EVERYTHING YOU EVER WANTED TO KNOW ABOUT WAIVER OF REVIEW IN THE FIRST INSTANCE

Posted on December 8, 2017 by asknod

Boy howdy do I ever wish I’d found out about these little “judicial anchors” when I first set sail on my VA claims adventures in 1989. Actually, it’s sad to find them so rarely used by those in the legal know. It should just be de rigeur-like filing for Tinnitus if your Vet were in Artillery or a Huey Door gunner. I speak now not as a supplicant but as an accredited advocate for Veterans. And yes- always Veterans with a capital V for valor- in peace and war. What naive man has ever signed up in peacetime with the absolute assurance that war was not on the horizon?

More some other time about Veterans.  Today we absorb the magic world of the Waiver of Review in the First Instance. As aforementioned, think of it as an anchor to keep you in place judicially. When we enter the world of Fort Fumble, we are dealing with incredibly under-educated or indelibly brainwashed VA employees who are trained to look at this as a basically “fair” process. I submit if we lose 85% of the time on our first attempt, the process is being gamed. If everyone being granted PTSD automatically seems to receive an initial 30% rating in spite of some Army shrink’s six hours of sessions and a 70% assessment at a Warrior’s Transition Battalion, it smacks of a preordained outcome. VA’s “examiner” is basing this on a 30-minute intake by an 80-year-old retired psychologist with incipient Alzheimer’s who is moonlighting at VES/QTC for some Johnnie Walker Blue Label money. He’s DSM V challenged.  Thirty Pieces of Silver can still buy a lot these days.

You lose at the RO  because the deck is tilted and you don’t know the rules. You lose at your DRO Review/hearing because they have already made up their minds. In fact, some claims like Hep C due to jetguns are automatically sent to the Board of Veterans Appeals (BVA) without further ado. Well, they actually hang you out for a few years on the old DRO game before they issue that SOC. You could have a Buddy Letter from Jesus Christ and it would be to no avail. It’s verboten to decide a Hep C jetgun claim at the Agency of Original Jurisdiction (AOJ). No Vet to date has won one yet at that level based on jetguns. You don’t have to see it in writing. In fact, does anyone remember the FAST letter that went out on the VA’s Excessive Awards Program (EAP) in 2007? Right. I missed that one too.

 WHY YOU SHOULD SUBMIT A WAIVER

Based on this, some claims and some situations demand getting a substantive appeal to the BVA post-haste so you can queue up there and wait. I know. It’s a three-year snooze right now but hey! Wait until that Fully Developed Denial Statute hits the BVA in 2019. Hey, it’s only time wasted if you lose. Since VA is wrong 74% of the time these are far better odds than playing 21 down at the Indian Casino. Once you arrive and are ushered in at the appellate level, you are before a Veterans Law Judge (VLJ) who actually has a law degree. Remember, up to this point, you have been dealing with the equivalent of legal chimpanzees. They’re busy computing Christmas banana bonuses.  When you arrive at the BVA, you’re movin’ on up, bro. You have arrived at the Perry Mason coat-and-tie level.

Now, which would you prefer? Would you want to have your Judge remand your claim back to the AOJ (your local Fort Fumble) because the RO forgot to tuck the Social Security records in there? That will cost you a year for these dolts to obtain them.  It was already denied several times earlier for whatever reason. Do you subscribe to the Tooth Faery Times? The Santa Express? The Sandman Sentinel? Do you think it’s going to be met with any chance of a grant this time? The VLJ has to, in good conscience,  remand  it for a new c&p exam because your condition might be worse after three years growing butt sores on the Group W bench awaiting his/her review.

Or… perhaps you’d prefer, in the alternative, to file a Waiver of Review in the First Instance and nail it down there at the BVA at a real court of justice. This “anchors” it in the VLJ’s hands and he can control the claim rather than relinquish it for over a year for more development and a new denial. A Waiver of Review speeds up the process by keeping your appeal on track for a timely conclusion. What is it? A Waiver instructs and commands your VLJ to retain control of this himself. It forbids allowing the idiots back at Fort Fumble to chimpanzee it to delay you even more.  I see it used increasingly these days by VLJs themselves to expedite antique claims with about six or seven remands.

Unfortunately, when you do win, you claim returns to the local Puzzle Palace for a brand new low ball rating to see if a) you even notice and; b) to force you to appeal the low ball rating and thus begin anew the whole appeals process. This is why we call it the hamster wheel of VA Justice. We see a bottleneck here as well. Some grants sit for a month or two awaiting that initial, predictably low rating. VLJs are only allowed to give you a thumb up or down. They cannot award a rating on an initial appeal unless it’s an appeal for a denied increase in your rating.

A Waiver of Review must be filed with the Board of Veterans Appeals and can be appended to the VA Form 9 Substantive appeal. I hand them in to the Veterans Law Judge personally because I don’t do videoconference hearings. I want my VLJ to take the measure of my Veteran in 3-D Technicolor with Dolby©Sound. I think of them as IMAX hearings… from three feet away.

VA has yet to come out with a Fully Developed Appeal form specifically used for a Waiver of Review. In the interim, standard issue SF8.5X11 (white) is permitted to be used in lieu of one. Simply be sure that Veterans’ name, rank, airspeed and tail number are included with their last known heading. Do not assemble a laundry list of other wishes like advancement on the docket based on 38 CFR §20.900(c). Your waiver must be a stand alone filing that can be photocopied and sent back to the AOJ informing them they have been relieved of any more heavy lifting on the claims development. The worst that could happen would be a request for a c&p but that is easily fixed with VBMS and VACOLS. Roads? We don’t need roads. We have VBMS and Jesus in our Hearts.

Lastly today, I’d like to thank Cupcake for putting up with me for the last thirty years. I neglected to tell her the truth about why I chose to be married on December 8th back in ’87. All that hooplah about Pearl Harbor is the mental wake up call I’d need  henceforth to remember to timely obtain flowers. I can only imagine myself in a Nursing Home on Dec. 7th some twenty years hence and trying to escape into town to find a florist. I really can’t  believe she actually agreed to tie the knot in spite of my suggesting she could take a cab if she had no desire to ride home in my TR-6 with the top down…  on about our 3rd or 4th date. I guess I’m just an eternal optimist or incredibly lucky.

And that’s all I’m going to say about Cupcake and Waivers. Enjoy the season. I always have great luck with incredible wins about this time of year. It’s as if the M 21 reverts back to a nonadversarial, Veteran friendly publication for a fortnight. I’m sure the VA pumpkin and mice will be back December 31st at the stroke of midnight. I’m not fatally optimistic.

 

 

Posted in All about Veterans, Jetgun BvA Decisions, KP Veterans, Remanded claims, Tips and Tricks, VA Agents, VA Attorneys, vARO Decisions, VBMS Tricks, Veterans Law, Waiver of Review in the First Instance | Tagged , , , , , , , , , , , , , | 4 Comments

1967 Jet gun recruit parade and other images

Posted on December 8, 2017 by Laura

Finally, some images that Silvia emailed a while ago, I can now post.

THIS IS A GRAPHIC color photo.  These large gaping wounds are the result of serious injuries.

VIETNAM, 1967. 8TH FIELD AMBULANCE. A SHRAPNEL WOUND BEFORE DEBRIDING (REMOVAL OF DEAD TISSUE).  (LINK)

And an outside scene shows how rough things were.

VUNG TAU, VIETNAM, 1967. THE AUSTRALIAN SHOP AT VUNG TAU.  (A Special Zone)

(LINK)

It’s Up To You – Basic Combat Training (1967)  (Youtube LINK)

This is an Army video.  At 4:27-4:38, the jet guns are pressed into the arms of each recruit without any attempt to clean them between each injection.   

In the right menu, there are some other recruiting videos.  This one is from the Marines.  It doesn’t show jet guns but does show  dentist exams were performed, no gloves of course, at 5:42-5:48.

This Is Parris Island (1970)  (Youtube LINK)

And I’ll get up a report Silvia sent us on jet guns and Frank has also some items of interest to post here.

Kiedove

 

Posted in All about Veterans, Food for thought, General Messages, Guest authors, HCV Epidemiology, HCV Risks (documented), hepatitis, Jetgun Claims evidence, medical injections, Military Madness, Uncategorized, Vietnam Disease Issues, Vietnam War history | Tagged , , , , | 2 Comments

CAVC–JENSEN V SHULKIN-RHETORICAL VA MONTE GAMES

Posted on November 28, 2017 by asknod

Remember that time when you got caught misbehaving and you told a fib to get out of it? And then you fibbed some more to cover the first fib until you came around in a Mobius Loop where the fibs didn’t conjoin with reality? I hate that when that happens. So you can just imagine the chagrin of Sarah W. Fusina, with whom Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant General Counsel; and Selket N. Cottle, Deputy Chief Counsel, all of Washington, D.C., who were all on the brief for the appellee Roberto Shulkin must have felt when Saints Coral Wong Pietsch and Meg Bartley, accompanied by Friar Greenberg, called bull poo poo on how they like to play three card VA Monte.

Meet Bob Jensen. Bob served in the peacetime Army from 1981 to 1984 on a standard 3-year hitch. Bob must have had a job involving heavy lifting because everything went south from his feet to his back and up into his neck. Bob was smart and filed for all this when he separated. He got TDIU in 2006 retro’d by a year back to ’05. By 2008 he was a bonafide candidate for LOU of the lower extremities. The fact I’m telling you about this pretty much explains that he got the Dear John letter. And now for one of those “who woulda thunk it” moments. It’s like a Grimm’s Faery Tale replete with “and they lived happily ever after in their newly-remodeled SAH  home” with his SMC P (L½) rating.

Jensen_15-4788

Imagine you’re Bob Jensen and you’re beginning to lose the ability to walk. This is caused by Loss of Use (LOU) of those lower fleshy sticks called “feets”. VA, of course, says hold the phone, Roberto!- you’re a candidate for the Boston Marathon and nohow near so much as needing a cane-let alone a wheelchair. Ol’ Bob had also filed for a Specially Adapted Housing (SAH) grant from VA. While waiting for this, he was browsing around the high numbers in the Book of VASEC and stumbled across 38 CFR §3.809(b)(1)- what appears to be an amazing bozo on the Secretary’s part best left unspoken. It’s a definition about what you need for SAH. Boy howdy, right there in front of him was an interesting new way at defining what constitutes “loss of use of lower extremities”. What gets a VA law dog’s heart really pumping is  38 U.S.C. §2101(a)(2)(B)(i), from which it’s derived, also says it almost verbatim. Bye Bye Chevron deference, Dr. Shulkin.

The portion of subparagraph (B) that applies to this case states that, to be eligible for SAH, a veteran’s disability must be “due to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.“

Read that underlined portion again about three or four times and then slide on down to §3.350(a)-(h) and take a gander.

Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot.

The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot,

The special monthly compensation provided by 38 U.S.C. 1114(m) is payable for any of the following conditions:

(ii) Anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place;

(iii) Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place;

 The problem is simple. This is more earthshattering than Walker v. Shinseki and the §3.303(b) Chronic but not presumptive paradox. VA and the Courts blithely drove past it daily for 50 or 60 years and finally noticed one day what it really said. Bye Bye Savage v. Gober and 24 years of Fed. Circus precedence.

When what should our wondering eyes behold but Bob Jensen and his simplistic take on loss of use.

WHEN IS A LEG A FOOT BUT NOT A

LOWER EXTREMITY FOR LOU PURPOSES? 

Imagine working for the OGC (027C) and having to stand up for 30 minutes  at oral argument at the CAVC against someone like Kenny “Melifluous” Carpenter. Imagine having to defend the illogical- two definitions for one contingency that conflict-hell- they don’t conflict- they clash like a Congressional 18-wheeler t-boning a VA Jetta. This is light years past  VA’s post hoc rationalization games. VA’s tortured attempt to explain the meaning of what “is” is borders on Flat Earth Voodoo shit. Allow them city lawyers to explain…

The Secretary expanded upon that understanding in another subpart of § 3.350. Labeled
“extremities,” that subpart contains provisions that allow for hybrid benefits when a veteran has loss of use of a foot as defined by § 3.350(a)(2)(i) and additional loss of use of a leg. 38 C.F.R. § 3.350(f)(1). If loss of use of a foot did not constitute loss of use of other parts of the lower extremity for SMC, then surely it should not for SAH.

The provisions discussed above reveal that the Secretary’s proposed interpretation of section 2101(a)(2)(B)(i) is the product of a rhetorical sleight of hand. He asks the Court to determine that the term “loss of use” is severable from the words “lower extremities” in section 2101(a)(2)(B)(i) but not from “foot” in section 1114(l) and § 3.350(a)(2)(i), state that “loss of use
of . . . foot” is the same as “loss of use” in section 2101(a)(2)(B)(i), and reinsert “both lower extremities.” The Secretary’s interpretation alters the statute rather than clarifies it.

Saint Coral

Ruh-oh Rorge. VA speak with forked tongue? I always look for that defining moment when the scales of blind justice suddenly tilt inexorably in our favor. Bob Jensen must have had a shit eaten grin reading this on page 4 with yet fifteen more pages of similar beneficial explanations of what Congress, and not VA, intended…

The appellant’s position benefits from its simplicity. In his view, Congress defined lower extremity “loss of use” in the SAH context in the very sentence that contains that phrase.

Dilly Dilly!

I predict this panel decision, which is now no longer appealable to the Fed. Circus, will become one of the most salient precedents to be decided in this decade. The repercussions will echo for decades. It basically encourages Veterans who have been disenfranchised via a bogus ruling on LOU of their lower extremities to reapply – or better  yet-file for SAH. This way you can let let the VA rater make the determination that your brand new hurry-caine® with  3WD positraction constitutes LOU of lower extremities without so much as a c&p exam.  Dilly! Dilly!

Actually, this is a variant of the old ploy of applying for a 40 month VR&E training program for a paralegal when you are 70% for PTSD. They’ll never grant job training figuring your bent brain precludes it;  in the process they inadvertently have to admit that their decision is predicated on you being unemployable.  Unfortunately, one thing leads to another in VALand. In the above scenario it’s a tacit admission of TDIU. Bob Jensen’s decision says §3.809 is the controlling definition so from now on, file for SAH when you ask for SMC L due to LOU of the “feet”.

Loss of use of lower extremities

The VA’s Marie Antoinette-like wish for “Qu’ils mangent de la brioche” was not lost on the Court. It rarely is these days with real Justices being nominated and approved by Congress who genuinely and fairly rule on our claims. Of course, by the same token (as with the instant case here), overturning VA Texas-style necktie-party justice is nothing more than fishing with CBU-26s in a 100 gallon aquarium.

We live in interesting times. And that’s all I’m gonna say about that. Season’s Greetings.

 

Posted in Uncategorized | Tagged , , , , , , , , , , , | 2 Comments

A worthy noninvasive technology to detect liver diseases

Posted on November 26, 2017 by Laura

HCV METAVIR fibrosis staging:  My old Marine suffered mightily when he was subjected to a “blind” (not ultrasound or CT guided) liver biopsy given by a resident at a teaching hospital.  The resident had to make several passes to get a sample.

After 13 years of SVR status, the odds are good that he won’t need another liver puncture due to HCV. HCV residuals and HCV treatment (PEG-IFN-48 weeks) may require investigation in the future; because new technologies are being adapted, he need not suffer jabbing from another long fat biopsy needle.

The VA does not seem to promise veterans post-treatment cures or a lack of  liver disease progression even if a patient achieves SVR.  Patients are urged to take care of themselves, which is fine advice when they have the means and ability to do so.

The VA states (LINK to pdf): Achieving an SVR with HCV treatment improves clinical outcome. Liver fibrosis may improve (regress) after achieving an SVR. Patients with cirrhosis who achieve an SVR also have
reduced progression of their liver disease and reduced risk of HCC, liver failure, and death related to liver disease, as well as reduced all-cause mortality.

Image: The Royal College of Pathologists of Australasia

Liver biopsies, until recently, were considered the “gold standard,” but the VA and other medical establishments now appear to have downgraded their diagnostic usefulness.  Now they aren’t even a silver or bronze standard.

VA HCV treatment advisory dated 10/18/17. Title: Chronic Hepatitis C (HCV) Infection: Treatment Considerations screenshot from page 45. Click image to read whole document.

VA advises their providers, “Liver biopsies may be considered but it is invasive and limited by potential sampling error.”  I was pleased to see that the VA lists Magnetic Resonance elastography (MRE), invented by the Mayo Clinic (LINK), on their approved list.

Then and now

    from VA Liver Fibrosis webpage (LINK)

Liver biopsy has been the gold standard for the assessment of histologic changes in the liver. In the past, liver biopsy was routinely performed in patients with HCV, particularly before HCV treatment…

…Requirements: If a biopsy is necessary, it should only be performed when the information will be useful for optimal patient care and cannot be obtained in another way. Furthermore, biopsy should only be performed after written informed consent has been obtained.

Liver biopsy sampling errors versus Magnetic Resonance Elastography (MRE) briefly explained in this short Mayo Clinic video. Click to view on Youtube.

 

The good news is that if gut problems arise again, one need not avoid going to the doctor due to fear of a painful needle biopsy.

The VA may be in the process of purchasing this technology but there are non-VA providers in certain areas of the country;  DoD has one at Lackland AFB according to the map below.  (The VA has invested in other noninvasive technologies.)

Mayo technical article (full text): MR elastography of liver disease: State of the art

For locations (LINK) and information (LINK).

I like the fact that Mayo Clinic and other researchers are studying MRE applications in breast, brain, and other parts of human anatomy.  A safe, accurate MRE liver exam takes about 15 minutes.  Takeaway?  A state-of-the-art, painlessly derived visual map of the entire organ will result in better cheaper patient care.  Call David (if he’s staying put–which the WaPo reports may not be the case).

Kiedove

 

Posted in Uncategorized | 8 Comments

LZ CORK–THE JANUARY SANTA CLAUSE

Posted on November 26, 2017 by asknod

An interesting thing happened to our old friend Butch. As some may recall, he filed an Extraordinary Writ of Mandamus at the Court of Veterans Appeals asking for a bye on the Hamster Wheel Appeals process. He filed back in March 2015 and the Perfect Storm ensued. First, they found a 1980s address to misdirect everything to “plausibly”. Then they adjudicated about half of what he filed for and tried to lull him to sleep with a TDIU plus P&T. I stepped in and applied the fire hose for CUE, §3.156(c) and everything but the kitchen sink he’d informally complained of  at his 1970 10-minute C&P exam.

The Delay Game Perfected

VA kept asking for new 526EZs, more 4142s-basically anything to throw sand in the gears. We snagged an 85 IQ DRO who doesn’t even know her own powers to decide inextricably intertwined claims in the first instance… per the Procedures Manual… that comes attached to  the Segmented Lanes Model. Yep. That about sums up the tenor of how this claim went. I will say for the record that I’ve never seen a body’s eyebrows crawl clean up to the hairline before we went to that DRO review. It was a Kodak moment. 156 pages of vintage STRs sitting at the NPRC in St. Louis for 45 years because VA never went back and retrieved them. Brand new service department records never associated with the claims file have a way of wrecking your Christmas bonus projections. Butch finally blew an ass gasket and filed the Writ. Few of us could blame him considering they denied his IHD following his amputation with the nexus letter right there in front of them. This was blatant top sheeting at it’s finest hour. Personally, I think it’s me they don’t like. Law Bob Squarepants gets pretty much the same treatment at the Detroit Puzzle Palace.

As we all know, your chances of winning an Ex Writ are slight better than getting hit by lightning while waiting to cash in that record winning Powerball  $985 million ticket. Actually, maybe worse. So few have been granted, it’s hard to say statistically. What we do know is that a Writ based on delay will light a fire under the OGC’s ass like you won’t believe. And sure enough, the mea culpas came tumbling out. On the 30th day the sackcloth and ashes were donned and the miscreant Assistant Veterans Service Center Manager (AVSCM) was trotted out to swear by all that’s sacred at Fort Fumble that Butch’s pile of disagreements would be ready for the three holy signatures by January 27th, 2018. We shall see.

About the only thing I see that gives me a glimmer of hope is what Judge Allen intoned at the end of the denial for retaining mandate:

“Of course, if the Secretary were refuse to act[sic], petitioner would be within his rights to return to this Court seeking an extraordinary writ with respect to such inaction.”

Long CAVC Order 11-13-17

I’m expecting a slew of 0%s but in our case, we don’t have to drag in reams of proof for the interim Fenderson Ratings game. In most CUEs, they willingly grant their stupidity and promptly assign zeros across the board as we rarely have corroborating intercurrent medical records to prove the level of disability. Here, we have a lot of shrapnel that can’t be faked; an eyeball with nine little chunks of steel and rocks. A lens missing for decades (aphakia)-even chloroiditis. It’s like carrying your medical records everywhere you go. The DRO’s plaint was “How are we to fill in the ratings percentages over 45 years without proof?” My answer was  ” Elementary. X ray him.”  Something was lost in translation because they had refused to do so for almost two and  one-half years. First, they looked for healed broken bones instead of metal. Next  they ignored where it was and refused to x ray the claimed areas. I guess the Coach will only see it when she finally believes it. If it continues, I’ll file Butch’s next Ex Writ. I took out a hunting license for the CAVC and I can’t wait to find out what the size restrictions and the bag limits are.

Our asshat friends. Jez, didn’t they get enough of them in service?

We pray this, for the most part, will be over on the 27th of the new year. I can’t see them funning him for much longer. I’ll let a room at the Hotel Alexis across the street and torment them daily to finish it. So mark your calendars and stay tuned. Same Bat Time . Same Bat Channel. Happy Holidays, folks. We have much to give thanks for …like that spunky new Fully Developed Appeals law. I reckon the DAV asshats and the rest of the VSO Tribes will think they’re too cool for school until the statistics start coming in with a .000 Appeals batting average at the BVA. Ah, if it were only that simple…

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

 

 

Posted in Extraordinary Writs of Mandamus, KP Veterans, VA Agents, Vietnam War history | Tagged , , , , , , , , , , , , , , | 11 Comments

HI-HO, HI-HO, IT’S OFF TO COURT WE GO.

Posted on November 25, 2017 by asknod

 

 The CAVC has bean bery bery goot to me. Now there are 39 of us at the Court.

 

 

 

Posted in CAvC HCV Ruling, KP Veterans, VA Agents, VA Attorneys | Tagged , , , , , , , , , , | 10 Comments

A WARM FUZZY THANKSGIVING STORY

Posted on November 22, 2017 by asknod

Airman Basic Johnny Vet
Lackland AFB Texas 1967

As most of you know, nothing gives me greater pleasure than to beard the VA lion in his own den. This animosity arose in 1994 when I filed for an Agent Orange disease and VA informed me I’d never vacationed in the Republic of South Vietnam even one moment-let alone two years. They didn’t call me a liar outright. It was far more nuanced than that. Ever since, I have taken extraordinary pleasure in making sure they understand what it meant to be maligned in such a fashion. Each of you who brings his or her sad tale of VA disenfranchisement to me allows me to right your wrong and remind them of their error in mine. I figure conservatively that it has already cost them well over 10 million dollars and as much as $400,000 every month. If they had granted my claim then, I wouldn’t be writing this.

Today, I bring you a really poignant tale in the same vein about a fellow Vietnam Veteran (Air Force, of course) whom I was privileged to help. His travails, and more specifically, his wife’s, have recently culminated in a long overdue r(1) award. This will eventually have to be revisited for the final r(2) in the future but that will be another story.

As Vietnam Veterans, we all get the Agent Orange presumption for certain diseases such as Coronary Artery Disease (CAD), Parkinson’s and a host of other nasty cancers and bugs. I was told yesterday there’s a particularly nasty little vermin called a Liver Fluke that we now have to consider as well. As Mr. and Mrs Johnny Vet wish to retain their anonymity, I will address them is John and Jane.

Johnbo before his heart attack

Johnboy enlisted in 1967 just in time to attend the Southeast Asia Olympics. He bounced all over the south Pacific from Taiwan to Tan Son Nhut and was duly granted what we call “Nehmer” status-or one who served on land in South Vietnam. This gave him protection if he ever had the misfortune to contract CAD. He did. He had a nasty heart attack in late 2011 which left him with severe anoxic brain injuries-but more about this later.

After service, John signed up for the Montgomery GI college Bill and obtained an education in respiratory therapy and started his own business. He was wildly successful and grew the company from five to over 200 employees-some of whom were nieces and nephews. He was always engaged in some pastime in the garage from reupholstering things for the house to woodworking. In that time he and Jane also raised three daughters. It was an idyllic time for them and they eventually retired to Arizona for the weather and golf.

After Johnny’s heart attacks and subsequent brain injury, the real battle began. VA was paying John for 100% related to the heart injury as well as the ensuing dementia at the A&A rate plus a bump for the extra disabilities- or what we call Special Monthly Compensation at the (m) rate. This didn’t even begin to cover the costs to Jane from the brand new need for additional rehabilitation. She eventually had to pick up the flag herself and continue after she realized the sham help offered by her VSO-Vietnam Vets of America. They were deeply engrossed in Boldly Going Nowhere on Johnny’s behalf once they obtained his initial ratings.

In 2014, Jane was apprised of an analogy between John’s brain anoxia and Traumatic Brain Injury (TBI). Although TBI is an imperfect fit as a VA analogy to anoxia, she knew in her heart that John was entitled to a far higher rating for his enormous subset of disabilities. She proceeded to file for Special Monthly Compensation (SMC) at the (t) rate. VA allowed her to blindly pursue this fully well knowing SMC (t) was only permitted to Veterans who served after 9/11/2001. As expected, she was denied any higher compensation even though John was quite obviously entitled to a far higher rating than SMC (m).

Note he wasn’t wearing white socks like old codgers.

Our paths crossed after she spotted some of my blurbs on a sister site at hadit.com.  Around a year or so later, I attained my accreditation and agreed to help her sort this out. VA continued to obfuscate and dissemble pretending they didn’t understand the thrust of our argument. It finally took a filing for Parkinson’s to create that perfect confluence of diseases in order to qualify but it should never have come to that. VA was determined- to put it mildly- not to grant r(1) by continuing to use the salacious SMC (t) argument. It took eleven pages of  a rather heated (for me) DickandJanespeak powerpoint presentation to get the point across. After rereading it now, I had no idea I was a) so loquacious; b) redundant and c) obnoxious. Apparently I/we got our point across because in short order, they agreed with us and granted all we asked for and perhaps even then some.

The final r(1) argument: R1 redacted

The VA mea culpa CUE decision:   r1 redacted

I find it incongruous that Mrs. Vet was installed on the hamster wheel of VA justice as well as forced to navigate this labyrinth of stupidity when VA fully well knew the entitlements were due and owing. Even though I couched this in terms of requesting a rexamination of the r(1) denial, VA donned sack cloth, anointed their figurative foreheads with ashes and fell on their CUE sword by blaming it all on some Phoenix Regional Office FNG GS-8 who should have known better. I don’t buy that but then I don’t have to. We won. Sadly, it took six long, wholly unnecessary years to obtain a successful ending. It reminds me of mating elephants ( takes place at a very high level; only accomplished with a bevy of screaming and bellowing and the inordinate amount of time required for gestation).

Well, gooooolly.

Boy howdy. Is that a wonderful Thanksgiving story or what? Thank you John and Jane for allowing me to be the one to bring this to fruition and share it with other similarly situated Veterans. Cupcake and I took a u-turn coming out of Texas specifically to make time to meet these wonderful folks on our way back from Spring NOVA. It really puts the frosting on a win if you get to put a face to a name for some of these deserving folks. I almost wish we had a real court system with VA so we could present these situations in real time. That Perry Mason moment is a hoot. You’d get to turn to your figurative Hamilton Burger-VA opposite, roll your eyeballs, shrug your shoulders in a nonadversarial, paternalistic manner and  say  in your best Gomer Pyle voice “Well, Goooooooolly!”

Happy Thanksgiving to you all and I hope you are all as blessed as we are with  opportunities to help our fellow Veterans-or anyone less fortunate for that matter.

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

 

 

 

 

Posted in Uncategorized | 12 Comments

THE HUMOR GENE

Posted on November 19, 2017 by asknod

Go Navy! F-18 Art @ 31 Angels

Every once in a while I get an email telling me my blogs are too droll and pedantic. I get that. I do try to inject that quintessential element of levity in between these legalistic tomes but keep in  mind this site was set up to be a classroom of “how to” in DIY claims. Just because I’m street legal as an advocate is no reason to cease offering “hypothetical” solutions without being legally liable for foolish advice. Having a blog format prevents any Tom, Dick or Harry using my site to offer advice that is harmful. That is the only unique thing that sets me apart from other Veterans Blogs. 

Now, with all that said, let’s dive in to Pop Smoke’s most excellent cartoons I’ve been hoarding.

Thank you Dennis. Dilly!Dilly!

And from the Francis White collection, a mind in the gutter…

Dilly Dilly.


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VETERANS DAY 2017–SKIP THE LIGHT FANDANGO

Posted on November 11, 2017 by asknod

A lot of water has passed under the bridge for Veterans since the 2016  Vets Day parades. Many hopes have been dashed for some resolution on AO presumptives (and presumptees). A week later our spirits rejoice at the thought of  a ‘reconsideration’ glimmer of hope from VASEC “Mermaid” Shulkin. Any increase in AO bennies isn’t going to bust the Gumbmint piggybank. We’re dying far too fast to make an appreciable dent in it. At 849,000± souls, we’re getting as rare as hen’s teeth. Don’t believe all those ‘Vietnam Vet’ hats, folks. 

I always like to recall Gene Hackman’s line to Superman “Promises were made and gifts were exchanged”. In our context, we held up our right hand and made a few promises before the obligatory “I do.” When disability due to service causes us to once again raise our right hand in supplication, the ‘promises were made” clause becomes mighty small print requiring magnification. I’d like to think I have helped illuminate and magnify a few statutes for my readership over the years. I look forward to continuing that hallowed calling for as long as Howard will permit me.

Granted, the Houses of Congress are frothing at the mouth to appease Veterans with inane new legislation but they’re going into it assbackwards. What’s next? A law guaranteeing a Vet a lifetime supply of 3-inch wide yellow ribbon and unlimited oak saplings? Compensation reform from the Veterans Benefits Administration is uppermost in all Veterans’ minds I talk to. Note I didn’t mention VSOs, either. They seem copacetic with the current fustercluck. Hell, that’s why NOVA was invented. We have a broken system running at 78 RPM cranking out denials helter skelter and shoveling them into the BVA warehouse. There they molder for untold years. In that interval, Vets lose their houses. Marriages and families disintegrate and suicides reach epic proportions. The new BVA “Fully Developed Appeals” program merely accelerates this production-line slaughter faster.

Sgt. Ed Dvorak (1968) LRRP

This year Cupcake and I were blessed to be able to drive to San Antonio for Spring NOVA and meet some of my Veterans heroes enroute. Butch Long,  Bob Lockett, Malcolm “in the Middle” Melancon, Ed Dvorak and Donald F. All these gentlemen have touched my life and now I have the pleasure of representing some of them. They have entrusted to me the job of recouping those Govt. promises made to them. Keep your eyes peeled for a mention of Donald soon. His spouse has finally prevailed on r(1) after a long, grueling six-year battle. I gave her a few pointers but the brunt of the work was done by her. I keep telling you guys you’re outclassed by some of the most tenacious women I’ve ever encountered in this business. Mrs. F. is not someone I’d like to butt heads with. Look up the past tense of  ‘determine’ in the Oxford English dictionary and undoubtedly there’s a picture of her sitting on a combat-armored bulldozer with a gunsight for a hood ornament.

Mostly, I’d prefer to thank  a non-Veteran (Cupcake) for where (and why) I am even here today. I’m not just any Joe Average Veteran. Shooo-doggies no way. I won the Powerball Wife Lotto. She, as I mention, is not a Vet but is the closest thing there is to, or can be, for me.  I wouldn’t be an accredited VA Agent now if not for her urging. I probably wouldn’t have any children. Actually, the thirty year list of ‘probably wouldn’ts’ is too long to discuss here. Suffice it to say, she has the moral stamina to have been an 11 Bravo.

With all that said, I decided to give myself a present today. I’m putting in an application to be accepted to practice at the Court of Appeals for Veterans Claims (CAVC). I don’t think I’ve been that unduly naughty in my CAVC synopses here or stepped on any current Judicial Toes over the last eight years to warrant being turned down.  Ahruuu, you say? I guess I’ll just have to keep my fingers crossed they don’t find out I lied about that 2 carat cubic zirconium on Cupcake’s wedding ring.

As always, thank you -everyone of you- who were so selfless as to relinquish a portion of your life ensuring  ‘that our flag was still there’. Now, doesn’t that sound a shit ton better than “Thank you for your service”? I rest my case.

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


 

Posted in All about Veterans, KP Veterans, VA Agents, VA Attorneys, Veterans Day, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , | 3 Comments

Veterans’ Day in DaNang, 2017

Posted on November 10, 2017 by Laura

Whether veterans are celebrating Veterans’ Day Friday or on Saturday, I hope the holiday is harmonious despite the awful strangeness of having President Trump honor veterans while in DaNang.   It seems like the last place on Earth where our president should be on this day but apparently the Asia-Pacific Economic Cooperation Summit is important to the oligarchies of the attending nations. 

President Putin is also part of the smiling cast of the characters attending the meeting. What terrible things will the press read into this handshake? 

I’m weary of reading about Russians unless it has to do with Russian ballet and music which is generally wonderful.

Photos are from Voice of America (LINK). 

Danang, Vietnam, Nov. 10, 2017

NPR: “Members of the 9th U.S. Marine Expeditionary Force go ashore at Danang, South Vietnam, on March 8, 1965. Assigned to beef up defense of an air base, they were the first U.S. combat troops deployed in the Vietnam War.” 

That air base (and others) became badly contaminated with Agent Orange however we cleaned it up before all the luminaries landed at the DaNang International Airport (NPR LINK).  Charles Bailey is an expert about the AO situation in Vietnam (LINK).  In an interview with PBS, he said that ” Da Nang was very toxic. It was 300 times the maximum permitted level for dioxin in the environment.” Bien Hoa needs to be reclaimed next because the fish are contaminated from AO and “new generations are suffering from debilitating muscular and neurological problems believed to be caused by Agent Orange dioxin.”

A cloud over this Veterans’ Day is the public clash between Sen. John McCain and Pres. Trump.  McCain is probably the best known Vietnam War POW;  all of the POW veterans, regardless of the conflict, deserve special respect.  They were tortured and starved besides confined.  His brain cancer diagnosis is troubling enough but I can’t help wondering if Agent Orange molecules are partly to blame for this and his previous cancers.

There are a lot of good military stories online today but the irony of the Vietnam meeting really hit our home.  As the old peace poster declared, “War is not good for children and other living things.”

Kiedove

Photograph: McCain waiting for the rest of the group to leave the bus at airport after being released as POW
Record Group 428
General Records of the Department of the Navy, 1947-2004
Citation: 428-GX Box 262 N 11556665
Rediscovery #10473
10473_2007_001

 

Posted in Agent Orange, All about Veterans, Food for thought, General Messages, Guest authors, History, Inspirational Veterans, Uncategorized, Veterans Day, Vietnam Disease Issues, Vietnam War history | Tagged | 4 Comments