BVA–I NEVER PROMISED YOU A ROSE GARDEN

Posted on September 17, 2016 by asknod
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Veterans Law Judge Vito Clementi

Having sat, chatted and engaged in a colloquy with Veterans Law Judge Vito Clementi for an hour one day in 2015, I know how hard it must have been to bite his tongue and write the denial below. Of all the Judges I have ever met or had dealings with, he was the most forthright and pro Veteran as one could hope for. Quite possibly because he is one himself.

This case involves an enigma and no one, not even the Philly Puzzle Palace tea leaf readers, seems aware of the miracles of modern day science. To begin with, the VA examiners were blowing these bubbles:

Upon VA examination in March 2012, the VA examiner noted that the Veteran has a current diagnosis of hepatitis C. The VA examiner also indicated that the Veteran was diagnosed with infectious hepatitis during service, but it was unclear which specific type of hepatitis was diagnosed (hepatitis A, hepatitis B, or hepatitis C). Following examination, the VA examiner indicated that she was unable to provide a medical opinion without resorting to speculation because specific tests were not performed during service to differentiate between the different types of hepatitis.

In 1970, infectious hepatitis was Hepatitis A from contaminated water. It lasted about 5-7 days and the jaundice disappeared within 20 days. If he was diagnosed with Infectious Hepatitis, it would be HAV and that would be the end of the query.

Here’s the problem. Nowadays we can identify the presence of a healed Hepatitis A infection via the presence of antibodies which give you immunity to it. Next, we can identify either antibodies to Hepatitis B or an active (chronic) infection of Hepatitis B. Lastly, we can identify the presence of Hepatitis C viral infection and even count the number of viral replicas via polymerase chain reaction (PCR). Or, we can see the virus is not present via treatment with one of the new Direct Acting Antivirals (DAAs).

So, it is childsplay, and has been for about ten years, to differentiate between whether one has, or ever had, Hepatitis A, B or C, a combination of two or just one and whether one currently has any of them actively or has achieved a seroviral response (SVR).

In fact, when I was slated to begin Interferon in April 2007, the first thing was to be tested to find out if I needed a vaccine for Hep A or B. They didn’t want me coming down with either one during the treatment for C as it might kill me. It was at that time I discovered I had never had HAV.

Next, a simple liver core biopsy will reveal the degree of liver fibrosis and the current stage of the disease. Divided into 5 stages from 0 to 4, with zero meaning a perfect liver, each stage is ten years ± 2 years. Ergo, stage two means twenty + years since the inception of the disease. Most of us who got it back in the late sixties or early seventies are either healed or dead from it. Some, like me, quit drinking and smoking and hunkered down to wait for a cure. It gives a whole new meaning to keeping your powder dry. I was cured at forty three years and not a moment too soon.

A core biopsy yields a Metavir Score and this is the perfect yardstick to figure out how long you’ve had it. If you served from 66-69 and got it in Vietnam, by 2009 you were feeling a mite winded and had a touch of nausea. Your Metavir rating would probably be pushing the beginning of F4 like me. Funny (now) but I can point to the exact day and hour I got mine.

Colvin v. Derwinski

Judge Clementi is not allowed to be a doctor. The Pennsylvania National Association of County Veterans Service Officers were driving this bus for Johnny Vet. When you accept a POA from a Veteran, that is your duty-to help him win. Well, not exactly if you’re a VSO but that’s a story for another day.  Nowhere is an IMO to be seen or inferred here. The dog didn’t eat the nexus homework so I give up. This Vet was claiming it was associated with his Agent Orange exposure towards the end of his BVA hearing. He’s not a doctor either. Ever since Mario Caluza tried to smoke the Manila RO in ’88 on some bogus nexus letters, the Court, the BVA, the VSOs-Hell- even Micky Mantle’s mom knows you need a nexus letter from a doctor to win a VA claim. Well, apparently almost everybody except the ones expected to know.

From talking about this with other Judges, I understand the frustration of having to bite your lip and pseudo-sarcastically point out in the decision ( a year later) that there is nothing there to help his case and certainly nothing from a doctor in his favor. Denying the claims after a Vet has been led into the barn for slaughter with no legal advice or help would be a bitter pill to swallow. Welcome to ex parte justice.  Read about 200,000 BVA decisions and you will see VSOs still haven’t gotten the email on the need for a nexus letter. I think it’s criminal.

Imagine a justice system where you might know the repair order to help the defendant out but you’re legally precluded from leaning over and whispering the way to do it? 38 CFR 3.103(c) (2) states, in part:

It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.

Being a liberal Southerner, I’d stretch that to say Judge Clementi might have written something on the back of an envelope and slipped it under the table to the County VSO Rep. saying ” Hellooooooooooooooooooooooo? ASK ME FOR A REMAND! Get new C&P with core biopsy and PCR.  Run, Forrest! Ruuuuuun!” But then we know he can’t do that beyond the BVA hearing.

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Posted in BvA HCV decisions, Jetgun BvA Decisions, KP Veterans, Nexus Information | Tagged , , , , , , , , , , , , , , , , | 5 Comments

BVA-BLOODY JETGUNS– THE YIN/YANG OF EVIDENCE/CREDIBILITY

Posted on September 17, 2016 by asknod

635646931319099161-veterans-administration-logoIn the madcap world of VA claims, character assault is a common technique employed by our adversaries in the 56 Fort Fumbles across the fruited plains and oceans. In VAland, when you say something different in 2016 than what you said on the same subject in 1968, it creates a bow wave of doubt that you can’t remember anything clearly. Once you allow VA to let this camel’s nose in under the tent, the game is up. Anything you say is presumed incredible. They don’t call you a liar. They don’t have to.

The following BVA decision I use to illustrate this is a BVA jetgun win for Johnny Vet out of our Heavenly RO located in St. Petersburg . Authored by Vet’s Law Judge “SS” Toth, most Vets  would mentally be expecting Waffen SS treatment and a strict taskmaster. Boy howdy would you guys be off the paper. Judge Toth is mindful of what real justice is, not what VAROs have corrupted it into.

downloadA warm thank you to our sister American Legion VSO reps out in Florida for whatever moral support they provided. It’s not impossible they didn’t have a sharp rep. there who knew what he was doing. But look at the fingerprints. Johnny Vet didn’t win with the Caluza Triangle, the famous Shedden requirements, the Hickson “elements”. No. He won because the VA could not find a chink in his credibility to drive in a piton of doubt.

Witness how clearly Judge Toth synthesizes this into the decision:

In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence.

See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

Click to access 13-7085.Opinion.5-7-2014.1.PDF

I’m going to add color so you can keep track of formers and latters.

Competency of evidence differs from weight and credibility.

The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.

See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

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The Board notes that the April 2010 and January 2016 VA examiners did not identify non-service related risk factors for the development of hepatitis C. Additionally, the Veteran has provided competent and credible testimony of receiving “jet air gun” immunizations in service that are recognized by VA as a “biologically plausible” means of transmitting hepatitis C. The 2010 examiner also noted that with regard to the most commonly identified risk factors, only one applied to the Veteran, assuming that the injector may have been bloody. Accordingly, while the examiner indicated that an opinion could not be provided without resorting to speculation, the examiner’s explanation for the opinion appears to indicate that it is at least as likely as not that hepatitis C is related to the one commonly known risk factor the Veteran experienced. The Board finds no reason to doubt the Veteran’s statements as to having been exposed to blood during the injection. Having found the Veteran’s testimony credible, including as to the “jet air gun” immunizations in service, and after reviewing the medical opinions, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran’s hepatitis C was related to his active service.

Competency of evidence is what can be considered in a claim. Just like Judge Judy, hearsay is not permitted although it sometimes seems to seep in. Phil Cushman got bushwhacked on that one when some enterprising VA jokester/examiner started penciling in addendums to his C&P afterwards. VA is often caught dragging in red herrings to a Hepatitis C claim. Drugs are first and foremost the major downfall. Johnny Vet smoked pot and had an Axis 3 ETOH issue wider than the Mississippi River. Johnny Vet got Hep C. Denied. Next. We had Robert from LA. His VistA medrecs. actually show the penciled in “Yeah, and he admitted to snorting coke a lot.” I’m sorry. That’s why we have computers so you can’t go in the back door (Like VACOLS) and rearrange the furniture to better stage the crime scene. Robert won on a Cushman violation and got his 100%. Robert most assuredly did not snort coke, either. He is deeply religious and always has been.  And a warm thank you for not giving up, Phil. You left a magnificent due process argument  for eternity for all of us.

Assuming the competent evidence is entered and nothing can be found to use as a smoking gun for the denial, phase two begins at the Regional Office- It would be pure speculation as to what it could be. Fortunately for us, Mr. Benito C. Layno, much like Phil Cushman, blazed a trail ahead of us for all who followed in his footsteps.  We are now allowed to testify with credibility as to what comes to us via our five senses. Thus, Johnny Vet from sunny southern Florida is competent (read credible) to opine as to what he (and a gazillion or two others of us) saw on the end of a jetgun being used to administer shots to him. Anything that comes to you via your five senses are viable statements admissible in this game. The only test is to pass the credibility hurdle. 

In instances like this, VA breaks out the Pinkerton Detective Agency and hires extra bloodhounds. Johnny Vet’s journey post-military is examined. A $39.95 Criminal background check would turn up that two years at Texas’ Greybar Hotel for the misunderstanding at the gas station deli late one night in 76. Bingo. HCV due to incarceration. Denied.

But what is the RO to do? Our Johnny Vet from St. Pete’s is squeaky clean and has given a Layno-approved answer. VA has merely stuttered saying it would be speculation to opine. Bingo.

Resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for hepatitis C is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

download-13Credibility is a Veteran’s best friend. It’s right up there with the Presumption of Soundness. It’s the essence of 38 USC 1154 in many cases that gets you a win. Johnny would never have gotten a win out of any RO based solely on jetguns. They don’t have the authority to grant the claim. Not one jetgun claim to my knowledge has ever been won at the AOJ- including WGM’s in Texas. Face it, even if you have three IMOs categorically stating it was jetguns and they won’t grant, you can figure having another one from Jesus wouldn’t even pass muster.

One thing Vets will note is the brevity of this decision. The whole thing fits on one VA SF8.5×11(w). Amazing.

One thing I am beginning to see at the Board of Veterans Appeals that is very refreshing is the gradual disappearance of some of the Hang ‘Em High judges. In their place, I’m beginning to see a new breed of lawgiver with a far more fair and balanced approach than what I’ve been accustomed to. There still is the occasional wild hare like Mark Hindin who acts as though he’s never met an above-board Vet- and convinced he never will. I could name a few more but the good news far outweighs the bad. And besides, I might have to present a claim to one of them in the future. That’s all I’m gonna say about that.

Nodster

 

Posted in BvA HCV decisions, HCV Risks (documented), Jetgun BvA Decisions, KP Veterans, Nexus Information, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , | 3 Comments

VA Spousal Resource Protection Amount

Posted on September 16, 2016 by Laura
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image: wikipedia

There have been some reforms in this area.  Please note that there may be more current information available on this topic from a VA social worker. 

Spousal impoverishment for VA extended care is covered under 38 CFR 17.111 (pdf) 1601a_06_hk_2015_11_10

VHA HANDBOOK 1601A.06 Veterans Health Administration Transmittal Sheet Washington, DC 20420 November 10, 2015

7. Spousal Resource Protection Amount. The spousal resource protection amount, as defined in 38 CFR 17.111, if the spouse .is residing in the community (not institutionalized). NOTE: This amount is not automatically applied by the VistA system and must be deducted from the value of the liquid assets as applicable during the completion of VA Form 10-10EC.

From Cornell, we read that the VA and Medicare standards are supposed to be the same now:

https://www.law.cornell.edu/cfr/text/38/17.111

(vi) Spousal resource protection amount means the value of liquid assets equal to the Maximum Community Spouse Resource Standard published by the Centers for Medicare and Medicaid Services (CMS) as of January 1 of the current calendar year if the spouse is residing in the community (not institutionalized).

This is a partial screenshot from Medicare (LINK).

 

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click to see whole page.es.

So depending on where you live (property taxes) and other factors, like utility rates, some spouses may be okay if a spouse has to enter extended care with Medicare or VA.    And co-payments could be waived or reduced.

Here is a (link) to a 2013 VA Fact Sheet IB 10-590 that acknowledges the changes.

State veterans homes may have different rules.

However the rules for pensions are brutal for vets without a spouse or child as this denial shows (LINK to ruling  by Judge Steven Reiss).  Going into a VA nursing home would certainly mean  a single vet would not be able to afford home payments while recuperating from a long illness with a reduced pension of $90.00 a month!  More homeless ill vets. This stupid policy of punishing poor single vets for getting seriously ill is unforgivable. 

Can the government try to recoup care costs?  Yes, but that’s another subject.

Posted in All about Veterans, BvA Decisions, Food for thought, Guest authors, Uncategorized, VA Health Care | Tagged , , | Leave a comment

VA CLAIMS–THE WINDSHIELD VERSUS THE REAR VIEW MIRROR

Posted on September 14, 2016 by asknod

LOGO THAT OTHERS MAY WINMany of you readers email me with a specific subset of circumstances and disabilities and ask for a Tarot card reading. One thing in common is a burning desire to impress upon me the enormity or the “unique” circumstances. Others seem to focus on the perceived slights or that, in fact, the military service was indifferent, uncaring and ignored their plight- which, in turn, created the dilemma. Regardless of what happened, the universal consensus is to dwell on that narrow time of their lives and how it affected them into the present-forever.

Allow me to give you some insight. I do not want to sound uncaring so I have to phrase this delicately. I love using analogies so I will do so. When I was a youngster of eight or nine years, my dad gave me one of those briefings on life. He invited me to sit in the driver’s side of his old ’54 Ford Fairlane Station wagon to sit and listen. The gist of the conversation was simple. I paraphrase…

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Note the two mirrors painted red affixed to the cockpit windshield

Son, look up and tell me what you see. You have a windshield and a rear view mirror to aid you in driving. The reason the windshield is so large is due to the need to see where you are going. Conversely, the rear view  mirror is far smaller because you need not dwell on where you’ve been. When you get older, you’ll need to depend on the information and the facts of life ahead of you far more than what you’ve already encountered. A rear view mirror is merely good for making sure nothing sneaks up from behind you that is a threat. The main focus of driving-and life- is to concentrate on what’s coming and prepare for it. What you have already encountered should be filed away as knowledge to help you avoid repeating mistakes. That is all.

He continued…When I got to Europe in 1944, I visited a Spitfire squadron and talked with many of the British pilots there. To a man, the most successful aces had mounted rear view mirrors on their canopies to keep an eye on their tails in case their wingman failed to keep up with them. Many attributed their lives to those mirrors. I went back to my squadron and requisitioned as many rear view mirrors as I could get my hands on. Our losses went down and our awareness of our surroundings increased dramatically. In fighter aircraft, situational awareness is paramount. Likewise, in life, what is approaching you regardless of which vector, is where your awareness should be focused.

But again, the focus of this discussion is the importance of the present and the future over what has already transpired. Imitation, as opposed to plagiarism, is the finest form of flattery. Use new innovations when it can help change your life. Pretend you’re Capt. Kirk boldly going somewhere.

Very few of those “life discussions” from old Dad impressed me but this one has stood me in good stead. When applied to VA claims, it is an integral part of how I attack a claim problem. Dwelling on what caused the problem is immaterial. Much like construction, it makes no difference if the wall is crooked or out of plumb. Your mission is to prevent it or, if handed the problem, come up with the repair order to correct it. It matters little how the wall was misconstructed. It matters even less who was responsible. Your mission is to fix it and be quick about it. Get out of the blame game. You gain nothing by reliving the problem over and over like Bill Murray in the Groundhog Day movie.

In the context of VA claims, we see errors abound in VA adjudications. The why is not of great import. However, the rear view mirror is only useful to view how the problem developed, identify it and use it as the springboard to correct the error. Dwelling on the past, rehashing it in your sleep and reliving it every day is a recipe for insanity and major mental disorders. This is pretty much the fodder PTSD is constructed of. It rebounds around in your head and won’t leave. The best analogy I can convey is to find and use that little mirror lever that dims the headlights of the car behind you and distracts you from what and where you are doing/going. It won’t eliminate the headlights but they become much less annoying. This, in turn, allows you to focus ahead of you where you attention should rightfully be directed.

VA seems just as determined to dwell on the past and point to it frequently to explain why they feel their decision(s) are correct. They do this quite convincingly because that is the culture in which they exist. Much like a card shark, they try to deflect your concentration away from the reasoning for the claim denial and distract you. This technique provokes the rearview mirror syndrome and great introspection on your part. You become so focused on what you feel you cannot change that you lose sight of what you need to succeed. It’s no secret that a great majority of you who file claims are so disheartened by the process that you throw up your hands and walk away in disgust. VA goes out of their way to encourage it.

In my most recent battle at the CAVC over my greenhouse, the VA took a deposition from a VR&E Officer who swore on a stack of bibles that he/VA had obeyed all the rules and made every attempt to mollify me on my Independent Living Program. He convincingly stated under oath that he had engaged in mutual discussions in the construction of my ILP when he had not. His ploy was to embellish the past and he artfully deployed the rear view mirror technique in an attempt to make it appear VA was above reproach in their conduct.

The teaching moment here is elementary beyond all these analogies. Triage your claim to simplify it.

-What is the most pressing problem medically? Don’t create a trainload of issues.

-What is the best repair order that can be employed to produce the best results for you immediately?

-How should you proceed (i.e. pro se or via representation)?

Focus on the windshield and where you are going. Study the problem in depth to make sure you see all the possible permutations and what the potential repair order will accomplish- or more importantly- what it may not accomplish or leave undone. Going off half-cocked has caused me more problems than I can count in life. Mentally count to ten slowly before pulling the trigger. Learning the ins and outs of VA claims has taught me much about blindness. Assuming VA will see it your way or be kind and understanding are weaknesses we cannot indulge. The Presumption of Stupidity is alive and well at the VA. It is usually a product of professed blindness or being unacquainted with the regulations. No one at VA will ever ascribe stupidity to being vindictive as much as it appears so.

As many times as I have been convinced BVA judges or DRO officers could only come to one conclusion on a given set of facts, I have been shocked to learn they often refuse to budge and see reason. Short of overwhelming evidence in your favor, they will cling to their mental fig leaf of stupidity.

At the recent NOVA conference, a fellow gave a wonderful speech on how to cut the Gordian Knot of denial. Ensconced in 38 CFR §3.103(c)(2) is a wonderful repair order compelling the VA to tell you what you need to succeed:

It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record.

You have a wonderful toolbox of devices available to ensure a win in this business. The only ingredients you supply are chronic, viable diseases/injuries incurred in service. There is no need to make this harder than it has to be. Living and dwelling in the past serves no useful purpose other than to prolong the agony. Unfortunately, if you are myopically focused on that rear view mirror, you’re often effectively paralyzed from the neck up and unable to move forward. Remember always, you are not alone in this. Don’t be afraid to reach out and ask for that help.

Nodster

P.S. I apologize for the recent absence. I’ve been harvesting and playing squirrel Nutkin with my produce. Well, that and dinking around.

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2016 Silver Queen in honor of Paul Burch

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Shadow’s Poodle mullet

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Class of 2016. Half of them are still growing down in the manure pile

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Italian plums at 0630 hrs before H-day

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Posted in KP Veterans, Tips and Tricks, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , , | 3 Comments

COWBOY STEAKS–WYOMING STYLE

Posted on September 3, 2016 by asknod

flintstones_ribs2Remember the brontoribs that tipped over Fred Flinstone’s  19570 BC T-bird at the A&W Drive in? Well, imagine this. Cupcake takes us up to the doctor in Issaquah who is the last word in Naturopathic. Driving through town to get there we spot a butcher store that’s celebrating its 100th year. That would be like 1776 if Issaquah was Boston.  I think the town has been around since the late 1880’s so this is ooooold. The old man could probably tell you when they replaced the cobblestones with laterite. 

Cupcake- Spring Solstice 1980, 1st Place Best Women's toga.

Cupcake- Spring Solstice 1980, 1st Place –           Best  Patrician Women’s toga.

Knowing my attraction to the finer things in life we can ill-afford, my adoring Cupcake stopped on the way home. The good news is they know how to cut what’s for dinner. Our PBA (personal butcher assistant) was from Wyoming. When I pointed Cupcake to the Brontosaurus “Cowboy steaks” he asked if there was something wrong. I said no politely. I explained that the art form of cutting a decent steak had fallen prey to the economy and a Safeway mentality -in short, a lost art. Being a connoisseur of fine things, I felt obligated to try his wares.

A steak should be substantial, well-marbled and have a reasonable chance it will satisfy the  eventual steakholder. Too little and the beefeater is left unfulfilled. Too much and s/he feels it wasteful. Here’s the perfect Goldilocks size for that 5’8 -5’10”, 10 1/2 stone man. Half that for a fair maiden or your cupcake…

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3 inch Wyoming cut

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This is just one in the Betty Crocker Adventures in Cooking series on Primal Meat Urges and rated a “must eat” of 5. We highly recommend it. And yes. I’m going to eat the fat. Happy Labor Day Weekend to you all.

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Posted in Food for the soul, Humor, KP Veterans | Tagged , , , , , , , , , , , , | 1 Comment

CAVC– #116-2098-POST GAME WRAP AND POST MORTEM

Posted on September 1, 2016 by asknod

VetCourtAppealsPromoAfter every CAVC encounter and especially Extraordinary Writs of Mandamus, I like to dissect them to ascertain what was gained, lost or ignored. Basically, those are the only talismans to wave after the dust settles.

So, in retrospect, what did or did not happen that should have? As no one expects to prevail in an Ex Writ, the object is provoke action at a bare minimum. I actually didn’t fare too well in that regard. The VA trotted out a fabricated declaration full of lies. Interspersed with them were nuggets of essential information showing an attempt to ignore VLJ Vito Clementi’s order. I exposed that for the Judge to see and respond to. She failed to rise to the bait and pursue the perjury.

What was gained was an important recognition of The VA’s Office of General Counsel Precedent number 34 of 1997.

Prc34-97 (1)

Most importantly,  Judge Bartley went further and italicized the first phrase “all services and assistance deemed necessary on the facts of the particular case” – in addition to Veterans Law Judge Vito Clementi’s later italicized ennunciation in the next sentence. An OGC attorney would spot that instantly… or not.

The Court notes that, in granting this benefit, the September 2015 Board decision quoted VA General Counsel Precedent Opinion 34-97, to the effect that

VA has the authority, and responsibility, to provide all services and assistance deemed necessary on the facts of the particular case to enable an eligible veteran participating in [an IILP] to live and function independently in his or her family and community without, or with a reduced level of, the services of others. This includes the authority to approve, when appropriate, services and assistance that are in whole or part recreational in character when the services are found to be needed to enable or enhance the veteran’s ability to engage in family and community activities integral to the veteran’s achieving his or her independent living program goals.

Id., Appendix at 9 (emphasis in part in original).

Additionally, Judge Bartley takes a very dim view of VR&E bullies showing up at your doorstep with an advance agenda that you were/are a four-flusher and a scammer looking for a free greenhouse on the VA’s dime. Of all the hoped-for outcomes, this shines brightly. It shines a bright light for future Veterans who will walk this paper trail.

The Court reminds those involved in implementation that Mr. Graham has been determined to be entitled to this benefit and, thus, entitlement is not an issue in dispute. Given that fact, the purpose of the July 2016 meeting on Mr. Graham’s property was not investigation of Mr. Graham’s disabilities or his need for the approved benefit. Instead, all work on the IILP since the September 2015 grant of the benefit, including scheduling and conduct of the July 2016 meeting on Mr. Graham’s property and any decisions as to appropriate fixtures and accoutrements, should have proceeded and should in future proceed with the goal of efficient implementation of the already approved IILP. It is incomprehensible to the Court that a veteran would be questioned in that environment about his or her need for an ADA-compliant structure, or that a VA employee would put a veteran in the position of having to appeal at every step for items or services to which he or she has been already deemed entitled.

Something an astute attorney on either side of the aisle would be attentive to is redundancy. Sure enough, at the very end, Judge Bartley, although not in italics to ennunciate, repeats yet again for the hard of understanding, the above tenets of 34-97.

And the Court reminds VA employees involved in implementation that, according to the VA General Counsel, VA has the “responsibility[ ] to provide all services and assistance deemed necessary on the facts of the particular case to enable an eligible veteran participating in [an IILP] to live and function independently in his or her family and community,” including those services or benefits “found to be needed to enable or enhance the veteran’s ability to engage in family and community activities.” VA Gen. Coun. Prec. Op. 34-97. The Court expects that those involved in implementation will provide reasonable accommodations and work to complete this IILP, which has been approved for this severely disabled veteran, without further discord so that further costly and time-consuming appeals are not necessary.

When phrased like that,  accompanied with porcupine quills, VA would be wise to just call up Farmtek, give them Jack Kammerer’s VISA card number and call it it good to go.

There is no law that says you cannot mention this case in your own filing. The codicil is only that it isn’t precedence. For guidance purposes it is perfectly legitimate to point to. Much like an inadmissible, prejudicial comment that escapes the lips of a witness that indicts a murderer, or a bullet,  you cannot call it back. The dye is cast and regardless of the Judge instructing the jury to ignore the comment, or an admonition to duck, the damage is irrevocable.

My request this Monday for reconsideration based on new revelations may fall on deaf ears at 625 Native Americana Ave. NW. So what? It will become part of the record and a nugget left for future Veterans to mine. The Independent Living Program is not going to disappear. Congress enacted it for a reason. VA cannot reduce it or relegate it to the ash heap of VR&E history. Someone like Bruce or me with a wealth of wrath will always show up and say “Hold the phone, folks.  VAOP 34-97 says___________________ and Judge Bartley even said as much- quoting a VLJ to boot. Read it right here. What about my circumstances? I’m super severely disabled, too. What gives?”

Whoever said Hope Springs Eternal never filed an Ex Writ or was piss full of optimism and wearing a dry Depends© undergarment.

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

Nodster

Posted in CAVC ruling, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , | 5 Comments

ANOTHER PILOT’S TALE

Posted on August 30, 2016 by asknod

download (1)From the humor capitol of the world (Atlanta), comes this winner. Thank you Bruce Almighty for the contribution.

A young Navy pilot just out of training, goes to his first squadron party. Guest of honor is the Wing Commander who is accompanied by his to die for drop dead gorgeous daughter.  Our young stud has spent the entire evening agog staring at her, until fortified by numerous adult beverages and the urging of his squadron mates, finally gets the courage to talk to her.

To his great surprise, he finds she is witty, warm, knowledgeable about airplanes, sports, and guns, and appears to be interested in getting to know the new pilot.

He asks for her name, and she says “Carmen”.

“Lovely name that. We don’t often hear such these days” says the pilot.  “Is it a family name?”

No, she said.  “My given name was Gertrude, but I never liked it.  When I hit 21, I legally changed it to ‘Carmen’.  I named myself after the two things I love most.  Cars, and men. But do tell. What is your name?”

“Beertits” replied the pilot.

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MILESTONES–JAY MOORE

Posted on August 29, 2016 by asknod

Jay Moore -HCVets

Some of you may know of Kelly and Jay Moore. They came to me what seems like eons ago looking for the magic password to VA comp. We finally prevailed with  “Hurricane Katrina” Eagle’s help and Jay looked like he was off to the races. Unfortunately, VA dawdled too long as they are renowned to do and it cost Jay his life. He might have been able to avoid a transplant if they had been willing to give him Harvoni far sooner but that is a ‘could of, would of and should of’ eventuality we’ll never know. Kelly is now a widow at 46 and for no good earthly reason.

To add heartbreak to loss, she has four children and a now- abbreviated income on DIC. I wish to thank all of those who have contributed quietly to her “get the kids to school” fund for this fall. It’s going to be a lonely road for her and I apologize for not starting up asknod.org sooner so I could have reached her and many others before this happens. For any of you I have ever helped “get there”, here’s a wonderful chance to pay it forward for a worthy cause. Unlike certain VA-inspired charities, we do not deduct dealer prep and destination fees from any contributions. Kelly and all of you we help always get 100% of the ordnance on target for maximum effect. Because that’s what you’re supposed to do.

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CAVC–#16-2098–POSTSCRIPT-ARE YOU OKAY WITH THAT, ST. MARGARET?

Posted on August 29, 2016 by asknod

VetCourtAppealsPromoNever being one to leave an errant sweater thread alone or a VA scab unpicked, I felt compelled to at least answer in my defence and protect my honor. Having hornswoggled sweet ol’ Saint Margaret into believing that maybe I was disremembering all those repeated consultations with that dear Mr. Boyd since 2011, I felt it was my duty to let her know what the Katzenjammer Kids have been up to in their far-flung VR&E empire. Remember, each VR&E Region is a fiefdom-a castle unto itself. No other arm of VBA has this far-reaching authority. None. What the VR&E Officer says is tantamount (ostensibly) to what the VA Secretary McDonald says and thinks. Ruh-oh, Rorge…

So, VA campers,  when you build your Extraordinary Writ, you address each shortcoming of the VA as an egregious error by the “Call me Bob” guy. Mr. Boyd, in his efforts to bully me, was actually acting in the stead of McDonald himself. We are coming to find Secretary Bob wasn’t quite on board with what Mr. Boyd advocated. Mr. Boyd may have potentially tread infirmly on perjurious turf when he characterized anything I said during my five year denial as “repeated consultations”. VA misconstrues virtually everything we say or claim such that it all becomes confusing to all but those trained to decypher it. Basing the “consultations” on five years of flawed logic and denial will hardly yield a productive IILP in 2016- no matter how you look at it. Saint Margaret said as much in no uncertain terms.

But when a VA employee in the same office gladly offers an explanation to this enigma and cuts the Gordian Knot, all of us get to honestly see what VA defined as “repeated consultations.”  I feel it only fair that St. Margaret is allowed to view it more clearly and reconsider her decision to deny my/our Writ. Remember, this ILP’s for all of you.

bel airThis is about riding lawnmowers and metal detectors. It’s about whatever you need to float your boat mentally. Certainly there are boundaries. You aren’t going to get a ’56 Chevy Bel Air to be in parades but you’re entitled to a TempurPedic® bed with tilt and heat/vibration for your bad back. You might not get that 19′ Bass fishing boat with all the bells and whistles and the 90′ omni Bassfinder™ but you shouldn’t miss out on the Binford© Golddigger 5000 metal detector that can spot a diamond ring 3 feet down. This is the ILP that was originally planned for you. A greenhouse is certainly a larger-than-life ILP but it shows what is possible. Remember old Luke Skywalker trying to raise his X-wing fighter out of the swamp on Dagobah? Think big but do not concentrate on the size. Ignore the normal. There is no normal or boundaries to ILP. There is also no limit other than the unattainable 2,700 slots authorized by Congress every year. Don’t get me wrong. Grab bars and walk -in tubs are often a welcome addition as can be a complete redo of a bathroom. The ILP is a catchall of funding to prevent anyone from falling through the safety net. It was never designed to be applied as it currently is. The funds are there. Don’t ever allow VA to tell you otherwise. Once you reach the “severely disabled” stage, they are required to pull out the stops. No if’s, and’s or buttheads.

Ex Writ Solze 8-29-16 Reconsideration

download (1)

The decider of my/our ILP claim- CAVC Judge Meg Bartley

downloadI guess I don’t need to invoke the NOVA connection here but I do this for everyone who follows in my path. Some of you out there think the NOVA is a toothless tiger who doesn’t do enough for it’s own members. Remember, you do not attain power and greatness overnight. VA, after 9 years, is still uneasy with the presence of attorneys in their midst. One day soon, we will be an integral part of this process and many more of our persuasion will come aboard on both sides.

Judge Bartley might have put the kibosh on this for citing as a precedent, but it is an excellent road map for those of you who elect to fight for your ILP rights. Remember, this isn’t about can grabbers, grab bars and cordless phones. I have yet to see those even offered to me. I cut to the greenhouse and computer chase early on. My recent inquiry about the $331.00 for the 2015 Veterans Benefits Manual fell flat like a souffle at a daycare center. Some of you might even say I’ve plum wore out my welcome. Shoo doggies. After eight years, I’m just catching my second wind. This is beginning to get downright interesting now that I’ve been allowed into the hen house.

Anyway, I decided to send in the wasted rejoinder above to make sure our Patron Saint of the NVLSP knows she is appreciated. I doubt I’ll get a reprieve, but she will know the perfidy of the VA is alive and well-documented by their own employees. You don’t always win at VA poker but it’s nice to know they ain’t fixin’ to disremember your name anytime soon.  As for the possibility of perjury, who’s bailiwick is that one in?  The VAOIG’s? (insert canned laughter here).

Asknod's VA Logo

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Posted in All about Veterans, CAVC Knowledge, CAVC ruling, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans, Tips and Tricks, VA Attorneys, Veterans Law, VR&E | Tagged , , , , , , , , , , , , , , , , , , , | 3 Comments

MITRE and RAND corporations on veterans’ health care

Posted on August 28, 2016 by Laura

This gallery contains 1 photo.

The VA sponsors outside research conducted at the MITRE Corporation (LINK and overview, LINK). They, in turn, subcontract with other researchers like the RAND corporation.  RAND has a webpage (LINK) dedicated to opinion pieces, report downloads, and other information.  They were subcontracted … Continue reading →

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