Dinner Winners this week. VA has been bery bery goot to me-Bob Livingstone, Bob Green and Roberto Perez-Soto. They must be having a special on Bobs this week. Sadly, Bob Livingstone passed on the First from AO cancer. We’re falling like flies. So what does Congress do? Give Blue Water Navy guys presumptive who were 40 miles from the nearest spray operation. Okay, I’ll bite. What about all my brothers in Thailand, Okinawa and Guam who were actually getting it on (and in) them? And we wonder if there’s intelligent life at 810 Vermont Ave. NW.

 

Cupcake and I wish you all a very Happy, well-illuminated 4th with many more to come.

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

Posted in 4th of July, All about Veterans, Humor, KP Veterans | Tagged , , , , , , , , , , , | 4 Comments

HADIT.COM RADIO SHOW 6/28/2018

Posted on June 26, 2018 by asknod

Jerrel and John have graciously invited me on for another show. This should be interesting. I’d like to teach all of you how to weaponize your claims so you can’t lose. Yep. You read that correctly. Yesterday morning I had two different 800 Dial-A-Prayer (800-827-1000) conversations going at the same time-one from Fort Fumble in Montana and one from my local Travel Board hearing contact Tammy at the Seattle Puzzle Palace. That’s a first. Time to buy more phone lines…

Best of all, I can’t seem to lose.  I’ve had a few setbacks on timelines to completions in the Vets’ favor but no outright denials. And boy howdy, when the Travel Board Hearing whizbang calls to tell me a DRO is tossing in TDIU after only a six-month argument over how ill my Vet is, well, I know I’ve “arrived” in this business. She also was begging me to drop the rest of the appeal! Screw them. Why didn’t the DRO call me herself ? Mind you, I’m not bragging but it seems I’ve found the Rosetta Stone on how to prosecute VA claims.

I might not make much money filing for the obvious and winning before it gets to the NOD stage but that’s good. I don’t have the time and don’t need the money. Oddly, after looking at the “Client Board ” above my desk, I see (gasp) vacancies to take on more claims. I do hope this doesn’t engender you folks in a mad dash to the email to swamp me but it does appear my own personal backlog is abating. If VA continues to keep throwing in the towel every time I file a NOD, I’m going to be disappointed. I enjoy using all that legal knowledge to write sound, scathing epiphanies on why my Vets should prevail. No one (except me) takes pleasure in making DROs squirm and have to admit they’re wrong. I will say they are gracious in defeat rather than obstreperous, adversarial and angry.

Be there or be square.  Mark your calendars for the day after tomorrow at 1900 Hrs on the Least Coast, or, if you’re more blue-blooded than red, at 1600 Hours on the Left Coast. For those in middle America, I ask you to use your mathematical skills to interpolate the correct time difference.

The call in number, unless Jerrel and John are funning me, remains …

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

 Remember the mantra- Leave no Veteran behind. If you have the ability to help, do so. Even if it’s only to send them to Hadit.com or asknod.org. for more info.

P.S. More on the Darwinian theory of Evolution

 

 

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FISHING STORIES NO ONE WOULD BUY

Posted on June 22, 2018 by asknod

Humor strikes me when you give me the ammo. And Least Coast Bruce (Almighty) just sent me the mother lode of fishing chuckles. In addition, at the end you will find some choice tidbits from my old friend Smoke. Life is good at the cusp of the Summer equinox. My heart has ceased misbehaving. Cupcake is over her mid-life crisis and sanity seems to be returning to our great nation. 

I’d like to say thank you to Roberto Perez-Soto of San Juan Puerto Rico allowing me to  shepherd him to permanent and total. In addition, we have other, local chicken dinner winners near me here-Bob in Puyallup, Bob in Lakebay, Wayne in Montana and Stefan in San Diego. Seems VA is writing more S, R1 and R2 ratings since I received my accreditation. And well they should. Far too few of you understand how the SMC Mississippi River flows. I take great pleasure in teaching VA how to read their own regs. But I digress from  my favorite subject-Veteran Humor…

Hey. Come on, guys. She’s wearing a flotation device.


 

Here’s some of Smoke’s I purloined off his Face Place feed.

The Ottoman Wars

Life is so much better with humor.

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

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

AMC CHANGES TO ARC– VA COY ON MEANING

Posted on June 11, 2018 by asknod

Recently, to everyone’s surprise even at 810 Yellow Brick Road NW, the VA, without so much as a by your leave, arbitrarily changed the the name of our favorite DC black hole. I speak, of course, of the Appeals Management Center, or as it has been affectionately  known since 2001, the AMC. Seems this occurred just about the time all that discord began over Shulkin’s trip to visit the European Regional Offices. 

Conjecture abounds as to why this was done and equally, as to what ARC stands for. That enigmatic ‘R’ has VA acronym pundits awash in rampant speculation. Answers abound but VA SES hierarchy are keeping their cards close to their chest.

The history of the AMC is pretty straightforward. With the gradual rise in the number of better-informed Veterans in the age of the internet, and sites like Theresa Aldrich’ 1997 Hadit.com,  so, too, has the number of Veterans Appeals increased. In spite of VSO  attempts in decades past to suppress this knowledge, the frequency of appeals dramatically increased after the passage of the VJRA in 1988.

By 1994, the Board of Veterans Appeals was forced to deal with this increase in a most unusual way. Rather than hire more Veterans Law Judges (VLJs), their twenty Boards of three each began essentially what we would call “memorandum decisions ” i.e. a Board of one single judge. The holding in Colvin v. Derwinski sounded the death knell for the  twenty “super VLJs” (Medical doctors with Juris Doctorates) and they were phased out. This tripled the numbers of decisions generated…for a while.

As most know, with the inception of the Veterans Benefits Management System (VBMS), electronic records became the norm. VA was the last government holdout to go paperless. Following that electronic freedom came the miraculous Fully Developed Claim (FDC) with a 125-day guarantee of 98% accuracy. All most of us could see was a 98% guarantee of a need to appeal the denied 125-day claim. I penned this joke way back when not knowing the VA would plagiarize my idea.

So, the Big Brother to the FDC is now the Rapid Appeals Modernization Program or RAMP. You lose your expedited claim and now lose your expedited appeal in near-record time. Pretty soon, this will be perfected into a drive-thru window approach. You pull up to the first window and submit the claim. In about four minutes or so, you arrive around the corner at the delivery window to find out what you won- if anything. It’s instant gratification VA-style. Unfortunately, it’s not quite the same experience as the  drive-thru at McFlougal’s® or a scratch-off lottery ticket. It’s more akin to the buildup and hooplah of a Publisher’s Clearinghouse Sweepstakes™- a lot of mail and very little substance.

And here’s where the AMC used to come in. VA raters and their ilk at the Fort Fumbles across the Fruited Plains are sloppy. Sometimes they bifurcate your claims and grant some only to deny or defer others. You file the NOD to get a higher rating but VA hasn’t even opined on your deferred claims. All of a sudden, the VA 8 is issued certifying your appeal to DC. It arrives there with some unfinished business- those deferred claims.  Used to be the AMC would dutifully deny them and issue the required Statement of the Case (SOC) thus “perfecting” the disputed items.

With the massive increase in claimants, due, no doubt, to the endless Iraqistan War, more and more mistakes at the regional level were being committed. The AMC was invented to “clean up” a Veteran’s  appeal posture. Remands back to the Regional Fort Fumbles could take a year. It was conjectured by VA bean counters that the time could be cut in half if the BVA had their own Regional Office Appeals Team with the authority to screw up what the Regional Folks were screwing up daily. And it came to pass in VAland that the 57th RO was born in DC- VBAWASH397.

By 2013, Brigadier General Allison Hickey (Ret.) had the FDC in full swing and the BVA began noticing a marked uptick in the incoming mail. Seems like every Tom, Dick and Hilda was filing an appeal. It stands to reason. The FDC  model of claims jurisprudence was throwing out the baby with the bathwater… and the bathtub, for that matter. No amount of remanding to the AMC was going to cure those regional Puzzle Palaces of neglecting to “develop a claim to its optimum.” So, the BVA began giving as good as they were getting. In a tit-for-tat, the AMC began remanding back to the ROs in East Bumfork, Wyoming or Denial, Michigan and telling them to repair their own g__ d____ed  submissions and return them when completed. This incidentally made the BVA look good because each remand was a “decision” -albeit a temporary one- awaiting a repair. It effectively hid the problem until about 2016 when it became obvious the BVA was inundated in unadjudicated appeals. There was simply no more warehouse space any closer in than Bethesda. They’d rented it all by now to store those 173,000 appeals. Yep. Them appeals are piling up like rabbits in summer.

With the inauguration of the National Work Queue (NWQ), all the claims are now in a basket like a Bingo Ball tumbler. Specialized claims for Camp LeJeune  go to Nashville. RAMP claims all go to Seattle. Each RO is becoming a Master of one trade and a Jack of none of the others. Pretty soon if you need a spouse or a dependent added to your entitlement, it’ll probably be done by one of these Specialty ROs. I ‘d guess Sioux Falls South Dakota’s Veterans Service Center because they have a hard time counting over ten without taking off their shoes. Fortunately, most of you aren’t big Catholic or Mormon families or this might be a two-year dealbreaker. We can see where it’s headed, though. If everyone opted into RAMP, the Seattle ratings section would seize up from overload. But not! They’ll just throw it back into the NWQ. It’s an awesome device. If there was no accountability before, you should see it in the present vacuum of leadership.

Which finally brings us back to the ARC. Knowledgeable minds-as opposed to reasonable minds- cannot agree on just what the R in ARC stands for. Much like the fustercluck over the new Ihob© rebranding, VA is letting America’s imagination run wild as to what it could mean.

Suggestions are coming in at a record pace. Appeals Resource Center ? Appeals Responsibility Center? Appeals Remand Center? Appeals Regurgitation Center? Appeals Respite Center? Appeals Retribution Center? Appeals Redistribution Center? Who knows? We need a Table of Organization that’s more up to date than the M 21 1MR (Revised 1778, 1812, 1866, 1918, 1945, 1955, 1975, 1982, 1991,  2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018 (pending) in order to decypher the acronym.

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

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CHANGE MANAGEMENT AGENTS–THE UNSUNG HEROES

Posted on June 9, 2018 by asknod

Actually, I probably blew that and should have written Heroines as most of the VA CMAs I talk to are women. One thing is certain. Change embodies what they do and they are quick about it. Today, I wish to commend the VA for something they did rather than ostracize and belittle them for something they didn’t do. Hey, when you’re lower than whale shit in the eyes of the folks you’re supposed to be serving, you need all the positive PR you can muster.

 

If (and when) you do something right, it should be shouted from the roof tops. I note the BVA was preening its feathers the other day when they remarked (with great press hooplah) that their numbers of appeals adjudicated had gone up rather dramatically. Well, duh. You can probably expect to adjudicate (and sign) a butt load more appeals if you hire 20 or 30 more VLJs and about 200 more law clerks for minimum wage. I guess I should qualify that. It amazes me this was so successful. Usually there would be a net decrease in most other VA scenarios. Credit this to the BVA where everyone speaks JD and the most frequent nickname is “Counselor”. Telecommuting is also in vogue now so you don’t have to take the Orange in and waste time in line at the Starbucks in McPherson Station.

THE CMA PHENOMENON

Back to CMAs. VA invented this position after the VBMS was opened to us law dogs. We can ‘see’ VA actions in real time and with them ‘actions’, consternation grows. Calling up the appropriate VA Director’s office used to be the way to get their attention and arrest the mistake. I run into a lot of Vets and they are amazed we aren’t forced to use that archaic 800-827-1000 dial-a-prayer system.  I can’t imagine litigating in slow motion. *Beeeeep* “Yes, please. The best time to call me back next Tuesday would be between 8 AM and 12PM East Coast time. I’ll get up at 0500 L and put the coffee on. Thank you.”

However, we do not have to suffer that indignity. I merely pick up the phone and dial (787) XXX-XXXX and am warmly greeted by Sharon D. in the San Juan Regional Office. Sharon is an exuberant, efficient VA employee who stands ready to help me with everything I need for my client Roberto there. If there’s a way to ignite a fire under the DRO, she can do it. She must have some pull. Maybe the DRO has a mistress and she threatened to tell his wife. Who knows? What’s more, who cares? Until VA sets up suggestion box@va.gov so we can thank them for giving us CMAs, I’m forced to thank them here.

Hi. My names Claire and I’ll be your CMA today.

A few of the folks who make the VA world go around (and my life immensely easier) deserve a big shout out. Among them are the aforementioned Sharon, Tina  (Seattle), Ciena (San Diego), Joe in Cleveland, JR in Phoenix, Gary in Houston and the list goes on. I’ve discovered most are GS 11-12s, worked in appeals and know their stuff. They innately know who to call to resolve a problem.  They’re so good at what they do, I’m guessing their phones hardly ever ring more than a couple times a day. I’ve never gotten the wave off or a “she’ll have to get back to you” yet.

The VA claims process just gets easier and easier to accomplish when you have accreditation. Having a CMA at your disposal is like flipping your selector switch over to auto. You almost can’t miss. One of my possible future clients was talking with his VSO and suggested he talk to the DRO to correct a mistake on his claim. The VSO’s eyebrows went up like a couple of them old fashioned window shades (flup!flup!flup!)and he chokes out “Are you mad? Nobody can just call up the VA and talk to the DRO in charge of the appeal. It doesn’t work that way. I should know. I do this for a living.” My friend  explained that he’d heard me on the Hadit.com radio show doing that as well as emailing them. Dale was told by Mr. Knowitall VSO N.J.D. (no juris doctorate) that VA agents lie a lot and he should take what they and their attorney buddies say with a grain of salt. Considering most VSOs’ SMC knowledge ends at K, if they’ve even heard tell of it at all, I guess I’d take a salt shaker if I ever had to visit a service rep. at one of the Big Six’ retail outlets.

Here’s a beautiful example. I’ll change the names to protect the innocent. I call up Ciena down in San Diego and explain my client Johnny Vet got an earlier effective date (2003) decision  from BVA VLJ Yvonne White back in February. The AMC, now the ARC, effected the decision but shortsheeted him horribly.  When you grant a EED for a Rios v. Mansfield (oops! we mailed it to the wrong address and it came back) violation, you reopen the whole enchilada in 2003 because Johnny Vet not only didn’t get the denial for the PTSD. He also didn’t get the denial for his left knee, tinnitus and DDD at L5-S1.

We filed a NOD pronto. Unfortunately, VA is now using a National Work Queue (NWQ) to adjudicate a claim. So up pops the NOD on the  National VBMS teletype  ‘to-do’ list. Meanwhile, Johnny Vet gets an unsolicited call from “Franchesco” at the ARC who says he thinks maybe they screwed up the 2003 rating and decides to issue yet another new decision.  At that exact moment, somebody from the St. Paul Puzzle Palace rips this off their printer. They immediately enter it in to VBMS but accidentally remove  his dependents from his entitlement. In less than three days, Nashville pulls it off the teletype and says ‘No. No. No. That’s all wrong. Put the dependents back on. The NOD is invalid. You can’t appeal a BVA award. You have to go to the CAVC. A day later Atlanta sees it and says  ‘Disregard Nashville. They’re full of hoooey. We’ll be needing some time to examine the chicken entrails and study the tea leaves. We also, however, will need to study this and we’ll get back to you some day. Hear?’ That was around May 12.

Enter Super Ciena. I called her up Wednesday afternoon late and said “you know…. I think something’s amiss here. I started to give her a brief overview but she cut me off. “Send me an email and explain each thing they screwed up. Tell me what you think the repair order is and I’ll get out my lightsaber and cut into it.  Thursday morning @ 0900, Timbo the DRO calls and says “Ciena says you got a problem. So whazzup?”

Instead of trying a Powerpoint™ presentation from 2,000 miles away, I said ‘open the new NOD I submitted on 5/01. It’s listed at 5/3 on his VBMS. That pretty much summarizes the legal posture by operation of law.  He pulls it up and we ran through it  point by point for law. I bit my tongue and said nothing about  Franchesco’s wolf parentage or ARC’s stupidity. He agreed, proposed to CUE themselves on the cirrhosis and correct that 4 year old “misconstrual of the diagnostic codes available”. Can you imagine a VSO trying this- sober or drunk? In ten short minutes I agreed to withdraw the recent NOD as untimely.  We then accomplished a verbal handshake and readjudicated PTSD for 100%, DEA to 2003 and an understanding we could still file a NOD subsequent to the issuance of the new decision- to everyone’s satisfaction. We mutually declared CUE on the use of DC 7345 instead of DC 7312 (no net change in benefits) and agreed to grant 50% instead of the 40%. All the while, I’m thinking “What am I missing here? This is just waaaaay too easy”. I guess we’ll see in a few days.

Western Union ribbon clerk

Now this is where you can separate the smart VA poker players from the ribbon clerks. I asked old Timbo if he knew why I insisted on the proper rating for the cirrhosis/ascites at 50%. He was clueless. He saw no possible benefit. Here’s a teaching moment. Do not wait to get all your ratings later when you are trying to climb up the SMC ladder. Remember our old friend 38 CFR §3.350(f)(3),(4) and keep it holy. That extra 50% stand alone for ascites under DC 7312 can be parlayed into a jump from SMC L for Aid and Attendance into L ½. Or a bump from M to M½ or up to N/N½. The important thing is getting it done now to preposition yourself for that inevitable future time when it can quickly kick your compensation payment up about $200/mo. when it will be most beneficial and needed. It isn’t cheating to have a game plan before the shit hits the fan. And yes. When the time comes,you’ll  be wanting to call your VA Agent or Attorney and ask him/her to contact one of these wonderful CMAs for the particular Fort Fumble involved and ask them to ‘Make that L½ so, Number 1’.  And they will. Call it what you will. It’s the new kinder, gentler version of VA claims adjudication. Who knew?

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

 

 

Posted in KP Veterans, Tips and Tricks, VA Agents, VA Attorneys, vA news, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , | 5 Comments