Why I’m Still on a Mission

Posted on November 1, 2024 by Wesley McCauley

Alex has been on me for quite some time to share a story with all you fine folks. So finally, here it is. My name is Wes and I run United Veteran’s Disability. I have been accredited since September of 2021 and also practice at the Veteran’s Court. I stumbled upon SMC by accident. I had helped get a navy veteran from where I was living obtain TDIU. I had heard of VA Form 21-2680 before, but truthfully had no idea what it did. I asked him if he wanted to submit it and see if the VA would give him a hundred bucks or so extra a month. He said sure. So we submitted it, got denied, and I got it granted on a HLR. But, it wasn’t any chump change. When I saw how useful this form is, the rest is history, and I have since learned about SMC any time I can, and became rather knowledgeable. I have left out a lot of finer details in Denise’s case on purpose. I would encourage you to purchase her book (no financial incentive for me, by the way) to hear in her own words the basis for the denial. So, without further ado, I give you the story of the oldest continuous appeal I have ever seen, and why I am still on a mission.

I guess I should take a moment to tell you how in the world we got here. I began representing Denise on July 12, 2022. That put me at the ripe age of 23 then. By then, Denise had been litigating this case, continuously, for longer than I had been alive. She had been previously represented by some heavy hitters in the VA world. What I thought I could do better than them? I had no idea. I didn’t even have a paralegal, let alone umpteen attorneys on staff! As you read this, I hope to convey to you that the American Dream is alive and well. I don’t know who said it wasn’t, who said the little man can’t get ahead, because I am living proof. Denise is living proof. You are living proof. It’s just not true. I don’t have decades of experience, but in my short adult life, I have lived the American Dream. I have represented the best Americans this country has to offer, have helped change people’s lives, and have been able to make a living doing that. It just doesn’t get better than that!

That reminds me, how did I even get connected with Denise? I browse the Court’s recent rulings Monday-Friday. You have to if you claim to be “up to date” in any area of law, this one in particular. I noticed Denise had filed a Petition with the Court seeking action on what she called her “decades old” “egregious error”. I think God sometimes just puts people at the right place and at the right time. So, I sent Denise an e-mail asking if she wanted some help (in hindsight, there is probably some ethics violation there, soliciting clients, or something like that, but hey, I could tell she needed help!). We exchanged a few e-mails, spoke by phone, and agreed on representation. Quite honestly, the more Denise spoke, the more I was thinking yeah right. There is no way what she is telling me is remotely true. Someone would have put a stop to this by now. Well, to my shock, it was all true. Years and years of countless decisions, ignoring evidence, or just remanding the claim for something pointless to delay a final decision. My first order of business was to put the file in order. Everything that had happened from 1996 until the present. As of this writing, as best I can tell, there have been over sixty-three decisions concerning this case. I put them all in order and began reviewing them all. When I was done reading, disgusted would be a good adjective. By this time, Denise had already written a book on the VA appeals process, Stall, Deny and Hope They Die” – The VA’s Unwritten Policy: …The Story of One Widow’s 19-Year Battle with the VA.

Okay—now that you’re up to speed, it’s time to get to work. Denise came to me just after a Supplemental Statement of the Case (SSOC) had been issued. In VA speak, the Board had remanded her claim (by this point, it was obvious to delay on a final ruling). The Board wanted some records that they’d already been told didn’t exist due to the age of the records sought. Back in the day, when the Board remanded a case, the Regional Office would do whatever the Judge directed and make a new decision. If the decision was against the claim, you got a SSOC with a two-sentence statement on why it was still being denied. Then after 30 days, it would go back to the Board for a new decision. The Board could again remand, deny, or grant.

I got together an extremely thorough brief. It laid everything out, top to bottom. I want to share my opening statement.

“It is, however, regretful that this appeal has strayed so far from its original solemn meaning. That is, an American service-member died as a result of his faithful service to our county. Out of all the facts in this case, that is likely the only undisputed fact. Yet, it is the least discussed fact.”

To this day “Judge” Harvey P. Roberts has never acknowledged that. I use the term Judge very loosely. By this time, I had reviewed the entire file—years and years of litigation. I laid out every fact to the Board. This was crystal clear. I had laid out everything. No way they were escaping this.

Well, you haven’t met Judge Roberts. See, one of the problems that plagues the VA system is remands. A remand isn’t a final decision. It isn’t a final yes or no. Because of that, you don’t have the right to appeal a remand to the Veteran’s Court. What this means is that that the Board can theoretically (or actually do given this case), keep you on the hamster wheel in perpetuity. That is just what happens here. Despite the evidence being clear, the Board remanded the case once again to obtain records from an old Court proceeding. Records the Board had already been told were destroyed long ago. It was a big let-down. I had put so much work into this brief. I really thought once they had all the evidence laid out, there would be no choice but to grant Denise’s appeal. Instead, the Board made up a reason to string things along.

Fast forward a few months. Yet again, we are getting another SSOC. I was able to obtain a letter from the Clerk’s office that the Board had previously been mailed and e-mailed the same records they remanded the case again for. So, I submitted that as evidence to show that this game has to end at some point. The case worked its way back to the Board. I had thought a lot about filing a Motion to Recuse Judge Roberts off and on for some time. Denise had often mentioned it to me. I always wanted to just stick with the facts. Discuss the merits of the case instead of point fingers. Finally, I did it. I filed a Motion to have him recused and taken off this two-decade old appeal.

In November of 2023, I filed that Motion. The very next decision from the Board came in March of 2024. The appeal was granted. So, there you have the condensed version. I began this journey with Denise, one that she had already been on for decades, in July of 2022. In March of 2024, her appeal was, finally, granted.

Redacted Motion to Recuse

Redacted Board Grant

This case is certainly one of my most memorable cases. Whenever I go to conferences, I usually have a few folks who want to hear the story. Every time I tell it, it sounds just as unbelievable as when I first got involved in this case. I am extremely thankful Denise allowed me to bring it to an end for her, and even more grateful for her diligence in advocating for what she knew to be right.

That may bring an end to this case, but I’m still on a mission. The truth is, there is no shortage of veterans, widows, and survivors who are wronged by the VA on a daily basis. There have been a lot of changes within the VA in recent years. The Legacy system, even with appeals still pending, hasn’t been in effect since February of 2019. Then there is the “AI Revolution” we have up and coming. The VA is implementing a lot of AI to help manage its caseload. However, I can say with confidence, at present, this is hurting veterans. Claims are being improperly closed. Employees are relying on AI to do their work instead of actually reviewing files. Things may be changing, but the system is still strained.

Let me put it to you like this. We have a whole generation of Vietnam veterans that are turning 70+. Rightfully so, those veterans are looking to the VA and filing claims for their end of life care. As time goes on, these veterans are being more and more disabled and they are turning to the VA to care for them by filing claims. I have had several Vietnam veterans who have filed their first ever VA claims within the past year. Then, we have the PACT Act which brought in over 1.3 million claims since August of 2022. Oh, by the way, did you know that we have also been at war since the early 90s? Anyone saying the influx of claims we now have is a surprise is “dead from the neck up”. Anyone could have seen this coming from miles away.

What this poor planning causes is longer wait times, poorer quality decisions, and more appeals. I guess I should also be clear on who I am blaming here. Like any organization, leadership has a top-down effect. The Regional Office employees I often deal with are great folks. I would wager to say that the majority of them want to help veterans. Heck, most are veterans, too. However, when they are being pressured to make x number of decisions in a week, instead of make x number of quality decisions in a week. That is a real problem. The results are people like Denise get left behind.

That’s why I am still on a mission. Our nation is the greatest nation on Earth, and we have so many to thank for that. One of the best parts about my job is the opportunity to represent so many ordinary people who have done such extraordinary things. These people are ordinary Americans, who grew up in ordinary homes, with ordinary parents, but they chose to do extraordinary things to protect our nation. Denise’s husband is one example among millions. If you are reading this and are a veteran, you are among those millions. We owe you a debt of gratitude beyond what words can describe. The government has promised veterans a square deal. We will take care of you in exchange for your protection of our country. Until that promise is 100% fulfilled, you will find me, still on a mission.

New VA Neuropathy Test. Order through your local VAMC prosthetics department.

The Supreme Court first articulated the pro-veteran canon in 1943, stating that we must “protect those who have been obliged to drop their own affairs to take up the burdens of the nation”. See Boone v. Lightner 319 U.S. 561, 575 (1943). That couldn’t be truer today. We have millions of veterans who have dropped their affairs to take up our burdens. I believe I have had a unique opportunity to see the older Vietnam veterans age and recall their stories, while also seeing young men return from the war on terrorism. It gives a very unique perspective. Regardless of the generation, our nation has always been worth protecting and has always had those willing to “drop their own affairs”. That tells you we are living in a great place, despite what anyone on the news would tell you.

To every veteran reading this, I am eternally grateful for your commitment.

Godspeed.

Biography

Wesley is an accredited representative and is also admitted to the U.S. Court of Appeals for Veterans’ Claims. Wesley’s entire practice focuses on “putting Veterans and their families in charge”. Wesley has litigated cases at the Regional Office, Board of Veterans’ Appeals, as well as the U.S. Court of Appeals for Veterans Claims. He has handled everything from hearing loss claims to extremely complex claims, such as this one. His practice focuses on Special Monthly Compensation claims for our most severely disabled veterans.

While working as the Operations Lieutenant for his local fire department during college, Wesley found his love for veteran’s law. Wesley was born and raised in rural south Georgia, where he continues to enjoy living. Many of his friends call him a “true southern gentleman”. While attending Valdosta State University, a community also home to Moody Air Force Base, Wesley saw the lack of quality representation available to veterans and their families—even in a military community. This led him to become a VA accredited representative, seeking to serve veterans and their families. Following his time in the Fire Department, he founded United Veteran’s Disability in September of 2021.

Wesley has represented some of our nation’s finest, including a World War II POW, combat veterans, Camp Lejeune veterans, submariners, Vietnam widows, Coastguardsmen, Infantrymen, FBI agents, and even VA employees. Wesley says each have a common thread, “love of country.” He has successfully recovered millions in benefits for veterans and their families. His largest single recovery totals over $525,000 in backpay. He has handled both medically and legally complex claims. Wesley believes in the importance of maximizing benefits for veterans, and his clients are regularly awarded Special Monthly Compensation to help compensate veterans above the 100% rate.

Wesley is a sustaining member of the National Organization for Veterans’ Advocates, a member of the CAVC Bar Association, Military-Veterans Advocacy, and is a lifetime member of the National Eagle Scout Association. Outside of his practice, Wesley enjoys traveling with his wife, especially visiting our U.S. National Parks. Together, they plan to visit all 63 U.S. National Parks.

Author’s Note

Yes, Denise has given me permission to share her name, book, and case details publicly. Additionally, I do not mean to disparage Judge Roberts. It is my genuine belief he had a personal bias against Denise, for whatever reason. Either that, or an inability to grasp the legal concepts and applicable law associated with her appeal. That is evident by my review of over sixty decisions in this case, which includes multiple Court remands. Regardless, I believe it speaks for itself that the very next decision following his removal from the case was a full grant.

Posted in Uncategorized | Tagged , , , , , , , , , , , | 9 Comments

BVA–OSA-25 OR 6 TO 4

Posted on October 18, 2024 by asknod

This is an outlier for me. I normally don’t dabble in OSA claims but Carey is a son of a dear friend, as is his brother Brandon, both of whom I represent. So, if you’re gonna play VA poker against a foe who will do anything to deny you, one thing you’ll need is a super duper killer IMO. What better place to get one than Mednick Associates? I’ve been using them since 2016 and am still batting .1000. 

This was a long time coming. When I say ‘dear friend’, I mean my good friend Bruce Almighty.  He’s the one with a greenhouse who inspired me to go for one. Bruce was a four-tour Dustoff Medic. Carey, his son, was a Gyrine who did a couple of tours in the Sandbox and came home with a few chips and dents. He’d filed over the years and got the Bum’s rush more often than not. I took him on back in ’21 and began fixing all the things other folks had done wrong. He retired in ’22 finally as a Captain. Cool beans

I got him up to 90% but his OSA claim was still in the developmental stages of denial when I started. Once it was denied, I went to Mednick for the IMO. Believe it or not, lowly FNPs were denying it left and right. Not once, but twice and thrice. A virtual parade of doctors, psychs and them FNPs (family nurse practitioners) kept coming up with new reasons why this was not service connected. In legal terms, this is called post hoc rationalizations to re-mansplain what appears to be illegal.

The best argument was one thrown out by a real MD saying he was probably overweight while he was in the Marines. Yeah, right. They’d have that ol’ boy strapped to a Pelotron 24/7 and be starving him to death until he got to the magic BMI number. Plus he’d risk losing rank and promotion, too. But seriously. It would be in the STRs… and it wasn’t. Helloooooo?

Funny thing is VA had commissioned their own peer-reviewed study on the correlation between PTSD and OSA with or without taking weight into consideration. VA’s pukes neglected to mention that. Because VA did the study, it follows that they have constructive possession of it so they should know. If they say there’s no connection, then their IMO is worthless and they sure as shit didn’t read our IMO listing the cite in the footnotes.

I had the task of defeating four IMOs by their QTC/LHI gomers. One even occurred outside the window of the AMA rating decision parameters but it didn’t faze them a bit. They threw it in anyway. If I didn’t know any better, I would have sworn this was a setup and even Ken Carpenter couldn’t win it. They were just going to keep on throwing out post hoc rationalizations regardless of how preposterous their IMOs were. About then, I’m guessing the next IMO salvo was going to involve an alien abduction nexus.

When what should my wondering eyes behold this morning but Carey’s win. The VLJ marched through each bogus IMO and dismissed them like annoying flies. This was exactly the punji pit I laid in the Appeals Brief.  When the dust settled, the only nexus left standing was ours. In this game, that’s no small feat. Your IMO has to have a lot of ingredients to pass muster. For instance, if your IMO Huckleberry doesn’t state specifically that s/he reviewed the entire claims file, VA will say their Female Nurse Person did and therefore her $39.95 opinion is far more probative than your Board Certified MD/ Neurologist’s ruminations.

The world famous barrel protector… a rubber.

So, without further ado, check out this decision. It began with the 526 on September 7, 2020. It ended today. Not bad for a OSA VA decision. Only four years and seven months-almost a new VA land speed record. Read ’em and weep, Denis.

redact OSA legal brief

Redact BVA OSA win 10.18.2024_Redacted

 

One small step for a Vet. One giant leap for Vetkind.  If this only helps one Vet, it was worth it.

Posted in BvA Decisions, OSA, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , | 1 Comment

VETERANS ARE LOSERS AND SUCKERS?

Posted on October 18, 2024 by asknod

I know. All the Karen’s will come out from under their rocks and tell us this is untrue. But it isn’t. It’s very easy to verify it happened. Without beating a dead horse, elections do matter. Be sure to exercise your right to vote this November. Allow me to enunciate once again, I don’t advocate for one candidate or another. We live in America and are free to chose those we wish to represent us. I wouldn’t even presume to tell anyone what they should think…or do. 

I received the following from a fellow heavily decorated  Viet Nam combat Veteran. I have no idea what his political affiliation is and don’t wish to. What I do know is Ed loves America as much, or more so than me.

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

Signed,

Not a sucker or a loser.

 

Posted in All about Veterans, Food for thought | Tagged , , , , , , , , , , | 8 Comments

EXPOSED VET RADIO SHOW 10/10

Posted on October 8, 2024 by asknod

John, Ray and I have a great show lined up for you folks on the Independent Living Program (VR&E ILP) or what’s left of it in this day and age. I look forward to delivering the new details on my greenhouse grant.

 

The call in number is still:

(515) 605-9764

The computer link (so you don’t have to get a crick in your arm from holding the phone up to your ear for an hour is:

https://www.blogtalkradio.com/jbasser/12375422/connect/28111bea08c2f6537a8dcf3106cc5b3e1b14102b

We hope to see you there assuming  H. Milton doesn’t wipe you off the map.

P.S. Just to set everyone’s mind at ease (you know who you are), we promise not to traumatize you by discussing the upcoming election or remind you that the below is debunked rumors and propaganda. https://www.snopes.com/news/2024/04/18/trump-soldiers-suckers-losers/ 

Posted in Exposed Veteran Radio Show, Food for thought, Independent Living Program | Tagged , , , , , , , , , , | 1 Comment

ELECTION 2024–TAKING AMERICA’S PULSE

Posted on October 6, 2024 by asknod

In the sixteen years I’ve been writing this blog, I’ve witnessed America seemingly go off the rails. As I abhor religion and politics on this site, I have studiously avoided it for a reason and strive to concentrate exclusively on Veterans and their trials and tribulations at the hands of the VA. Of course, in the same vein, I’ve also watched the VA equally go off the rails, too. One would think a one hundred year-old compensation/pension program devoted entirely to Veterans could only improve with age like an obstreperous young cabernet maturing. One would be mistaken for thinking that about the VA… and now America.

In my seventy three years, I’ve watched my fellow countrymen spit on her servicemen when they returned from Viet Nam (yeah-it’s two words). Sixteen years later, I witnessed those very same countrymen, and probably their offspring, graciously rethink their former, harsh sentiments and welcome us all home. Call it the Yellow Ribbon Revelation. I’d like to find the idiot who coined that abomination “Welcome Home!”, stand him up against a  wall and invigorate him with a few blasts of my new Taser.

I’ve lived long enough to see anger and animosity rise to unheralded levels and rival political parties come to blows in the streets. Think back to the DC Moratorium March in ’68’ or May of ’70 and Kent State. Who in their right minds could ever conceive that some    of us in 2024 would cheer on those who flew planes into the World Trade Center and murdered 1200 Israeli partygoers simply because of their religion? But that is where we find ourselves.

America is an amalgam of virtually the entire world’s citizens by now. Few of us, with the notable exception of our native aborigines, can claim they’re truly American and speak to what our collective wishes are. Yet, watching the news, one might think the Mayflower krewe or the RHOW (Real Housewives Of Washington, D.C.)  are the arbiters of this subject. Worse, the idea of the correct mandate to carry America’s values into this new 21st Century seems to be foremost on each of the competing political parties’ tongues. But riddle me this. How can censoring comments on X or Facebook be protecting democracy? Should we just shuck the First Amendment?  How about the Second and just get rid of guns while we’re at it? Where do we stop? Oh Shit, oh dear. There’s twenty five of them pesky amendments.

America used to be a ‘live and let live’ country. Different strokes for different folks. It also used to express a sentiment closer to ‘all for one and one for all’. Somewhere in the last quarter century, that sentiment has evaporated and the residue left is pure poison. Lies fall from lips as easily as my Pickles drooling at the prospect of some heavy creme in the morning during coffee.

Without taking sides, mind you, I frequently hear the refrain that former President Trump called America’s Veterans ‘losers and suckers’. That phrase has been proven to be bogus yet the lefties continues to tout it as Biblical Truth. This is not to say that President Trump or any of his acolytes are morally superior, occupy the high ground or don’t speak with forked tongue. They, too, can come up with some quality Whoppers far bigger than Burger King™ like the Haitians eating cats in Springfield, Ohio.

I’m certainly not pointing fingers here but when the Snopes verification site is working overtime just to keep up with sorting out all the political mistruths, it’s time to look at ourselves and our biases with a critical eye. What could possibly be gained by propagating lies and untruths to confuse voters? Most would find it a sign of desperation if you have to lie to convince them. As Americans, we should be striving to close ranks and defend this marvelous country of ours. The media, however, paints the Conservatives as an “existential threat.” Newsflash, folks. Look at western North Carolina in the aftermath of Hurricane Helene if you’re searching for a definition of an existential threat. And if FEMA don’t get off their poor, tired bonus-calloused asses pronto, it’s gonna be the past tense of existential.

Without allowing my sentiments to color your thinking, how many of you can look in the mirror and say “Gosh. The last four years have been absolutely suuuuper. My 401K is fat and sassy. I’m Greenin’ it drivin’ my $120 K Tesla. There’s rechargers on every corner. The cops killed George Floyd and the BLM idiots zealots tried to burn downtown Minneapolis. Good thing we defunded the cops’ asses.  Eleven million illegal immigrants with no immunization records (or any records) just sashayed across the border and we don’t have a clue who they are or what nationality they hight. Top drawer Universities in the Northeast are encouraging their students to actively hate Jews and cheer on terrorists who seek our country’s downfall. World War III is brewing in the Mideast and Ukraine. I’m broke but boy howdy, I’m sure glad Trump didn’t win! Imagine what kind of existential hell it would be like if he had. I want four more years of this.”

You, collectively, as American citizens, are free to associate with those you believe are going to make America great again or keep the status quo exactly as is. You can have your beliefs without denigrating your fellow Americans’ choices creating ill will. When the level of vitriol reaches a boiling point such that crazy people feel emboldened to try to assassinate the opposition candidate (X 2), we’ve crossed that line where trying to stuff Pandora back into her box is no longer an option.

I listen to this Veteran and that Veteran who disagree as to which political party is truly the Veteran’s friend. Personally, it’s my opinion that neither party is. I’ve watched the Department of Veterans Affairs dismantle much of the original Part IV of the Veterans Administration Schedule of Rating Disabilities such that it is a mere shadow of its original 1945 intent. Few, if any, of the diagnostic codes for rating disabilities have become more lenient in my thirty five years litigating them. Most of them have been eviscerated and hardly resemble their original intent. You should note that happened on both party’s watch. So who’s your Huckleberry, bubba?

Worse, cutting edge legislation in 2010 to remunerate Veterans with extreme TBI has been revised to the point no one can win. Have any of you tried filing for, and winning a PCAFC claim lately? Take for example what was just overturned in the  recent Laska/ Haskell decision. Whatever gave the VA Secretary and his sidekicks the idea they could revamp §3.350(j) and toss in a requirement for R2 when the regulation specifically says it’s for those who do not qualify for R2? Remember Veterans’ Choice? If VA is so constipated with a medical backlog, then hey- let’s send them out into the community for medical help if it’s gonna take more than 30 days. Veterans Choice around here is AWOL.

Think back. The guy liberals claim called Veterans  suckers and losers renewed that ‘temporary’ program. You may want to take note of who quietly axed the program or allowed it to atrophy and sink into oblivion in the last four years. My dentist told me he could no longer accept my VA dental benefit because VA refused to pay him… for the last two years. I remunerated him myself out of embarrassment.

Remember the SMC rebellion under Peake and Shinseki? Of course you don’t. Bradley, Buie, Breniser and more all bubbled to the top and were overthrown – or at least allowed some sunshine in and clarified longstanding inequities in how SMC is interpreted. Right. Guess who was President when that happened? Newsflash. It wasn’t the party (or individual) who the media says called us suckers and losers. It was the Administration that attempted to deny us.

Look further. Who is president now who tried to defend the indefensible in Laska? Barry? Duran? Yeppers. Our liberal Defenders of Democracy sent the OGC lawyers in to try to preserve keeping Veterans fenced out of that which should have been interpreted correctly 75 years ago. This isn’t a case of the good guys versus the bad guys. It’s a case of an Agency run amok sanctioned silently by Congress and by extension, the Casa Blanca. If this process is nonadversarial and Veteran friendly, why does the Secretary litigate against us?

Where in Sam Hill do you think Veterans come from? They’re not born at 18 years old with a Thumper or a ’16 in their hand. They’re drafted and ordered into war. The wars are not of their making but they patriotically march off to the slaughter. When they come home, they discover how empty and hollow the promises of the politicians of both stripes are that they’ll be properly compensated and cared for.  In that respect, we truly are suckers and losers for believing them.

No. This isn’t even close to a determination about who our friends are in Congress or the White House. The truth hurts. This has devolved down into a shouting match along the lines of a kid’s game of Applecore! Baltimore! Who’s your friend? It’s worse than that actually. Catch 22 has metamorphosed into the the Thursday Rule. If you weren’t born on a Thursday, you’re shit out of luck. And it sure doesn’t boil down to whether you’re a loyal Democrat or Republican Veteran.

Harkening back to the old Virginia Slims™ commercial, as a country, we’ve come a long way, baby. But black Veterans are still getting marginalized in spite of the official 1954 Army emancipation. VA even acknowledged this as recently as last year.  Senator Alan Cranston set this judicial inequality ball in motion when he pushed for the VJRA and the inception of the CAVC for judicial equality in ’88. It’s unfortunate he stopped there and didn’t continue on to author a Veterans Bill of Rights to accompany it. A somber monument on the Mall for Viet Nam Veterans to visit their Buds is cool beans but it doesn’t pay the bills. I’d much rather have seen the money spent on reform of 38 CFR or 38 USC to comport with what Congress professes to believe versus what they hand out. You can’t eat granite.

So, in closing today, thirty days before we collectively pull the lever for the candidate of our choice, ask yourselves if you think America (and Americans) are better off that they were 4 years ago. Ask yourself how you are going to use your entitlement to a VA loan if you can’t even make enough money to make a future mortgage payment. Ask yourself if you feel comfortable with a gazillion brand new aspiring countrymen you can’t understand who haven’t even been vetted as to their loyalty to your country. Better yet, look yourself in the mirror and convince that other you this is all Trump’s fault for not building the wall down south four years earlier… but your candidate will… just as soon as you elect her.

Trump ain’t no daisy, but then neither is Kammy. The former has been out of office for four years and is getting blamed for all our current ills. The latter has been in power for those selfsame four years and has done nothing of consequence other than toss some amazing word salads but shooo doggies can she laugh a blue streak. Seems I remember the same blame game tactic in a previous administration where we listened to the litany of Bush’s shortcomings for almost 8 years. Seems it’s always the predecessor’s fault.

Do not think for a moment I give a shit what party you profess to belong to. Personally, I don’t care who wins. Both parties have been promising for the last hundred years that as soon as they get elected and finish turning water into wine why, shit, it’ll all get better. To me, it’s going to be the SOSDD (same old shit- different day) syndrome. We, as Veterans, will gradually continue to have our rights and entitlements whittled down and eliminated one by one. All the while, your Veterans Service Organizations, Congressmen and women, and the VA Secretary will be swearing on a stack of Bibles that they’re moving Heaven and Earth to improve your lot.

If you have to vote for something, vote for yourself and what’s going to make our Veterans’ plight more equitable and sustainable. Our military is in a world of shit. Think about it. Would you selfishly vote for sex change operations for servicemen (and Veterans) if it meant depriving the rest of your fellow warriors of lifesaving procedures? Would you think DEI is more important than having a cohesive fighting unit that will have your six? Is being politically correct more important than winning a war? Would securing our borders just be a big waste of money?

I’ll close by saying my father gave me an interesting piece of advice when I was young:

“Son, you have the right to remain stupid. It’s guaranteed in the Constitution. Nobody can take that right away from you.”

Very shortly, assuming you are a real citizen over 18, you’ll get to make this momentous choice. Personally, I don’t care how you decide. I’m just playing the Devil’s Advocate here to encourage you to think about the upcoming election. I don’t want to Make America Great Again. The America I know has always been great. I don’t see any reason to reinvent it. Vote for whatever floats your boat.

And, in the immortal words of Forest Gump (my hero), ‘that’s all I’m going to say about that.’

 

Posted in All about Veterans, Food for thought, Future Veterans, The Vietnam Wall | Tagged , , , , , , , , , , | 9 Comments

SPECIAL MONTHLY COMPENSATION–THE LATEST JEDI KNIGHTS

Posted on September 29, 2024 by asknod

I’ve been horribly remiss in getting this article out. I apologize profusely-both to you, the readership and the latest graduates of the SMC Academy. In fact, I was waaaaay remiss (five months) in creating and printing the diplomas. As many know, I began the process of constructing a curriculum I could teach from by reviewing all my previous SMC cases for higher ratings. By ‘higher’, I mean L-N, O, R1, R2 and T. I chose ten of some 200-odd ratings I’ve done in recent years to illustrate all the facets a body could even conceive of encountering in this field. I’m pretty sure I covered them all because my former acolytes from the first class tell me my SMC Ju-Ju works as advertised.

Huey B model gunship humor

The classes began this January and finished in April. Among them were Veteran Howard’s Extraschedular Aid and Attendance at SMC L rate grant for a combo 60% Extraschedular (30%/30%/10%/10%) TDIU. As we all know, the M 21 says you have to have a 100% or TDIU… or… a combo of stuff from one disease entity pretty near 100% to even queue up in line for an SMC above S. But then, we all know the M 21 is revised about 135 times a year so why would you put any store in it? My Vet’s win illustrates it’s not only probable or possible, but inevitable you’ll prevail. The key ingredient is a diagnosis of a need for the aid and attendance of another. Check it out https://bvasearch.suttonsnipes.com/search?from=1992&to=2023&sort=date&direction=descending&page=1&query=Docket+No.+220711-258804&citation_number=A22025063

Copycat of above gunship humor with inferior beer

I also chose an interesting one that ended up being a double CUE based on VA ignoring the regulations and telling Lt. Lori she couldn’t have both a&a for her Multiple Sclerosis (MS) and loss of use (LOU) of a hand and a foot due to MS. We call that estoppel en pais or equitable estoppel.  They told her if she ever had to be hospitalized, she’d lose the a&a $  because VA would discontinue it and drop her back to SMC S. It was a lie. Her SMC Ls added up to O and R1.  The second, more minor CUE was they disremembered to give her the SMC K for the loss of use of her foot for two years before granting the first L. It took me several years to unravel these fusterclucks and even required two BVA decisions instead of just throwing it all in together as I asked.  https://bvasearch.suttonsnipes.com/search?from=1992&to=2023&sort=date&direction=descending&page=1&query=200123-63335&citation_number=A21020231

I chose a Muscular Dystrophy case for R1 to illustrate how VA will employ smoke and mirrors to confuse you and make you give up in frustration… or call me. Col. Terry went on to R1, then R2, and, finally a VA Agent’s Accreditation. If you look up ‘grit’ or ‘determination’ in Miriam Webster’s tome, you’ll find a picture of him. Naw. Just funnin’. But he is enrolled in Session Two which just began several weeks ago.

And, of course, the latest craze in VA law besides trying to unravel PCAFC, is trying to climb Mount TBI for the big SMC T banana. The saddest part of that fight are the contestants. Most of these folks I’ve repped would gladly trade places with a 50% Vet faster than you can say 1002 while still holding a hot M 26. The money is desperately needed for the much higher level of care. It ain’t being spent on high-dollar Mopar vehicles. And the wives of these Vets are basically 24/7/365 Visiting Angels™ who never get a weekend off. $10,905 per month might sound like a hoodoggies picnic but it isn’t. It buys these gals a part time caregiver to babysit so they can accomplish the regular shit of everyday living-e.g., grocery shopping, parent-teacher meetings etc.

I touch on several cases where it was a tossup- go for two aid and attendance ratings or go for LOU and a&a. Or, go for all four extremities and  then grab another a&a. As I try to point out, no two cases will ever be identical in every respect. The list of nasty, terminal diseases seems to be endless. Bone/Lung/ Liver/Kidney/Brain/Prostate Cancer, Interstitial lung disease, MS, MD, Parkie’s, DM II with mega PNs in all four extremities, Traumatic Brain Injuries, PTSD on steroids ad nauseum.

Below, I’ve begun to assemble the participants of the first class and introduce them to you if you need help. I’ve been trying to get the rest of the graduates (2) to send me a photo of them holding their diplomas so I can advertize for them here. I’m turning 74 early next spring and want to slow down. Asknod can still be a legal clearinghouse for the most severely disabled among America’s Patriots even if I take a quasi-back seat and sit in the director’s chair.

First meet Brennae Brooks J.D. She’s now a card-carrying Jedi Knight with the Force and absolutely lethal. She’s the one who first asked me to train her in the “art” of SMC back in Cincinnati that began this project. She can be reached at bbrooks@theveteranthelawyer.com

Next, meet Mr. Peter Cianchetta of the greater Sacramento area. Pete’s an attorney and really enjoys SMC work. Pete’s a Vet so he know what we all went through. Here’s the link to his website https://www.cianchetta.com/. Sometimes, I think having been a Vet should almost be a prerequisite to qualifying for this job. He, like the rest, took to it like a duck to water. Believe it or not, some accredited representatives will never be able to navigate this no matter how many classes or CLEs they attend. These pictures were taken at our most recent conferences in Salt Lick City. If you look closely, you can see the crossed light sabres at the top of the certificates.

Continuing alphabetically, thee next graduate is Ms. Tamar Dyson, a Veteran and a VA attorney. Her contact information is tamar@tamardysonlegalservices.com . Tamar is red hot- as all these folks are on VA law. Now, she’s armed and dangerous to win SMC claims.

Thee next Chicken Dinner Winner (alphabetically)  is Ms. Doris Leach of Garland Texas, both a Veteran and a VA Agent who can be reached at vaagentdoris@gmail.com . Doris tells me she can now feel the Force coursing through her mind so she’s waiting for you to call with your SMC problems.

Number 4 is another Veteran, as well as a VA Attorney in the Washington, DC area. Not that any of us are geographically challenged as to where we represent Veterans; nevertheless some still desire that face-to-face assurance before launching a multi-year attack on VA. With the advent of Zoom, that need is gradually being met electronically. Ms. Jennifer Lohnes can be reached at www.lohneslaw.com

Continuing right along, meet Wes McCauley, VA Agent and my very first acolyte. Wes became intrigued with SMC waaay back when and finally began pestering me about the ins and outs. He’s probably the primary reason I began these classes after Brennae Brooks. Wes lives down in Georgia and missed getting clobbered by Hurricane Helene from what I can tell. He’s still transmitting so apparently he managed to keep his PRC 25 dry. You can contact Wes at unitedforvets.us

Last, but not least, meet my very good friend and fellow legal member of our tribe Ms. Bethanie Spangenberg. Bethanie and her husband Mike run Valor4Vet.com. While Bethanie generally works at being a PA-C doing nexus letters, she became intrigued with SMC and how the dang thing works. Now she knows. We’re all hoping she decides to throw her hat in the ring and begin litigating SMC claims considering she now possesses the Force. Contact her here at https://www.valor4vet.com/

Hopefully, this will invigorate Betty and Michael to send me their pictures and get themselves immortalized here in celluloid electrons as well. It seems there is quite an interest in this subject among out merry band of VA legal beagles. Session number 3, beginning mid-January is already filling up as we speak. It’s a good thing, too. VA is preparing to break ground and pour the slab for my new ADA heated ILP 20′ X 28′ greenhouse (replete with a computer-driven hydroponics setup) and I’ll soon be growing twelve foot tall tomato trees to rival Jack’s Magic beanstalk. I reckon I’ll have to put in WiFi down there so I can grow lettuce while I litigate. “Bother” in the immortal words of Pooh.

P.S. Cupcake outdid herself this summer with 22 flavors of tomatoes and 12 of peppers. It feels like we’re the west coast distributors of ‘maters. And cukes, cauliflower and broccoli. Now, if I could just figure out how to grow a steer or a pig hydroponically…

 

Posted in All about Veterans, Equitable Estoppel, Food for the soul, Independent Living Program, R1/R2, SMC, SMC School, Special Monthly Compensation, TBI, Tips and Tricks, VA Agents, VA Attorneys, VA special monthly compensation, Veterans Law | Tagged , , , , , , , , , , | 5 Comments

CAVC-LEY v. DENIS THE MENACE–MUM’S THE WORD

Posted on September 22, 2024 by asknod

I honestly never thought I’d be writing about something like this ever again. I disremember the earlier article’s date but the thrust is equally as ugly as the above case. While some may consider this ancient history and long-ago resolved with VA’s standard boilerplate “We’re extremely sorry. This was a learning experience for all stakeholders and an opportunity to make the process immune to these errors in the future”, it seems the VHA never got the email. 

Parse that again, partner. You and I are Veterans and if we ain’t stakeholders in this VA poker game, who in Sam Hill is? I even reread the contract just to be sure we didn’t get hornswoggled with an obvious misspelling like steakholder. No, indeedy. This is partially our fault somehow and we get to listen in on the how and why we’ll never get justice. The simple fact is they think we’re a bunch of mental feebs. Trailer trash. Walmarket™ shoppers. Welfare queens.

  There’s always a kernel of truth in there somewhere. Running it through the VAspeak AI generator, this would come out closer to ” Okay. We’re busted. So what? From now on, we won’t be putting it into the VistA records so we don’t get caught again.”  Gez, remember the Phoenix appointments fiasco back in 2014? Good thing we nipped that in the bud… except we didn’t. Turns out Columbia VAMC was doing it, too … and Detroit and Salem and Dayton and ad nauseum. I even read where they got caught doing it again in Spokane two years ago. They blamed it on the new Cerner medical computer this time. At some point you have to wonder if it isn’t programmed in to do it as a default setting…

But go back further. In about 1998, after VA was forced to admit a new kind of RNA virus called Hepatitis C was afoot, they began testing Vets who used the VAMCs across our fruited plains. They didn’t bother to ask permission and if you did have it, they didn’t tell you. I get that. How do you look one of America’s patriots in the eye and say “Ah, we didn’t ask for permission to test you for Hep C and drugs in your urine, but while we were doing so, we noticed you have hep C and smoke pot. No big deal, right? Of course, if you don’t do something about the Hep, you’re gonna die in about 15 years so there’s that, too. As for the pot, we’re reducing your PTSD rating for self-medicating.”

Which brings us to poor Mr. Richard Ley, former Gyreene (USMC)  and one of us increasingly few, proud Vietnam Veterans still standing. You can verify this at CAVC 2023-1547. The Richster’s  first mistake, like mine, was thinking VA medical is commensurate with regular old civilian medical like Franciscan or Kaiser. Boy howdy is that ever an eye opener when the cat gets out of the bag. Think Kenya and 1953 and you’d be closer to the reality at some VAMCs. At Franciscan, they at least tell you what is wrong with you. So here’s the BVA decision and the Appellant’s brief. I’m looking forward to how this plays out.

Ley v Dennis BVA Decision

Ley Appellant’s Brief

And here’s the oral brief.

In 2003, the VA added chronic lymphocytic leukemia-or CLL- to the Agent Orange list. I’m abbreviating it  so I don’t get a crick in my hand typing it a bunch of times.  VA realized as early as 2008 that Mr. Ley had some nasties in his blood but it legitimately was not yet a big deal. In 2010, a VA lab report miscounted his CLL boogers in the blood. So this is where the argument gets critical. VA now knows (constructive possession) that he’s got a presumptive bug from §3.309(e), the list of Agent Orange bugs but they’d claim the lab worker is at fault. Six of one and half a dozen of another. Mr. Lab Worker works for VA. VA workers shit ice creme and walk on water. Unless you can rebut that (Rizzo v. Shinseki), you’re stuck with it.  But wait. It gets worse.

I’ll just peel this out of the appellant’s brief. It’s a daisy.

“In 2012, the same PCM noted Mr. Ley’s history of skin cancer and
listed it as an active problem. Noting his bloodwork and skin cancer issues and aware of his Agent Orange exposure in Vietnam, Mr. Ley’s PCM referred him to a cancer specialist in hematology. Mr. Ley believed this doctor would tell him if he had any issues that might qualify for VA benefits. Instead, this VA hematologist deliberately chose not to tell Mr. Ley that he was experiencing the early stages of leukemia. Referencing the 2010 labs, the doctor incorrectly wrote Mr. Ley did not meet the cutoff criteria for CLL and noted, “and even with the label as such, this would/will be stage ZERO and warrant only an annual cbcd.” The VA doctor later wrote in his notes, “…I did not use the term leukemia; told him that maybe in 20 y[ea]rs he would need further investigation…”  The doctor categorized Mr. Ley’s disease as “monoclonal B-cell lymphocytosis.” (emphasis in original).

This would make George Santayana proud and it didn’t even take fifty years to recur. VA’s Cliff Notes ® Book of M 21 tricks is pretty skinny. If this was the NFL, they’d say the team lacked any depth in their backfield or some such horseshit. VA doesn’t teach innovation. They teach blind obedience. Color outside the lines and you’re outside on the unemployment line. But if the hierarchy fudges a bit or engages in Mission Creep, the lowerarchy knows which side of the bread is buttered on and react appropriately.

Anyway, Mr. Ley moved to Tennessee because he lost his job. He couldn’t shake the fatigue and malaise. It was cheaper to live there and when he sashayed over to the local VAMC, they noticed the CLL and said ‘Richard, you are in a world of shit. You gots the CLL.” Four days later he filed for it and of course he won. But he got screwed out of six years of 100% and that’s some serious folding money. Why, you could afford a triplewide mortgage for that many Benjamins every month. And probably a Dodge Powerwagon for you and one of them gassaver Kias for the missus. Just funnin’ ya. I meant a Toyota Corolla.

Now, from the legal standpoint, the Richmeister doesn’t have a leg to stand on. You can’t sue the government. That’s been argued more times than the white “stain” on Monica’s Blue Dress. In essence, what the VA oncologist did was estoppel. He withheld information that he should have shared. Fortunately, Mr. Ley didn’t die from the act. But he got the poopy end of the punji stick- the end with all the shit on it. Doesn’t that mean anything?

Estoppel is the concept that a person of authority (think VA rater or VA doctor) gives you bogus info that causes you to act- or in this case, not to act- and it causes you to lose a lot of money or your health or you die because of what they told you.

Back to Mr. Ley. Because estoppel cannot lie against the government,  2010 for a 100% rating (or any rating) for the CLL is not available. The reason being was that Mr. Ley didn’t file for it in 2010. But how could he? In this business, I can’t start throwing claim spaghetti at the wall to see what sticks. DAV or VFW VSOs do it all the time but real, accredited representatives are forbidden to-just like you Vets. See that little blurb at the bottom of all the VA forms? “I swear that the above is true and correct to the best of my knowledge and belief.” There ain’t much wiggle room in that statement. It’s  like putting your  hand on a Bible and saying the “I do” part. Say…Come to think of it, that’s a bit like getting married. You say the same thing….

So, Mr. Ley’s attorneys went to Court to see if they could poke some holes in the idea that when the government screws you like this, there must be some way to make it right. As much as I believe Mr. Ley bought the Brooklyn Bridge, I can’t see how he can get those 6 years of back pay. We shall see.

P.S. I’ll add here that it came to mind that some of us, or should I say the few of us left from the Vietnam Conflict (as the VFW phrased it for decades) had jobs that required sheep dipping or serving in locales that had little or no designations other than Lima or Tango Sites. Their travails to obtain service connection are legend as their records were classified for 50 to 70 years due to Form 10 NDAs (Nondisclosure agreements).

P.P.S. https://federalnewsnetwork.com/it-modernization/2024/09/vas-new-ehr-saw-826-major-incidents-since-its-launch/

P.P.P.S. https://www.fox5vegas.com/2024/09/19/las-vegas-va-medical-facility-holds-patient-against-will-says-oig/

We can’t make this shit up here.

Posted in CAVC Knowledge, Equitable Estoppel, Medical News, VA Agents, VA Conspiracies, Veterans Law | Tagged , , , , , , , , , | 3 Comments

LASKA V. DENIS THE MENACE– SWEET HOME ALABAMA

Posted on September 7, 2024 by asknod

Used to be back in the old days, every rating decision with the the VA logo on the top had the actual Fort Fumble identified. Thus you knew from whence it originated if you wished to hurl imprecations and discuss wolf parentage. As most in the Veterans SMC world know, Laska (formerly Haskell until he augered in this spring) involves a sordid piece of skullduggery. I’m flying back to Salt Lick City for the Fall legal conferences with the organization I belong to. As I’m somewhat of an outlier of the group, they’d probably prefer I keep their name out of it. I’m sure Laska will be the major discussion subject though.

To reduce this to a short story, I have a mega TBI client in Alabama who just got his SMC L wings for aid and attendance-hence the Sweet Home Alabamy intro above. It was a long haul. He’s been fighting with little or no success for years because… well because he needed a Sherpa and SMC Sherpas are dang few and far between-in Alabama or anywhere else for that matter. Which is why I started teaching SMC to attorneys and agents I work with this last winter. The demand is so great I’m beginning the second class right after this shindig in Salt Lake.

VA is going to figure it out in short order because that little $15 Billion dollar shortfall they forecast this coming year is going to metastasize again dramatically if all the SMC seeds I planted bear fruit. Well, that and Laska are going to have serious fiscal ramifications.

 Anyway, Courtney had been struggling to get traction on his a&a for years. Then the grand mal seizures began on top of his OSA (50), hernias (60), incontinence (60) and migraines (50). VA kept saying he was good to go… or did for the last ten years- even though he has that nasty, pronounced habit of kissing the concrete with his face when he starts doing the chicken and the tonic clonic shit hits. He also has a pronounced left foot drop and about a gazillion other service connected ten and twenty percent bummers that run to ten pages on his code sheet. That’s a personal best. The best I’d seen up to now was 8 full pages. Courtney’s latest acrobatic trick was a swan dive from the second floor landing to the first with a two and a half gainer. It only cost him a few broken bones and a minor concussion this time.

Courtney was a combat medic in the Navy. That means he had to hang out with a bunch of gyrines, put bandaids on their foot blisters and treat them for sexually transmitted diseases. And when the shit hit, he had to hold the IV bags and shoot back. He has a Combat Action Ribbon and a few others for derring deeds of do. And boy howdy does he have a whopping nasty case of TBI.

If I didn’t know any better, I’d a sworn when I opened his c file for the first time I was going to see Dr. Bash’ or Dr. Ellis’ shit scattered in there in three part harmony. It was thankfully absent. But what was there was all the more appalling. When VA doctors work on you and opine on your condition, that’s unimpeachable. When Dr. Bash and his Ten thousand a pop for an IMO krewe show up, it’s like a coyote pissing on the food. VA turns their nose up and denies. I’ve talked about this in preconference colloquies with BVA judges at VACO hearings in DC and to a one, they all agree that when they see those names, it’s all over except for pissing on the fire and calling in the dogs. Now don’t get me wrong. I’m not impugning Doctors Bash and Ellis. Perish the thought. I merely repeat the scuttlebutt I hear. I’m sure they mean well and are above board but their reputations seem to contaminate all their good deeds.

You could go out and get a IMO Buddy Letter from Jesus Christ himself saying > “What he said” about whatever it was that ailed you and it would float like a rock after you introduce squirrelly IMOs from doctors who’ll take 30 pieces of silver for their work. The only folks who can get away with that hat trick are QTC, VES, OPTUM Serve, Loyal Health, LHI etc. Now, with the addition of all those Claims Sharks and their hired doctors and nurses, the IMO field is getting a mite crowded. VA raters are suffering IMO overload and denying even their own doctors’ opinions.

 But there’s one little problem. Ever hear of Sickels v. Shinseki?

See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that the Board is  “entitled to assume” the competency of a VA examiner and the adequacy of a VA opinion without “demonstrating why the medical examiners’ reports were competent and sufficiently informed”). 

To be sure, VA can insist an “examiner” is a VA rater who just happens to have a RN after his or her name. All’s fair in love and war. A lot of Vets think this all hangs on the “clinician” at the c&p exam.  But when VA’s very own doctors say your shit causes the need for aid and attendance or your legs would be equally well served by taking a hacksaw to the ankles and fitting you for bilateral prostheses post-cauterization, then their opinion is the straight shit. It’s about like an Eleventh Commandment. Thou shalt not denigrate the VA doc.

In Courtney’s case, not one but three VA doctors say Hogan’s Goat doesn’t hold a candle to Courtney’s predicament. So, after about three years of denial, it was with great pleasure that I finally got the second HLR reviewer to follow me to the letter the psychiatrist penned for us in VBMS. He kinda sorta had to agree that’s what it said. Of course, he ignored the part where DR S______ stated that without his significant other that he’d have to go live happily ever after at VA’s Sertraline Shores Rest Home down in Mobile.

Getting Courtney the a&a, as most know, is just phase one on the long road to SMC T. I always remind them chuckleheads that we’re not done until the SMC T Fat  Portly  Weight-challenged Lady sings. Good thing my DEI AI gizmo kicked in there, huh? This time, they were polite enough to get out their very best revolver and shoot themselves in the foot. They stated- in haec verba– that the reason he wasn’t going to be cruisin’ on Buck$ Boulevard was that he didn’t qualify because of the 38 CFR §3.352(b)(2)(ii) requirement that he need a higher level of care. I waited patiently for  the Laska decision to come out the day before yesterday and only then did I begin writing his legal brief for T.

Redact SMC L but no T for Thee

Back in 2018, Secretary Wilkie, or one of his buddies, surreptitiously inserted that §3.352(b)(2)(ii) blurb from R2 into T to make it about as hard as trying to hit the Power Ball in a 50-state Lotto. We call it the Thursday rule- You don’t qualify for SMC T because you  weren’t born on a Thursday. What the hey? Even if you were, you’d lose on the AM or PM coin toss. If you said AM, you and I know they’d just say bummer, dude. Missed it by thaaaaat much, 99. Has to be PM. TY4YS. Move along. Now serving Number 149.

And now we have Laska precedence from St. Margaret saying she disremembers seeing that “higher level of care” R2 shit in the SMC T requirement. One of my favorite quotes for legal wrangling is:

See Mitchell v. McDonald, 27 Vet App. 431,440 (2015) (Cases “must be decided on the law as we find it, not on the law as we would devise it”)

Sadly, VA Secretaries and their ilk tend to engage in Mission Creep. They get a rule written and then proceed to monkey with it and semantically torture out their interpretation of what the meaning of “is” is. After the death of Chevron Deference this spring, the CAVC is  now free to parse the meaning without listening to all Denis’  post hoc rationalizations of what Congress’ word salad really consisted of.  

VA has made many forays into SMC law over the years and always manages to stub their toe in the process. Remember Bradley v. Peake? Sorry Dr. Peake. A TDIU equals 100% in baksheesh so why wouldn’t it be a “total” rating for SMC S purposes? How about Buie v. Shinseki? Come on General. Does it make any difference in what order my boy got all those 50s and 70%s? Oh hell no. §3.103(a) says give the Vet the highest and best that is legally permissible.

Then there’s the George Breniser Blowout.  George didn’t win but the publicity about aid and attendance finally began to drag it out of the dark corner it had been hiding in since 1945. Jensen v. Shulkin exposed the fact that there were two totally different ways to look at loss of use of lower extremities. That’s a Bozo No-No at all 56 of our Puzzle Palaces across the Fruited Plains.

Finally, Barry v. Denis the Menace came out saying “Son, you’ve been reading this wrong since 1945. You can have as many half-step bumps under §3.350(f)(3) as you want as long as they’re all separate and distinct”. Now you see why the VA’s financing problems have just begun. They’ve been blowing smoke up Veteran’s asses and fencing them out of SMC entitlements since the end of WWII.

The parade of horrors continued with the inception of SMC T. VA just couldn’t restrain the urge to give it a haircut and fence us out of that, too. And lo, twenty three years later justice is achieved just like revenge- served best chilled. I admire Amy Odom’s attack on the OGC gomer’s interpretation of SMC T but this was like fishing with 40 percent Dupont stump dynamite.  I’d compare it to the recent Presidential debate between Brandon and Donbo where Don said “I don’t understand what he just said and I doubt he knows what he just said.” Basically, all she had to do was give it her 25 minutes and let the OGC clothesline himself which he managed with flying colors. Judge Bartley then swooped in for the coup de grâce.  Amy could have just as easily relinquished her five minutes back and still won hands down.

It’s an Air America thing. You wouldn’t understand…

See you all in Salt Lick City if you come. We’ll be camped out (indoors) at the Hyatt Regency and engaged in our CLE booklearning Thursday and Friday next. Well, that and engaging in some serious networking over adult beverages. Veterans law deserves no less.

Posted in Aid and Attendance, BvA Decisions, CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, SMC, Special Monthly Compensation, TBI, Tips and Tricks, VA special monthly compensation, Veterans Law | Tagged , , , , , , , , , , | 1 Comment

LABOR DAY 2024– LIKE THE LAST TRIP TO TULSA

Posted on September 1, 2024 by asknod

There were two men eating penniesAnd three young girls who criedThe west coast is fallingI see rocks in the sky

Labor day is, I suppose, a day to relax from… well… labor, right? My plum tree announced this AM it is ripe for picking. The Gravenstein apple tree two doors down is an OSHA zone. I probably should put up some yellow caution tape. Try going in there and picking any without getting clobbered by 1.5 lb. apples larger than softballs. All you have to do is pull one off and it launches two more from somewhere up near the top-10 feet up. 

 

The food bank locks the door and pulls down the blinds when they see me pull in with 5 more buckets of apples and Bavarian sausage-sized zucchinis that were hiding under the big leaves. The neighborhood deer are so full they just lie around near the tree all night and burp. They don’t even spook when Pickles goes down to bark at them when we go out at six. That might also explain where my 40+ red pears disappeared to. They were right next to the Gravenstein.

Outside of that, Labor Day plumb snuck up on me this year. August has been a lean month for VA claims. I have a world record 35 claims stacked up that are ripe for a decision. These are claims that impact the clients dramatically. As most of you know, I don’t do tinnitus and flat feet stuff. One of my boys down in Riverside, CAL is living in his car. He’s SMC S and has a PO Box for his address. His true home zip code is dynamic. My link to him is via cell phone only… if it’s charged up.  He’s been fighting since his discharge in 1971… when he got back from the Nam. If you printed his claims file, it would probably run to over 25-30 K pages. He has two paths to R2 or T. He’s 100% for the deadly combo of PTSD with TBI pre-2001. VA knows it and they’ve been giving him the bum’s rush on the a&a since 2004.

One of those 35 Ready For Decision (RFD in VA acronymese) clients has been waiting an incredible 297 days since I filed him on 11/10/2023 for aid and attendance of another. We filed for a hearing back in ’19 and didn’t get a seat before the Judge until Fall 2023.  On 4/10, I finally got his BVA win for  50% back to October 1972 on a §3.156(c) claim. Fort Whacko (349), Texas managed to dodge the bullet and purposefully misconstrued it to be date of claim or January 2016. Can you imagine being the poor GS 14 step 8 Assistant Veterans Service Center Manager (AVSCM) in Waco and watching your potential promotion to VSCM (manager) going up in smoke if you’re foolish enough sign off on that claim? I never added it up but that’s some megaserious folding money. You could probably find a tricked out ’67 GTO gold Goat (convertible) for about less than half that much baksheesh.

Ol’ Yvette used the correct verbiage of “reconsideration” in the decision about elevendyseven times and even threw in the §3.156(c) (1) and (3) cites just in case they handed it off to a newbie GS-8 VSR 90-day wonder. But that overlooks the fact that these claims get sent all the way to VACO in DC and the ol’ Excessive Awards Program (EAP of 2008) is resurrected temporarily to trim up the settlement.  Remember ol’ Leroy MacKlem? What the hey? Chris don’t need all that dough. He’s on TDIU already and gettin’ about $4 K a month. No way we’re giving him 50 to 1972.

So that one’s back at the Board already. And from what I understand, VLJ Yvette White ain’t all happy shits and grins about it. Granted, it’s AOD but they let those sit and fester for a month or two before they get distributed to a judge. I have about 20 up there at any given moment. Our appeal was docketed on July 25th. Most of the ones before it haven’t even been distributed. That sucker was on Judge White’s desk a week later. I can see it’s progress in CASEFLOW. It’s already back with the staff attorney who will be tasked with creating a draft decision for her to sign. I haven’t had this kind of top drawer service since 2014. Cool beans.

We nicknamed these U-turn Appeals or  BVA Chairman Laura Eskinazi’s  “Rocket Dockets” back in 2014. She got busted for doing that but that’s another story.  If they were just simple corrections of AOJ error, they got the 78 RPM treatment and sent off to Assistant (read temporary) Veterans Law Judges given brevet promotions of 90 days to AVLJ status before being demoted back down to staff attorneys. Needless to say, the BVA denial production output in 2014 went waaaaaay up.

VA is more constipated with claims than you can even imagine right now. It’s worse than a shipwrecked sailor on a lonely desert island with 66 cases of extra sharp cheddar cheese. As for the BVA, they’re busy playing ping pong and remanding them back to the VBA to grant or repair. But there ain’t no money to pay for them.

One gripe I have is that by delaying all these inevitable claims, the 20% I get from doing them just continues to rack up bucks until VA gets off their lazy bonus-calloused asses and cuts the paper to freeze it. Don’t get me wrong. I love money just like all of you but I don’t like taking it for doing nothing. And I can pretty much speak for my clients when I say they need it far more than I do… and  months and months ago.

I have a Vet where the ST. Pete’s DROC blew off his kidney cancer claim and ghosted it right out of his decision. So I called up the (800) 827 Dial a Prayer line yesterday (Saturday) to ask the Quo Vadis? question and lo and behold, I got the “take two aspirin and call me Monday” recording. They’ve cut back their hours suddenly. Used to be for the last three years they had operators on duty 0600 (East) to 1800 (West) 7 days a week. That little $2.9 billion budget overrun is cutting pretty deep. The Tampa VAMC nurses went NASDAQ yesterday about being about 250 Registered Nurses short and VA not having any hiring plans in the chute. Ruh-oh, Rorge.

So, that’s Labor Day 2024 style. We have the disciples of the Trump Derangement Syndrome (TDS) running neck and neck with the Harris Happy, Happy. Joy, Joy Derangement syndrome krewe. Meanwhile, the Red Dawn Conservatives are preparing for Armageddon and a new Civil War. I can’t make this stuff up. Where’s Rodney King when we need him? Remember his quintessential plaint “Can’t we all just get along”.

  Enjoy the weekend, folks. Either inflation and gas will go down or we’re in for one of those Punxsutawney Phil moments… but for another four years instead of six more weeks. Truthfully, I don’t see much difference in the two prevalent parties currently. The good news, if there is any, is DEI seems to be in retreat across the fruited plains. It’s okay to be white again. Time to get my white privilege out of the back of the hall closet and dust it off.

Posted in Humor, Labor Day, VA AMA appeals knowledge, VA BACKLOG, VAMC Scheduling Coverup, vARO Decisions, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , | 3 Comments

EXPOSED VET RADIO SHOW THURSDAY 8/29

Posted on August 26, 2024 by asknod

Yesseree, bob. You read that right. It’s the PRE- Fall conference in Salt Lick City show. I’m sure John and Ray have a better idea of what the show will focus on but it’s always interesting. I’ll call him/them back and ask and update you here. The show will start at the usual time (1900 East-1600 West). 

Here’s the update. The hell with adjudicating Veterans’ claims, folks. We have to ensure everyone is copacetic with the ruling ideology. Stop what you’re doing and get right with the diversity bandwagon.

BVA Training 2024__v2

Hope to see you there.

The computer link is

https://www.blogtalkradio.com/jbasser/12364790/connect/80ec49281d553d98e41f155b5e20335153abca40

And the phone number for those who like to let their arm go numb holding up the phone that long is

(515) 605-9764

See you there. BYOB and chips.

Posted in Exposed Veteran Radio Show, Food for the soul, Veterans Law | Tagged , , , , , , , , , , | 1 Comment