will not include Dr. David Shulkin. He was fired last night as most readers already know. Some say “Good riddance” and others are very worried. Dr. Shulkin is upset and is talking about what he believes is a political move only (LINK). If Dr. Jackson is approved, it is reported that he has experience with emergency medicine in Iraq–so that is a positive. And Trump trusts him and well, it’s his cabinet. Let’s hope for a quick confirmation if he gets through the hearings unscathed.
Kiedove
Rarely am I given the exalted job of helping a widow on such short notice. In the instant case, Jack and Diane turned out to be Larry and Shirley. They began visiting asknod in search of that which can be found nowhere else-real VA knowledge rather than rumors and propaganda. Larry contacted me about a claim for psoriasis back in January 2016. From there it mushroomed into a plethora of questions. Naturally, Larry, and later Shirley, began to ask for advice fairly regularly over the intervening years. Could be they contacted me earlier but I didn’t start saving the emails at that point.
Larry aboard the USS Vermillion
Larry served in the Marines from 1961 to 1965 including a 25-month stint at Camp LeJeune from 1963 to 1965. Seems there were quite a few cancer-causing chemicals in the drinking water supply that would eventually come to light later in the eighties. To add insult to risk factor, he worked as a driver in the motor pool and his exposure to cancer-causing chemicals was far and above his contemporaries there. That didn’t seem to faze VA’s thinking later on when he filed.
As an aside, I love it when I get to write about my clients. I have to ask permission to do so and I like to think of it as a teaching moment for all of us. After all, that’s why I began this blog in 2008-to teach all of you how to play VA poker. I asked Shirley if she had any good photos of Larry and boy howdy did my inbox overflow directly after. A picture is definitely worth a passel of words which is why this article is rife with them.
Larry served aboard the U.S.S. Vermilion (AKA 107) during the Cuban Missile Crisis in 1962. He also served during a period of traumatic political upheaval in Morocco about that time as well. It had a lasting effect on him and undoubtedly matured him far earlier than his years. Sounds like our kind of people.
U.S.S. Vermilion
Larry and Shirley were both raised in the small town of Baxley, Georgia. Shirley said he caught her eye early on. She decided to wait and see if he was the ‘right one’ for a while after he got out of the service. Apparently, he met her high standards. They got hitched in 1969. They had two sons-Bruce and Brian. Life was good for forty five years- right up until it wasn’t.
Larry was diagnosed with glioblastoma multiforme in 2013 and began to get ill. All the King’s men and all the King’s horses couldn’t put Larry back together again. His service at Camp Lejeune was, for all intents and purposes, his only risk factor for brain cancer. Unfortunately, the VA folks didn’t see it that way. Larry filed in 2014. VA fought him tooth and nail with no less than three IMEs saying Larry smoked, drank, carried on and was an iron worker. Shoot. There you go. Guilty. They said his post-service risk factors were the cause. They even went so far as to point to his preservice work (about 5 months) as a service station attendant with exposure to gasoline which contains Benzene- one of the chemicals in Camp Lejeune’s water. Sure makes you wonder why that Baxley Benzene was more toxic than what they were pouring into the Marine camp’s H2O. Problem was Larry didn’t pump gas. He was way smarter than that and drove a tow truck. His only risk factor was getting clobbered by a tire iron changing flat tires or repairing them. They didn’t do their homework.
Larry passed October 22nd, 2017 after a long battle with his disease. In fact, he was so ill, he was unable to attend his BVA Travel Board Hearing in April 2017. Shirley did it solo inasmuch as she had a Georgia Dept. of Vet Affairs braindead tag along who did his level best to hamburger the issues. I note in the hearing transcript that Judge Ursula Powell finally had to tell the gomer to quit flapping his lips so she could elicit the real facts about Larry from his wife. Judges generally don’t tell a VSO to put a fork in it during a hearing. Shirley put in some high-quality evidence but, as we all know, if you don’t have that MD after your name, it’s like trying to cut meat with a spoon.
Judge Powell did give Shirley an honest shot at a new IME but we all know what a VA “Independent Medical Evaluation (IME) really is. They just get a new rope and a fresh horse. That’s why we call this game a Texas Necktie Party. Sure enough, the new IME was a déjà vu prognosis. Old Larry was room temperature due to all those eeeevil habits he had both pre- and post-service. Shirley disremembered any of these evil habits and had told that Judge as much back in April. Fortunately for her, Judge Powell’s asking for that IME gave her a spell of breathing room to call me in early November. How could I turn her down? As a lot of you know, Theresa Aldritch (T-Bird), the owner over at the Hadit.com® site has a trademark logo I often point to that is my battle standard as well…
You tell me how anyone could walk away from this obligation if they had enough knowledge to help. Some who know me understand I had to do that once upon a time in a far away place a long time ago. Never again will I leave anyone behind if I can possibly help or no one else will. Not on my watch. Even if I lost this one, I was not going to deprive Shirley her day in court. This isn’t about money to me. It’s about that bitchslap VA gave me in 1994 when they told me I disremembered being in Vietnam. Said it must have been some other body.
I use a technique most would call ‘offensive representation’. My daddy’s unofficial motto was “It ain’t a f___up until you can’t fix it.” Of course, too, my daddy was a P-51 fighter pilot ace with 16 1/2 kills. You never bail out until you can’t fix it. I’ve always advocated this posture. It does no good to sit in a static defensive posture and wait for the inevitable attack. You create enfilading fire. Make them run into and through some new evidence. I immediately obtained a probative nexus letter (IMO) from my new best friends at Mednick Associates. I had noticed a fatal flaw in each and every one of Larry’s VA doctor’s nexus letters. They weren’t so much nexus letters as they were “absence of evidence is negative evidence” diatribes. In addition, each IMO mistakenly explained over and over that glioblastoma was not on the list of the eight magic diseases caused by that skanky water. Well shucks. You don’t have to have a degree in oncology to say that. What you do need is to consider whether the glioblastoma was caused on a DIRECT basis such as working in the motor pool, bathing, showering or drinking the water. Or… because you served there over 2 years. Certainly, if the minimum exposure to qualify for the CJCW presumptive was a minimum of 30 days, what, pray tell, might transpire after 760 days? Anyone?
VA “experts” sometimes get all het up about a presumptive disease and myopically focus on the presumptive aspect to the exclusion of all other factors in the Vet’s immediate environment. All I did was spot the absence of any discussion on VA’s part about whether it was caused by direct versus presumptive. Seems to me these Doctor folks stepped on their presumptive neckties and Judge Powell caught them out.
We don’t always win at this game but I’d expect there must have been some chemistry or shared angst between Shirley and Judge Powell that contributed to this success. Lord knows it wasn’t due to my cutting-edge legal talents. Shoo doggies- I sure don’t have any juris doctorate. I just have that prescience born to all of us called common sense that tells you when a wrong has been perpetrated on another. I’m glad I was able to somehow sway Judge Powell’s thinking (if indeed I did) in this claim.
I do have an alternative pet theory. Judge Powell has been doing this for so many decades now that she feels plumb sorry for all those souls she denied. Let’s face it. She’s had to meet and greet a gazillion Vets and their poor wives and deny them because their VSOs led them up there to a guaranteed slaughter with no nexus letters. It must be refreshing for her to occasionally encounter a savvy old Baxley Gal with a slick-tongued Virginia devil for her mouthpiece who happens to have the magic paper at the eleventh hour. Well, anyway. That’s my take on it.
Here’s my argument for service connection and Judge Powell’s opinion.
Medders BVA intro of new evidence redacted
I’d also like to thank Adam Taranto of Mednick Associates for getting me the nexus letter lickety spit that saved Shirley’s (and Larry’s) bacon. I don’t much cotton to advertising on my site as you all know but in this case I cannot sing Mednick’s praises loudly enough. You always get a warm, fuzzy feeling deep down inside when you win these for folks like Shirley and Larry. I expect my association with Mednick can only produce many more.
I reckon Larry can rest easy knowing a fellow Veteran (even if I wasn’t a U.S. Marine) didn’t leave him or his kinfolk behind. It’s hard to find friends who care enough to help you when your own government spends a million dollars trying to deprive you of your due. I expect they spent far more denying me over my 20-year long battle-not to mention that greenhouse they’ve fought 7 years. Seems these folks could take a page from Maj. Gen. (Brevet Col.) George Armstrong Custer’s playbook and avoid dying on my hill. Are they mad? I’m passive aggressive with anti-social tendencies or is it vice versa? Better to pick a fight with a Silverback gorilla suffering from hemorrhoids.
Cupcake and I are planning on making a trek back east directly to break bread with Shirley and her family. That’s one dinner party I really look forward to.
God Bless you Larry. I wish I’d had a chance to meet you. Rest easy. I’m so glad I was allowed a small part to play in this victory. The real medal here surely goes to Shirley for her perseverance and her dedication to her Marine.
And that’s all I’m gonna say about that.
What the hey? Not that any of you avid readers will ever encounter this intractable problem, I nevertheless supply it for that inopportune moment when you find yourself at a temporary loss for words. As an important mentor instructed me once during the war geographical argument over certain territories in Southeast Asia “If you can’t impress them with your intelligence on the matter, baffle them with your illuminative bullshit”. Herewith, I submit same.
Back in Washington D.C., Nancy Pelosi and her staff were watching the news conference. Upon hearing Jong-Un’s remarks about the sun landing, Pelosi sneered, “What a complete idiot – everybody knows there’s no sun at night.”
In the immortal words on one Forest Gump, a noted philosopher- “Stupid is as stupid does.”
And that is all I’m gonna say about that.
My old Marine has been undergoing various tests to determine the cause (s) of his current gut problems; no answers yet. Along the way, he has been warned about recent high blood pressure spikes and kidney function problems which include high potassium (hyperkalemia). His last potassium reading was high enough to be told to go the ER to get checked out; his other tests were mainly okay. Why the insistence on a trip the ER? It turns out that too much potassium can slow or stop hearts. These facts, and the words “acute and chronic kidney failure” on his problem list have our attention.
The only dietary advice he received was to cut out foods like bananas so I’ve had to analyse and change our menus by consulting online renal diets from authorities.
The VA’s Kidney eClinic website (LINK) provides basic information with a focus on DMII and high blood pressure and self-care.
Click screenshot to go to this site.
The site states that VA issues BP cuff by request. Within a few days, he received a really good cuff. An unpleasant thing about all of this is that his kidney numbers haven’t been too good for quite awhile but his PC docs didn’t deliver the bad news–VA or non-VA doctors–even though he has DMII.
Image from VA-issued blood pressure cuff.
Our “Mediterranean” diet no longer controls his DMII either. Someone is cranky about all the new dietary restrictions to add to the old ones but adaptation is essential as we age.
I used to think of food ingredients as, well, food. Something comforting and good like mashed potatoes. Now I think of it as chemical compounds we ingest–beware. Cooking potatoes, if at all, is a whole new experience. Blah….
Kiedove
Wowser. Old Butch asked me since bein’s how the Seattle Puzzle Palace refused to do his claim when they promised to, if we could fun them right back and slap ’em upside the head with another Writ of Mandamus for Breach of Contract. I said sure, why not? I’m not going to put my name on this. No need to. Turns out Butch is quite the experienced English major. So “Butch”wrote this one up to see if the CAVC Judge didn’t cotton to perjury.
Well, boy howdy is the Honorable Judge not only a little miffed at getting dissed barely six months into his new job. Lands but he took two pages to say he wants some fairly firm answers in 14 days and 13 nights. That would be about the 19th of March or the end of Spring NOVA if I read my calendar right. Shooo, doggies. Maybe I should tell them fellers down at the Regional Office that Butch (and I) are going to be incommunicado from the 15th to the 19th. They seem to lack a telephone number for him. Mine will probably go onto the answering service for that period. I anticipate a high call volume in order to quench the good Judge’s anger. Bummer dude. No answer…
Cupcake and I are flying down instead of driving because we have a horse who’s a week post-surgery and he needs to be supervised. Kona can peel a bandage off under a sleazy as quick as you can say Jack Robinson.
In most cases, and my current one for my third stab at an Ex Writ for my greenhouse is a fairly representative example, a CAVC Judge will allow 30 days for a nuanced discussion on what the Secretary has to say or apologize for. Hell, sometimes they (VA) even ask for another two weeks on top of it-and the Court grants it. Even if the excuse for delay is flagrant, flatulent and flimsy but still accomplished what was deficient, the Secretary will get a bye in spite of the delay.
But…. when you blow off the Judge and the Butchmeister’s suspense date of January 28th by a month (and still counting), with no date of a decision given or even contemplated on the horizon, well then, you get what the Court likes to call the double secret extra extraspeshull treatment…
Remember when you were back in ‘Nam and some FNG next to you cut loose on auto and forgot to remove those 3 tracers at the end of the mag? Remember how the ground and the trees around you positively seemed to come alive with all that incoming 7.62 a few seconds later? Well, try telling the Court you’ll have this sorted in 90 days and then come back and laugh and tell them how you were just funnin’ them. It’s about the same. The incoming is going to be a shitstorm of sanctions unless -hell, there ain’t no ‘unless’ this time. I smell blood in the water.
Boy howdy did life get a whole lot finer in a week. It’s not perfect but my Change Management Agent (CMA) at the Seattle VA Regional Office is a real go-getter. She had been in the CMA saddle all of three days when I met her Tuesday. She subtly indicated she doesn’t always agree with what happens in Appeals. I sure hope she takes a shine to CMAing. With VBMS access and a real whippersnapper CMA, you can move mountains in short order at your local Fort Fumble.
Tina is the wife of a lifer (Army Tanker) and loves this job. She intimated she doesn’t always agree with everything that happens about VA claims adjudication but hooooweeee who does? You won’t get a 3-page dissertation on that subject from me. Maybe a fifteen pager but not a trey.
No VA Bozos
Jerrel has graciously asked me to come on and discuss the latest war stories from Puzzle Palaces across our soon to be fruited plains. Call in and remind me to tell you about the one from Phoenix with 3 glossy 8 1/2 X 11 photos of about 1/10 of a gram of Marijuana vacuumed from 18 pockets of a Vet’s fatigues, jacket and shirt to bust him and give him a bum discharge. Remember, these were introduced into the Vet’s VBMS file five days after the rating was in the “ready for notification” stage. He was already at SMC M and 5-year protected. VA decided to go fishing to see if they could rustle up some Willful Misconduct. I don’t reckon most Vets realize it but the VA is not allowed to depart the reservation and collect negative evidence. That’s a Bozo No-No in 58 VAROs.
Anyway, join us on Monday evening, March 5th, in the year of our Father Howard 2018. The show begins at 1600 HRS local here on the Left Coast or, adding three hours, at 1900 HRS on the (L)eastern seaboard. The call-in number remains
Press the number one (1, nung, môt, un) to talk live with us.
I reckon you folks don’t know this but Cupcake was laboring under the delusion that I was never going to see my elusive 20’X28′ greenhouse and “other valuable considerations”. I took that bet and it appears she may have to do dishes for the rest of her life. If this Order doesn’t produce a grant of Mandamus with the potential for sanctions, I’m gonna come down with a bad chronic case of dishpan hands directly in about 35 days. The suspense is killing me.
I’m gonna let them gomers in Seattle know up front (because it appears they have assigned a minder to read my blatherings) that when this comes back down and we have to actually sign on the dotted line, I’m going to invoke Karnas v. Derwinski and insist on the older M 28 regulations versus the newer M28 R version. This little ploy will cost them 3 years of propane rather than the 3 months they steadfastly refused to increase on. The reason is buried way down in Chapter 9. The new M 28 R says you have to prove you can financially sustain your IILP after it’s up and running X months or years. The old M 28 says no such hooey. It says they’ll supply whatever you need to make it a huge success. If I keep that greenhouse cooking at 75° all winter, I could blow a huge sum on propane annually. The cost difference to VA would be up in the five digits if I turn it into a hothouse. As we say in VAland, Karnas is a bitch.
Our old friend Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) ( reversed on other grounds) and replaced by Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003) taught us that the rules when you start this poker game will remain the same. If you change them, the version most beneficial to the Vet will be employed-not the other way around. In any case, the Vet gets to choose whichever version he prefers. Some folks are contraries and work against themselves but that’s a story for another day.
The ILPmobile Hi Ho Hi Ho, it’s off to bars we go
I began my oddysey the day Bruce Almighty called from Georgia and asked if I’d put in for ILP or was just going to shuck, jive and write about it on asknod. May 11th, 2011 was the day I showed up at the VR&E Corral. That set the time clock for which manual to employ. The newer, more restrictive M 28 R (forbidding riding lawnmowers and other mobility devices you can drive to the VFW bar on) was revised the day before my birthday (April Fools) in 2014. VA recognizes May 11th, 2011 as the date of “request for grant” but then – they don’t even call an ILP greenhouse an “entitlement” such as how Phil Cushman had to explain to the Fed Circus what entitlement really was. That VA brain fart of remodeling Phil’s VISTA Medical records blossomed into Due Process as we now know it.
Once the fat lady (VLJ) sings greenhouse or woodworking shop (or ______ ________), that’s all she wrote, ladies and gentlemen. That greenhouse has now become an entitlement due and owing-let no Bozo rend it asunder. St. Margaret of the Holy Order Of the Sisters of Indiana Ave. NW has now asked for the particulars of the “shrinkage”from Dr. Shulkin. The good doctor will be granted 30 days and 29 nights in which to unravel this Gordian knot and explain who will walk the plank. The odds at Bally’s Reno Sports Book has Emerald Downs’ first claiming race this winter with VRE Officer 9/4 in the pole position. A Sanction is running at 2/1 in gate #3. Wimbledon Getaway is going off at 80-1.
As usual, this will be fun to watch. Be on the lookout for post hoc rationalizations and misconstrual of what 20 X 28 means in VA math using 38 CFR §4.25 addition. Hell, that might not be too far from the truth come to think of it. Remember, these VA folks just invent it as they go. We may eventually find out what the meaning of “is” is.
And here are the Solze Notices we all have to file when something comes up. VA’s timing is abominable.
Two nexus letters are a powerful pair to draw to. The VA Examiner came up short because their own M-21 1MR says it very clearly in Part III, Subpart iv. 4.1.2e. We’re coming into a new world of Veterans Law Judges (VLJs) who are free thinkers. What was once an impossibility in 1992 is not so impossible now.
Check out VLJ Jonathan B. Kramer’s handiwork. Besides, any pair beats Ace high in VA poker. https://www.va.gov/vetapp17/files9/1760765.txt
An IPA and some barbecue-flavored chips go well with this one. Johnny Vet didn’t win this at the able hands of the DAV in Houston. No way, doggies. I expect he’s been reading a lot of asknod and hadit.com.
Or… how about this one. One positive nexus letter (private) versus one negative nexus letter generated by a VA examiner= equipoise and you win. Just make sure your nexus letter is probative and discusses all modes of transmission.
https://www.va.gov/vetapp17/files8/1752964.txt
Here’s a wonderful vignette to greet Sunday with, folks. Some of us were lucky to have a daughter and enjoy their undying worship of us. My only observation is that this ol’ boy’s wife must have really been pissed to get even with him like this. The things we do for love…
asknod@va.gov
Yeppers, folks. I’ve been busy testing and criminal background investigating and PIV carding. I’ve finally been given the keys to the VBMS henhouse to view my clients’ claims in real time across our Fruited Plains. Seems there are still a few purple mountains blocking the important access into Citrix RO-5 VBMS. That’s where the gold is but no dice. I’m promised access in the “AM” on Monday morning. I guess it’s like waiting for the cable guy on an 8 AM to 12-ish window. You hope he ain’t funning you.
They promise to call back though. Hey , relax folks. “They” are private IT “vendors” that fix VA’s poor tired computer woes because VA has none (VA Geek Squads). These guys actually answer the phone. Yeah. Get out of here-right?
With this access comes my asknod@va.gov email as well. Most everything in the inbox is public relations crap and how absolutely wonderful the VA is to Vets. I didn’t check the whole list but I think they keep you posted on the various happy hours at the VSOs in your locale and what the best drink specials are each month (i.e. Hawaiian, Jamaican, Mardi Gras themes etc.)
I began back in July 2017 and sent in all the info and a request to Cheeseville for acceptance into the Loyal Order of the PIV. Last summer, one of my padewans learned the art of silently walking on rice paper too and became a VA Agent. She breezed right through the process and is now connected-in fact has been- for quite some time. She got to dodge the TRIP training, too. She finally chided me in November and asked why I was still lollygagging around. Seems you have to call the Information SSecurity Officer (ISO) at your VSO and tell him you want in. I found out Cheeseville apparently is not the repository for everything.
I must say it’s akin to building your own Light Sabre and finally feeling the Force within you. Hoooooooooooooooooooooo doggies. Who in their right minds at VA would let me-us-of all people- into the bowels of their computer? Are they mad? In essence, we now have the ability to perform the fabled “VSO Motion For Reconsideration” if we catch it in the first 72 hours (the Golden Window) before it sets up like concrete. NOVA attorneys call that “Extreme Unction” because only VSOs are allowed by VA to perform the feat. Go figure. The blind leading the deaf…
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 