CAVC-#16-2098–EX WRIT–RESPONDENT’S RESPONSE

Posted on July 16, 2016 by asknod

vetcourtappealspromoI do so love the new electronic world of footprints. The new Veterans Management of Benefits System (VMBS) is a wonderful tool to tell you what happened when and in near real time. One of the unexpected benefits of becoming a VA  Agent in this system is the ability to access Veterans’ records online after having filed the POA. No more trips to Fort Fumble and a proctor to monitor you to make sure you don’t tamper with the c-file. Of course, VA thinks this is Go to Jupiter rocket science when everyone else has been doing it for decades.

Wednesday last, on the morning of the visit by Seattle VA’s VR&E Independent Living Program administrators, the OGC filed the VR&E Officer’s Declaration of Facts concerning the history of the recent win. His recollections sure don’t zipper in with what all the emails say. I’ll publish them here in .jpg so you don’t have to keep jumping back and forth. From reading between the lines, it’s clear they spent almost four months from September 15th to December 16th trying to figure out if they even had to obey the stinkin’ BVA judge and his crazy decision. Seriously. They questioned why the M 28 R didn’t take precedence over a lowly BVA decision. After getting the bad news, VR&E Services (VR&E VACO or TOC) in DC told them if they could keep it under $15,000 dollars then they could administer it locally without the Company commander having to come down and personally lead the attack. The number and size of the subsequent lies is going to mount like a body count after a major assault. Watch this.

I threw the first rock and asked to see the specs for the signing of the Individual Independent Living Plan (IILP). I  freely admit the email resembled a porcupine but I wasn’t having any luck for the last nine months with them over a proposed plan, let alone a size.

Exhibit A for 16-2098 rebuttal of boyd

The next morning (July 7th), with no chatty “Looking so forward to seeing you on the 13th!”, was the attached plan.

July 7 new IILP

Just before the meeting, I discovered the boys had been busy with filing the below at the CAVC that very same morning. Earlybirds they were, yesssssssss.

Capture51Capture52Capture53

Ruh oh, Rorge. Seems someone has been living in a parallel universe. I’ve been trying to talk to this guy for two years. Suddenly, when he discovers he can’t tell the BVA VLJ to go fly a kite, he contrives to provide a greenhouse of any size as long as the construction costs for it do not exceed $14,999.99 cents so he can maintain control of the situation locally. In the meantime, he lets the Veteran know he’s fighting as hard as he can to get it right and make sure the Vet gets everything he has coming to him by law.

II.(6) is priceless. “Activities included repeated consultations with Mr. Graham”.

II.(7) “request for guidance on specific size of greenhouse”.

II.(11) ” we gave him the plan but he refused to sign it.”

When I attached my Extraordinary Writ  to the blog entry here, I failed to include the list of emails between VA and myself. If you read them and link each one to dates above, you begin to see the story lines don’t match up.

31 pages of emails to and from VA VR&E 346

13620789_1215427215187221_2220415449631374477_nNevertheless, electronic feet in the sand do leave a record and absent those VA footsteps, the Presumption of Regularity that the VR&E Officer did contact me repeatedly from January 18th to April 12th, 2016 is rebutted. You can’t go back and “recreate” the history as they baldly attempt to here. The Officer’s daily log would have to reflect a written record. You can’t just say “Yep. I called him and we talked about it.” Otherwise all my emails to them wouldn’t be filled with “When and how big?” and references to a Farmtek bid for a 24X 48 greenhouse-not a 50′ X 100″ [sic] one for $90,000. By the way, that 50 by 8’4″ size is a might expensive and skinny. I don’t recollect seeing it in the catalog.

Anyway, I told you VR&E had nothing to do most days so they were able to get their Declaration of Faery Tales out by the 13th. Here’s the response.

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And zee document: Boyd declaration 16-2098

Well, I have to tell you. Wednesday was a wild and woolly encounter. After almost ten months of trying to get these fellers to spill the beans on the size of the structure, they finally cough it up about the same time they respond to the CAVC about all the VR&E Officer’s consultations with his imaginary friend Mr. Graham. That must have been a daisy of a New’ Year’s Eve hangover if the Officer had the vapors clean into May..

Knowing VA was going to pull something just like this, I wanted a witness but no one was available. My good neighbor  and fellow Vet Mark dropped in just in time to get a good whiff of what was going on. It was ugly. Adversarial was a masterpiece of understatement. His behavior was outside the box. It was alarmingly aggressive and threatening. In fact, Cupcake put her foot down and said he can’t come over and play anymore. With all this violence now at the drop of a hat, who knows what someone that arrogant is capable of?

The only teaching moment I took away from this is that if a Type A personality, African American upper level management type with the last name of Boyd says “Graham, listen. It just ain’t gonna happen”, it would be poor form to address him back without the sobriquet “Mr.” and simply state “I continue to believe it will, Boyd.” If you ever attempt this, make sure you enunciate the d very clearly.

I did have this explanation typed up for the VR&E Officer in hopes we could all do our Rodney King imitations and “Can’t we all just get along” or a near beer summit with chips and salsa. Alas, it was one of those “My way or the highway” conversations. Anticipating this attitude was a good thing. Long ago, I learned to smile when they say no. I learned to bob my head up and down eagerly while listening to the drivel and then left and right at the very end. You have no idea how much that pulls their chain. They don’t know if you’re too dumb to understand it or if you’re funnin’ them.

Exhibit C review request for greenhouse

Hi-Ho, Hi Ho-It’s Off to DC We Go!

Now that I see the Declaration of what the VR&E was really up to all this time, the Officer’s anger and angst was not mere theater. He literally is now forced to relinquish control and send it to DC for resolution. See item II. (5). No wonder he browbeat me for a solid hour. Hell, he finally even said he’d throw in four more feet and a real florescent fixture if I signed and maybe talk a little about a $39.95 one gallon hydroponic starter tank by UCAN2™ Industries. I know when I hear desperation in a voice. He sounded like a used car salesman who just blew a sure sale on a Cadillac with a cracked block.

So the last day has been spent racing to a Notary Public and the USPS to submit a prompt response to the allegations. No way am I gonna let this sit all weekend.

16-2098 Rebuttal of Boyd declaration

And here is Mark’s recollection, which, give or take a few threats, was pretty much what I heard too.

Exhibit D Tolomei aff.

And last but not least, just to dispel the stale air of remembrance in 2014, I included my old SSOC that the VR&E Officer received but never answered. This sort of puts a fork into the Presumption of Regularity. If you knew all this in advance of the BVA hearing and decision and never rebutted it in 2014, then you agreed with it. The VA 8 certified it. No more presumption.

Exhibit E 2014 SSOC

VA Presumption of Regularity

VA Presumption of Regularity

For all of you who enjoy Presumption of Regularity law and cites, here’s a real daisy-Mathis v. McDonald 2015-7094 (Fed. Cir. April 1, 2016). It’s brand new, too.

“The presumption of regularity, like the hearsay exception for business records in the Federal Rules of Evidence, has “at [its] root a showing that the [result] was the product of a consistent, reliable procedure.” Posey v. Shinseki, 23 Vet. App. 406, 410 (2010). Thus, the presumption should be predicated on evidence that gives us confidence that a particular procedure is carried out properly and yields reliable results in the ordinary course. As the Third Circuit has recognized, “[m]ost presumptions have come into existence primarily because judges have believed that proof of fact B renders the inference of the existence of fact A so probable that it is sensible and timesaving to assume the truth of fact A until the adversary disproves it.” Malack v. BDO Seidman, LLP, 617 F.3d 743, 749 (3d Cir. 2010) (quoting McCormick on Evidence § 343 (John W. Strong ed. 5th ed. 1999)).”

We’ll get back to you after we hear something else. This is more fun than doing BDAs after dropping delayed CBU– There’s just no end to the excitement and activity below. Nodster

This is the sixth installment of the Extraordinary Writ #16-2098. To read the next installment, go here

CAVC–#16-2098–SUNDAY’S ON THE PHONE TO MONDAY…

 

 

 

 

 

 

Posted in BvA Decisions, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans, Presumption of Regularity, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , , | 13 Comments

FYIGMO–VA AGENT STATUS APPROVED

Posted on July 14, 2016 by asknod

635646931319099161-veterans-administration-logoFYIGMO, or FYGMO, or just F    k You, (I) Got My Orders was reason to party hearty. It meant you were within 14 days of being back in the World of round eyes. Back in the land of the Big PX. Hamburgers made out of real beef instead of water buffalo. It created a time warp known as being short-or having very few days until DEROS. DEROS was Day of Estimated Return from OverSeas. Soldiers who were short got to lollygag around and write home, drink, whore (carefully) and do what troops did in the states every night of the week. 

Everyone had a good short joke forty five years ago…

I remember the morning I got so short, I had to get a ladder to climb up to tie my boot laces.

I’m so short, it’s like being in the Land Of the Giants. I have to be careful I don’t get stepped on.

I’m so short I don’t even cast a shadow.

I was so short when I boarded the Freedombird, the stewardess on World Airways had to lift me up and put me in the seat. She even had to buckle my seat belt for me.

downloadWell, pilgrim. This morning I woke up to the most wonderful gift I could ever be given by VA. All the retro compensation, the greenhouse and a computer do not, nor will they ever, compare to valuable tool I have been granted.

I wish to thank all of you over the past 8 years for bringing me incredible fact-based scenarios that require a Rubik’s cube touch. The cases all teased my brain and forced me to read extensively to accomplish this so successfully. Making it legal absolves me from being punished.

This turns a page from the Asknod identity to the Asknod Supremacy. While I am no longer a Padewan, I will never claim to be more than a Jedi Knight. Master status is attained with a Juris Doctorate which I do not feel motivated to pursue at this time of life. What the hey? I’m still dumbfounded that Gilead Sciences has healed me of Hepatitis C. That ball and chain are now a dim memory. Daddy always used to say that’s why they make rear view mirrors small and windshields big so you can see where you’re going, not where you’ve been.

VA Agent approval

Ladies and gentlemen, I thank you for helping me to pass the audition. Especial thanks must go to Katrina Eagle, Bob Walsh and Keith Snyder for their glowing recommendations, their faith and lastly their trust in me. FYGMO status must be observed until I get my accreditation number and the secret password to the clubhouse. It took almost one year from July 25th to now to get this far. See any similarities to filing a claim?

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Posted in Food for thought, KP Veterans, VA Agents, vA news, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , , | 19 Comments

ILP-CAVC #16-2098–HERE COME THE JESTERS 1,2,3

Posted on July 9, 2016 by asknod

small-farmers-inferior-correct-jpgAlmost right on the money, the Seattle VR&E Insurance Adjusters  are mounting up a posse to head off that Grahambo troublemaker. He’s got their ass in a terrible jam, fifty years later after Viet- Nam. Last week, once again, Mr. Holloway drew the short straw and was elected to call and ask about afternoon tea soon to discuss when and how the new greenhouse would be situated. I’m pretty sure they weren’t coming over with a portfolio of choices to decide which one was themed better aesthetically. Come on guys. I wasn’t born at night and the USS Mayflower is not tied up outside my front door. I know VA better than that by now.

download (1)

St.Meg Bartley

All funnin’ aside. As some know, I filed an Extraordinary Writ of Mandamus with a standard filing fee of a U.S. Grant coupon. I now am CAVC #16-2098 in the able and very liberal hands of Judge Meg Bartley. I begged for my by now 10-month delayed delivery of my promised greenhouse. I predicted a response in 30 to 45 days of the 10 June mailing. Since we’re talking about the VR&E who have time to burn, it occurred sooner. The weightiest thing they have going this month is to deny Johnny Vet’s ILP request for a riding lawnmower. That’d be the Johnny that ate the IED outside Fallujah in 2003 and lost both his legs.  The same Johnny who is on SMC O. How do they summons up the gall to make those denial decisions? These fellers are making $114 K and $101 K a year to deny a Vet a one-time shot at a greenhouse. The problem is the same two have been denying me for over five years. Add them salaries up and you see One Million and sixty six thousand dollars devoted to a denial which turned out to be wrong to boot. Shocked. Did I mention I was shocked?

I digress. It took 27 calendar days to make the phone ring. In keeping with the spirit of the summer (Independence Day weekend), I scheduled the conference and the ceremonial signing of the Individualized Independent Living Plan (VA Form 28-8872) for the day after my VA Agent’s test. Mr. Holloway was equally cool, calm and collected. No mention of Extraordinary Writs arose. It was as if quite coincidentally, The VR&E had suddenly made great inroads in the delay and had finally hired their  On-site Construction Manager. It was now time for all to sit down and sign the memorandum of understanding. No flies on VA.

WEDNESDAY, 13 JULY  AGENDA

This is where it gets humorous. My secret weapon at Congressman Kilmer’s office, Nick Carr, is letting me borrow the Congressman’s Veterans Affairs technician, one Eric Williams, to sit in next Wednesday and officially represent the Congressman.  This should be an eye opener for him.

Meanwhile, at the suggestion of certain VA VACO employees in DC, I was strongly urged to call Secretary Bob and tell him about this. Since shit rolls downhill, it was theorized that bitching at the top would provoke a call to the VR&E office and a status report. Then certain folks could become involved directly at the behest of the Secretary. This will elicit a microscopic review of just what in Sam Hill is transpiring in Seattle.

Add in the pressure to deliver a report or status update to the OGC (027) about the Extraordinary Writ  before July 24th and you have the perfect storm of employees running around who don’t know whether to shit or go blind. Pardon my salty French.

What has happened is painfully obvious. The BVA Veterans Law Judge (VLJ) was looking at New and Material Evidence submitted with a Waiver of Review by the Seattle VR&E chowderheads in the first instance. Since the RO pukes were so rude as to throw my timely filed May 22, 2014 SSOC rebuttal into the circular file and fail to read it,  VLJ Vito Clemente accepted it for the first time into the record during the April 2015 Travel Board Hearing. By law, the VA has to consider that evidence as it is far more current and immensely probative of the here and now-not 2011. Think of it as a Fenderson Staged Rating. I filed in 2011 but I’m far worse now. The ILP accommodations have to be commensurate with my current physical capabilities- not what I was capable of in 2011. Similarly, what I asked for then and what I ask for now is immaterial. VR&E has to fashion the fix to the circumstances. One size greenhouse does not fit all circumstances or disabilities. Think of this also like Clemons v. Shinseki. I’m not well enough versed in the arts of ILP to know what size greenhouse I need. I just know I need a larger greenhouse. VA is obligated to determine how large that should be on a case by case basis.

Let’s compare this to a regular claim for compensation, too. I’ve now satisfied the three Caluza Elements. Mega-disability, a need for a repair order and a track record at this hobby. It is tantamount to winning at the BVA. Vito remands it back to Seattle where our VR&E Ratings Rangers are paralyzed from the neck up. They stare at it for 4 months and punt it to VR&E VACO (Central Office Hqrs.). The Big Poohbahs figure out how to shrink it into the smallest square footage permissible and still call it ADA. Oh, and absolutely no grow lighting permitted. This would be feasible if I was going to grow mushrooms.

So the claim is granted and the rating is a standard lowball. VA bets 15’X 20′ Spartan Model. I see them and raise it to 24 X 48 with growlux and hydroponics. Next Wednesday we’re going to discuss the documents below and the marked up areas in the BVA Decision.

BVA greenhouse decision redacted w markup

15X 20 Greenhouse redacted

Judge Clemente has left a treasure trove of legal findings for the Ratings Rangers to follow in order for this to be legal. A greenhouse with no storage means having to go outdoors to bring in supplies. A greenhouse without hydroponics means a lot of heavy lifting to get potting soil inside. This means a lot help from family and friends-quite the opposite of the objective of Independence in everyday living without the help of others.

Playing ILP poker is a science. The counselors are fond of trendy terms like ‘self-actualization’ and freely bandy about the term ‘independence’. When it gets down to it, VA’s independence in everyday living metric is being able to get up from the water closet all by yourself using their famous IL grab bar (stainless steel antimicrobial). Having hydroponic tables in a well-accoutered greenhouse is so far off their radar as to be inconceivable.

This is no longer humorous. The date of the IILP was July 7th. That meant it was drawn up several hours after my email in a fit of pique. Who knows how long they’ve been sitting on this 15 X 20 foot floor plan? I wager it wasn’t arrived at on the Left Coast recently. Here’ what I did that got me coal in my stocking:

Kris,

In your recent phone call you mentioned you had a brief  (working paper)summation of what was being considered on the greenhouse parameters. Before we meet, I would appreciate a copy of it or an IILP you might be considering for my signature so we can accomplish this in one visit. If we are not in substantial agreement on the goals, the actual size and configuration of the greenhouse or what VA considers a “reasonable accommodation”, your drive over would be a waste of time. 

I have striven over time to be an active stakeholder in this but the lack of information is causing an irreparable breakdown in communications. This is what prompted my filing to the CAVC. The VA Secretary, as you probably know, has until July 24th, 2016 to respond to that current Extraordinary Writ petition before the Court. I was hoping I could file a Petitioner’s reply brief afterwards saying we have reach a mutually agreed upon modus vivendi. Absent any input or a beginning dialogue until we meet face-to-face is counterproductive and will only lead to further delays. 

The Farmtek ILP coordinator, Karen Meister, was given the full list of my disabilities and asked to craft a bid that hewed to the medical shortcomings and  the ADA nature of my disabilities. A 24 foot by 48 foot greenhouse will encompass the same area I presently have under cultivation. ADA requirements also show a need for two entrance/exits at opposite ends. Due to my 6 ventral hernias and permanent lifting constraints of 10 lbs., using potting soil is sadly no longer an option. This was discussed in the opening colloquy with the Veterans Law Judge. We impressed upon him that 38 CFR § 21.160(a)’s “General”  introductory statement encompasses all disabilities-both service and non-service connected.  Any IILP must take all my disabilities into account. Simply providing a covered structure with a 120VAC outlet and a water spigot will not suffice to satisfy the BVA findings. I hope we are clear on that. As you may be aware, too, my rated disabilities have increased to dramatically to 100%,100%,60%,40%,30% and 10% since my original filing in 2011. These percentages do not include my Crohn’s disease, numerous hernias or balance issues. Merely trying to comply with the original 2011 greenhouse  parameters is no longer a limited option left on the table now.

Obviously, if the The VR&E parameters fail to encompass the BVA findings and appeals language, we will shortly find ourselves at an impasse before we even sit down. VR&E already finds themselves on shaky ground and in violation 38 CFR § 21.192(a)(2). As of today’s date, it has been ten months and two days since the BVA decision was released. As this is a matter of first impression before the Court, it is possible Judge Bartley may construe it as essentially an arbitrary refusal to act on the VA Secretary’s part.

Additionally, as covered in 38 USC § 3107(a), the statute clearly states:

Such plan shall be developed with such veteran and shall include, but not be limited to 

(1) a statement of long-range rehabilitation goals for such veteran and intermediate rehabilitation objectives related to achieving such goals, 

(2) a statement of the specific services (which shall include counseling in all cases) and assistance to be provided under this chapter,

Court Of Veterans Appeals precedence unequivocally states that the usage of the verb “shall”, as opposed to “may”, clearly and unmistakably demands compliance with the regulation. 38 USC § 3107(c)(2) :

In any case in which a veteran does not agree to such plan as proposed, to such plan as redeveloped, or to the disapproval of redevelopment of such plan,

such veteran may submit to the person described in section 3106(f) of this title a written statement containing such veteran’s objections and request a review of such plan as proposed or redeveloped, or a review of the disapproval of redevelopment of such plan, as the case may be.

See also § 21.92 Preparation of the plan.

 (a) General. The plan will be jointly developed by Department of Veterans Affairs staff and the veteran.

 

It would be preferable to sit down with a preconceived idea of VA’s intentions to avoid further discord or misconceptions. As I have no knowledge of hydroponics, I am hoping for some guidance or educational instruction along the lines of what was provided to me on the 2012 ILP computer services from Jim Moss. We all desire the same outcome-one free of dissention and disagreement. Towards that end, it might be time to begin our own colloquy towards a mutual agreement of what will be provided as opposed to a one-way, dictatorial statement of what VA is prepared to offer. As mutual stakeholders, it is imperative to communicate openly and frequently to accomplish this in a timely manner. Absent that, we are merely working at cross purposes and may never find common ground.   

 

On another note, during your last visit, I asked you to submit a request for the Lexis Nexis Veterans Benefits Manual and supporting CD disc. I am sitting this month for the VA nonattorney practitioner’s test and am desirous of having the materials to assist in my future preparations for helping Veterans. VA’s laws and regulations, as well as the M 21 and M28 change frequently. Absent any updates, my pro bono work stands a chance of being incorrect or inaccurate. Since VA’s VR&E program is increasingly shrinking in the number of Veterans helped, this should not impede or grossly impact other deserving seriously disabled Veterans as defined in 39 USC § 3120. I note for several years now that the VR&E has been unable to identify (only 1,426) and award the full  compliment of 2,700 individuals authorized by law to entitlement to the IL Program. VA’s own IL Case Reports show in FY 2004, Seattle had 41 successful rehabs versus the 7 recorded in FY 2015. Either the number of severely disabled Veterans is in decline or the program suffers gross underutilization. In any case, there appear to be ample funds available and waiting to be awarded. I would appreciate an update on that request when I see you on the 12th unless you have information on the status presently. Presuming an inevitable denial, I would respectfully request you send it back to VR&E VACO for Administrative Review as soon as possible. 

Without a VR&E position paper on what is proposed, any potential agreement will be stymied and your valuable time wasted. I’m fairly sure we don’t want that. In the event you cannot supply me with the documents, we should reschedule our meeting until we have a mutual understanding hammered out that will be productive and a viable IILP that encompasses what the BVA held in its findings.

I look forward to a timely response and the requested documents.

Buckwheat sends.

Zero Hour’s 10 AM. I expect the Jesters will all be in high spirits for a minute or two until Eric is introduced. The garden is in full bloom for inspection. The original cold frame cum VR&E greenhouse will be open for viewing. A good time will be had by all some. I expect a lot of huffing and puffing over a failure to sign the IILP will ensue. I consider not signing the IILP a symbolic NOD and an inferred request for an Administrative Review. Or, we can talk turkey and get it over with.

And that all I’m gonna say about that.

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LS MFT

This is the fifth installment of the Extraordinary Writ #16-2098. To view the next one, click here 

CAVC-#16-2098–EX WRIT–RESPONDENT’S RESPONSE

 

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

BVA–WHERE’S MY §3.103(C)(2) PROTECTION?

Posted on July 8, 2016 by asknod


imagesAt the NOVA Spring conference this March in Las Vegas, I  attended a class on 38 CFR 3.103(c)’s protections afforded us but never offered. To wit, the conference that is permitted to inform us of what we are lacking or could sorely use to help us win. I consider this the Duty to Assist briefing of all briefings. VA figures they published it so everyone knows about it. Right? Yep. Just like everyone knows there is an ILP program where you can get lots of neatsy keen stuff if you apply for it. 

Here’s the salient passage from §3.103(c)(2):

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

Well, that’s what it says in VAspeak. In Vetspeak, that translates into “If you ask, we have to tell you what you need to win. Just don’t expect us to volunteer the info, hear?

Here’s a case of Johnny Vet who stepped on his pink snake and got in trouble. He gave 9 long years to his country, including two tours in Vietnam that had to be nasty. His second enlistment was fraught with problems and he ended up with an other than honorable discharge. This Big Chicken dinner effectively barred him from compensation benefits that might have accrued in that second enlistment period.

http://www.va.gov/vetapp16/Files2/1609764.txt

downloadHe punched out in the middle of this appeal in  February 2011 and his wife took over. She didn’t fare so well. Here’s where a little tutelage on § 3.103(c)(2) from the American Legion service representative might have helped.

It is well-known that you can go back and petition the Army Board of Corrections of Military Records and ask for an upgrade to an other than dishonorable discharge-perhaps a General under honorable like mine. This would remove the bar to compensation in 38 CFR § 3.1(d).

Don’t they teach that in Claims 101 at the VSO school? Hell, they say it stands a good chance of being on the Agent’s test I’m taking next week. I was even admonished to bone up on it and be prepared to be quizzed.

The teaching moment is simple. If you have ‘Imperial Entanglements” preventing you from achieving a win on your claims, it behooves you to get your house in order before you file the claim. In the alternative, when you lose based on this regulation at the VARO, it seems it might be a good idea to write to the ABCMR and beg for a discharge do over. Going up to the BVA with it still on the books is merely going to result in a “What part of ‘no’ don’t you understand, boy?”

In retrospect, reading these sad tales, I often wonder why the DRO, or whoever the Vet sits down with for a hearing, doesn’t just say ‘Ruh-oh Rorge. You gotta fix this first if you even hope to get SC, bro. You’re screwed.’ Why would they let it go to DC facing a guaranteed denial? What kind of legal system would allow that?

Speaking of which. I got a neatsy keen invitation to join the AmLeg for $30 a year yesterday. They promise me they can get me service connected pronto. Hell, they haven’t even seen my discharge. How do they know I have good paper?

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Posted in BvA HCV decisions, KP Veterans, Military Madness, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

1957–BLACK CATS ON THE FOURTH

Posted on July 2, 2016 by asknod

Capture22We lived at 6031 Brook Drive in the shadows of Seven Corners. We’d moved there from Rodes Court over in Annandale in 1954 when my dad got back from Korea. Every weekend before the Fourth of July, Dad and I would make the drive out past Mananas to Front Royal. Northern riffraff called Manassas Bull Run. Dad used to say that’s how you could tell they were carpetbaggers from up north.  Dad had an old war buddy there who owned a Texaco gas station. More importantly, he had fire crackers. They were illegal back in those days and finding any was nigh on to impossible. Being an Air Force fighter pilot, nothing is impossible. If you’ve ever watched The Great Santini, Robert Duval’s character, if anything, was greatly subdued even by Hollywood standards. Nothing fazed my father. An hour and a half drive out what one day would be Interstate 66, and a hop, skip and a jump north of the Skyline Caverns on North Royal Street, Earl’s Texaco station was our annual mecca.

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Dad accidentally discovered Earl’s station in 1956 when we were out fishing the south fork of the Shenandoah. Earl had been one of his armorers at Steeple Morden Airpatch during the war. Armorers were the ones who loaded and sighted in the six .50 calibre wing guns on the 355th’s P-51s so their camaraderie was long-lived. What were the odds of running into one another a decade or more after the war-in Front Royal?

wr-f2Earl was the east coast distributor of Black Cat firecrackers as far as I knew. He also had cherry bombs and M-80s but Dad considered them too obnoxious. This was Top Secret information. We were not allowed to divulge from where or whom we got these. Not even Mom.  It was one of the first lessons I learned in OPSEC (Operational Security) and would serve me well fifteen years later in Laos. Dad and Earl had to profusely greet one another each year and shake hands all around with Earl’s boys. Earl would regale his employees annually on how he painted each of Dad’s sixteen kills on his aircraft.  We children were briefly introduced and were treated to a Nehi or a Co-cola. The Big Guys would go in the back room and have a snort of Bourbon and toast those who had fallen in battle. After a half hour or so, Dad would emerge with the brown paper bag containing the goods and we’d all say our goodbyes until next year.

 

500243We also got those brightly colored little popper balls you could throw down for a loud bang but the Black Cats were the prize. We never lit them off in full strings. Dad would meticulously unravel them and only light off several at a time. Until I moved  here to Washington state, I had no idea you could buy them rolled up in wheels of 10,000 for $100 (back in 1974).  They’re almost $200 now unless you know the dealer. The Indians have everything up here. You can buy a basketball with a ten-inch fuse hanging off of it. It’ll send a wheelbarrow up 35 feet and dang near flatten it out with the handles and wheel still attached. But in 1957, a Black Cat firecracker to a five year old was pretty heady stuff considering no one else on Brook Drive had anything louder than one of those Champagne Bottle-shaped poppers with confetti streamers in it.

Cupcake and I went back to the old neighborhood in 1999 when we drove back for a visit. It’s the first time since 1959 when we moved away. We used to sled down Heather Lane and it felt steeper than Mt. Everest then. It’s a wonder how we ever got up to 15 mph when I look at it now. The politically correct address police have also descended in the meantime and changed the old hacienda to 6122. Fond memories are now a click away on Mapquest©. You don’t even have to fly back there. And nowadays Black Cats are just a hop, skip and a jump up the road at the Skokomish Tribe’s many gunpowder happiness fulfillment centers.

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“Mount Heather Lane”

From all of us here at asknod, we hope you have a lovely Fourth of July. Count your blessings that you don’t have that silly accent and had to join Mother Britain in a
‘Brexit’ this summer, too.

 

 

Posted in 4th of July, Humor | Tagged , , , , , , , , , , , , , , , , , , | 3 Comments

BVA–KEEP YOUR EYE ON THE BALL

Posted on June 29, 2016 by asknod

VeteransAdministration.12755109_stdAs in baseball, adjudicating claims at the VA or the BVA requires constant attention and a myopic focus. Far too often, Veterans Advocates find themselves fighting a battle for (or against) an extraneous subject far from what was claimed. Here, Attorney Barbara Hanna, of Cowardin, Kim and Riddle had to saddle up and get accepted to practice at the VA in order to fight this one. After that, she had to fight a battle to prove Johnny Vet’s 1977 Hepatitis and subsequent cirrhosis were the primary ingredients that led to eventual death in order to prevail. She should never have had to.

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Not bad for a retired JAG

Here’s the decision and a great Picture of VA Dragonslayer Barbara Hanna

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files1/1604415.txt

Far too often we find ourselves fighting a straw man argument of a 1977 diagnosis in service of Hepatitis (not otherwise specified or NOS) that ‘was acute and resolved’ having no connection whatsoever to a present infection. Sadly, that is the case in virtually all VA claims involving Hepatitis C. Absent any contemporaneous testing, when this virus rears its ugly head again in 2005 or so, VA is fond of trotting out Maxson v. Gober  and claiming it’s all one big old-age coincidence with no correlation. Alternately, they cotton to the “Well, he wasn’t diagnosed with it until 2002” as if he contracted it in 2002. Precisely when a disease is identified has no bearing on its initial inception. VA knows that.

One big hurtle that enters following these preliminary denials is science. Nowadays, we can determine exactly what you did have (A,B or C), what you never had (A or B) and how long you’ve actually had Hep C.  Yep. You read that right. A simple liver biopsy with a core sample shows degree of activity (Grade) but most importantly – degree of fibrosis – conveniently converted into 10-year F cycles called Stages-i.e. Stage 1  is ten or more years old; Stage 2 is twenty or more years old et cetera. Johnny Vet here had hit Bingo and crossed over from Stage 4 (full blown cirrhosis) into Stage 5 (death). This is known as the Metavir Scale and is the most widely used. VA will never biopsy a guy from Vietnam to ascertain the F scale of 3 .8 to 4. They won’t even acknowledge they have the ability to (and usually do) test for the Genotype and find out if it is the American strain  (Genotype 1A) or the Indochinese Peninsula variant indigenous to that neck of the woods (Genotype 3A). VA is amply aware of this technology but will only use it to deny you-never to corroborate your claim. In Johnny Vet’s case here the local Korean Genotype was 2A or 2B. Again, an easy test.

Likewise, VA is extremely fond of trying to muddy the waters and say a Vet, as in this case, died due to metastatic adenocarcinoma and try to ignore the second half of the rationale of record. This is the straw man conundrum. He died from cancer. Period. So what if he had a raging case of Hep C and liver “irregularities”. He was going to die of the cancer regardless. 2 docs said it. In fact, he even admitted he didn’t have any risk factors for Hepatitis C in service so it can’t be service connected -so he didn’t die from getting clap in Korea.

Absent from this cart-before-the-horse convoluted logic is the predicate. Had his liver not been so severely compromised, he might have had a fighting chance at conquering the cancer. Here, due to the overwhelming medical complications of a compromised liver, he was incapable of even considering  a course of chemotherapy. VA would prefer you ignore that facet as it tends to undermine their rationale for denial. The CAVC calls this “post hoc rationalization” produced after the battle to buttress the denial when attacked. You will see this frequently so look for it.

When filing claims, and especially claims for service connection for cause of death, it is important to take a good long gander at 38 CFR §3.312-Cause of Death. In fact, had the VA Examiner paused to read his own regulations and guidelines on this -specifically §3.312(c)(4), I doubt the matter would have risen to this level at the BVA and consumed scarce judicial resources. To wit,

(4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.

Here, VA has chosen to ignore the well-known cumulative effects of Hepatitis C untreated. Since Hep C infection is subtle and gradual, it often goes undiagnosed for decades. By the time it is identified, it often is incurable or a contributory factor in a myriad number of comorbidities. VA is well aware of this but chose to fight this widow to the mat over something they freely acknowledge in all their own literature on the disease.

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Acting Veterans Law Judge Michael J. Skaltsounis wasn’t buffaloed into going along with it. I hand him the  asknod.org Acting VLJ Hep C adjudication Award of 2016 for standing fast.

The Veteran’s death certificate reflects that he died in April 2010 as a result of metastatic adenocarcinoma due to liver cirrhosis due to hepatitis C. At the time of his death, the Veteran had no service-connected disability. The Veteran’s service treatment records indicate that in 1977 he was treated for hepatitis which was later determined to have been hepatitis C, and thus, his hepatitis has been shown to have its onset during active service.

And here is the straw dog argument of which I speak:

VA physicians in September 2011 and September 2012 have essentially stated that the Veteran’s hepatitis C “was not the cause of the cancer that killed the Veteran.” The September 2012 VA physician supported his opinion on the basis that “hepatocellular origins for the Veteran’s malignancy were absent.” The Board notes that neither of the September 2011 and September 2012 VA physician opinion providers addressed the issue of whether the Veteran’s hepatitis C had contributed to the Veteran’s death.

small-farmers-inferior-correct-jpgThis is, in essence, diagnosis by purposeful omission. Doctors are trained to ferret out causes and all possible etiologies. VA doctors are trained to do and say what the party line dictates. Here, the clear directive was to find that Johnny Vet died of cancer-period. Any further investigation was deemed unnecessary as it would cause VBA a financial loss. This is not an anomaly. It happens every day. Being able to separate the wheat from the VA chaff is essential to winning this type of claim.

Parse every sentence of a denial or VA Examiner rationale in a claim and you will invariably discover the moment of  ‘peccible’ logic. VA will take you on a merry ride over hill and dale in a Nantucket sleigh ride far afield. Soon, you are unable to focus on the true cause of death and the logical ‘A=B and B leads to Cancer thus A is the predicate for C’. VA will have you immersed in the √C and feel they have made their case. As the Veterans Advocate, it isn’t your job to quash all these errant theories. The focus must remain entirely on the evidence and avoid reaching out in an attempt to rebut VA’s logic. Ignore them. Remember, you do not have to refute a bogus VA examiner nexus so much as to enunciate a clear rationale based on your own evidence and the pronunciations of the doctors. The more that VA Examiner babbles on in the remand, the sillier it’s going to sound.

Far too many of us feel we have to introduce Internet articles to support our contentions. Articles are personal opinions and VA FAST Letters do not win claims. Independent Medical Opinions do. When they refute paper-thin VA ‘speculative’ pronunciations, they prevail. Here, the deafening silence on the part of two intelligent VA physicians to even opine on the correlation results in a win for Ms. Hanna and her Vet.

While the matter of whether the Veteran’s hepatitis C had contributed to his death was not addressed by VA medical professionals, the claims file does contain information that supplies clarity in answering the question. In this regard, the Board notes that the physician (Z.Z., MD) who completed the Veteran’s death certificate appeared to indicate that hepatitis C and liver cirrhosis were, if not the actual cause of the Veteran’s cancer, at least contributing factors to his death. According to the appellant, Dr. Z treated the Veteran for the final month of his life and obviously was aware of the Veteran’s terminal medical history.

Vet advocates, although constantly reminded judicially that VA attaches no importance to the ‘treating physician rule’ , should take note of the above in purple. Believe you me, it has import. They also tell us that if the doctor providing the IMO has not reviewed the claims file, it will have no measurable bearing on the outcome. I strongly suggest you avoid putting that in your pipe and smoking it either. 

 

StreetSign 1

The Corner of Vermont and I Street NW

 

 

Posted in BvA HCV decisions, HCV Health, HCV Risks (documented), KP Veterans, Medical News, SC For Cause of Death, Tips and Tricks, VA Agents, VA Attorneys, VA Medical Mysteries Explained, vA news, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , | Leave a comment

CAVC # 16-2098–EX WRIT RECONNAISSANCE MISSION

Posted on June 27, 2016 by asknod

vetcourtappealspromoThe continuing inquiry of “How much is that Greenhouse in the Window?” is now reaching twenty days.  VR&E Seattle is silent as a church mouse. Last Friday, I received not one, but two calls from VA. A Ms. Kennedy in Seattle called me to schedule my VA Nonattorney Practitioner test. It was hard to hear her as the telephone handset suddenly had condensed icicles hanging off it. I’m not kidding. The second was from Veronica in Washington DC at the VACO (Veterans Affairs Central Office) VR&E Emergency Services Desk. 

I get a bang out of VA chuckleheads all running around shouting ‘I’m pro vet’  or ‘we’re nonadversarial’. Ms. Snow Queen, who appears nowhere on the VBA employee’s list in Seattle, had the frosty personality of one absolutely put out at having to talk to, let alone permit, a Veteran to choose a date and time for his Agent’s exam. The temperature around the telephone handset dropped forty degrees in a few short seconds.

Ms. K: Is this Gordon A. Graham?

Mr. A: Yes.

K: You wish to take the agent’s test?

A: Yes. Let me look at my calendar…

snow witch

Ms. Seattle Snow witch

K: I’m sorry. Only Tuesdays, Wednesdays and Thursdays are designated test days. There are two times available-10 AM and 1 PM. Which would you prefer?

A. Okay. so July 12th is a Tuesday.

K: Correct.

A: And I have AM or PM times to choose from?

K: Correct.

A: Okay. 10 AM then. Is that available?

K: Correct.

A. Thank you.

K: Is there anything else I can do for you? I’ll be the Test Procter. Please arrive early to allow for a full-body strip search. I’m in Room 1326 on the thirteenth floor. My number, if you need it, is 206-867-5309, extension 1234. Goodbye.

Ms. Veronica, rather than being put out at having to deal with untermenschen Vets, was more the typical VA pointman trying to probe the way ahead for danger. It has to be difficult to feign ignorance, retain a straight face and ask lowly Johnny Vet what the hell is going on.  Remember the Seattle VR&E folks who claim they had to send it back to VACO in December 2015 to be analyzed? Ms. Veronica strives to come across as one who hasn’t a clue about the five year battle and is calling me for information.

The conversation finally ended in a Joint Motion for Concurrence (JMC). She would call Seattle and get to the bottom of it. See how this works? Insert fifty George Washington coupons into the CAVC machine and it will do a search for you.

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In thirty days (sometimes less) you have the answers you needed and VA suddenly begins to go through the motions of the ICARE dance . We all know it would never have occurred without the Extraordinary Writ. The gal from OGC (027) will wink and tell Judge Bartley that they have already accomplished much but Mr. Graham is very tardy in returning his calls or emails. Veronica in DC was finally able to have a colloquy with him on Friday the 24th of June after numerous attempts. Seems it’s all a minor misunderstanding and Mr. Graham has since been instructed on how to send emails and answer a phone correctly. Much ado about nothing. Move along. There’s nothing to see here.

Here’s the opening foray to get Secretary ‘Call me Bob’ McDonald and his little people to divulge what they know and when they knew it.

Ex Writ G-H bartley order 6-24-16

Stay tuned to next month’s exciting episode coming up around July 24th or so.

Nodster

This is the fourth in the Extraordinary Writ #16-2098. To see the next installment, click here

ILP-CAVC #16-2098–HERE COME THE JESTERS 1,2,3

Posted in CAVC Knowledge, Complaints Department, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , | 9 Comments

VA DIAGNOSTIC CODE 7354–622 VETS @ 100%

Posted on June 23, 2016 by asknod

th-12Here’s a scary VA statistic. I’ve helped, to my immediate knowledge, around 300 Veterans over 8 years find the light at the end of the VA tunnel on just Hepatitis C. Imagine there are only 622 of us rated for it. Granted the survival rate isn’t stupendous in old age, but 622 souls is a pittance at the 100% rate. Keep in mind that also includes those of you who are Totally Disabled due to Individual Unemployment (TDIU) and it boggles your goggles. I had no idea I belonged to such an ostentatious select club with so few members. 

Here’s the link to Patricia Lupole’s post on the subject:

http://www.usmedicine.com/2016-compendium-of-federal-medicine/va-pushed-to-recognize-immunization-air-injector-hcv-link/

HCV 100% jpeg

Too bad they didn’t actually show a picture of a guy getting the ‘jetgun two-step’ on both sides at a 70° angle. Seems a bit off kilter to put up an article exclusively about jetgun mishaps and illustrate it with a disposable syringe.

Nodster

 

 

Posted in HCV Health, HCV Risks (documented), Jetgun Claims evidence, Jetgun Manual, KP Veterans, Medical News, Nexus Information, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , , , , , | 5 Comments

VARO SPOKANE–DIRECTOR FOUND GUILTY OF BRIBERY, THEFT

Posted on June 22, 2016 by asknod

Washington-easternVA spokesman Cal Ringum  acknowledged the Director of the Spokane, Washington Regional Office was found guilty in U.S. District Court for the Eastern District of Washington of several crimes. Recently indicted, Denestro E. Neuman pled guilty to bribery, theft of government services, illegal use of VA credit cards, nepotism and falsely claiming VA compensation benefits for PTSD. 

Mr. Ringum said the VA will insist on the maximum punishment for Mr. Neuman. At a minimum, Ringun indicated he will face mandatory house arrest for a week with a GPS ankle bracelet and be subject to 9 PM bed checks for the remainder of the year. In addition, Neuman will have to wear a small scarlet A representing the word Asshole on his  left lapel as as warning to others not to trifle with the Department of Veterans Affairs rules and regulations. VA admitted they were powerless to reduce his PTSD compensation payments below $1,156.06 a month which he has been paid for over twenty years.

Judge Shearer acceded to the defense’s request for a work permit so he won’t be arrested for leaving his property to travel to and from work between 11 AM and 3 PM. For security’s sake, the Judge also concurred that he should keep his chauffeur and  limousine service.

Spokesman Ringum pointed out this would have a dire impact on Mr. Neuman’s future promotion potential.  He was slated to head the new office in Ho Chi Minh City but Ringum said that might change to Bangkok  and a lower salary of $12,000 per month versus the $16,000 a month with a residence and servants in Ho Chi Minh City.

63867580Mr. Neuman was quick to plead guilty and the Judge noted that fact when handing down the harsh sentence. Said Judge Shearer ” I was going to throw the book at him and withhold warm milk and cookies before nighty night but Mr. Neuman has promised to change his behavior. Considering his unblemished record of almost ten years of otherwise honorable service to the VA before this indiscretion, I think we can expect him to take his place in society as a changed man. I, for one, am willing to give a man another chance.”

Mr. Ringum was also quick to point out Mr. Neuman will be on probation for a year. Any further incidents will be dealt with harshly and Neuman could face being downgraded to a work-at-home employee at a slightly reduced salary. As his current compensation package is substantially protected by the one-year rule, his salary cannot fall below his current $112,850 a year  with travel pay and the housing allowance(after taxes).

Secretary McDonald pointed to the new law passed by Congress last year as a valuable tool for punishing underperforming VA senior management and giving him a free hand in disciplining his employees as he sees fit.

P.S. I guess I have to reveal this is Veterans Humor and total fiction. There is no one named Alfred E. Neuman who works for the VA. I think he retired with full pension years ago.

Posted in Humor, KP Veterans, VA Conspiracies, vA news, VAMC Scheduling Coverup | Tagged , , , , , , , , , , | 2 Comments

VA NONATTORNEY PRACTITIONER STATUS PENDING

Posted on June 22, 2016 by asknod

635646931319099161-veterans-administration-logoAfter waiting for what I consider an eternity, VA’s Office of General Counsel finally has approved my application for VA Agent status. For some reason, VA tends to drag their feet on notifications and the delay here has been excruciatingly long. I called VA this morning after a charter member of asknod.org, Malcolm Melancon, inquired after the progress of my application. Some of you may remember Malcolm’s case. We still have yet to resolve it. I propose to do just that-very soon.

CAVC–MELANCON v. SHINSEKI–MALCOLM IN THE MIDDLE

MALCOLM IN THE MIDDLE- WHAT DID THEY KNOW AND WHEN DID THEY KNOW IT?

I filed the application July 15th,  2015 and waited patiently for my three attorney references (Bob Walsh, Katrina Eagle and Keith Snyder) to submit their letters promising I was trustworthy. Next, in December, I went through an exhaustive Criminal Background Investigation (CBI) just in case the attorneys were misinformed or in error as to my bona fides.

Red TapeThe third stage was an anomaly. I had listed myself as 100% disabled and “unemployed”. That set off all the whistles and alarms at 810 Yellow Brick Rd. NW. Anyone 100% schedular or TDIU at the VBA is automatically assumed to have mental aberrations a la Bent Brain Syndrome. I had to provide a list of disabilities and a note from my treating physician that I was oriented in all three planes of existence and would not make a complete ass of myself should I be allowed to represent Vets. How they allow all those folks from the DAV/VFW/MOPH etc. to file tinnitus at 10% for each ear without reading Diagnostic Code 626o escapes me. Seems they’d be the ones who would be disbarred from repping Vets.

A gentleman this morning who took my call was polite as punch and looked up my application. Lo and behold, I have been approved to take the test. The gal that was in charge of notifying me was “indisposed” or on vacation and will be sending me the secret pass code to make a reservation for the test. I cannot describe the excitement in words. I do hope I pass the audition. VA will be giving me the license to right so many wrongs that have festered for decades. Butch Long, Malcolm Melancon and innumerable others have waited ever so patiently for my investiture into this exclusive club. I pray I will not let any of you down. It’s a sacred trust to be asked to help. Having personally endured three different Veterans Service Organization representatives with virtually no knowledge of the process that gained me zilch, I look forward to making a difference in the lives of many Veterans with the time I have left.

And that’s all I’m going to say about that-for now. Thank you all for your patience.

dsc01113

Posted in All about Veterans, KP Veterans, Lawyering Up, VA Agents | Tagged , , , , , , , , , , , , , , , , , , , | 15 Comments