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

REMANDS- WHY WE HAVE THEM.

Posted on August 24, 2024 by asknod

I get perennial questions from every Vet when they join the asknod Army. How long is this going to take? Do we have to appeal to the Board? To the Court? Actually, there are a lot more questions but those are the most frequent. But, the outstanding one is “Why don’t they just decide it at the Court? Why the remand(s)? For every question in law, there’s an answer. You might not like them but it is what it is. The judicial system is like a Wedding cake. It has tiers above one another and each higher tribunal has limited power as to what they can look at.

Let’s begin by creating the analogy of knitting a sweater. If you drop a stitch and finally spot it when you’re almost done, you have to disassemble the sweater and pick up that stitch in order for the sweater to hold up. In law, that same analogy occurs when you get to the Board for a do over. Ditto the Court of Appeals for Veterans Claims, The Federal Circuit and the Supreme Court. The mistake has to be recognized, pointed out to those below…and remanded back for the idiot who who screwed it up to fix it-usually at the lowest level where the relative IQ hovers around 70-80. In a more perfect world, the Board or the Court should be able to just say “Wrong! Pay the Vet.” But we’re a fur peace from a perfect system if you hadn’t noticed.

Let’s say you file for PTSD as an example. Your records are spotty and they (VA) don’t have any info about the night Captain Charles and his Merry Band attacked the ammo/bomb dump at Camp English. Your MOS was cook but when the shit hit, you traded in your spatula for a 16 and were assigned to the perimeter to hold the line. You didn’t have a lot of close friends because you didn’t arrive in a group. You came straight from the Bien Hoa Repo Depot and found yourself at An Khe. After 365 and a wakeup, you went home. Your chances of finding your buds for testimony in your favor twenty years later  are dang slim to none. I discovered most of my buds flew into a mountain or got shot down. Charlie didn’t recognize Geneva Convention Cards up in Laos.

When you finally got around to filing a decade later, they said “You were a cook, dude. Cooks don’t fight. Next?”  So you lose based on absence of evidence. You finally get it sorted about 20 years later if you’re lucky. It usually occurs if you have a tenacious bulldog for a representative. All this entails a carefully choreographed dance up to the higher levels of the court system… and a shit ton of remands.

After losing at the local yokel level, you appeal to the Board. This is the place you’ll first encounter the dreaded remand. In the new AMA system, two things are guaranteed to cause it. Either they failed in their duty to assist you or they violated some regulation which created a procedural deprivation of justice. However, if you make sure you’ve plugged all the holes below, the BVA judge can make the decision to grant or deny.

If they grant your claim, they still have to remand it back to the Fort Fumble from which it arrived and the Puzzle Palace readjudicates it to comply with the Board’s dictates. The Board doesn’t have the power to grant a rating at X percent unless it’s an argument over a denied increase. The Board of Veterans Appeals (BVA) is what we call the Trier of Fact. They deal with facts- not money. The actual Regional Office raters are the ones who perform ratings and cut your checks. If you don’t like the outcome, you go back to the Board a second time and argue over the new low ball rating. Some call this the Hamster wheel or the ratings merry-go-round. Trust me when I say it doesn’t feel very merry when you’re broke and sick.

To illustrate further, let’s say you get the bum’s rush at the Board. You appeal to the Court (CAVC) and specify what went wrong (again). Of course, this time, you have to be anally specific. You can’t show up with a brand new theory as to why St. Pete’s DROC and the Board shafted you. The Court either agrees with you or they affirm the Board’s decision. Again, if the Court perceives the Board stepped on their collective neckties, you Vets are in for a blizzard of  Remands. The Court is empowered to either

a) set aside the Board’s decision and Remand it back to them to do it over the right way, or

b) vacate the Board’s decision and Remand it back following their advice on how to do it, or

c) reverse the BVA’s decision outright and Remand it back to them to give you what you asked for in the beginning.

In all these scenarios, you see one thing in common. Remands. The CAVC, the CAFC and the Supreme Court are not Courts of Equity. They don’t hand out the dough. They send it back to the tribunal below them for a do over. That tribunal sends it back down to the next idiot who screwed it up until it gets back to beginning. The problem is the equity issue. The Board doesn’t have raters. The Trier of fact has a thumb and if you win, s/he holds it in the vertical. If you lose, the thumb points down. Thumbs up equals remand back to Little Rock or Detroit for the rating and the $$. Thumbs down means back to the drawing board for a new financial plan.

After the Board gets it back from the Courts above, they, in turn, remand it back to the village idiots at the Fort Fumbles across our fruited plains for the do over. A vacate, reversal or set aside will always entail a reverse remand procedure all the way back down to the Regional level for them to write your decision and award you the baksheesh. Much like death and taxes, you cannot avoid the remand procedure if you get the reprieve above.

So you can see my use of the sweater analogy for this. If your claim (now an appeal) gets all the way to the Court, you have to unravel the sweater back to the dropped stitch and fix it. Fixing it doesn’t guarantee getting it fixed it correctly. VA is renowned for screwing it up and making the same mistake again. Fortunately, when this happens, the Board or the Court loses patience with the lower tribunal and opts to just grant and avoid repetitious remands.

This is why you, Johnny Vet, want to get all the factfinding, independent medical opinions and testimony accomplished below and take your denial up to the Board  “clean” as a direct review. The last thing you want is to arrive with a good case but no medical opinion. If you do, chances are the Board will remand it back to the AOJ (Agency of Original Jurisdiction) and you’ll get a brand new bogus c&p that says “it’s less likely than not that Johnny Vet’s PTSD occurred at Camp English.” Shedden v. Principi is why the Independent Medical Opinion field sprang up.

Remands are a fact of life but you can avoid them at the Board, as I said, by simply checking all the boxes, assembling all the facts and preparing carefully before you go up to there or to the Court. I’ve never been able to fathom why, in this new day and age of the AMA, why anyone’s attorney, Agent or VSO would go up on appeal with a fistful of VA c&p exams denying your claims expecting them (the board or the Court) to grant and remand it  back for a rating. Don’t get me wrong. I’m a firm believer in a positive mental attitude but you don’t win with it. You use facts and medical opinions to support your win-not wishful thinking.

In the old Legacy system, a denial at the Board left you only one recourse- the Court. In AMA, if you get the bum’s rush at the Board, you can still save your bacon by making a quick u-turn and go back down below to get the IMO and still preserve your filing date. This way you can conceivably keep getting remands for your legal stupidity and eventually find a Sherpa to refile a supplemental claim with what is needed to prevail. After all, you’re entitled by law to get an explanation of what it is you lack to  win.

I have a client in a nursing home who was totally dependent on his California Dept. Of Vet Affairs VSO. The VSO, now in the new AMA after Legacy, kept filing do overs for his PTSD denials on a 526. VA kept sending them letters back saying ‘wrong form bro’. They didn’t say “use a 995.” They just said “You’re using the wrong form.” Mr. VSO proceeded to refile again on a 526. Lather. Rinse. Repeat. The poor Vet went through this 4 times before I showed up. I cut the Gordian Knot and filed the 995. VA denied and we got the 2680 saying a&a was needed. VA still denied and I won at the Board. Something that simple had hung this poor Vet out to dry for 2 years. There are no remands at the local level. Either you figure it out for yourself or your VSO does. Failing that, you’re screwed.

Building a claim is an art form. It’s like baking cookies. If you don’t include all the ingredients, you’re going to have problems. Even if you do construct it properly, VA can still screw it up. The Board is not perfect either. Remember, it isn’t the Judge who builds the legal argument for or against. S/he has a group of legal beagles who analyze the issue, search the statutes and regulations and present their valued opinion as to whether the Judge should grant or deny. If they forget to look at a particular regulation, they’ll come up with a flawed answer. If you have a lazy Judge who blindly accepts their advice, you get a flawed denial. Garbage in. Garbage out.

Nobody is perfect in this business. That’s why we have the Federal level Courts. They don’t report to the Secretary.  But even they can miss the mark if they rely on flawed legal reasoning. The best example of that recently is Barry vs. Denis the Menace. The Secretary and his forebears misread §3.350(f)(3) for seventy nine years to say you could only have one (1) 1/2-step bump. The CAVC felt it passed muster too. It escaped judicial review for that long until Jim Perciavalle held their noses to the grindstone all the way to the Fed Circus and got it sorted. Even exalted fellers with big ass JDs and magna cum laudes after their names continued to misread what Congress intended because they thought their shit didn’t stink.

The advent of the AMA, in theory, almost makes the CAVC an anachronism in this day and age unless it’s a conundrum that’s been an article of faith for over a half a century. Walker v Shinseki is a classic example of misapplying §3.303(b) for decades and then finally reading it correctly. This is the beauty of SMC law that I relish. In case you didn’t notice, VA is hell bent on keeping SMC cases out of the Federal Courts for one reason. Every time they decide to stand and fight, you have results like Akles, Bradley (v. Peake), Buie, Jensen and Barry that overturn established law in favor of Veterans.

I’ve noticed that VA will more often than not grant my SMC claims for the higher levels of SMC at the Board rather than go toe-to-toe with me and take it up to the Court. If I lost every time, I reckon I’d be a tad gun shy of this, too. But, sadly, it still requires about 3 or 4 remands to unravel the sweater at the local level to get the Magic Paper. Yes. It sucks. I didn’t make the rules but I’ve learned how to exploit them to win your claims.

 

 

Posted in All about Veterans, Appeals Modernization Act, BvA Decisions, Remanded claims, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , | 1 Comment

VA–I’LL BE YOUR HUCKLEBERRY

Posted on August 18, 2024 by asknod

We’re rapidly reaching a breaking point very similar to what I encountered when I came home from Vietnam. We have engaged in a protracted war footing for twenty years (again) and now the chickens are coming home to roost. The powers that be (Congress) seem stupefied that we’ve run out of money (again) for our Veterans’ needs. VA Poohbahs, similarly mystified, are at a loss for words as to how this happened as well. Let me see if I can possibly shine any light on this paradox. The title above explains it.

After WW II, America went on a spending spree to build out the VHA (Veterans Health Administration) infrastructure to minister to all the wounded Vets coming home- and boy howdy were there a shit ton of them. Unfortunately, infrastructure doesn’t include personnel and penicillin- just brick and mortar edifices. The sad state of wage remuneration for bedpan changers and lowly Certified Nursing Assistants to augment actual, trained medical specialists was abysmally low. It simply didn’t attract enough warm bodies to accomplish the task. But… it worked after a fashion because the cost of living and inflation were changing at a glacial pace. Everyone had to make money and eat.

The Governor Waltz Medal Collection

This problem extended to the higher tiers of the system then- as it does now. Altruism and patriotism solved the problem for a few decades until Vietnam. America’s aversion to involving itself in every geopolitical firestorm (like WW I/II) once more raised its ugly head and the era of protest became the norm. Vietnam War protesters’ radical actions succeeded in getting us out of Southeast Asia- and dang near everywhere else- for decades until the 1990s. How quickly we forgot all that hard-won knowledge.

I came home in mid-1972 to anger and ennui. America was fed up with war and the patriotism and warm fuzzy emotions were gone. A fellow worker friend of mine from the Saugus, CA explosives factory we worked at (Bermite Powder Co.) decided over a bong or two one night to venture forth that weekend and go visit one of his buds who was recuperating at West LA VAMC. We loaded up on Fritos, a cool T-shirt and rolled a few joints for a goody bag to take to him. We figured it would cheer him up.

We sure didn’t have any trouble getting in. The place was a ghost town. We attributed it to being a weekend. What we found was criminal. Darrell was up on the third floor  amputation ward. He’d caught a 7.62 through the knee and they couldn’t save it. There were guys lying there in their own piss and shit. The ones who had any mobility whatsoever were busy hobbling around futiley attempting to take care of their buds as best they could. The one saving grace was there were plenty of clean sheets and towels- just no one to minister to the Vets. The few bedpan changers were all up at the front desk chewing bubblegum and busy reading comic books. The luxury of TV hadn’t filtered down to VA hospitals yet.

We spent most of the day making runs to a 7/11 store nearby grabbing more potato chips and pop. Most of these guys hadn’t even had a Pepsi since they got medivac’d back from the war months earlier. We joined in changing sheets and trying to give bed baths to the twelve Vets in his ward bay (built for ten).  The four of us didn’t even have the heart to venture further and look in on the other six rooms on his floor.

That evening we drove back up to Lancaster and the car was silent. Nobody felt like talking about the experience. We were numb. I could never bring myself to go back. It was just too damn depressing. It wasn’t the aroma of shit and piss. It was the utter futility of knowing things were not going to change or get better no matter what we did. SOS-DD.  This was waaay past potato chips and pop as a panacea or welcome distraction to their plight.

Fast forward to 2009, I found myself in the same predicament. Instead of twelve beds, it was six. There were bedpan changers and nurses this time but the apathy was still there. I had a colostomy bag on and the folks assigned to us had no idea how to change it or even empty it. The meals arrived late and colder than a mackerel. Alarms on IVs would beep for hours until the nurses could get there to change bags. I suffered that for 14 months and four operations. I was lucky. Before I escaped, I got a rip snorting killer case of MRSA, two heart attacks and a mega overdose of heparin that required a 2-pint transfusion to keep me from bleeding out.

The 9/11 attack on America once more invigorated that Yellow Ribbon around the old oak tree syndrome. That explained why the Seattle VAMC was standing room only. But, in spite of the post WW I/II buildout of infrastructure, they had to fly Vets down from Alaska to get serious medical procedures. How did Alaska get the dirty end of the punji stick? Or why? Apparently, apathy was even more prevalent up there and  available medical jobs went unfilled. What doctor in his right mind would sign on for 40% of what he could make in the civilian sector? Lather, rinse and repeat this and move forward from 1974 to 2009. America was no more prepared to serve the Vietnam Veterans effectively than they were the WW II and Korean troops. 9/11? Forget it.

So, where in Sam Hill is all this money going? VA compensation payments have always lagged behind anything you could hope to live on. Ditto VHA employee wages. Even throwing in SSA on top leaves you far short of survival. For the most severely injured, they’d need a wife or sig. other to work or be a full time caregiver to survive. In 2010, the nascent Wounded Warrior  Project pushed Obama hard to create a caregiver fund (PCAFC) to fill the financial gap. As admirable as it sounded, it created a two -tiered caste system. If you were post- 9/11, you were entitled to it. Vietnam, WW II and Korean Vets need not apply. Congress wouldn’t get around to dealing with that inequity for another 8 years and the repair order did little more than to 86 a bunch of the 9/11 guys and sub in the Vietnam and Afstan Vets in their stead.

PCAFC is so massively overburdened that it’s cutting into their (VHA’s) budget. This hopefully explains how VHA got into the compensation business. It had the added effect of draining financial resources from the medical side (read hiring doctors and nurses) to the PCAFC side to the point of… wait for it… running out of money. Currently, I’m doing a lot of  hamster wheel appeals to the BVA for it. The Judges keep kicking it back to VHA saying there’s a duty to assist error. Put simply, VHA “litigators” can’t find their asses with a methane detector. They have no legal training and here they are litigating instead of practicing medicine. WTF, over?

As for the VBA- the Veterans Benefits Administration- we’ve experienced not one, but three recent “hits” to the fisc. It began with the Procopio decision extending the Agent Orange exposure limit out to 12 miles off the coast. If you think Agent O could stay concentrated enough to get through a reverse osmosis water system and kill you when mixed with a gazillion trillion gallons of South China Sea water… then you must be a member of Congress. TCDD is a heavy metal. It sinks to the sea floor. Unless they were sucking water off the sea floor, the idea a sailor on the Constellation ingested AO is ludicrous. That’s right up there with immaculate conception.

The second hit was Camp Lejeune and the third was PACT. I’m not disparaging the Afstan guys but hey- Newsflash. We of the Vietnam War persuasion had burn barrels and were equally exposed to shit burning, napalm, White Phosphorus and God only knows what else they haven’t even told us about. Wait until the PFAS firefighting Foam Act comes down from on high. That shit makes Agent O look like suntan lotion.

The VA remuneration program -and I refer strictly to the VBA side- was not designed to take a hit of this magnitude. That’s not to say I don’t think we’re deserving of remuneration for all the shit we ate or inhaled. It’s just that America is going to go broke trying to make it right. The current predicament of running out of money for Vets is just beginning. This is going to be far worse than the Social Security well running dry in 2034.

To give you an idea of the enormity of it, who in their right mind is going to sign up to be a GI Joe and risk his life for chump change with the very real threat of cancer in the future? At a minimum, this is going to require reinstituting the draft to round up enough souls to man the battlements here- let alone overseas. Canada’s population is going to mushroom to untold levels if they do.

America cannot be great again if they don’t have anyone to defend it. Worse, even if we have enough warm bodies, how do we pay them when they get ill from all the condiments of mass destruction Dow Chemical and Monsanto created? We need to go on a diet and curb our appetite for war. Or other folks’ wars.

Until September 30th, VA is attempting to go on this “diet”. Their method is to simply quit adjudicating claims and let them sit in limbo. I personally have 35 cases of Vets with loss of use of lower or upper extremities who have been waiting almost six months (180 days) or more and nothing is moving. Where I used to see these things wrapped up in 90 days or less, I see no movement whatsoever. Crickets.  If it entails something as mundane as a bum knee, 257 days is nothing extraordinary. Mind you, the c&p exams are done. The doctors and nurses have opined on their DBQs. This should be like the In and Out Burger Stand drive thru lane.

And if you think this is some rare anomaly, hold on to your boonie hats, kids. This is just over a paltry $2.8 Billion dollar financial error. Next year portends a $15 billion dollar miscalculation. What happens when PFAS goes on the books? It’s unsustainable and VA et al are whistling merrily as they stroll past the VA cemetery.

Over the last 35 years, I’ve watched VA revamp the Part IV diagnostic ratings for all the shit we got into. Each time, they set the bar higher and higher to qualify. It certainly isn’t that the diseases or injuries have been ameliorated by advances in medical procedures. It’s because Congress, in their insane urge to garner votes, keep adding to the list of injuries which are service connected. That’s admirable but the repair order needs to be balanced against exposing us to same. If you don’t send us to war, we can’t very well get exposed to burn pits and Roundup® on steroids.

We’re rapidly reaching a financial cliff and VA just asks for more and more every time Congress approves more presumptives. What else can they do?  Veterans raised their right hands and promised to defend America. In return, they were given promises that they (America) had their backs. That promise rings more hollow each year regardless who sits in the Oval Office. Talk about DEI. Each and everyone of you who have served get an equal opportunity to get screwed regardless of your skin color or your pronouns. The Michigan and Pennsylvania VAROs now are registering Voters. The VA in Albuquerque is processing medical payments for illegal immigrants.  They’re turning into a veritable Swiss Army knife. One-stop shopping-just like a page out of Amazon™.

Posted in All about Veterans, Complaints Department, Food for thought, Medical News, PCAFC | Tagged , , , , , , , , , | 6 Comments

EXPOSED VET RADIO SHOW– 8/08/2024

Posted on August 6, 2024 by asknod

Greetings, fellow Veterans. John has invited me on to the show to discuss some of the not-so-well-known side effects of the new PACT Act. We’ll also discuss the Barry vs. McDonough decision and how that impacts §3.350(f)(3) going forward… or backward in terms of CUE or the improper construction of a regulation.

Remember way back in 2013 when Walker v Shinseki came out? Well, this is more of the same but it benefits Johnny Vet rather than depriving him of something. All these years we went  sailing by §3.303(b) ignoring the fact it applied only to chronic diseases shown in service- §§33.307; 3.309. Suddenly, the Secretary decided to read it himself and was flabergasted to find out what ir really said.

In a nutshell, misconstrual of the regulation is on the author- not the benefactor. What the hey? You (VASEC) wrote it. It’s presumed you’re conversant in English. If you (VA)  give me something ( e.g., service connection for PTSD), and then determine one of your gomers misread the regulation and CUE me to take it away, you might win. It depends on the individual case. There have been times that the VASEC has, how shall we say, fabricated regulations to sometimes read the way he’d prefer them to be read. With the revocation of Chevron deference, we’re in uncharted waters on each and every regulation and it’s real meaning.

But… if you deny me a benefit that the Fed Circus determines should have accrued to all Vets since 1945, that CUE is on you, Boo Boo. You can’t complain and say “but if we’re forced to make it right, it’ll bankrupt us.” I’m sorry. That dog won’t hunt. As for retroactivity, that is going to be another battle on a future day from what I gather. But shoot, let’s not spoil the Radio Show talking points.

Helio Courier with a broken leg. Tuy Hoa 1966.

Thursday evening at 1900 Hours on the East Coast and somehow magically on at the same time on the West Coast at 1600 Hours, the magic of the John’s electrons will prevail. Tune in or dial in.

(515) 605-9764

Here’s the computer link:

https://www.blogtalkradio.com/jbasser/12359963/connect/f49a7669aa86e6c6d7bd299f492a1fe398e96503

Oh yeah and I might tell you about how Marie from VR&E came over  last Wednesday morning to discuss where we’re going to plunk the new greenhouse…

Posted in Appeals Modernization Act, CAFC Rulings, Exposed Veteran Radio Show, VBMS Tricks | Tagged , , , , , , , , , , , | Leave a comment