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

Posted on September 22, 2024 by asknod

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

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

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

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

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

Ley v Dennis BVA Decision

Ley Appellant’s Brief

And here’s the oral brief.

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

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

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

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

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

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

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

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

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

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

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

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

We can’t make this shit up here.

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

LASKA V. DENIS THE MENACE– SWEET HOME ALABAMA

Posted on September 7, 2024 by asknod

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

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

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

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

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

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

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

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

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

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

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

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

Redact SMC L but no T for Thee

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

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

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

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

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

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

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

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

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

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

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

LABOR DAY 2024– LIKE THE LAST TRIP TO TULSA

Posted on September 1, 2024 by asknod

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

EXPOSED VET RADIO SHOW THURSDAY 8/29

Posted on August 26, 2024 by asknod

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

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

BVA Training 2024__v2

Hope to see you there.

The computer link is

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

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

(515) 605-9764

See you there. BYOB and chips.

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

REMANDS- WHY WE HAVE THEM.

Posted on August 24, 2024 by asknod

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

VA–I’LL BE YOUR HUCKLEBERRY

Posted on August 18, 2024 by asknod

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

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

The Governor Waltz Medal Collection

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EXPOSED VET RADIO SHOW– 8/08/2024

Posted on August 6, 2024 by asknod

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

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

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

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

Helio Courier with a broken leg. Tuy Hoa 1966.

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

(515) 605-9764

Here’s the computer link:

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

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

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

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