HLRs–THE DOUBLE HEADER ( SMC)

Posted on April 8, 2023 by asknod

I wonder how many of you-both litigators and pro se Veterans- have ever had a double header HLR informal conference. You heard me right. I had a HLR on Thursday morning last with DRO Loralie. Forget she was 15 minutes late and accidentally called the Veteran instead of me. She got it straight after I emailed and asked if we were still on. Seems there’s a two-hour difference between Houston and Seattle. Whowouldathunkit? I laid out my case for Aid and Attendance and threw in at the end that the Akles rule (SMC requires no claim) is for application and, if by chance he was granted a&a under SMC L, then the Secretary would have to equally entertain a claim for SMC T due to his bodacious 100% PTSD/TBI under AB v Brown (Vet seeks highest and best rating and the claim remains in contention until that happens). Loralie listened to my whole spiel, said she’d review all the legal points I raised, the evidence I pointed out and would make a fair and equitable decision. Yeah. Right. The check’s in the mail. We hung up.

The phone rang about an hour later and I promptly entered the VA déjà vu Twilight Zone. Loralie cheerfully identified herself (again) and then tossed the proverbial gender reveal hand grenade. She said she wasn’t trained on TBI and therefore this whole HLR gig had been an exercise in futility. But what she followed with was the illegal proposition as to how we might still salvage it and make the Vet a chicken dinner winner.

How many of you have been told/warned or admonished by your VSO that if you keep filing for disabilities after you win a pittance like tinnitus, you run the risk of having your ratings reduced because of your greed? I heard this for the first time from my DAV rep in ’89 after I got 0% for tinnitus and a matching 0% bookend for hearing in my left ear only. I followed the advice to a ‘T’ until 1994 when I began to get sick from Agent Orange shit. If there is any truth to it, I shouldn’t have two 100% schedulars and SMC S.

Lori offered me a Faustian bargain. Take the chance with her as the reviewer on winning the A&A and shut the f–k up about SMC T or… I could opt to hold a brand new HLR tomorrow with her boss Natalie who was authorized to hear TBI HLRs. However, (pregnant pause) my Vet Donbo stood an incalculable risk inasmuch that he might have his ratings reduced and boy howdy you don’t want to go there now do you Mr. Graham? I thanked Loralie for her generous offer, promptly opted for the latter and eagerly awaited my new RVSR HLR yesterday morning. I wasn’t disappointed.

Sure as the sun rises in St. Pete, Natalie called (on time) and announced she was ready to rock and roll. Don’s case was like coming to a rocks, paper, scissors game with an M16 to me. Donbo is on the VHA’s PCAFC caregiver program. His wife has to help him bathe, toilet and prepare meals. She has to supervise his medications and protect him from himself and others. The beauty of it was it was all laid out right there in glorious color in his VAMC medical records. The VHA home visit Nursey nurse actually stated in haec verba he could be left home alone unattended for up to two hours. His anger management coping skills were sub par so he had to stay heavily medicated and he gave up driving years ago due to syncope at 65 mph on I 95. Of course, the VBA’s files said he was homeless in the past and lived in his car so he must be lying about that driving story. So much for dredging up negative evidence, huh?

To me, the picture was one of clear cut entitlement to a&a. In fact, he even had another VAF 21-2680 in the cfile from 2016 that essentially said the same thing verbatim-by the same doctor (his neurologist) who authored the latest one. The rating decision was typical Adobe 2.5 Pro Denialbuilder™ complete with dangling participles. Sorry Charlie. Uluz. No explanation as to how he was supposed to win it as required by law -§3.103(f)(5). Just the TY4YService, chump. What’s worse about this is the new AMA statutes specifically state if you pitch a bitch about getting shortsheeted and seek a higher rating at a HLR review, that VA is prohibited from readjudicating it and coming up with a lower rating. Turns out maybe Loralie speak with forked tongue.

I’d done some extra speshull VBMS dumpster diving and discovered that my boy Donbo had been sent to the Marines’ Brain Trauma Recovery Intervention Program to- in USMCspeak- “learn compensatory cognitive strategies to help alter his memory and cognitive/coping skills post-blast exposure and teach him sleeping techniques to aid in improving his chronic insomnia.” Apparently, it was unsuccessful and they decided the Donmeister couldn’t play GI Joe© anymore. They gave him “early retirement”. That flatass effectively ended his 20-and-out employment plan prematurely.

At the very end of the HLR, I pointed out that the Donster had a Combat Action Ribbon and that they didn’t hand those out in Crackerjack® boxes. His MOS was 0331 machinegunner. A CAR (or anything like it-e.g., a Purple Heart) means you can tell the VA what happened to you without supportive STRs. Unless they can come up with clear and convincing evidence that you’re a lying sack of shit, they have to buy your version of what is wrong with you. In the legal world, clear and convincing evidence dang near has to be news and film at eleven proving your version is incredible. It’s a higher legal standard of evidence- higher even than clear and unmistakable evidence needed for a CUE. Shoot. In my book anyone willing to fight (and die) for some sand rancher’s real estate deserves to be believed. It’s a worthy thing to fight for one’s own freedom. It’s a sight finer to fight for another man’s. I didn’t say that myself. I merely quote the brave man who did.

That DonVet needs a&a is unarguable. His entitlement far and away meets the “reasonable minds can agree” test. It’s more obvious than that skanky, green wart on the nose of the Wicked Witch of the East of Oz fame. They’re saying he’s SMC S and housebound… but he shouldn’t be left alone for more than an hour or two? Are they worried he might order $10,000 dollars worth of Chinese food from Doordash™ on his spouse’s Amazon account or is the concern that he might suck on a lead lollipop? There’s a big difference between housebound and needing lifesaving supervision. A very big difference.

I pointed out to Natalie the Naysayer that we were merely going through the obligatory gestures of crossing the HLR ‘t’s, ‘b’s and dotting the ‘i’s on our way to the BVA to ensure the Veterans Law Judge could see through this charade. One thing I’ve learned in SMC bargaining is never beg. Go big or go home. Never ever meet them half way and accept a lesser benefit than that owed. It makes you look like a pussyfooted Snowflake. When you lay your cards out on the table and admit that you really don’t give a hoot how VA rules on this because you’ve been doing SMC for umpteen years and you welcome judicial review, they become horribly insecure. About that time, you begin to discern a note of doubt in their voices and a willingness to concede “that it appears” your guy may be entitled to a bit more than housebound. Natalie’s actual mea culpa was “It appears that previous reviewers might have missed that TBI clinic info.”

I’ll give you a good cite I always whip out during any discussion on whether SMC can be awarded, or, in this case, which disease/injury is responsible for the need. That’s just a smokescreen I encounter on all these denials.

Delineating the difference between PTSD and TBI is unnecessary as the sum of these SC (service connected) comorbidities unequivocally shows the Veteran cannot accomplish the activities of daily living. This is the correct legal standard of review under §3.351(c)(3)- not which SC disability is responsible. See Saunders v. Wilkie, 886 F.3d 1356, 1362–63 (Fed. Cir. 2018) “We have recognized that the word “disability” refers to a “functional impairment, rather than the underlying cause of the impairment.”

When you spring that one on them, here’s what happens. Busted, dude. Saunders is mentioned in the M 21 so they aren’t strangers to the precedence:

Redact new HLR 20-0999 4.7.23

VA has taken denial to a glorified art form but not so much with SMC. They don’t understand SMC. It’s Greek to them. What’s worse is the M 21 is replete with errors on the subject. Learn how to read through the denial and see the truth and I guarantee you’ll always prevail. Crusaders were fond of screaming at the beginning of their charges against the Heathens ” Onward for King George. God sends the Right!” So far in my VA law travels, I have yet to meet the Veteran who wasn’t entitled to that for which he asked. In fact, most Vets err to the low side to avoid looking greedy. Thank VSOs for that faery tale.

But, because I’ve been hornswoggled once by a Vet with two 214s (with one OTH), I vet the Vet. It might sound discriminatory to some, but I prefer my post-Vietnam Vet clients have a combat medal before I’ll take their POA. Having served in that theatre of war, I’m all too acquainted with the trials and tribulations we endured in Vietnam-and especially Laos. On the other hand, I’ve observed REMFs like my shirttail cousin Senator Linsey Graham who come home from Southwest Asia dripping Silver and Bronze Stars and other medals who never heard a shot fired in anger. That bugs me. It cheapens the meaning of valor.

Anyway, Happy Easter or whichever Happy you celebrate this weekend. God does send the Right. I know. I was Right once-or so I was told. That’s all I have to say about that.

P.S. Late-arriving humor from LRRP Ed 51st Inf Co, F.

Posted in Combat Presumption, Higher Level of Review (HLR), Reductions in rating, TBI, VBMS Tricks | Tagged Disabled Veteran, Help with vA Claims, Helping Veterans, Service Connection, VA claims, VA Claims for SPECIAL MONTHLY COMPENSATION, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 6 Comments

R1–WE’RE GOIN’ UP AROUND THE BEND

Posted on April 2, 2023 by asknod

Great song. My pilot in charge (PIC) had a battery-powered GE tape recorder with the little 3-inch reels and a penchant to play songs while we were taxiing out to take off from Alternate in the mornings. He swore it calmed him down. After takeoff, the roar of that 331 turbo drowned out any hope of hearing the music. CCR was one of PIC Mulholland’s favorite groups along with the Moody Blues. Invariably, he’d crank up Ride My Seesaw or Going Up Around the Bend to 10 as we waited for the crew chief to pull the chocks and wheel the fire extinguisher out of the way. Winning my client’s claim for R1 this week made me think of him. They bear a vague resemblance to one another and both were pilots once so the song seems à propos.

David was one of those Vets who realized he made the wrong choice joining the Navy and opted into the Army as soon as he came home from ‘Nam and finished up his first enlistment. Say what you will about the Bounding Main but it was hard to get laid out there and if you were 19, boy howdy was that uppermost in your mind. Well, it was in my mind and I don’t have to get into my pronouns. Of course, the primary conundrum to me was, and always will be, why would anyone want to walk or paddle when you could fly wherever they wanted you to fight. And drop shit on the bad guys. In contrast to the Navy, the Air Force and AAm (Air America) always had good scotch and gin. Maybe not single malt but beggars can’t be too picky in a free-fire zone.

Somehow, David must have ingested too much Agent Orange during his tour there because he began to notice a problem forty two years later in 2012… as did the FAA. He couldn’t feel the rudders with his feet and was beginning to notice the tremors, muscle rigidity and “pill roll” effect of Parkinson’s Disease. That effectively put an end to his flying career-or any career- for that matter. I know the depression that can cause. I was bushwhacked back in 2007 when they hosed me with Interferon to kill my Hepatitis C and dang near killed me in the process. I lost my life-long joy of working framing houses. Sitting around in front of the boob tube watching The Price is Right with Drew Carrey doesn’t cut it. David tried to fight VA but we all know what you’re up against if you do it without a determined Sherpa. He was fighting for SMC S and should have been setting his sights far higher.

David came to me in 2020 or 2021 with the same complaint I hear from all my Vets in his predicament. What’s the secret password or handshake to get into the SMC club? I know it can be daunting to those of you who are unschooled in the art. Worse, few, if any, VSO service officers even know what it is-let alone how to win it. I’ve actually had them look me in the eye and tell me I’m lying; that there is no such thing as SMC. That shouldn’t come as any surprise to Veterans. Anything this lucrative is going to be a closely-held secret and VA is not known to be overly loquacious about the subject. Most Rating Decisions I’ve read patiently summarize the requirements (wrongly) and then follow up with the standard “Unfortunately, you don’t qualify for the entitlement but merci beaucoup for your service.” Here’s David’s. 612 days later after 30 c&ps.

redact RD 3.06.2023

Several years ago, I filed a FOIA with VA and asked for the numbers of Vets currently entitled to the various levels between L and T, excluding S and K. It took over a year for a response. They even threw in the S and K numbers. You’d think I was asking for a T/S Crypto clearance. I was dumbfounded to discover there were (and presumably still are) extremely few at the R1 and R2/T levels. About 3,800 R1s. Whether that low number is due to ignorance of the availability of the benefit or an entrenched proclivity to deny automatically is a good question. I do know that the level of knowledge of SMC at the Regional Offices could be hidden behind a Greek fig leaf with room to spare for the plumbing.

The last HLR I had (last week) I asked the gentleman if he was well-versed in SMC R 2 and understood the reason we were here HLRing this thing. He said “Well, no. I’m not red hot on R2 but I’ll figure it out.” I bit my tongue and proceeded with great trepidation to spread the trail of bread crumbs for him to follow. For all you agents and attorneys with VBMS access, I’ll let you in on a trick I use. Prebuild a HLR cheat sheet and locate all the places where the evidence is that supports your client’s case. We all know they separate the legal argument from the actual VA form but a review of the evidence listed in the Rating Decision often shows they never looked at the very evidence you sent them. Cheat sheet example:

redact 996 Arguments

So, I go through and locate the documents or IMOs and note the “receipt date” on the far-left column as the bookmark. Next, I expound on what’s in the document that’s exculpatory. In one case, I had to list 14 different documents scattered from 1976 to 2008 that VA said didn’t exist. After pointing them all out and even sending in the list to help them, I still lost. The chowderhead at St. Pete’s DROC said they couldn’t consider my 4138 listing all the locations of the documents they say don’t exist because it was not included in the evidence before the supplemental AMA decision was made. Welcome to AMA and insanity. Absent their insistence the evidence didn’t exist and a future denial, how was I to know I should submit the c- file Atlas map to the evidence that doesn’t exist? Buy a DeLorean with a 6 gigawatt flux capacitor and go back to November 10th, 2022? That one’s on appeal up to the BVA but it shouldn’t have to be.

When they denied David for loss of use of the upper and lower extremities due to Parkinson’s and recharacterized it as bodacious PN due to Diabetes Mellitus II, I blew an assgasket. I kited off an email to, well, let’s just say I sent it to a lot of folks in high places. Having access to VBMS comes with a rolodex of everyone who works there. All of a sudden, there was barbed wire around the old 3/06/2023 Rating Decision. I’ve never seen upside down yellow triangle emojis with an exclamation point on them. They look like Yield signs. Put your pipper on one of them and up sprouts ” Danger! Danger! Will Robinson. Do not promulgate. Decision is in error.” Totally awesome, guys. I didn’t know you had emojis in VBMS. Where are they? I want to begin using them. This is too cool for school.

redactemail

For the first time in history, I got a call from not one, but two different RVSRs in Quality Control apologizing! Apologizing, I say. Did I mention they apologized? Jez, that’s more rare than finding petrified unicorn shit in your Breakfast Mac©. Miz RQSR blamed it on an overzealous VSR who thought he had the nod (pun intended) from the Coach to push print on the Adobe PRO 2.5 Denialbuilder™. Now, I can see everything they can in the client notes and I can see the RFD from the Booth Bitch telling him to launch. They must think I recently tied the Mayflower up to my front porch and disembarked late last night.

redact 820

Anyway, here’s a copy of the “new and improved” replacement Rating Decision version of 3/29. I do not, for a minute suggest sending emails like this but emergent situations demand emergent measures to arrest a horrible mistake. To date, I haven’t been able to figure out how this went so far off the tracks unless, well, perhaps I shouldn’t go there and be content that someone fixed it. The idea of fiddling around with a pre-doomed Ex Writ as a hammer to coax them to fix it would take at least another 5 months of wrangling. My client might not have five more months.

redactRD 3.29.2023

In closing, I wish to welcome David to the ranks of the R1s and thank him for allowing me to represent him in his VA odyssey. Outside of being a man of the cloth, I don’t think there could be a more sacred, worthy job than helping Vets win their legal battles. What the hey? This might even get me off the hook with the Big Guy for nuking those ~~elephants~~ “grey jeeps” on Route 7 east of Muong Soui back in August ’70… where, of course Togetherweneverserved®

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

Posted in Complaints Department, Humor, R1/R2, SMC, Tips and Tricks, VA Agents, VBMS, VBMS Tricks, Veterans Law, Vietnam Disease Issues | Tagged askNOD.com, Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 6 Comments

EXPOSED VET RADIO SHOW TONIGHT–3/30/2023@1900 ET

Posted on March 30, 2023 by asknod

Sorry for the delay in getting this up.

This show I’d like to throw in a BVA argument that will be used to illustrate my particular way of laying it out for the Judges.

Everyone has a theory. Everyone has a technique. Some say brevity is the watchword. Some don’t. I try to make it easy for the Judge and his little people for a good reason. If they don’t have to go look all these events/dates up, they can concentrate on the law. So you provide the law in the Legal Landscape. Once that’s done, you tell your story and bring in the history. Where a regulation has been ignored, you indicate using ________ supra meaning “above” in your legal cites. Et Cetera. Listen in. John and Ray I think are hosting.

Redact filed 10182 3.25.2023

https://www.blogtalkradio.com/jbasser/12212027/connect/2e1b1039102d4de7baa436c037d9cd8c134a0748

will take you to the show via computer or

(515) 605-9764

for our less electronically inclined/gifted.

Posted in Exposed Veteran Radio Show | Tagged Disabled Veteran, Exposed Vet Radio Show, Helping Veterans, Service Connection, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | Leave a comment

VA AGENTS–AN INTERESTING QUIRK

Posted on March 26, 2023 by asknod

I currently have a few cases I’ve shared with a Jedi Master who’s almost a household word in VA circles. Kenneth Carpenter-aka the Word Butcher of the VA litigation World. Ken can dismember a phrase uttered by a VA examiner in a New York minute and find a wealth of information about what was said, but more importantly, what wasn’t said but acknowledged by VA. You folks have to remember who you’re dealing with. You would have a far higher probability of meeting Bigfoot-and even getting a picture- as you would dealing with a VA employee with a triple-digit IQ. These people are incapable of constructing sentences in their native language. They need a computer to tell them when to use the powder room -and then require three signatures to authorize it. Okay. Maybe I exaggerate but you catch my drift.

For many reasons, I try to avoid the CAVC even though I’m admitted to practice there. Federal rules of law require a special way of presenting the case, filing it and prosecuting it. Deadlines can be sudden and unexpected. You have to drop all your clients’ cases (if you’re a one-man band like me) and focus/search Westlaw/ write, write, write to get it perfect. Even then, you can step on your necktie unless you live and breathe that level of litigation. And boy howdy up at the Court, they don’t cotton to excuses. If your shit stinks, they don’t turn on the fan. They let you baste in it.

With the inception of the AMA, we can, for all intents and purposes do away with the Court for all but the most arcane situations a Veteran (or his surviving spouse) would ever conceivably find themselves in. The Court, now, and especially the Fed. Circus, are going to become more focused on pondering perpetual motion and other paradoxes of VA foibles rarer than unicorns. And that is as it should be. I find it odd they’re adding two more Judges to bring the total to 11. I don’t see the need. How many times do you need to do a panel on a tinnitus claim?

But I digress. The subject today is the optimum utilitarian usage of a VA agent. An agent is a far cry from a Veterans Service Officer. A good Agent is like a Swiss Army Knife. We’re sharp. Or should be. We actually have to know the statutes and regulations versus how to answer a telephone or lick an envelope. We have to be able to sort the evidence and find the smoking gun. We have to be prepared to obtain a nexus IMO for our clients to win if they are too poor to afford one. Well, at least I feel that way. We have to have access to VBMS if we have a realistic chance of winning our clients’ claims or appeals. Most importantly, we have to be able to write it such that a VLJ and his staff attorneys can absorb it and come to the correct conclusion (the Veteran wins). All the laws in the world won’t help you if you can’t translate the above combo into written English.

A VA Agent is unique. S/he is in that limbo/netherworld between VSO and attorney. In spite of an Agent’s level of training requirements of VA regulations knowledge, we still lack the sheepskin of an attorney. That means we’re still sitting in the back of the bus with the VSOs legally-but VA employees don’t recognize our legal difference from attorneys. What the hey? All my correspondence when they disburse fees or discuss POAs refers to me as “Attorney Graham”. Relax. I don’t get bigheaded when that happens. Besides, I don’t want to be an attorney. You don’t have to look any further than that Trump attorney Michael Whazisbutt who paid off Stormy Daniels the $130 K and ended up in jail for three years. No thanks. So because we’re not attorneys, the Card sharks at your local Fort Fumble and the BVA Judges are supposed to give us the white glove treatment and pretend we’re legal imbeciles. Right on.

I can argue my heart out at my local Puzzle Palace and write the most awesome briefs in the world and still be given the presumption of stupidity legally. Should I venture up to the 9th Floor at the CAVC to argue, I do not get that presumption. I’m presumed to be competent at what I do. At the regional level and the BVA, the VA is required to sympathetically read my pleadings as if my client was pro se. They always blow it and look at me like an attorney. I want them to snap like an alligator at me. In fact, this is why I like to do my hearing face-to-face the old Legacy way. Bayonet distance is perfect.

Veterans probably don’t understand that they inhabit a special niche legally. We have our own separate legal system including federal review. Congress and the Supreme Court have gifted us a pro-Veteran canon that puts the thumb on our side of the scales of justice. But, even with that, if you are represented by an attorney, they are held to far higher standards. If they stepped on the pink snake and forgot to argue your bad back in the BVA brief, then they can’t dredge up the subject at the Court. The pro se Vet can though. And if I or another Agent were arguing our client’s case at the Board, s/he has to continue to sympathetically construe our arguments as the pleadings of a mentally/physically deranged Veteran with no legal acumen. They rarely do.

So where this leads to trouble for the VA is when you get to the Court you can say the BVA Veteran Law Judge held you to a higher legal standard and didn’t put on the white gloves. This is like setting up the perfect horseshoe ambush with Claymores. They sashay in there thinking they shit ice cream and walk on water. You get the Dear John letter and that’s all she wrote. Well, ‘not exactly’ as they say down at the car rental place. The CAVC looks at it in an entirely different light. Lots of weird concepts come into play like due process and a fair fight. Concepts like nonadversarial and Veteran friendly become watchwords.

Veterans justice is always under assault. Mission creep at the VA is a fact. We don’t need any more proof of that. The AMA sure sounded like the cat’s pajamas when the Big Six VSOs trotted it out. Hallelujah. No more waiting. Drive thru Veterans Service Centers. Just like the Dry Cleaners-in by 10 and out by 2. What could go wrong? Well-at the VA, a lot. Maybe they didn’t realize there’s this thing called the Internet and a Vet can figure out how to file a claim faster than s/he can figure out where the nearest Starbuck’s© is. Filing a NOD at the Board just dumped about 3 years worth of work on each Vet up there in DC. You can imagine how happy they were to find out… with no new employees to carry the water.

So, in order to help more Vets, I spend an inordinate amount of time trying to keep my Vets’ claims out of the BVA and dang sure out of the CAVC. Surely, every one of you on appeal are aware of that Corona horror story. Take my boy Chris. We filed his 10 182 on 4/19/2019 for a hearing. We’d filed a beautiful IMO from Mednick and they refused to read it at Fort Whacko (349). I’m forced to get the VLJ to do so. I got a call from my favorite BVA waiting room supervisor Thomas a month ago. I have a date with the judge face-to-face in DC on 4/19/2023-four years and a day after filing. This is a good thing. Chris had his first heart attack (IHD) a week before they called.

My advice is to ride the local merry go round (formerly referred to as the hamster wheel) at your local VARO until you hit the wall. Go out and get an addendum to your IMO and re file a supplemental. Let them deny. You’ll know you’re there when they call you up or email you and ask “What part of ‘no’ is it you don’t get?” Only then should you saddle up for DC and the Board. An addendum is great evidence to take to the Board. You can show the VLJ you tried to reason with these chuckleheads. A judge will see the steel in your words by the fact that you’re willing to do an addendum. If he denies, you can make a u turn and start over… with another addendum.

I should point out that the log jam at the Board seems to be akin to the beginnings of a spring thaw. I got another notice of a hearing date in New Mexico for mid-June just last week. A widow woman I’m helping who’s on a&a as terminally ill had her AOD done in record time-four months. It’s with the VLJ now ready for signature. Harvey down in New Mexico has been waiting since September of 2019. Considering I only have one more awaiting a hearing in San Diego, I’ll let a sigh of relief out that I don’t have to continue answering all the emails asking ‘when do I get mine’.

Now, for those of you who want to read a good yarn on how to hornswoggle the Secretary into forgetting about sympathetic readings and due deference to a pro se Vet, click on this one. Kenny takes out his light saber and makes a total mockery of a couple of Veterans Law Judges who thought they were God’s gift to VA jurisprudence.

https://efiling.uscourts.cavc.gov/docs1/01208715155

https://efiling.uscourts.cavc.gov/docs1/01209270365

Roberto asked me for help in 2014. He is one of my oldest Vets. He was pretty far gone from Hepatitis C and was forced to use the San Juan PR VAMC. We got the win (for 10%) and then the liver cancer hit. I’m zero for three at the BVA based on different theories of CUE and this was the last hoorah. It’s bulletproof law, and fortunately the VBMS scan program captured the evidence in living color before it could hit the shredder room floor but VA isn’t about to fall on their sword back to July 1970 for a 40% CUE.

Winning at the VA or the Court is now more a game of ‘gotcha’; of technique and exploiting your finesse at law. Pretend you’re a lawyer and they’ll make the mistake of treating you like one. After they do, get a real lawyer and hold their feet to the flame. Broadway ought to write a play on this subject- There’s no Business like Vet Business. So, if you think your claim/appeal is taking forever, think about Roberto waiting for 9 years for his day in Court…or 53 years from his September 1970 filing which we are contesting.

And that’s all I’m going to say about that.

Posted in VA Agents | Tagged Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, VA HCV Claims Help, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 3 Comments

EXPOSED VET RADIO SHOW

Posted on March 15, 2023 by asknod

As most of you know, Jerrel is somewhat under the weather since his latest medical misadventure. We’re certainly hoping and praying he recovers from this one and remain positive for the moment that he will. I’m sure he’ll be listening in. Chances are wild horses couldn’t drag him away from the broadcast anyway.

Tomorrow’s show will focus on losing your vision. Oddly, I have two different Vets suffering loss of use of the eyeballs so I had to do a major regulations review to understand it better. As with anything VA, being blind is not necessarily being “VA blind”. You could certainly be so blind as to not be a candidate for even a self-driving Tesla™ but still not qualify for 100% blindness a la VA’s regulations. That figures.

My Vietnam Vet won it at 90% via his Malaria infection in-country that rolled his socks down for a few weeks and left him weaker than a kitten for the rest of his deployment. I had to resort to an extraschedular request to get SMC though. VA gave him 10% for the residuals for a year after he came home and then promptly reduced it to 0% without so much a c&p. That was pretty much par for the course back in ’70. Shoot. Virtually every old claims file I look at from that era reads the same. 0% for this and 0% for that. My buddy old Butch, who died back in 2022 was notable for getting a single 10% for his right arm- the one that was numb from the elbow down about 50% of the time. I got him bumped up on a CUE in 2018 to 20% back to 1970 but that was a fluke. They were trying to buy us off and make us go away. VA artificially fenced us all out of anything 30% or higher back then because they’d have to pay for the wifesan and the rugrats.

My other blind Vet Jimbo, who I wrote about recently, was denied repeatedly even though you wouldn’t want this guy on the street behind the wheel. We lucked out because I spotted the c&p from two years ago in VBMS showing he legally qualified as VA blind. For any of you wondering, that’s 5/200 or less bilaterally or concentric contraction of field of view of 5° or less-again bilaterally.

You’ll find out VA has all manner of different metrics for what they’ll concede as blind. For a single eye, you’d have to be at light perception only to get it. That’s SMC at the K rate. Think about that. If you were 5/200 or less in one eye (or had 5°< field of view), you wouldn’t get the Special K. Shut the front door. Likewise, you wouldn’t get the bump up to SMC N unless you had both eyes removed or didn’t even have light perception.

I guess I shouldn’t be surprised at VA’s niggardly attempts to lowball us on blindness considering your back could be toast and you’d only get 60% max. Or you couldn’t walk on a leg due to Diabetes peripheral neuropathy but were only rated at 40% because they didn’t consider it a total loss. They’d probably just give you crutches and tell you to drag it and suck it up.

Can you imagine a non-Vet VA employee with a ambulatory disability? Why, that sucker would be outfitted with everything and a wheelchair-friendly desk to boot. They’d make special accommodations for him/her and probably offer a bonus if they had the right pronouns.

Don’t get me started. I’m in a pissy mood this week since one of my Vietnam Vets got the denial of a lifetime on loss of use. Imagine being told you had to choose between being SC for peripheral neuropathy or Parkinson’s. Sorry, Charlie. Can’t get both because that would be pyramiding. Take your pick. Oh, bummer. You chose PN but you’re only 40% in the right leg and 20% in the left. Missed it by thaaaaaaaaaaaaaaat much, Bubba. Come back before you die and refile. Maybe we’ll take another gander at it and re-lowball you. Or maybe not. Meanwhile, we’ll continue the Parkie shit for the saggy face (10% bilaterally), constipation 20%), incontinence (40%), swallowing issues (10%), aphonia (0%) and balance issues (30%).

I belong to a nationally recognized outfit who specializes in helping Vets but I’ve been admonished not to admit it anymore because it causes them embarrassment when I write articles here about my clients’ adventures in Southeast Asia and some of the names we used to refer to the enemy back then. Apparently their idea of the least offensive term would be “Captain Charles”. Revisionism in history is becoming all the rage. Kinda makes you wonder what Captain Charles’ pronouns were.

The same outfit I mention above suggests we never call the VA Secretary to vocalize our displeasure with what his minions cook up for our clients. Boy howdy is that a hard one to choke down. When your client is dying of a disease, you perform triage. You don’t go into some semantic diatribe and dance around waving the flag trying to get attention. You use every tool at your disposal RFN. The operable pronoun here is YOU. If that includes contacting Denis the Menace and telling him his employees are cheating and denying my boy illegally, then so be it. What’s the purpose of having his email if you have an emergent situation and you don’t make every effort to help? I lost a lot of friends over there but at least I tried with all my might to save as many as I could. I could do no less now in these circumstances.

I sign my VA emails below my name at the bottom with “We are the “A’ in ICARE”. ICARE stands for Integrity, Commitment, Advocacy, Respect and Excellence. Since VA considers us Agents and Attorneys shirttail VA employees and requires us to toe the line judicially, I think it’s only fair that we all kowtow to that metric. Advocacy to me means kiting an email off to Denis and spilling the beans when VA’s chuckleheads pull this shit. I ran a construction company for 30 years and went back to framing in the ’90s when I discovered all my boys were snorting coke on the job. I fired them. They thought I was a real sore loser and too strict. The last thing I’d want to be responsible for was knowing they were stoned and one to take a header from a 3rd story wall and eat it.

In war, you sure don’t want your buds all smacked out or jacked up on speed. You want them at the top of their game. I figure old Denis would want to know if his “little people” were engaged in mission creep. This is how Erik Shinseki got into deep shit. Nobody told him his flunkeys were cooking the books. President Obama didn’t let him slide on it and fired his ass licketyspit.

It’s like the Truman thing- the buck stops here. So you bet your sweet ass I emailed him-and the VARO director, the Coach who authorized the stupidity and my change management agent (CMA) who constantly admonishes me to contact her first to pass along any dissatisfaction I have with how they run their ship. I always get a return email from the Secretary’s gomer saying thanks for letting us know about it. I never get one from the CMA thanking me for bringing it to their attention. The Big Guy always says We’ll get back to you, hear? So if it was forbidden, I’d expect to get a demotion or booted out of VBMS for it. If it’s wrong and it works, then it isn’t wrong.

Back in the war, we had a problem up north on the other side of the fence. In the country that rhymed with Mouse, we were required to call in a TIC (troops in contact) to Cricket/Hillsboro and request permission to drop ordnance or strafe the bad guys. I was often faced with the proposition of having to wait for 30 to 45 minutes for the Ambassador or his Air Attaché (my boss) for permission to respond appropriately. That was known as the Rules of Engagement- or Romeos in our slang. I dang near ended up in the brig a few times for failure to follow that admonition. Dropping liquid sunshine (nape) was all but forbidden even in an emergent situation. That’s pretty much how I feel about this in the here and now. If all you have on your hardpoints is nape, then nape it is. Clear them in hot and save your folks. It shouldn’t even be up for discussion.

So I hope to discuss some of these subjects tomorrow with John and offer some advice on how to win your VA claims for blindness. Of course we’ll talk about a lot of other things and tell jokes. We always do. The call in number is still

(515) 605-9764

That cute British gal with the accent is still there answering the call, too.

Or, if you are computer savvy, click on this link and join us about 1900 Hrs Easterly time.

https://www.blogtalkradio.com/jbasser/12207616/connect/4fde89affba1b3f0e7fba6eabbad7c16ea602bf3

We’d keep the lights on for you but Brandon just changed us all back to daylight savings time so there’s no need.

Posted in All about Veterans, Exposed Veteran Radio Show, Food for the soul, Tips and Tricks, VA Agents | Tagged Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA backlog, VA claims, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help., war mementos | 3 Comments

SMC N–I LIKE THAT OLD TIME SMC

Posted on March 10, 2023 by asknod

First off, a prayer for 11 Bravo 20 Eddie who passed last Sunday. I had him in for an upgrade to R2 and he fell prey to the old delay, deny until he died. I’ll be helping his surviving spouse pick up the flag and move forward on a substitution for the accrued and DIC. We offer that to any of you I represent without asking. Eddie married a Swift Boat client’s daughter. Both he and Doug (father-in-law Swifty) served in the ‘Nam at different times and wouldn’t come to know each other for another 20 years. I reckon there’s quite a few of us like that. My dad served from June ’66 to May ’68 at TSN-including the Tet. I didn’t get there until May ’70. The picture is at Doug’s funeral April 26, 2019 over at Tahoma Vet’s Cemetery here in western Washington.

The reason I write this one today is about SMC N. It’s an odd bird. Either you resemble a 50 gallon oil drum with a head and neck sticking out of it and two arms whacked at the elbows or you’re blind/eyeball-less with no light perception at all. Oh yeah. And one leg right at the torso. You get the idea. But, as with anything having to do with SMC, there’s more ways to skin a VA cat than you can shake a stick at. Meet Jim who still has all his fingers and toes.

Jim’s first mistake was to join the Marines in ’69 and run into the Training instructor from Hell. He escaped with his life-just barely. I’ve helped a lot of disabled folks but the blind really tear me up. It’s possibly the most limiting of all disabilities that can happen and the most mentally devastating as well. In Basic, Jim was up about 20+ feet near the top of one of those thick-ass ropes you shinny up when he seized up. We all do at some point in our lives. He just needed about 30 seconds to collect himself before descending. The TI didn’t give him that luxury. He scrambled up the adjacent rope and began screaming, Then he reached over and struck Jim causing him to fall and land hard on his left side-including a whing dinger of a good thump on the left eye and chest. Sgt. TI continued his tirade for a few more minutes before he noticed old Jim wasn’t responding with enough verve. A day or so later everyone realized there was a lot more wrong. They frog marched him over to Balboa and shoved him in the neuro wing. Everyone concurred he was no longer hitting on all eight cylinders. Before you could say boo, he was on his way home.

Jim’s second mistake was not getting a 214 before he waved goodbye a few weeks later. That would consume a lot of time to even prove he was ever there. The Marines weren’t very forthcoming. After all, one of their TIs almost killed him and then they desperately tried to cover the whole thing up by conning him into stating he wasn’t “cut out for this”. What the hey? If they’d just issued the 214 and let him go, I might not be writing this.

Jim was a real scrapper. His c file is over six hundred pdfs strong. He fought the good fight and got his TDIU in ’15 and then a true 100% schedular and finally SMC S in 2018 or so. As with all of us 70-ish warriors, some of our important parts and pieces quit working and there aren’t any replacement parts like at the NAPA® Store. Jim’s left side diaphragm had collapsed over the years from the fall and he was 100% for that alone. His eyes began to give out and he filed for them. VA started telling him he could see just fine but you can’t lie about that. By 2015, his VA psychmeister was noting that he was downright depressed because he couldn’t drive anymore or watch TV unless he sat about 2 feet away from a big screen.

Bingo. All that’s in the VBMS file. There was a lot more. A lot. In 2021, he had a c&p and they noted he couldn’t see much more than light in the SC eye and, because they’re paired organs, when the SC eye goes t— up, and the non-SC one follows suit, it’s ratable too. So they gave him 60%. Boy did that stick out like a sore thumb. Where was the SMC K for it? SM what? Never heard of it.

Jim finally came to me last fall and said these VA scalawags refused to say he was blind. I dug in and did the dumpster dive into the file and found all kinds of goodies. I decided to play along and filed him for an increase on the PTSD and the need for a&a for his now-bilateral “legal blindness”. I didn’t call CUE. Hell, no. Instead, I affixed my “DUPLICATE IN VBMS” ink stamp and yellow highlighter to all seventeen pages of the 2021 c&p DBQ declaring light perception OS and 5/200 or less in the better eye (OD).

And lo and behold, today dawned sunny at the Seattle DROC shop. Some poor overworked rater had to put his John Hancock on this and pray they don’t make him do telephone overtime on the Crisis Line during the three-day Memorial Day Weekend. I got everything he’s been fighting for since 2018. That psych note about him not being able to drive and thrive in 2015 is going to be the effective date for aid and attendance soon. Seems if you’re gonna screw a Vet, you’d be smarter than to leave all the evidence out there to get busted. The inoperative adverb here is ‘smarter’.

redact RD 3.10.2023

Redact CS 3.10.2023

redact SMC calculator.

With the exception of mistyping SMC ‘M’ instead of ‘N’ on the Code Sheet, they got it right. They gave him the 100% for blindness and the bump up to SMC M from L for needing a&a. Then they gave him the second bump up to N for his brand new extra 100% for his PTSD. I’ll have him up to R1 before you can say Rip Van Winkle. You watch and see. He still has a spare 100% for the diaphragm fall injury. Time for some more of that old timey SMC Voodoo.

Posted in All about Veterans, Milestones, SMC, VA Agents, VBMS, VBMS Tricks | Tagged Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, vA CLAIMS FOR PTSD, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 3 Comments

SMC (R)(2)–SOMEWHERE A VILLAGE IS MISSING ITS IDIOT

Posted on March 4, 2023 by asknod

Love that expression. I don’t know if Dr. Phil personally coined it or had one of his staff writers who hit upon it but it dang sure captures the essence of the new VA mindset. Which is “When in doubt, DBQ it”- each of which means the US taxpayers cough up $600 for a c&p plus .415 ¢ per mile for you, Johnny Vet. Of course after that first in-person exam (or two), VA starts asking for ACE (acceptable clinical evidence) exams from folks like Deshonda Rimbreath, FNP -status post 2 years from graduation from the RN University in Grenada. This is who will decide your fate. But that is not the end of the matter which is a phrase I do use frequently in legal briefs.

As some know, I do a lot of SMC R 1, R 2 and T claims for Vets. In fact, between that and §3.156(c) claims, it consumes most of my time. At 72, you really need to bench press your brain a lot to keep the oxygen flowing. Don’t get me wrong. Agent Orange claims are part and parcel of this because so many of us got the bum’s rush in the 66-73 era for our service in Vietnam. I’m still picking up the pieces of that era and righting the wrongs. Sadly, not all can be retro’d all the way back. Worse, most of these Vietnam Vets don’t even know there’s a whole new world after 100%.

Fortunately for some, though, VA was a little bit too loose-lipped in some of their old rating decisions and spilled the beans. From that, you can compare it to what they filed for and sometimes find a glaring mistake even reasonable VA minds can only concede is error. As most know, too, it will invariably result in a mea culpa of no more than a 0% rating until it magically metastasizes into a 100% rating forty years later on the day you filed for it again in 2015.

The secret to getting those 1970 wins for the big $$$ is always the fact that those lazy folks at the VA never bother to go get your records at the very places you identified on those antique 526s. They just kite off the 3101 PIES (Personal Information Exchange System) requests to NPRC and blithely accept anything handed to them as the whole enchilada – never asking for the more probative records. Often, inpatient hospital records stay at the hospital-sometimes forever-or until requested. But if you patiently keep pointing in the right direction, those aspiring Dick Tracy wannabes will find the §3.156(c) magic paper but then try to slide it in unnoticed. About then you have to take it to the Board. Nobody at the AOJ level is going to grant it. It’s radioactive and you can kiss your VA GS 14 aspirations bye bye if you even volunteer to suggest it seems to resemble a §3.156(c) claim. Move along. Nothing to see here.

But back to the title subject. I have several of these R 2s in the pipeline on any given month and right now I have about four. So, fully well knowing once you are R 1, an advance to R2 can only fall into the narrow purview of §3.352(b). A determination that you are entitled to it hinges on your wife/brother/sister/ Visiting Angel™ or a VA caregiver administering a higher level of ~~aid and attendance~~ care on a daily basis in your home. Remember, in this Chutes and Ladders VA game, if you are institutionalized in a residential care facility, you drop back to SMC O automatically. Ergo, always go for early hospice in-home. But that is not the end of the matter.

In addition to oodles of other little Catch 22s in §3.352(b) which are easy to fix, you have to be “trained” and documented as such to take your charge to the pool or engage in physical therapy. But even easier to comply with is the need to administer injections. Lots of wives have to do this even if it’s just Vitamin B 12. But it could be insulin or even Rheumatoid arthritis heavyweights like Tocilizumab® spring loaded like the old Morphine Styrets we had back in Vietnam for simplified dosage and administration. Makes no difference what you’re shooting up as long as it’s prescribed and administered by your “caregiver”.

Back in ’10 when I finally escaped the VAMC, Cupcake and her best friend were trained to hook me up to 1000 ml saline IVs daily with my VA-issued pump. They plugged in to my 3 lumen PICC for several months to rehydrate me that summer. I just couldn’t seem to get rehydrated. Eventually, they gave me a 18-inch extension so I could do it myself.

But here is the problem. Our missing village idiot, among perhaps many, is no other than the one in charge of sending out requests for the c&ps. Somewhere, in the cavernous innards of the M21, there must be an instruction that tells him a 2680 must be filled out to determine if you are eligible for R 2. After a couple of these face-to-face exams, said village idiot then determines the contractors haven’t answered the burning question. Does he need a higher level of care? So they send it out for a “clarification”. This is c&p #3 or so. That medical genius opines that yes, you need aid and attendance which still fails to answer the burning question. This can actually go on for years and has to my Parkinson’s Vet. I have one now that I filed 7/25/2021. We’re at the last phase where they’re asking just one more last time if the loss of use of the uppers isn’t due to PN secondary to Diabetes. Who cares? He’s SC for Parkinson’s and Diabetes so it really doesn’t matter unless you’re some mega-anal bean counter…or a VA “examiner”.

David, instead of being awarded loss of use of the uppers and lowers, was granted a&a instead- but for PTSD. I guess they figured we’d piss on the fire and call in the dogs. Fat chance. It did save me several months of work obtaining an a&a to add to a loss of use of uppers or lowers. All I need now is just one LOU of extremities and we have both in the bag. Just now, I counted 30 c&p exams in his VBMS folder-both ACE and in-person so far. David finally got a diagnosis of loss of use of upper and lowers from an October ’22 VA contract exam and that just stirred the hornet’s nest. She had to rewrite it twice and even after all that they sent it out to a rent-a-doc in Texas for ‘clarification’ that it’s really Parkinson’s and not PN from DM II. She parlayed it into 5 c&ps -one for each extremity and one as a holistic medical opinion. Pretty soon, they’ll be asking how many angels can dance on the head of David’s EMG pin.

The obvious problem is SMC. Nobody knows how to do this anymore, or maybe they never knew how, which is pretty scary and why nobody wins without a Sherpa. If you attempt to explain the what and how and why, they politely shush you and point to the SMC calculator like the Oracle at Delphi. I’ve read their notes on this. It always says “Calculator refused to recognize SMC O and R 1. Coach says to override it and enter it manually.” But that is not the end of the matter either.

I had a “Pre-reduction” hearing on my blind Vet on Wednesday at bayonet distance instead of that hoky palloky videogame version. I like to look my enemy in the eye. I asked her point blank before she cranked on the tape recorder if she had been chosen for this because she was Seattle’s finest on SMC. I got the answer I expected. “Sheesh, no. said Tiffany (who’s younger than my daughter). We just upload the disability and the SMC Calculator does all that for us. They don’t really teach us to do it manually. There’s no need to with the M 21.”

Next thing that happened was she couldn’t get the microphone to work and announced that it looked like we were fixing to have an informal conference with no transcript. I stood up and said we’d be fixing to be back when she got it working and to reschedule. She had IT there in less than 3 minutes and he told her to push the right button (record). Bingo. We were in business. Funny how that works.

This ignorance of even the simplest machinations of SMC explains their asking for 3 a&a exams on 2680s for an R 2 determination and still deny when your VA-trained wife is giving you three injections a day and you don’t even know who the president is. Wait. Maybe that second part’s not such a bad thing…. But seriously. No explanation. Just that old fashioned love song “Here’s what the regulation says you need but we determined you’re not entitled.” It’s devoid of the requirements of §3.103(f)(5,6). File your 996 for an HLR and ask what you need to win and they’re guaranteed to look at you like deer in the headlights. It’s simple. They don’t know what you need but they dang sure know you don’t have it-whatever “it” is. The narrative decision gets pretty sketchy as if this all depends on what the meaning of “it” is.

Thus, the ages-old paradox of why you can’t get to the higher SMCs is finally revealed. SMC is so complicated, it’s easier to just fence it off and have a “Just say No!” mantra like First Lady Nancy Reagan’s old DARE drug campaign of the eighties. Problem solved. DBQ it a few times and deny. Listen rapturously at the HLR and then have Ralph over in DROC Appeals Tag Team “Victory” write it up in Adobe Rate Builder™ and see if they go away. And here I always thought these folks were just being hardasses when the truth was they’re ignorant. I don’t blame them individually. Would you hate a rattlesnake? They’re only instinct is to strike their enemy. They don’t hate you. Shoot, VA folks are hive people. They don’t even know you so it’s not personal. They’re taught to upload data. The computer determines how to phrase the “What part of ‘no’ is it you don’t understand?” Your average Joe Blow VA employees must be oblivious to this 88% denial rate. Well, until they get to the higher levels and know better. Then it has to be plain vindictiveness or orders from on high.

A good friend and client, and now an Agent, is applying for R 2. I carefully helped him dig the punji pit and have his wife schooled (and properly documented) in the art of caregiving ahead of time. He already has a running contract with a physical therapy outfit due to his musculoskeletal disabilities so that box is checked. So, what would you expect Joe VA Intake development service representative to do? Right. Bifurcate all the evidence submitted away from the VAF 21-0526EZ by uploading them as two .pdfs and label the evidence as ‘Third Party Correspondence’. Poof. Gone with the wind. Develop the claim without the supportive evidence. This calls for a DBQ or two.Send that boy out for a 2680 A&A/Housebound. Yeah. We know. He’s already R1 for LOU of lower extremities and a&a so I guess they want to determine if…. ah… he needs…mmm more aid and attendance? Got it. Submit to (choose one) LHI, OPTUM, VES, Loyal. Push print. Send to 499 holding tank and await upload of unneeded 2680. Get attaboy for doing 5 in one day. It’s a well-oiled machine from start to finish and almost guaranteed to generate a completely wrong decision.

So, be untroubled when you’re denied SMC at the higher rates. This is a process that almost demands having access to VBMS so you can shepherd these things through and spot them innocently trying to sabotage the claim. Having real time access to a client’s efile is so critical to winning, I almost can’t imagine how I did without it all those years. This is a poker game and you deserve to see what they’re holding or know someone who does. I hope I live to to see the day they grant Vets access to their claims file. There will much grinding of teeth. Congressfolk will complain mightily that their emails doth runneth over.

P.S. I love this one.

Posted in M-21 info, SMC, Tips and Tricks, VA Agents | Tagged ASKNOD BOOK, askNOD.com, Disabled Veteran, DIY vA Claims, Help with vA Claims, Service Connection, VA claims, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 9 Comments

THE ‘WHAT CAME BEFORE THE CUSHMAN PARADOX?’

Posted on February 5, 2023 by asknod

My good friend and fellow VA agent Eric Hughes (author of Vet Chalk) has provided the greater Veterans community with some extremely beneficial ideas to implement-but only if the CAVC and Fed. Circus are amenable to a rules change requiring honesty from all parties at all times. Currently, that moral condition is inexplicably in short supply in some quarters of what we all thought to be a nonadversarial venue.

Think about that. You or I (Johnny Vet) are required to testify by signing a 4138 stating “I certify that the statements on this form are true and correct to the best of my knowledge and belief.” It’s tantamount to the civilian version of holding up your right hand and swearing to tell the truth, the whole truth and nothing but the truth so help you, God.

In law, Veterans tend to confuse competence and credibility. They often have their credibility called into question which infuriates them no end. Eric merely exposes the fact that VA and their employees should be held to the same legal standard. Here’s a short explanation:

Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997)

So… what happens when a BVA staff attorney or an OGC CAVC litigator presents evidence that is known to be untrue or slanted? Or uncorroborated? Or the avid pursuit of negative evidence in hopes of winning against you? Or whatever. We’d call that misfeasance. If it was a downright evil deed with purposeful knowledge the evidence was compromised, it would be malfeasance. While I’d like to believe the old VA saw of ‘grant when you can and deny if you must’, reality is far different. Thirty years of seeing the same method to deny is proof enough.

VA will deny a Veteran for years until they see the jig is up. Maybe the JSCRUR guys finally come up with the evidence showing even the cooks were issued 16s with fixed bayonets when they tried to overrun Camp English in ’68. That only validates your stressor. They grant because a shrink today-in 2023- says you have PTSD. But you don’t get your 1970 effective date grant for PTSD/anxiety because you didn’t actually have a diagnosis of PTSD/anxiety in 1970. The psychologist at Cam Ranh Bay said you were shakin’ like a leaf on a tree but his recorded diagnosis in your STRs was ‘rule out anxiety disorder’. Pretty convenient how that ‘rule out’ shit was used to deny you in ’70. Don’t even get me started on the quality of RN c&p exams nowadays.

As officers of the Court, all attorneys, be they VA employees or NOVA attorneys, are bound by a code of ethics. That code presumes they speak the truth and will not tolerate known contamination of the judicial process by permitting lies to be promulgated into evidence. This is even more critical to Veterans because we enjoy a judicial canon that says our grateful nation should be more accommodating of us due solely to our sacrifices for their country. Cheating in the VA or, more concisely, a biased belief that all Veterans are welfare queens and trailer trash-and thus deserve to lose- should never even be permitted to flourish or be encouraged. That’s where I feel we are now. Barrett is right on point here:

“The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006); see also Jaquay v Principi, 304 F.3d at 1280 (2002) (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”).

How this mates up with the Department of Veterans Affairs’ attorneys’ practice of fabricating evidence out of whole cloth, presenting it as credible proof against a Veteran without said Bozos having to hold up their right hand and saying “I promise not to lie” is the problem. It shouldn’t be. Essentially, in this petition below, Mr. Hughes asks the CAVC to institute some codicil that holds VA’s attorney folk to account when they come to Court and propagate gross mistruths or withhold exculpatory evidence they possess which might help a Veteran win his claim/appeal. Exculpatory evidence, as you can see here, can also take the shape of res judicata records of 248 years worth of Veterans’ law. It would turn Bell v Derwinski jurisprudence on its ear far earlier than October 31, 1992.

What Eric has uncovered is essentially the extraordinary efforts the government went to in an effort to wipe the Veterans legal precedence chalkboard clean in the lead up to the 1989 VJRA. The end product of this travesty was that the Court had to spend decades reestablishing these very same precedents all over again. Say all after ‘Veteran Friendly’, over?

I’ve noticed the proclivity of VA raters to “omit” evidence of record I submit which is essential to the claim. The folks up in Cheeseville separate it and label it “third party correspondence” and it never is considered until I point it out later at the HLR. They always innocently say “Oh, dear. How did we miss that? Ooops. Duty to assist error.” Five more months in Purgatory. They also have a propensity to go off on a tear in the totally wrong direction quoting the wrong regulation-or worse- purposefully misconstruing the meaning of the correct regulation- and coming up with a convenient denial based on their interpretation of what Congress intended.

An example would be insisting that you have to have a 100% or single TDIU disease/injury before you are entitled to even queue up in line for Aid and Attendance consideration. Not the actual benefit of a&a, mind you, but the right to even apply for it with the reasonable expectation you might a) be entitled to it; and b) be awarded it. Say what you will but the old days of a paper c-file ensured there was no third party anything. It was all there in black and white.

Pity Philip Cushman’s 34-year travails in the judicial desert but thank your lucky stars he had the gumption to fight (and right) his wrong. It exposes the ugly underbelly of the true day-to -day machinations of the VA. They are not above manufacturing imagined conversations about what you said or torturing the facts to support their decisions. Worse, by relying so completely on the M 21 for dictum, they avoid passing the “I promise not to cheat when I deny you” and instead allow a machine (M 21) to deny you in order to cover their asses.

Petition to Adopt Fed R Civ P 11

This petition is an excellent argument to hold us all equally accountable and hopefully the Court can see it for what it is- a basic requirement by all parties-not just the Veteran or his representative- to tell the truth and pursue justice rather than seek to always win. Wouldn’t it be nice if we never had to cite to Bell v. Derwinski ever again? Yick Wo anyone?

Each decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1). This statement of reasons or bases serves not only to help a claimant understand what has been decided, but also to ensure that VA decisionmakers do not exercise “naked and arbitrary power” in deciding entitlement to disability benefits. See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.)

I feel richly rewarded for being allowed to litigate for Veterans. But even more, I get immense satisfaction by making sure every Veteran gets justice. Winning is not the object of the game. It’s usually the inevitable product after the successful application of justice. Sadly, in most cases at bar in the Veterans arena, real justice is never attained until you escape the VA reservation. And then we all live happily ever after…except for those who die waiting. Jez, what a totally new concept this might be to Veterans law. Thanks, Eric.

Posted in CAVC Knowledge, Food for thought, Lay testimony, research, vA news, VARO Misfeasance, Veterans Law | Tagged askNOD.com, Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 1 Comment

CAVC-GUST V McDONOUGH–FORT MAC AGENT ORANGE

Posted on February 4, 2023 by asknod

Picloram. Tordon 101. Agent White. It traveled under many different aliases and still does. Shucks, you can still buy this stuff. Here’s the link. Tordon 101. It’s sold as Crossbow®. If you wanted to turn it into Agent White, all you’d have to do would be to add picloram which goes by the trade name Gunslinger®. You mix it 4:1 (four parts 2,4-D and one part picloram. I don’t mix it but was forced to use 2,4-D on my pastures because my neighbor who has no horses is an asshole and wouldn’t control his tansy ragwort. To all you non-horse people, tansy is pure poison and spreads like the plague here in Washington.

Your local Amazon is only a click away and you can dang near turn your garage into a gallery of Rainbow herbicides if you so desire- well almost. 2,4,5-T is no longer available… in the U.S. but you can see it was present at Fort Mac from the inventory. Agent Orange and it’s genre have caused more grief and death than can ever be recorded and documented. In fact, every time you think it’s going to become a thing of the past, why, another pile of 50 gallon drums shows up in a landfill in Okinawa. How did it get there? Uncle Sam doesn’t want to know. So it shouldn’t come as any surprise that they disremember using some of these very same herbicides stateside long after they were used in RVN and Laos.

Which brings me to Mr. Alex J. Gust, and his most wonderful adventures at the Court on the subject of herbicides used at Fort McClellan up until the late 1970’s. Some of these would still be considered part and parcel of the Agent Orange-type herbicides used in Indochina including Agent White… and thus the presumption of exposure would be met. This is an awesome read if you are fighting a herbicide exposure claim at Fort Mac or another base. Chances are they all sprayed this crap. Here’s more data.

Ft. Mac- AO Gust vs Denis

Let me elaborate. In 1991, subsequent to the ’89 Nehmer ruling at the 9th Fed Circus, those of us who had served in Vietnam got the automatic presumption we were exposed-that is, the entitlement to AO benefits without having to prove we were. The exposure included more than just 2,4-D; 2,4,5-T. It also considered picloram and cacodylic acid-both equally as nasty. Next came the Procopio 12-mile limit Navy and Marine Vets in 2020. And now, with the PACT Act, Thailand Vets, a handful (if any) of AAM folks in Cambodia and Laos (very narrow window), and the Guam and Johnson Atoll Vets all are presumptively exposed. All you need is medals or PCS/TDY orders proving service in those locales.

Mr. Gust, above, is a carbon copy of one of my clients for whom I’m arguing the exact same thing- diabetes mellitus type 2 and residuals based on exposure to herbicides at Fort Mac. This decision is a valuable tool for all Vets regardless the fact that it’s a single judge memorandum decision. For any who decide to use my legal musings, here’ the pertinent cite for relying on a memorandum:

Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

Anyway, here’s my denial and my legal brief filed at the BVA a while back. I guess it (Gust) will be recognized as applicable to my client and we’ll prevail. For the record, I submitted a dynamite IMO from my Mednick crew but VA insists no such thing as an herbicide was ever used at Fort Mac. Mr. Gust’s decision speaks otherwise.

redact RD 1-8-2021

redact filed 10182 2-19-2021

Judge Toth is a former Navy JAG. His job was to punish enlisted miscreants who drove while ETOH’d, went AWOL or deserted. He regularly met and prosecuted the dregs of the enlisted corps and some say has a noted propensity to carry that animosity and bias into his new job on the Court. I’m sure there are two schools of thought on that but it’s well-documented that JAGs, as a class of judges post service, are fairly strict and hew to the government being right more often than the Veteran. So it rolled my socks down to see the Judge not only agree with the Vet but actually reverse the Board’s findings of fact. That’s flat out more rare than unicorn manure. You just never see it happen (unicorns taking a shit and JAG judges reversing the Secretary).

Judge Toth’s law clerks did some deep research confirming all this. Imagine using some of these six compounds in concentrations 13 times greater than what we had for breakfast in Vietnam every day. What is most important from my view is the concession of the presence of these compounds in a residual state years after spraying. This will be cut and pasted by hundreds of Vets soon and a whole new stateside industry of AO claims will benefit from this decision. Here’s the pertinent part:

“The Board reviewed all of this information but determined that Mr. Gust did not provide “competent or probative evidence that he was exposed to an herbicide agent by virtue of contact with the soil or grass during basic training at Fort McClellan.” R. at 12. The Board regarded the Mathers report as nonprobative as to exposure because its conclusion—soldiers who trained at Fort McClellan were likely to have been exposed to herbicides—was “based on active spraying of herbicide agents at that base from 1974 to 1976.“

If this were a logically thought out theory, then how are we to assimilate the idea that we spent gazillions of dollars excavating Bien Hoa Airbase for residual contamination by TCDD 50 years after the last drop missed the C 123’s tank and fell onto the PSP? And it’s rumored they’re contemplating doing the same up at Da Nang Airpatch. Hellooooo?

Another thought I’ve had over the years is what happens if you went by Pelham Range merrily spraying Crossbow on Monday and a fellow worker from Civil Engineering unwittingly came by on Thursday spraying Gunslinger. Wouldn’t those two compounds have the natural proclivity to combine into a more sinister compound like Agent White? What’s more, one would think Layno/Jandreau and its progeny cover our ability to testify that we came in contact with the grass or soil. I don’t see where that requires a doctor to weigh in with a yes or no. The Court agreed. I reckon the Board just disremembered the holding in Layno. It was quite a spell ago. Shit happens. At the VA, lots of shit happens.

I wish to congratulate my good friend Zach Stolz. He was the VA law dog that engineered this masterpiece along with all his supportive staff at Chisholm, Chisholm and Kirpatrick. It will go a long way toward providing ammo for future Fort Mac Vets… like mine. Thank you Mr. Gust for your perseverance in prosecuting this to the finish. It’s value cannot be measured.

I enjoyed this. Shades of Risky Business. Another U Boat commander.

Posted in Agent Orange, AO, CAVC ruling, DM II, Tips and Tricks, VA Attorneys, Veterans Law | Tagged askNOD.com, Disabled Veteran, DIY vA Claims, Fort McClellan Agent Orange Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, vA claims for diabetes, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | Leave a comment

LOOKING FOR PACT IN ALL THE WRONG PLACES

Posted on February 3, 2023 by asknod

Perhaps I should rephrase that as looking for PACT claims in some Vets’ c files. Over the last four months, my VA attorney and agent compadres have noticed, and commented repeatedly on, the sudden slowdown in VA claims adjudications. No, you Vets out there-some of whom have been waiting years-are not suffering a fig newton of the imagination. I’m pretty sure I finally deciphered the problem.

As most know, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act -aka the SFCHRHOPTACT Act- was passed by Congress back in the dog days of summer last year. VA poohbahs promised to have this new program up and running by January 2023. As we know only too well, VA promises a lot of things to any who ask. Honoring these promises seems to be another matter entirely. Seems I remember they’ve been promising to clear up the backlog as far back as the inaugural rollout of the VBMS in ’14. Unlike Virginia Slims®, we still haven’t come a long way yet. This one appears to be headed down the same road as fixing that little problem with Social Security funding.

Imagine having a go kart and every kid on the block wants a turn riding it. Eventually it breaks down or runs out of gas. There are 80 kids/day and one kart… Now imagine last year when there were only 50 kids each day who you promised a ride to but you only were able to let 30 kids/day ride it. 20 kids per day times all summer long had to wait until you got it repaired or refueled this spring. By rights, if you’re a stand up guy, you’d give those 20 the first shot at it before the 80/day who just queued up this summer. The inoperable phrase here is ‘stand up guy’.

Denis the Menace and his F Troop krewe want to make everyone happy asap but this is impossible. So the repair order is to give five of the kids who’ve been waiting three years rides and then let 30 new kids cut the line and jump in. Lather, rinse and repeat. In a nutshell, that’s what’s afoot at your local Fort Fumble. It’s actually more like a tug of war between competing factions with an ad hoc mixture of Vietnam Vets, Iraquistan burn pit Vets and AOD (advanced on the docket) Vets who are dying- all fighting for a shot at a ride on the claims go kart. And this doesn’t even include the last stragglers left over from the Korean War. Let’s call it what it is- VA’s new version of ‘equity’ for lack of any better descriptive noun.

Now, if that isn’t the equivalent of a world-class fustercluck, imagine VA raters sending each Vet out for a c&p with defective instructions on what you want them to do. The c&ps come back saying ‘yeppers, he has Parkinson’s’ but the rater requesting the c&p really wanted to know when he came down with it. So they request “clarification” and do c&p #2 40 days later. This one comes back with most of the the desired info but Mr. Rater says “sheesh, they didn’t determine a ‘baseline degree of disability’ from the date of claim. Guess I forgot to ask them for that.” So it’s back to the DBQ drawing board down at QTC for a third c&p. By now, your claim is six months old and they haven’t even begun to sit down and look at it yet. Remember in 2014 when they promised us pretty soon this was going to be a 125-day process max with FDC drive-thru lanes at the RO? Well, don’t feel pregnant and alone. This is an equal opportunity screwing they offer. In 2023speak, this is VA’s version of ‘equity’. Everyone gets equitably deprived of timely adjudications. Docket numbers and date -of -claim mean nothing.

Were the VA an automobile company, it would be like having to recall 60% of your rolling stock to fix the airbags for your 2016 vehicles and a “slight” backlog for all the model years accumulating since then with the same problem. Each promise and each new program to award Vets benefits- be it the Blue Water Procopio Vets, the now-entitled horde of Thailand Vets who ate “non-tactical herbicides” or the newest Afraq burn pit Vets- merely pushes further back the rating decisions and c&p exams promised to those who have waited eons to get their shot at compensation. It’s nothing more than rearranging the deck furniture on the Titanic periodically to keep it dry.

Now, if that wasn’t the bitchslap heard ’round the world, imagine all those other patient Vets waiting for eons back east on the Group W bench in DC for their a) hearings; b) evidence review; or, c) a direct review up or down on the 2019-on rating decision denying them benefits. VA, in their well-meaning desire to speed up the process, elected to hire about 40 or so new Veterans Law Judges (VLJs) with absolutely zero legal experience in VA law. They promised this eventuality back in 2021 and finally got around to doing it last summer. Every swinging one of them (they, their) d—s has to be taught Veterans law before they can venture out on their own solo and begin adjudicating claims. So who would be the logical choice to teach them? Ol’ Denis the Menace and his merry band of chuckleheads didn’t think that far ahead. Guess who? Yep, the existing VLJs and staff attorneys who were, and are, supposed to be doing your claims. So, not only do we have an intractable traffic jam at the BVA but an ever-increasing backup of world-class proportions at the 58 Veterans Service Centers across our fruited plains which, incidentally, still do not have their promised drive-thru FDC claims filing lanes installed yet.

This morning, I spotted VA’s Friday morning attaboy employee email from the current “acting” Under Secretary for Benefits Josh Jacobs crowing about how they had just had their world class best day ever on January 23rd completing almost 8,400 claims- one of the top five highest claims production days in recorded history. I’m guessing the other four days they refer to were in the days and weeks shorty after the war of 1812 or the Spanish- American dustup of 1898.

Almost every one of my Afstan Vets, which are, for the most part, TBI casualties, has one of these identical VA memos (below) in their files on January 23, too. So, we can extrapolate and infer parenthetically that DoD identifying a burnpit victim for VA qualifies as a “claim production” for statistics purposes. Mind you, no actual compensation claim or disbursement actually occurred. Shoot, this is kinda like elk hunting with an RPG. Lots of success but not much meat to speak of.

Redact §1119 VA memo

Conversely, I don’t see any §1119 PACT claims adjudications- or even VA memos for that matter- that my Thailand and Laos brothers were identified as being toxically exposed to AO on January 23. What’s even stranger is that I can remember burn pits that were so skanky during my war that the mosquitos wouldn’t even approach the vicinity without a gas mask. I guess they aren’t the same kind of burn pits as the §1119 sand rancher versions. Well, either that or they just weren’t in the “correct” geographical locale to qualify. There must be something speshull about SWA burnpits.

Lastly, I wanted to share this tidbit I received this morning from a close friend. I want to apologize up front for my passive aggressiveness. I know I’m not always the model of civility and have sometimes been known to publish embarrassing things about our wonderful VA system. I think that’s an unfortunate byproduct of having been denied myself for 28 years. The VA’s Purple Book or the VA IMO sh*tlist come to mind. But interestingly, it seems if you’re at the Wilmington, Delaware VAMC and use one of the three available desktop computers in the MyHealtheVet area, you’ll find asknod.com is blocked as being an evil, virus-infested hazard. I wonder if it was something I said? So, if you’re bored and sitting around your local VAMC at 1500 Hrs waiting for your 1000 Hrs appointment for ________, sashay over to their computer and see if it’s a nationwide phenomenon. I’m Bad Company… and I won’t deny it.

We speak to truth here. I’m not going to ever blow smoke up your butt. I’m going to teach any who desire to know how, the best way to win a claim-free. I don’t offer the techniques based on one claim I did pro se for myself ten years ago. At asknod, I’m able to show repetitive results for the same claim issue over and over, VA’s evolving and ever-changing reaction to the claims, and how they continue to improve on the ‘delay/deny before we die’ algorithm, constantly metamorphoses. I’ll keep you abreast of their change orders. All you have to recognize is that if they’ve decided to change the Obstructive Sleep Apnea ratings criteria to deprive you of the 50% for a CPAP, or the sudden need for compensable hearing loss to qualify for that 10% for tinnitus, that the process is getting more and more adversarial by the day.

I don’t know if VA reads the tripe I offer you all, but I hope that by exposing the fact that our proverbial VA emperor is indeed naked, it gives all of you more insight and ideas on how to outfox their attempts at denial. Remember, I do not advocate cheating. I want all of you to win if you’re legitimately damaged by your service. Consider asknod a Cliff Notes™ book (free) on how to herd VA cats. No pay walls. No membership dues. Just knowledge from someone who really enjoys walking point in this poker game.

P.S. This is priceless. I wish there was video to go with it. My LRRP/former cop sent it to me. If you’re as demented as me, you’ll want to pull this on your next spam call. Enjoy.

Posted in Blue Water Navy, Complaints Department, Humor, Legislation, VA Agents, VA statistics, VBMS | Tagged askNOD.com, Disabled Veteran, DIY vA Claims, Help with vA Claims, Helping Veterans, Service Connection, VA claims, Veterans Benefits, Veterans claims help, Veterans Humor, Vietnam Veterans Claims Help. | 2 Comments

Veterans Claims Help

HLRs–THE DOUBLE HEADER ( SMC)

R1–WE’RE GOIN’ UP AROUND THE BEND

EXPOSED VET RADIO SHOW TONIGHT–3/30/2023@1900 ET

(515) 605-9764

VA AGENTS–AN INTERESTING QUIRK

EXPOSED VET RADIO SHOW

(515) 605-9764

SMC N–I LIKE THAT OLD TIME SMC

SMC (R)(2)–SOMEWHERE A VILLAGE IS MISSING ITS IDIOT

THE ‘WHAT CAME BEFORE THE CUSHMAN PARADOX?’

CAVC-GUST V McDONOUGH–FORT MAC AGENT ORANGE

Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

LOOKING FOR PACT IN ALL THE WRONG PLACES

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Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

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