VA’S TERA AND ILER REPORTS–A REBIRTH OF THE AO REGISTRY?

Posted on August 4, 2024 by asknod

Face it. VA is like any Government Agency. The penchant for turning everything into a fancy acronym has finally given birth to whole agency offices with acrotanks-think tanks of sub-IQ GS 10s entrusted with turning everything they can into some 3 to 6-letter combo which everyone is expected to understand. This gave birth to an adjunct office tasked with creating a tome on what all these acronyms stand for. Remember way back in the early seventies when they said “Watch this. Computers are going to reduce our workload down to the point that we can manage the whole shiteree from the beach w/ a Corona in one hand and a Dick Tracy wrist  gizmo on the other.” You gotta remember these are also the idiots that gave us the IRS and the Post Office. And the present iteration of the Department of Veterans Affairs. 

Opening Day of Zucchini Season

You have to admit, we’ve been bombarded with a shit ton of VA bad news in the last fortnight. First there was the ‘we outta money, honey’ story to Congress. Following on the heels of  that $ 3 Billion dollar beggar’s report, I spotted this in my news feed:

https://www.stripes.com/veterans/2024-07-31/veterans-disability-claims-errors-14684023.html

I almost felt sympathy thinking of the financial bind for Veterans in that VA had accidentally given Vets too much money instead of the opposite. I needn’t have worried. True to form, it was the reverse- VA screwing Vets of of their lawful entitlements. Funny how that M 21 manual always instructs them on how to do it wrong…but there’s never a VA mea culpa moment where you get the (800) 827-1000 apology in three part harmony. The closest thing I’ve ever seen is “A clear and unmistakable error was detected in the rating decision of 11/21/2002. Your rating for tinnitus is increased from 0% to 10% from 3/20/2002 to 5/12/2002 whereupon it is confirmed and continued at 0%.”

So, it was no surprise to see this on the front page of the Zeros for Heroes magazine this morning. Waaaay back in ’94 when I finally filed for Nehmer issues, VA sent me a three-pager with a request that I show up on July ___ , ’94 for my Agent Orange Registry exam at American Lake VAMC. They thoughtfully dreamed up this nothing burger in 1978 as a panacea for their poison. You’ll also notice they gave us all nothing until Miz Beverly Nehmer got up and fought for us in ’89.

https://www.military.com/daily-news/2024/04/24/toxic-exposure-screenings-vets-report-spotty-follow-questionnaire-meant-boost-health-care-and.html?amp

Like all of you, I showed up with a folder full of proof . The booth bitch just gave me that 1000-yard stare and said “Nope. I don’t see nothing about no appointment. Go have a seat and I’ll get back to you.” An hour later, I got handed a three-pager on a clipboard asking me where I’d been stationed (I-IV Corps), how many times  I thought I might have been “exposed” (and how) and any and all symptoms I personally felt were related to this innocuous weedkiller. Like I’m a doctor?

I was told I’d be rescheduled for a real exam with a real doctor to fix this error shortly. DCU/WCY. (Don’t call us. We’ll call you.) That was the end of the Registry as far as I knew. I guess Laos didn’t count. They didn’t have a box to check for it.

But now with the birth of the PACT Act, a whole new crop of acronyms are being born and bandied about like old, well-worn terms everyone is expected to know. CLCW (Camp Lejeune Contaminated Water), IEVs (Ionization-Exposed Vets), Nehmer -Class Vets (Vietnam presumptive.) ad nauseum. §§3.307; 3.309(e) just get  longer and longer every year.

Let’s wade right in and start with an ILER or Individual Longitudinal Exposure Report. Basically, in a nutshell, this is nothing more than a review of your service medical treatment records. VA uses a lot of AI to massage the information here. They’ll take an asthma visit to sick call as NOS (not otherwise specified) or RO (rule out asthma). Could be asthma but you don’t have a diagnosis (dx). Just in case, here’s an Albuterol inhaler but that isn’t to say we’re admitting you actually have any respiratory diseases. We’re merely supplying  you with a rescue inhaler JIC (just in case).

The next one is the TERA report. TERA is Toxic Exposure Risk Activity. From all the ones I’ve looked at, this is a simple dumpster dive into you military records to determine any deployments to “problem” areas which might force them into  acceptance of you as a potential exposee to chemicals or herbicides or ____________. Essentially, this is the old boots-on-the-ground Haas versus Peake paradox, or more simply, the newest updated VA Agent Orange Registry with add ons. Haas gave birth to what “coming ashore” was defined as. This led to the Brown water River Rats getting their boots on the ground. VA started drawing lines across Cam Ranh Bay and Da Nang Harbor to delineate where the Agent Orange magically stopped. That’s the “science” we’re dealing with.

VA roots through your DD 214 and looks for things like ARPAC (Army of the Pacific) or PACAF (Pacific Air Forces). OEF and OIF and your “I was there” medals are analyzed. If your Firebase Zip Code aligns with one in-country, you’re a Nehmer. Or if your boat was on the Brown Water NAVY (BWN) List, you ate the Orange stuff on the Perfume River.  Or if your zip code was in Afstan, you get the burn pit presumption. You’re still going to need extra help such as a nexus letter after they say “Yep. You were exposed but our TERA/ILER specialists say your MOS was not involved in burnpitting. Trust me. We tried like the devil to get this to come down in your favor but it just wouldn’t fly… but thanks oodles for you service.

Just before the PACT Act hit the books, we experienced the Procopio versus Wilkie revision and overthrow of the Haas v. Peake decision. This created a new group called  the Blue Water Boys out to 12 miles offshore. More lines were drawn in the South China Sea to define this. Like Agent Orange obeys Nationally recognized borders. As you can imagine, this let another sizable number of Squids into the Club. The PACT Act essentially lets everyone who ever served overseas in the general area of SWA (South West Asia) into this select clique. PACT also lets us Thailand/Laos/Cambodia outcasts into the club… but not under the favorable Nehmer terms. It also added a few more with Anderson AFB/Guam. But thirty years have gone by so there’s been a little attrition among the claimants due to lung cancer, Parkie’s and DM II.

Mostly, the PACT ACT is the biggest nothing burger to come down the pike in a while VA-wise. The majority of you are going to get the “Granted at 0%” pat on the back. A few will get the Full Ride scholarship and P&T. I’m not trying to piss on your campfire and bum you out. VA has a lot in the PACT bag but the big ticket items are the ones that will put you in the grave sooner that you expect. Ain’t no yellow ribbons ’round the old oak tree background music playing here….

In summary, the only time VA tries to shake your hand and put their arm around you is for a photo op.  Any time VA uses words like Stakeholder or “We’re all in this together.”, my advice is to step back and use the time-worn phrase of Jay Silverheels (Tonto in the Lone Ranger)- “What you mean ‘we’, Kimosabe? You ain’t got any more Native American in you than Sen. Liz Warren.”

Your friends in this VA poker game are always going to be your fellow Veterans. The President or National Commander of VFW flying around in that Gulfstream V could give a shit about you. Beware of men wearing funny hats.

What would a blog post be without old Ed the LRRP not offering his wit…

 

Posted in PACT ACT, Public Service Announcements, Tips and Tricks | Tagged , , , , , , , , | Leave a comment

BVA–GONNA BE A HEARTACHE TONIGHT

Posted on July 27, 2024 by asknod

Life is good. It’s summer. It should be good-and moreover, it should be redolent with good memories and fun. But, as the title to this blog implies, there’s gonna be a continuing heartache for a few of us due to VA’s financial intransigence and the insane insistence on clinging to ignorance of SMC. But before we enter the doldrum stage, here’s my granddaughter Daphne who just learned to walk last Sunday. She started screaming for joy and scared the bejesus out of her parents. Now she screams any time she’s walking. I reckon that’s gonna be pretty exciting for a while. 

The only good news in this story is Mikey found me and there is something we (I) can do. Right off, filing a HLR (Higher Level of Review) is a waste of perfectly good electrons these days. VA is broke, dude. They’re suffering the empty pocket disease. When you don’t have any baksheesh, you can’t write rating decisions granting benefits other than Zeros for Heroes or 10%ers for Tinnitus and HTN. Got it?  Jack and Jill are shit out of luck if they toodle on up the hill to fetch a pail of water. The well is dry and will be for a few months.

So, when did this happen? Well, as near as we can tell, they pulled in their horns late last year when they saw the overwhelming response to their campaign for Free PACT Money. The very word’ free’ generally can start a stampede in its own right but when VA uses the term, it’s going to be a gully washer. And it was, right up until somebody looked at the bank account and sounded the alarm. Almost $3 buh-buh-buh-billion in the red. That’s slightly more than a rounding error.

So, in my practice, I see a lot of high-dollar ratings. SMC metastasizes like cancer when it goes unpaid. And when VA ain’t paying, it’s like a gigantic case of constipation building up. But who loses? Well, gee, Dick Tracy. Guess who? The Vet. By not paying him/her, the rating just keeps racking up bucks for the Vet but the downside, from his standpoint, is that it’s also racking up bucks for me on my 20% fee agreement. That simply isn’t fair any way you hold it up to the light. VA could care less from what I can gather.

This is grossly unfair for any number of reasons. Vets expect prompt adjudications. Anything less, especially due to financial shenanigans, is not grounds for an excuse. But what happens when they just start fudging and write decisions denying entitlement based on a) their ignorance ; or more likely, b) purposefully knowing it will go on appeal or to an HLR which will further delay the inevitable paying off the piper. Either way, they’re off the hook pour le moment and get to proceed to the next train wreck.

This blog deals with proposition b above. Meet Mikey. Mikey is very ill and has an indwelling catheter from his Vietnam prostate cancer residuals. He’s no doing too well. He’s in a nursing home. Sometimes his heart goes into 78 RPM tachycardia and they have to give him the juice to slow it down and reset it. This is his heartache. I filed him for the very least of his worries as you can read here.

Redact 526 for loss of use and a&a_Redacted

That went over like screen doors in submarines. VA didn’t even bother to consider aid and attendance for his 100% prostate cancer. I asked for it but the problem here is endemic to the M 21 and hence, VA’s ability to grant. If you’re getting a&a currently, and you apply for a second entitlement for same, there’s a catch 22 in there somewhere (unwritten) that if the Vet is stupid enough to ask for it twice, the VA isn’t too terribly obligated to explain being greedy isn’t permitted.

In the rating decision below, they really stepped on their necktie. If you understand SMC, you’ll know that by granting the loss of use of the legs on top of the previous grant of SMC L for a&a, that you automatically advance to SMC O. And, because one of those two ratings is for a&a, you proceed to SMC R1 and collect your $200 dollars for passing Go! just like Monopoly. Except in this game it’s $9,635 every time you pass Go. That’s due to the Cost of Living Allowance  (COLA) increase year over year.

Redact R1 win but no dough_Redacted

But what can we make of this? You’ve seen the Fail blogs on Reddit™. You had one job… and you blew it. In this example, VA has one job and they screw it up over 75% of the time. And worse, get promoted for their ineptitude.  No matter how much they try, the error rate never improves. And when you introduce SMC at the higher levels into the mix, the error rate shoots up to about 98%. It’s ugly. VA’s read is “We gave you a&a back in ’21. You only get it once. So buzz off.” After the gazillionth remand to grant R1, you’d think this concept might sink in. But noooooooo.

This is why a HLR is futile. How can you argue for a second a&a when their rule book incorrectly says one ice creme cone to a customer? If we were arguing a higher rating, say for PTSD from 50 to 70%, what you’d see in an HLR is a concession of either a duty to assist error or a difference of opinion. In either case, it would disappear into a black hole for 4 months and finally emerge as a new HLR decision saying “Yep. We screwed up. We’re going to redevelop this and order a new c&p for another psychiatric opinion.” Two months later, you’ll get the call to go see Dr. Phil down at VES for another check up under the hood. He’ll reconfirm you’re closer to 50 than 70. Lather. Rinse. Repeat. At that point, your VSO will do what I did and take it to the Board to get sorted.

You folks will be experiencing this for a while until they prime the financial pump and get caught up. Then there will be a new calamity. Have you ever known it to be different? It’s like a cross between the Three Stooges and the Keystone cops… with horrible consequences for all of us. Enjoy your weekend. The Gravenstein apples are almost done and the peaches are looking peachy.

The best of all news for last. I emailed the Seattle Regional Director the other day and asked why I hadn’t heard back from the VR&E Officer on the progress for my greenhouse grant after 74 days. He’s her boss. I asked him to sashay up to the eleventh floor and put a mirror under her nose to see if she was still among the living. Boom Shaka Laka Laka. My email  runnethed  over. Everyone who is anyone at VR&E Seattle said not to worry. They are on it. My counseling psychologist, or what passes for one, is coming out Tuesday morning bright and early to do the reconnoiter and survey what the damages are going to be. They were talking $65 K back in Fall 2017. Inflation and delay has driven that up to close to $200 K in the interim. So don’t feel pregnant and alone. I probably won’t see my grant until the funds are replenished either.

Posted in All about Veterans, Complaints Department, Duty to Assist, How to Qualify for VA SMC, Independent Living Program, SMC, VA Agents, VA special monthly compensation, Veterans Law | Tagged , , , , , , , , , , | 1 Comment

THE SYNDICATE–A COMPOSITE ANALYSIS

Posted on July 18, 2024 by asknod

Without divulging any names, (boy howdy do your ears just perk up) I admit joining a new think tank. We loosely call it The Syndicate although it’s far more informal than a Wounded Wallet “All Hands on Deck!” alert. Relax. We don’t meet in Colo. Springs at the Broadmoor and drink killer single malt. I wish. Think Zoom unless you live in the greater Sacramento area and want to attend their Happy Hour in situ.

My idea of a solution is I have to get Wifi down to the pool for this important event pronto. It intrudes on my swimming time. I can multitask. I’ve never tried it but it can’t be that hard. We here in the northern climes have to wait until afternoon to go down and break the ice on the ce-ment pond. I keep it waaaaay down at 88° to save energy and prevent Global Warming. The Syndicate insists on meeting precisely when I begin my trek down there with the sledgehammer and my Oscar the Grouch innertube in hand.

 

We ( I have no idea how many of us) meet once a month to discuss how recent history is going to impact our goals of winning our clients’ SMC. We discuss recent precedential cases which may be helpful for one of us. We report strange anomalies in The Force to one another about changes in VA procedures or how the raters react to any given method we use to litigate. In a word, it’s like Robin Hood and his Merry Men. The Three Musketeers. All for one and One for all. It’s like a free mini legal conference every month but without the CLEs. BYOB.

The Syndicate’s commonality is our membership in a Fraternal Order of VA Ambulance Chasers ( no names to protect the innocent). What absolutely floors me is  the fact that most of these folks are real attorneys and yet still  give a shit about their clients and not their hair or their Lexus. How cool is that?

Given the last week or so in history, we’ll have a lot to digest tomorrow. I have a case slowly making it’s long tortuous way back from the CAVC. It was sitting there AOD in CASEFLOW with “Distributed to Judge” about a month and then Poof! Faerydust. It went into “On Hold.” with VLJ Chris Wendell. Chris seems to be the resident ‘on-hold’ line judge who throws the Yellow Flag and sits on these puppies until some OGC precedent can be established or decided on as on point. I’ve found him in several of my cases. He’s like Puxsuatawny Phil not showing up…six more weeks of winter on your appeal.

One thing is for sure. Every VLJ has an in-basket regardless their rank. But what could possibly cause a 1970 Five banger (five trips to DC + MFR) BVA case to go into Purgatory twice in one life span? On a Vacate and Remand from the Court, no less. My guess? The death of Chevron deference the day it went on hold again. I’m not holding my breath or chilling the Dom. Yet. Check it out. 22-3069. Roberto and me have been working this one since 2012.

The biggest thing on the Friday menu was the recent announcement Monday by the Under Secretary for Excuses Billybob Oops. He had the unpleasant job of going up to Capitol Hill and explaining to the House Vets Committee they were somehow about $15 B-b-b-billion over budget all the way into next year and wanted to know if they could get a $2.5 bil payday loaner until October. Wait. It gets better.

I get a lot of calls from VA litigators and they all like to spoof their caller origins. The ones coming from the Seattle DROC all come in with the main switchboard identification of the Seattle VAMC over on Beacon Hill (206) 762-1010. Pretty tricky, huh? The DROC is down south across the street from Sea Tac Airport. Since I eschewed using VA medical in 2010, I just know they aren’t calling to remind me my colonoscopy exam is overdue.

So, for about the last year  or so, the phone’s been ringing and the 762-1010 comes up-but no Denise Dolittle from the VA calling to set up a HLR IC. Instead, I hear that elevator music lady kick in after about a five-second pregnant pause… “Hellooo, sailor! This is the VA calling. We’ve identified you by your VA records as having been exposed to some nasty harmful chemicals. You should file for the PACT Act and get valuable benefits. Call 800 Dial a Prayer as soon as possible and let them know you are interested in filing a claim for Burn Pit exposure immediately. Valuable prizes included with this exciting once in a lifetime offer.”

So, if you’re crowing about how many Vets you’ve gotten service connection and PACT benefits for (1.5 million) caused by cold calling them up and inviting claims wholesale, and then paid them out about $2.1 billion dollars… then you may be a VA employee. Just sayin’. No hard feelings, hear? Kinda makes you wonder how they get their underwear on facing the right way in the morning.

In closing, I’ll say this. If you have a lot of bad JU JU left over from a prior war (or conflict like Panama/ Grenada) and are worried about getting into Heaven, there’s no business like Vet business. It doesn’t have to be down in the legal trenches or slogging it out behind a VSO desk. There are untold opportunities out there to help Veterans out. If you’re stymied, think up something new that might benefit them. Bake cookies and go down to the local Supermarket and set up. Cookies for Veterans and their families only. How cool is that? Color me there.

The obvious problem with that is you’ll inevitably have a Marine or Army Recruiter trying to set up a booth right beside you in short order. And they’ll steal your cookies.

 

Posted in All about Veterans, CAVC Knowledge, Food for thought, Special Monthly Compensation, Tips and Tricks, VA Agents, VA Attorneys, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 1 Comment

Exposed Vet Radio Show in 1 hr and 10 minutes.

Posted on July 11, 2024 by asknod

Exposed Vet Radio Show is scheduled for 1900 East and 1600 West. Pete Cianchetta and I will be discussing the ramifications of the demise of Chevron Deference and how it’s going to affect VA claims.

Here’s the link.

https://www.blogtalkradio.com/jbasser/12350987/connect/638af041513f7e3b96c012e33030a6af71869828

Or, you can use the old fashioned telephone connection.

(515) 605-9764

See you there verbally. Don’t forget the chips and dip.

Posted in Exposed Veteran Radio Show, Humor, VA Agents, VA Attorneys | Tagged , , , , , , , , | 3 Comments

AMERICA IN THE 21ST CENTURY–HAPPY BIRTHDAY

Posted on July 4, 2024 by asknod

Unlike Mr. Sting of The Police band, I have great faith in America. His song Spirits in the Material World paints a bleak picture of the future if you subscribe to its dire premise. Many progresssive-minded folks do. I don’t. If you want to see a country with a lot of problems, you don’t have to look far. Can you  imagine living in Afghanistan these days? As a woman or school aged girl? Or worse, a transsexual?  

While America has had a few rough spots, you’ll notice we’re still around using the original recipe for the Republic we founded. We’ve never been conquered or occupied by hostile forces on our own turf since the English burned down the Casa Blanca in 1812. The fact that we’re being invaded by illegal immigrants who seek a better life is disconcerting but I expect that is a temporary aberration that will resolve itself soon enough if the powers that be would quit squabbling.

I hear all too frequently that “democracy is at stake” in November. Do any of you actually believe some chucklehead like Trump seeks to get elected and then proclaim himself a dictator? For life? That’s like believing in chemtrails and a flat earth. It would require a conspiracy of untold magnitude and the collusion of nearly every branch of the military. I honestly believe we have a better chance of greeting aliens on the Mall near the Washington Monument soon.

 I tried that conspiracy gig up in a country back in the ’70s where Together We Never Served. You can’t clear them in hot with liquid sunshine (napalm) without getting busted. A conspiracy of one? Yes, but not a conspiracy of more than one. Too many people  have to know in order to accomplish it. That can’t happen in the brave new world of whistleblowers.

Let’s unpack this “doomed democracy” gig. Without taking sides, I’ll grant that a bunch of “inspired citizens” decided to hold a protest at the Capitol on January 6th back in ’21. Did they seek to change the election results? Did they seek to permanently revoke democracy as we know it? Political science isn’t my strong suit so I defer to others. What I saw is some unruly idiots on parade who wanted some facetime on NBC. If that was the best they had, they flunked the “Destroy Democracy” test. I was impressed with the guy who tried to abscond with the Speaker’s Podium. That took balls bigger than mine.

America is an amalgam of many things. I’d pull up short of saying extremists or insurrectionists. Most of the Americans I know are ex-military types who fervently love their country. They may comprise disparate groups who vote in two distinctly different directions. Some want more freedom and less government. Disturbingly, other groups actually want the opposite. Gun nuts. Gun control nuts. Men who yearn to be women and vice versa. Folks who prefer antisemitism over freedom of religion. It becomes comical when a large contingent of  LGBTQ-type advocates support Hamas. Do they realize they’d be executed on the spot in Gaza (or anywhere in the Muslim world) for waving a rainbow flag? As my daddy used to say, “You have the right to remain stupid.”

For all America’s perceived shortcomings, there’s no place like it. Very few countries on Earth allow you to possess guns. They don’t trust you with them.  In some countries, you are not free to move about the country.  Sure, you can own and operate an AK 47 or 74 in Afstan-but only if you’re on the right side of the ruling hierarchy. Can you imagine a sand rancher walking into a Piggly Wiggly store and cutting lose with a 47? He’d never survive long enough to go to trial. I fear that may become the case here some day if we don’t start to enforce the myriad rules already on the books instead of trying to take away our guns.

America is unique. When I hear some of you shout Make America Great Again, I can’t help but think you’re missing the point. When did we cease to become great? Or mediocre? Or downright unpleasant? Okay. Leave out New York, San Francisco or LA.

Every four years, we (opposing political parties) get the heebie-jeebies that somehow the “other side” is going to take over and wreck all the hard work we’ve accomplished. I get that. Paranoia strikes deep as the song goes. But think back over the last 248 years and tell me when some “existential threat to democracy as we know it” reared its ugly head and smote down our Republic. I disremember unless you want to drag in the War of Northern Aggression (viewed in the eyes of the South) or the Whiskey Rebellion in Pennsylvania. America didn’t perish. We gathered ourselves up and moved on.

Existential threats, to me, are weird-ass shit like fake pandemics. Sure. A lot of folks died from Covid but the more we investigate, we understand many of them were on their last legs medically speaking. Masks turned out to be useless. Our government lied to us and screwed up the country. We’re only now beginning to see the long range damage. In true numbers based on the size of our population, 1918’s Spanish Flu was just as bad- if not worse. We survived as a Nation. Ditto WWI and II. More dittos for Vietnam and the Iraqistan fiasco. Much like a cat, we always seem to land on our feet and proceed apace. Witness the elimination of segregation and slavery. Don’t try to convince me racism still runs rampant across the Fruited Plains. I used to live in the South and am old enough to remember colored water fountains only. It only exists now for political purposes to incite, anger and separate us. Wake up, America.

Freedom (American Style) is pretty much unique to our country alone. The very idea that  if former President Trump regains power, he’ll have unlimited power to order Seal Team 6 to take out Nancy Pelosi or Chuck Schumer is ludicrous. Moreover, if anyone thinks the Army or the Marines would go along with the idea that he should be crowned King and rule forever- and even support his efforts to overthrow ‘democracy as we know it’, you need to see a shrink and be medicated. Heavily.

Japan was convinced they could never invade America and conquer us because we (as one aspiring politician once said) are a basket of deplorables who cling to their guns and religion. I really don’t have much truck with the ultra religious but if they’re peaceable,  I don’t see the problem. If they know gun safety and don’t sashay around at the local Mall toting six sixguns, who cares? I even will give them a bye when they show up on my front porch and try to shove an Awake! or Watchtower magazine into my hands.

What I fear most are folks who may want to outlaw purple hair or teach kids DEI in school. School is for readin’, writin’ and ‘rithmatic- not a brainwashing exercise to convince  Johnny that he might, in  the new reality of wokeness, be Jane and his parents are guilty  of suppressing his yearning to change. Let’s let Johnny or Jane make that choice after s/he reaches the age of majority- and not before. We don’t let them vote before 18 for a reason. They’re not ‘done’ yet.

America is sturdy. It’s durable. It will survive if everyone would cease getting their panties in a knot and predicting gloom and doom if one side or the other prevails. We’ve been doing this for a few hundred years and we’ve always had a peaceful transfer of power. One marvels at how Trump can be guilty of trying to ensure the 2020 election was above board. Do we ignore Al Gore’s hanging chads in Florida in 2000? Do we sweep Hillary Clinton’s conjecture of how she was robbed in ’16 under the carpet? Face it. Every election, by its very nature, is going to have a winner and, conversely, a loser. Unfortunately, some are sore losers. Sore losers never changed the outcome though.

I rarely opine on matters political but the frenzy meter is running in the red these days. AOC says she’s going to impeach the Supreme Court for the litany of evils they have spawned.  I never heard the conservative branch of Americans ever advocate to run them out on a rail when the Court was 6-3 and knee deep in progressive endeavors for years and years back in the 60s.

It’s time to sky down and analyze history. Roe vs. Wade hinged on the Government abrogating the power from the States to tell women what was permissible. Nowhere in the four corners of the Constitution does it say the Government has that power. Just because it happened doesn’t mean a wrong cannot be righted to balance true freedom of choice. Each and every state has the right to make that determination. I, for one, find abortion to be sanctioned murder but I would fight to the death for a woman’s right to make that choice herself. If the state you live in forbids, or severely curtails, that right, vote with your feet. If Illinois outlaws possession of AR 15s, vote with your feet. Move to Florida or Wyoming.  You live in America. You’re free to move about this glorious country-for the moment anyway.

I hear Alec Baldwin or Susan Sarandon moan and say if Trump is elected, they’ll depart America post haste. They said the same thing in ’00 and ’04 when faced with the choice of Bush ’43. And here we are twenty years later still going strong like the Energizer Bunny. That babe down in New Mexico would still be alive if Alec had left. No. I have ultimate faith in the way our forefathers constructed this poker game. It’s stood the test of time and a bunch of panicky naysayers won’t convince me to vote for anyone who advocates usurping our rights to protect us from ourselves.

Next year, I look forward to a closed, Southern border (or any border) that protects us from folks who would blow up the World Trade Centers, I look forward to schools that teach morals- not how to put a rubber on a banana. The old Virginia Slims commercial always resonates in my noggin. “You’ve come a long way, Baby.” We have. We now need to put that in perspective and practice what we preach. We cannot put our citizens in a virtual moral (or immoral) jail to protect them from themselves. We have to trust that those we elect will do the right thing and protect our unique way of life for those who come after us.

We don’t need to make America great again. We just need to admit we’ve strayed a little bit too far in the wrong direction. When we can’t afford to pay rent (let alone buy a house) and put food on the table for our kids, that means we’re doing it wrong. When good, solid immigrants of high moral character are waiting patiently in line to come here, how can it be that our Administration is not only allowing unvetted, unvacinated folks to stream across the border unfettered but flying them in from El Salvador?  If the guy running for President is convinced everything is hunky dory and no American servicemen have died on his watch, then we need a change. Two Americans are running. One is an alleged felon for cooking the books to pay off a hooker to quit lying. The other ‘s son is now an alleged felon who just got convicted of illegal possession of a handgun while high on crack for the last 10 years. Only in America, folks. Only in America. I don’t think it gets any greater than that.

And that’s all I’m going to say about that. Happy Birthday America. Gentlemen, start your barbecues.

Posted in 4th of July, Complaints Department, Food for thought | Tagged , , , , , , , , , , | 6 Comments

NEW BOOK–BETRAYAL OF VALOR

Posted on June 23, 2024 by asknod

I received a copy of a new book that just came out this week. Included was a cover letter  addressed to Mr. Gordon Alexander. The VA Accreditation site has me as Gordon A. Graham and the nova site has me as Gordon Alex Graham. Since you just gotta know everyone sells their lists including the VFW etc. , I’m now watching my mail to see what else comes in with that name configuration. Below is the copy of the cover letter. I’ll give Maggie a bye on this one. I don’t mind being addressed as Mr. Alexander. Beats Hell out of being called late for dinner.

Advertize my book, please

Back to the book. The subheader below Betrayal of Valor is ‘An Exposé of a Horribly Flawed Veteran’s Administration”. The author has asked me to critique his work. I’m sure it’s a very well written book. I’m sure it’s unerringly accurate historically speaking.  I’m uncertain as to whether Mr. Eric Gang, Esquire is an accomplished VA attorney or not. I don’t know anything about him and don’t recall I’ve ever run into him at our legal conferences. His record that I can see reveals hundreds and hundreds of Joint Motions for Remand (JMR) asking to relitigate the denials again below salted with requests for dismissal. Granted, maybe he prevailed the second time around. Let’s give him the Presumption of Soundness, shall we? What the hey? The man has a J.D. and I sure don’t.

I’m pretty sure Eric’s as busy, if not busier, than me but honestly, sending me-or any Veteran- a copy Of this “exposé” is like carrying the coals to Newcastle. I reckon that phrase dates me. To all of you who just came back from Sandrancher country, it’s like reminding us all you just spent twenty plus years at war and had to run for your lives at the end. Veterans are well-versed in that version of war since the Vietnam debacle. I’m praying it doesn’t become the default setting in the future.

From the title, you’d expect the book  would recite the litany of VA stupidity that’s followed them like a moonshadow since our War for Independence. Think about it. VA has an almost perfect unblemished record of turning everything they touch into a world class fustercluck. Seems plausible. The VA used to be an offshoot of the Secretary of War and thence the Department of Defense. Historically speaking, Fort Five Sides hasn’t been able to find their ass with a methane detector since the end of WW II. Now they’re hopelessly  occupied with flying the rainbow flag and achieving equity to even attain (let alone maintain) their troop strength.

The VA didn’t technically come into its own until 1989 but nothing has changed except the name. Which is why I question why anyone would suddenly wake up in 2024 complaining the system is irretrievably broken-and then write an exposé sharing their newfound revelations with the folks who’ve experienced it since their separation. Helloooooo?

Remember the Bonus Army that came to Washington DC back in 1932 and demanded early redemption of their bonus coupons? Screwed to a man they were. MacArthur and Patton got in some good cavalry practice that day and even Eisenhower got dragged into the fray- albeit unsupportive of the action.

Think of more recently. Remember Under Secretary for Benefits (USB) Allison Hickey testifying before Congress circa 2013-14 that the VA was preparing to revise their DBQs to provide a space for doctors to opine-up or down- as to whether the disease /injury was caused in service?  Under Secretary Hickey insisted they just wanted to use up all the existing ones in stock first. But riddle me this- all the DBQs are electronic .pdfs.

I guess I might add it appears they never did finish using up the electronic version as there still is no place for the outward-facing document available to Johnny Vet with that promised box to opine in. VA has, however, created a separate inwards-facing “DBQ” of sorts called a Medical Opinion form wherein they perform this function but it isn’t available to us (Veterans) to provide to our own doctors. Sound like some kind of Secret Squirrel SOG bullshit? You betcha.

Remember when the AMA was inaugurated in 2019 and  was going to revamp and simplify the whole VA claims process as we know it? I’m still hoping to live to see the promised drive-thru lanes at our VAROs across the fruited plains before I pass. But then I’m also still waiting for the backlog of any kind of claim or appeal to evaporate (as promised) which might create the necessity for these drive-thru lanes.

Remember when the VA had so many doctors that they were promising you an appointment within a month?  In 2014, we all found out they had to 86 a shit ton of appointments at Phoenix just to keep the wait time down to a dull three-month roar. Even then some Vets fell through the cracks and died before even getting to first base with their caregivers.

Every time I hear some Vet spout off about  what killer care he receives from the VAMC near him, I look down at my belly and those seven ventral hernias avec cadaver skin and say “wait”. Just wait until you’re coming down with Prostate cancer and some VHA desk pilot in scheduling says in a chirpy voice that you’re in luck inasmuch as they have an opening in MRI next February 10th (2025) at 1640 hrs. So what if your prostate cancer has metastasized into your bones and lymph nodes by then? It’s free because you’re 50% or more SC. Surely you can see the value in it being free medical treatment.

Mr. Gang’s book reads more like a poorly plagiarized version of a NVLSP Veterans Benefits Manual. The title suggests we’re going to get the down and dirty on every nasty deed they’ve ever perpetrated on us. It doesn’t.  I’m not denigrating the book. It’s just that it regurgitates nothing more than how to win a claim-not an exposé as promised. When the war’s over, Veterans are leftover detritus that no longer needs to be pandered to.  What throws me for a loop is that several of my fellow VA agents have also received this tome but nary an attorney has. Is this to say we’re equally as ignorant as VSOs and need counseling by Eric on how to do this? That’s pretty condescending. Remember- his publisher, at his insistence, asked me to critique this book honestly. This isn’t some Sunday afternoon diatribe.

I’ve been playing VA poker since 1989 on a pretty regular basis and there’s not much they can pull out of their hats these days that I haven’t seen. The major change just seems to be the inordinately large amount of bullshit coming down the pike with new, imaginary regulations that say that unfortunately we can’t get there from here.

If Mr. Gang had been more forthright in his investigations before taking pen to paper, he’d comment on the reality of our latest fiasco called the PACT Act. It’s as if Congress and VA colluded (read ‘made a pact with the VSO devils’) to foist this new ‘entitlement’ on Veterans and then hand out 0% ratings after mucho PR hoopla. We, among the VA representative ranks refer to this dog and pony show as the ‘Zeros for Heroes’ program. Trust me, it’s been around since before the War of 1812 and hasn’t changed appreciably since. Promise them untold compensation riches and hand them fool’s gold. Welcome to VA compensation 101.

On Ash Wednesdays (post PACT Act), across our fruited VA plains, many Veterans figuratively discover the valuable Mardi Gras beads (read promised benefits) they were bequeathed the night before in good faith by their VSOs are nothing more than cheap, worthless 0% trinkets. This happens year in and year out. Was it Einstein who opined the definition of insanity is performing the same action over and over in hopes the results will change?

I’m not complaining about Mr. Gang’s book. I merely point out he’s failed to reveal the perfidy of VA’s continuing promises he’s promised which they dangle in front of us like a carrot before the donkey. Where’s the exposé, cowboy? It’s a great book if you’re a newby FNG representative looking for insight on how to cut the VA’s Gordian Knot.  It’s Greek if you’re Johnny Vet. And it’s like reading last week’s newspaper if you’re inexperienced and expecting to receive some Divine Sign from God on how to win a VA claim.

I’ll leave you with this. On the back cover, a review  by Kircus Reviews states:

“Having brought nearly a thousand cases before the United States Court of Appeals for Veterans Claims, the author not only presents readers with a well-documented exposé of VA misconduct, but also offers practical tips to veterans [sic] on how to navigate the labyrinthine VA bureaucracy.”

If you don’t understand VA law-both the old Legacy system as well as the new AMA- how in Sam Hill do you expect to offer practical tips to the great unwashed? And that’s all I’m going to say about that except Veterans deserve the capital ‘V’ rather than the lower case ‘v’. We’ve more than earned the sobriquet in my mind.

P.S. One upon a time, where, Together We Never Served…

 

 

 

 

Posted in All about Veterans, Appeals Modernization Act, Complaints Department, Legacy Claims, VA Agents, vA news, VAMC Scheduling Coverup, Veterans Law | Tagged , , , , , , , , , , | 7 Comments

EXPOSED VET RADIO SHOW– THURSDAY 6/13/2024

Posted on June 13, 2024 by asknod

I got hornswoggled into doing a PCAFC appeal to the Board for Ray. Then I inadvertently inherited one already at the BVA in Caseflow so I’m going to discuss the ins and outs of “How to” for all of you encountering your own difficulties in this endeavor. The secret seems to be in the phraseology.  

The Call in number is still

(515) 605-9764

Or, should you desire to view it on the computer…

https://www.blogtalkradio.com/jbasser/12346174/connect/083b1805437ee52ec94a79a102321e4a0e6a40da

Show starts @ 1900 Hrs East/1600 Hrs Left Coast. See you there audibly.

 

Posted in Exposed Veteran Radio Show, Tips and Tricks | Tagged , , , , , , , , , , , | Leave a comment

AI–THE NEW VA CLAIM TECHNIQUE

Posted on June 2, 2024 by asknod

Artificial Intelligence (AI) seems to be all the rage now. As for applying it to the VA claims process, I expect a lot of Veterans are going to spend mucho dinero chasing an AI unicorn and be poorer for the effort soon. Granted, the VA claims process is daunting enough- and even more so since they reinvented it and “simplified” it with the AMA. But complicating it with the AMA and then salting it with a cacophony of AI is going to result in a ever-larger tsunami of denials. The reason is simple. I’ve been observing this process since 1989. Every time  a new trick is discovered to “get there”, VA revamps the system to plug the hole in the dike. Read on.

After umpteen denials and untold ‘not well-grounded’ Dear Alex letters from Uncle Ed Derwinski and his progeny in my early years, I eventually ran into the CAVC (formerly COVA) website and the BVA decisions site in 2008. In 2006, there was no talk of nexus letters or IMOs. Most of us just kept plugging away with defective buddy letters, contemporary photos and futile pleas for the benefit of the doubt. Veterans actually had a statistically higher chance of winning the Publisher’s Clearing House Sweepstakes or the Powerball Lotto.

Being sick as a dog and unable to work, I began an Occam’s Razor examination of why Vet A prevailed and Vet B lost. I began by reading every CAVC (COVA) decision from 1989 to about 2006. That really didn’t help as I had no legal acumen. However, the BVA decisions website was more explicit. Here, you got to examine a case with the end result (win or lose) at the beginning followed by a precedential rationale legally speaking. It was easy to sort through and segregate all the wins together and relegate the losses to the circular file. But, in the process, I at least began to see the legal rationale for the wins.

No secret handshake had to be learned. No 8-character password with a number and a character had to be memorized. All you needed was that magic paper from a Doctor saying the nexus words for you. It was so simple, I doubt most would have discerned it. As soon as I published that Rosetta Stone, they changed the game. No longer would a simple explanatory letter do. The next  iteration was that VA’s examiner had read the entire claims file (or claimed to have done so) and your doctor didn’t so they had the complete picture.

That was an easy fix but incurred a six-month delay for the most part just to get the claims file. Most Veterans’ doctors were just that-Doctors. They had patients whom they serviced and they didn’t have time (or Adobe Acrobat OCR) to ingest a 1,300 page file with everything from your anal temperature at entry to your inoculation records. This gave birth to a nascent industry of Independent Medical Opinions. Granted, the field had existed for aeons but was very expensive. Most non-VA attorneys used this process for malpractice claims. It wasn’t unheard of to hire a specialist to come across the country to testify at your trial for about $30 K plus dealer prep and destination fees and a fuel surcharge on top.

The next change was VA examiners (read raters) picking apart your IMO and finding some miniscule fault to deny on. Arguments began to surface as to whether your lay testimony was credible or whether you were competent to discourse on whether you had a transfusion after you got that through and through GSW. If it wasn’t in the records, it never happened. The hole in your chest and exit wound didn’t mean anything. Purple Heart? So what?

The IMO game has evolved from there. Just getting one is no longer the panacea it used to be. The reason is simple. More and more Vets are turning to the Claims Shark model of VA litigation and hiring former VA examiners as Sherpas to lead them up the claims mountain. The Sherpas, in turn, have a comprehensive development team to provide you with the IMOs, coach you on how to write the perfect lay testimony in support of your claims, and, in some cases, file the whole shiteree for you. Newsflash. VA reads the newspaper too.

As most know by now, this Sherpa model is a) illegal as hell; b) has more hooks on it than a Heddon™ Tiny Torpedo; and c) will cost you waaaay more than if you’d just hired an Agent or attorney. Granted, there are good arguments on both sides for using attorneys/agents/VSOs versus the new Shark model. The attorneys, for the most part, know the legal side, are becoming more acquainted with the IMO theorem and have a high win to loss ratio. The Sharks don’t have to obey the rules so they can cut corners. They keep their own doctors or psychologists on tap along with a bevy of Nurse practitioners to write the IMOs for “free”. When you win, they descend like vultures to collect the lion’s share. “Free’ gets a new five-figure definition-but only if you win. I’ve recently seen an IMO denied because the doctor’s address was the same as the claim shark’s office address. Can you say ‘independent’?

This art form has been around for scores of years. It used to be they just charged for the IMO itself. Representation was an additional 20%. I’m sure most of you are no strangers to a few in the industry who perform ‘holistic’ medical opinions. These IMOs look at the whole you from stem to stern. Who cares if you didn’t have flat feet in the Army? Turns out that bunion you went to sick call for in ’68 was just the beginning of it. Your knees gave out because of the feet. The knees are connected to the L5-S1 bone so that’s part of it too. And in 1992, you might have gotten away with it. But not now, kemosabe.

These days, you can hire a real neurologist to opine on why you’re dizzy 24/7, have excruciating headaches and go through wives like toilet paper.  They can cite to 21 peer-reviewed articles published in JAMA explaining your TBI via an RPG in the king’s English. VA can send you out for a 20-minute c&p by Shaniqua Brown, NP-FNP (TBI-certified by Optum Serve) who attributes it to the post-service MVA where you got a fender bender. As I said, this game has changed over the years. For me, it now almost always entails a trip to the BVA on appeal to get justice.

Enter AI. Several days ago, one of my compadres ran into a new wrinkle. He claims an outfit called the VA Claims Academy® has a new technique using AI that can write out the whole claim- including the lay testimony for you. All you need to do is arrive on their doorstep with you VISA© card in hand. I didn’t get into the fine print but I’m guessing they also have the complete complement of doctors and nurses just itchin’ to nexus everything on or in you to, well, something in service. Maybe you were stationed in England in the Air Force when those aliens landed back in ’80. Who said your claim for PTSD due to alien abduction is far-fetched? AI can fix that.

The art of the nexus letter has advanced far more than just asking your treating physician to write one for you. Be prepared for a a large dose of VA skepticism. In fact, I’m seeing them question whether my Vets are engaged in fraud. I’ve had a VA doctor say (in his own IMO) that private IMOs are bogus because the Vet’s clinician has a vested interest in it. It has to be bogus- they were paid to produce it. Case closed, right? Think that one through to its logical conclusion. Does the VA subcontracted VES author of an ‘independent’ VA medical opinion denying your entitlement to __________ work for free? Of course not so that’s like the pot calling the DEI kettle black.

With AI, you can fabricate everything but the National Provider’s Identification number (NPI). The DEA assigns the number when you become a licensed medical provider. I had one rejected last month for that reason. Just for shits and grins, I googled the doctor and bingo-there’s his NPI in his bio. You’d think a VA rater with a room temperature IQ could find that. You’d think wrong. I reckon VA doesn’t have access to Google.

I see a bad moon rising for Veterans with the advent of AI. I’d feel a lot more comfortable if the ocean full of claims sharks wasn’t there because all it does is taint us legitimate accredited representatives who play by the rules. What’s worse, the sharks have hired  oodles of lobbyists to let them practice with no oversight because well, gee, there aren’t enough accredited reps to go around. How about if all the sharks just sit for the VA OGC exam if they are so knowledgeable and capable? Why the approbation and feeling they are being discriminated against? Shoot. Just look at those impressive big dollar wins they’re bringing in. Having a sheepskin to hang on the wall saying you’re legit would seem to be good for business. Besides, it costs $0 dollars to get your accreditation.

In closing, I think the answer to this quandary of legitimacy must always be governed by logic. Attorneys, doctors, nurses, paralegals, and yes, especially us lowly Agents require some supervision to give this process the semblance of respectability. But how about some certificate of competency for VA’s DROs, RVSRs, Coaches and VSCMs attesting to their bona fides? Why do they get a bye on the licensure requirements?   It’s patently obvious from VA’s adjudicatory record that VA screws up 74% of everything they touch. In fact, in this business, getting it right is increasingly more an anomaly than a given.

I’ve always been one to play the Devil’s advocate of my own claims- if for no other reason  than to ferret out a fatal flaw to my legal logic. The argument for less, or no accreditation strictures whatsoever, doesn’t pass the logic test nor the claims sharks Rodney King plaint of ‘can’t we all just get along?’  that they should be presumed to pass muster in the legal proficiency arena. Accreditation? We don’t need no stinkin’ accreditation! That’s a specious argument like saying the government shouldn’t require you to have a driver’s license to drive a car. Or better yet, lawyers shouldn’t have to go to law school and pass the Bar to practice. Right?

P.S. As with all VA “Claims Sharks”-involved posts, due to certain parties feeling marginalized by my and my fellow VA -accredited friends’ comments on their legal technique, I must take typewriter in hand and clarify my and Asknod.com’s position. Quite simply, Asknod.com’s blogs are on a par with the Babylon Bee© approach to news and conjecture. We write about it. We do not moralize on whether a Veteran should choose this method or representation. We do not pronounce judgement on the motives of non-accredited legal entities who claim to be nothing more than “sherpas” but not preparing claims per se. As a non-attorney claims agent, my conjecture is just that-idle theory. Call it a WWVD (What would a Veteran Do?). We may report on what others have done. We may say what we feel we personally would have done but that could never rise to the level of legal advice to renege on contracts.

Posted in Appeals Modernization Act, IMOs/IMEs, VA Claims Sharks, VA Representative Training, Veterans Law | Tagged , , , , , , , , , , , , | 3 Comments

MEMORIAL DAY 2024–REMEMBERING THEM ALL

Posted on May 26, 2024 by asknod

Memorial Day is painful to some, joyous to those who aren’t a subset of America’s fallen and, sadly to most, just an excuse for a three-day weekend with a lot of burgers and brewskis.  I won’t dwell on the morose serious side. To me, even though my dad rests on Mary Custis Lee’s front lawn, Arlington National Cemetery represents the ugly fallout of War; all wars- not just our internal squabble between the north and the south.

Having participated in a war once upon a time, I survey the last fifty years and see nothing has changed. Every time we end one, it’s only a matter of time before a new trouble spot rears its ugly head and all George Santayana’s admonitions fly out the window. We bust out the yellow ribbons and the medals and patriotic fervor rises in our breasts. Again.

A stanza of Fortunate Son by Credence Clearwater Revival rises in my breast…

Yeah-yeah, some folks inherit star-spangled eyesHoo, they send you down to war, LordAnd when you ask ’em, “How much should we give?”Hoo, they only answer, “More, more, more, more”

In case you haven’t noticed, those eager to commit to war most often are not the same folks who’ll be carrying the flag or toting a 16. I’m sure they have all the moral and intestinal fortitude of patriotic citizens but that’s easy if your personal involvement consists of little more than raising your right hand to vote ‘Aye” to another Tonkin Gulf Resolution committing hundreds of thousands of your fellow Americans to certain death. Again.

However, I won’t dwell on that today. Dead folks don’t demand respect. How can they? They’re long gone. Only their offspring and survivors can occupy that unenviable position. In another fifty years, there will be no survivors of the Southeast Asia War Games. Ditto one hundred years hence and the eventual passing of any survivors of the Afghan/Iraq/Kuwait debacle. We’ll still have plenty of Memorials to remind us of the absolute, utter futility of War but will probably still have plenty of them folks with Star-spangled eyes just waiting for a new conflict. Again.

This last week, I encountered a completely unexpected scenario. I doubt any of you would even conceive of this happening. To put it in perspective, allow me to ‘set the table’ figuratively. Since the War of 1812 or thereabouts, we’ve had a soft spot in our hearts for our sons of war who suffer disabilities incurred in both combat and training. We have created munificent statutes (in Congress’ mind) to remunerate them for their suffering. In furtherance of that worthy objective in 1865, we were forced to enact laws to prevent Veterans from being fleeced by unsavory characters who would steal funds awarded to disabled Veterans. We had pretty much put the puppy to bed until 2006 when Congress let their guard down and eradicated criminal penalties that protect us from their depredations.

With the advent of the Pandemic, idle hands (and minds) began anew the hornswoggling of a new generation of America’s warriors. I speak, of course, of the new cadre of what we call “claims sharks”. Quite simply, in the last four years,  uneducated, unschooled and avaricious individuals have begun offering help with VA claims. Their numbers continues to metastasize exponentially and the financial harm done to Veterans’ pocketbooks, and, by extension, their dependents, is appalling. Yet Congress dithers and does nothing. Again.

Many in the field of Veterans Affairs and litigation have strongly advocated for the safety rails to be erected once again to protect our disabled Vets. Sadly, Congress’ resolve to do something is being overwhelmed by greedy interests (read lobbyists) who advocate for a wide-open free-for-all of unaccredited, unlicensed scalawags. They propose new rules that would allow those they represent to fleece Vets unmercifully. This has given rise to two competing camps advocating for two entirely different outcomes-one, the old school version where only accredited attorneys and Agents like myself are properly vetted and supervised to prevent abuse; and a new version where unlicensed, greedy operators are demanding they be allowed to charge as much as the market will bear. Again.

The two competing legislative bills in question are the “Guard” Act which would reinstitute the old penalties for practicing VA law without a license versus the “Cares” Act which would allow any Tom, Dick or Harriet to throw his (or her) hat in the ring and charge up to $12,500 for a single claim. Currently, these unscrupulous outfits in the VA litigation business currently have been known to take five months of past-due benefits, including dependency funds, on brand new claims-something forbidden by law for accredited individuals.

Putting this in perspective, the 146 Veterans Service Organizations chartered by Congress provide this service for free. We accredited representatives generally charge 20%. The most complex cases on appeal are allowed to reach 30% in some instances. But under no circumstances are we allowed to charge a dime if VA grants a brand new claim right out of the gate. So just imagine some shylock showing up, providing Mr. unsuspecting Johnny Vet with lots of help and then taking him to the cleaners for 50%-all with no guardrails or supervision to ensure honesty. Their proffered codicil? Why, they’re not greedy. A max ceiling of $12.5 K for their expertise would be a pittance for their knowledge and expertise. And besides, there aren’t enough accredited attorneys or Agents to go around so this is more fair to the Veterans.

So, you folks can imagine my surprise when Johnny (Iraqistan) Vet arrived at my front door asking for representation because his current attorney (legally accredited) wasn’t very well acquainted with Special Monthly Compensation (SMC) law. Since I know this to be true in most cases, I blindly believed his story and took his Power of Attorney for a records review only. After gaining access to his files, I realized this Veteran was what I politely refer to as a ‘frequent filer’. He had about 4 or 5 appeals pending at the Board that I would be legally required to defend if I accepted his full-blown POA. Whether they were viable, I had no way of knowing but I knew they would entail a lot of unexpected work I would be legally on the hook to defend.

I decided to hand this one off to a fellow attorney who wasn’t as busy as me but still well-versed in SMC. Before he even had a chance to do an in-depth longitudinal review of this Veteran’s claims file, a second Veteran, claiming to be a very close friend of the first Veteran, showed up and asked for help in the same SMC venue. He identified himself as a partner of the first Veteran in a “Veteran help site” with the business named “Blue Cord Patriots”. As most Army infantrymen know, they are permitted to wear the blue fourragère on their right shoulder after completing AIT. It increases the Esprit de Corps. If you’re going to become cannon fodder, you might as well look as snappy as you can to the gals.

My buddy Pete decided to take a gander at Mr. Blue Cord #2 and discovered to his dismay that the Blue Cord Patriots outfit is nothing more than another VA Claims Shark outfit. Pete called me to let me know whazzup. I immediately figured this out. Both of these Johnny Blue Cords are totally clueless as to how to prosecute and win a higher SMC claim. If they were so knowledgeable, they wouldn’t need me. What better place to learn than to hire a knowledgeable accredited representative to teach them how?

Granted, Johnny Vet #1 is a legitimate candidate for a high SMC rating. I won’t dispute that. But his former attorney was none other than Mr. Kenneth Dojaquez of Carpenter Chartered-probably one of the most knowledgeable attorneys of all things VA. I haven’t talked to Kenny about this but my guess is he caught wind of the guy’s affiliation with the Blue Cord sharks and wisely decided to part company with him. Could be I’m wrong but I strongly doubt it. As for Johnny #2, I didn’t see his file so I can’t say if he, too, was an SMC candidate. The funny thing is both are United States Air Force Veterans and the only guys who get to wear blue fouragères in the AF are aide-de-camp officers assigned to Air Force  Generals-but on their left shoulders. Nice try but no cigar, Sean and Patrick.

I guess the primary thought that comes to mind is chutzpah. Who would have the balls to surreptitiously approach an accredited VA representative with the express intention of absconding with his proprietary knowledge of SMC (or any facet of VA law) in order to sell the technique to other unsuspecting paying Veterans? You’d need a wheelbarrow to cart cojones that big around. I doubt even Commando Craig® would have the balls to do that.

Now, don’t get me wrong. I am not above sharing my SMC info with other accredited representatives. As a general rule, we enjoy sharing techniques to fight VA and gain benefits for our clients. Our efforts are truly driven by a strong moral compass. On the rare occasions I have witnessed other attorneys win big claims without a fight, I have never heard one utter a discouraging word about how they got screwed out of a fee for their services. Knowing some of my clients don’t have a pot to piss in nor a window to throw it out of, I sometimes do their claims pro bono.

The business of helping Vets obtain their benefits should be altruistic. It should be an endeavor akin to what Dan Ackroyd said to John Belushi in the Blues Brothers movie- “We’re on a mission from God.” Not many aspire to be a VA ambulance chaser at 20% when you can go out into the wider world of civil litigation and charge 40-50%. The mere idea of engaging in a business to fleece anyone-let alone Veterans- should be severely punished. The shocking fact that it’s against the law in civil practice makes it all the more despicable when done by their fellow Veterans like VA Claims Insider Brian Reese and these avowed Blue Cord Patriots. I’m unsure how they can look themselves in the mirror and be proud of their endeavor…

And that’s all I’m gonna say about that. Happy Memorial Day. Don’t burn your burgers and dogs. Raise your glass in  a toast to the likes Park Bunker, Capt. USAF (below) in hopes we’ll recover his body soon. He deserves to come home.

P.S. And, as usual, LRRP Ed had to throw this one my way.

P.P.S. As a final postscript, Asknod.com/Asknod.org is retroactively amending these articles which purport to “badmouth” VA Claims Sharks or those accused of same. As a VA-accredited representative, I strongly object to others who are not who purport to “advise” Vets on how to do this and then collect a fee for doing so. That clearly violates §§14.629; 14.636 but is no longer punishable with jail and fines. It makes no difference what you call these types. The repair order is simple. Get accredited. It’s free. Thus, I am forced to state that I really do not care if they are violating the law. If they get punished, it’s not because asknod.com brought on the complaint and drew attention to their violation. We report. You decide. as Fox News© says. Remember, I’m not an attorney. I’m just a shit-for-brains guy with a wild and crazy website like the Babylon Bee©. Asknod Inc. is a separate business entity and has no affiliation with me. My wife owns it.

Posted in Memorial Day, VA Claims Sharks | Tagged , , , , , , , , , , , | 2 Comments

CAFC-BARRY VS. DENIS THE MENACE–I LIKE THAT OLD TIME ROCK AND ROLL

Posted on May 16, 2024 by asknod

Not since the epochal SMC precedence set in Bradley versus Peake waaay back in 2008 have we seen anything to upstage this one. Buie v. Shinseki may have been a close second running neck and neck with Jensen v. Shulkin but today’s Federal Court decision in Barry is earthshattering and will very possibly bankrupt the VA. All these years (since 1945) VA has insisted §3.350(f)(3) or (f)(4) could only be awarded once apiece. Further, if you had a 50% or greater rating separate and distinct from the index 100% disease or injury that granted you aid and attendance, and you were awarded a new 100% rating for, say, coronary artery disease, you lost any prior half step awarded under 3.350(f)(3) and matriculated to (f)(4). So… let’s play with this in real time under the new Barry metric.

Click to access 22-1747.OPINION.5-16-2024_2318741.pdf

The interesting thing that jumps out at you-Johnny litigator- is the implications of how all this was written in ’45. I never thought it was very ambiguous in the least but I’m pro-Vet- not some mugwump VA Rater looking to deprive Vets of any and every dime they can deny. Let’s start with §3.350(f)(3). It’s in what we call the SMC P arena.

(3) Additional independent 50 percent disabilities. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.

Okay, pilgrims. Pack that away in the brainbox for a moment and digest this one- §3.350(f)(4):

(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above.

Both subsections appear to be regurgitations of a basic tenet-i.e., if you get an extra 50% rating and it’s a different body part, you get a bump up one half step from SMC L to L ½. Concurrently, if you get a an extra 100% rating and it’s a different body part, you get a full step bump up from L to M. But….let’s examine how §3.350(f)(3) notably differs from (f)(4)  in its semantics. (f)(3) says  “additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more”. On the other hand, (f)(4) says “additional single permanent disability independently ratable at 100 percent.” See where the camel got his nose under the tent? 

To my thinking, the much-maligned Village Idiot of Dr. Phil fame could easily parse the meaning of this one without strippin a brain gear. I noticed it back in 2016 when I really began to delve into SMC law. I even argued it fervently to VA raters at DRO hearings or  BVA judges to no avail. VA’s thinking was very linear. Their position was “If it was available we’d have been doing it that way since 1945. Buzz off. Nothing to see here. Move along.”

So along comes VA Agent James J. Perciavalle, Sgt, USMC (Retired), of Veterans Advocates Group, LLC fame (logo above), and jumped into this controversy a few steps ahead of me. He decided to take it up to the Court. Since he wasn’t admitted to the bar, he contacted  his good friends over at Carpenter Chartered to do so. The Court ruled against him which quite frankly surprised me. One of the Judges was Mike Allen who swore me in to the Court Bar. Of all the justices, I would have bet heavily on him voting to uphold the multiple awards entitlement interpretation of (f)(3).

At any rate, the Federal Circuit has spoken. Not only did they speak to this but they reversed it as being unlawful. Their interpretation is binding and they feel Congress spoke to this quite succinctly in 1945. That the VA Administrator in ’45, and now the VA Secretary in 2024, have spoken to the subject and insist their interpretation is correct, the Fed Circus has finally addressed this inequity for the first time. As such, that makes their misinterpretation of law retroactive to 1945. All I have to say is “Gentlemen, start your keyboards and begin filing Clear and Unmistakable Error claims.” VA has been  perpetuating the error for 79 years. I believe it was Senator Alan Cranston who first observed in 1988 that VA had existed in splendid isolation since the War of 1812 and now had to be dragged into the 20th century kicking and screaming to afford Veterans their due. I’d say he was off by thirty six years. Better late than never.

It does remain to be seen whether Denis the Menace might choose to defend this travesty at the Supreme Court. In that event, it will become McDonough versus Barry if he does. I do hope he sees the error of his ways. The operable phrase is, and always has been a nonadversarial Veteran friendly ex parte venue in which to present our claims. What part of that is so hard to entertain?  Yo. Remember us? You know. The ones who have borne the battle for you? Our widows? Our orphaned children? When the shit hits the fan, you folks always call on us. When it’s over, we’re forgotten and the parades cease. Welcome home my ass.

Make it so, Numbah One. And be quick about it.

P.S. A reader emailed me to ask what this looks like in real life. Read the attached  Code Sheet. Vet is 100% on 11/08/2017. He gets SMC L for Loss of use of lower extremities on 10/12/2018. He wins 100% for IHD and gets bump from L to M under §3.350(f)(4) effective 2/05/2019. This is currently up on HLR to get the bump to M which they missed.

Now, with Barry, he will also get a bump from M to M ½ because he has 40% for Prostate and 10% for tinnitus which equals another 50% separate and distinct under §3.350(f)(3). And… it’s retroactive to the date he qualified because Barry is a reversal due to incorrect reading of §3.350(f)(3) for  79 years. So, SMC L½ would occur when he was awarded the L originally and the M½ would be effective the date of his 100% award for IHD @ 100% or 2/05/2019.

Now you folks can understand why you dang near need a Ph.D. to figure all this out. Redact code sheet example of Barry precedence

Posted in CAFC Rulings, SMC | Tagged , , , , , , , , , , , , , , | 3 Comments