CAVC-ILP #16-2098–THIS ILP’S FOR YOU

Posted on July 27, 2016 by asknod

small-farmers-inferior-correct-jpgSometimes, promised gifts from VA are a long time in coming. Some are rather hollow fulfillments of promised offers. Some are outright scams. The ILP is much the same chimera. It looks so promising from afar in what it offers. Once you get closer, you realize it’s not as advertised according to the salesmen. 

ILP, from reading all the statutes and regulations, looks like an offer you can’t refuse. Granted, the price of admission is rather steep. A couple of ratings for tinnitus and hammertoe are not going to get you a slot. First of all, there are only 2,700 openings per year. With a program as ostentatious as this, you’d suspect Vets would be elbowing each other out of the way to get to it. In spite of Bruce McCartney’s and my best efforts to advertise its existence, we only saw 1,426 who got their foot in the door last year. Actually, that is a major decline from the year before. I’m guessing that of the 1,426, the majority got a grab bar or two and an electric can opener.

When I became a concerned Veterans Advocate years ago, I found this program and Bruce.  I decided it would be one of the hallmarks of my advocacy so I set out to amass anything and everything I could to help others get there. Obviously, the best way is to be the point man. It’s a steep learning curve but not as lethal as walking point in Qui Nhon at 0darkthiry during Tet in 68. I began with a computer and few other knicknacks. Surprise. Surprise. Surprise. Denied. It was the same for all my friends.

That began the search for what what was necessary to prevail. Et voila! The Administrative Review. Roger that. Get the request out of the hands of the deniers and sent back to DC where they are familiar with the regulations and statute. Sure enough, six months later, I had my computer with all the bells and whistles. They even threw in a guy to teach me Adobe 9 pro and Microsoft Photoshop along with the software. Dragonspeak and lots of other goodies came with it and the largesse now adorns the pages of asknod.

As for the greenhouse, I threw that in as a bridge too far, a desire I felt they would never agree to. I was right. Unfortunately for the Seattle VRE cowboys, they denied it for all the wrong reasons. Using the logic of VRE, they said it wasn’t a vocational goal but rather “avocational” and thus out of bounds. Dumb. Very dumb. That’s how I got the computer-for my avocational needs.  You wonder how VRE minds work sometimes.The whole premise of the Independent Living Program is based on you, Mr. severely disabled Vet, never going back to work in a “vocational” pastime. This leaves one alternative from my rather stunted perspective. If you aren’t working, logic says you are going to pursue a hobby to entertain yourself. What you can reasonably expect to do is unfortunately limited by your disabilities-not your imagination. ILP was formulated for just this eventuality. Congress felt bad for handing all us Vietnam Vets the shitty end of the punji stick back in the days right after  the Southeast Asia Boundary Dispute so VRE was the tradeoff. A few lucky Vets win the hobby lotto each year and everyone’s a winner.

Sadly, over the years, the IL Program kept getting a haircut by the VRE folks in charge. It was viewed as an expensive trinket Vets were not entitled to. A greenhouse or a woodworking shop before 1996 was the norm. Suddenly, the law was revamped and a chill set in over the entitlement. The Office of General Counsel had to reassert the entitlement’s reach to encompass avocational pursuits all over again in VA OGC Precedent 34-1997. There matters stood for five years until the VRE troops became restless and mounted a new assault in an effort to once and for all eliminate it or make it so difficult to obtain that Veterans would come to view it as a Catch 22 and virtually unattainable for anything of consequence.

Now, to keep the history books straight, keep in mind that at no time has Congress interceded and revamped the controlling statute of 38 USC §3120. That still stands inviolate so all the things promised us in 1982 are still on the table. The problem is getting past the turkeys in charge of the funding. What’s more,  the VA Secretary has never changed any of the regulations in 38 CFR that implement §3120 so the program remained much as it was originally promulgated and employed on a day to day basis-that is, until 2001.

VA OGC Precedent 6-2001, while innocuous on its face, introduced a whole new metric to the IL Program. It seemed to concern itself with the legal question of whether certain funds from the Specially Adapted Housing fund (SAH) or the Home Improvement Structural Alterations program (HISA) could be expended for a certain request from a Veteran. The request was for a photo studio which would be an addition to the Veteran’s home. VRE folks argued it was impermissible and asked for guidance. OGC approved the expenditure under the IL Program and added a submarine codicil that it was permissible if it was “necessary and vital” to independence of everyday living. It’s a double-edged sword, though. The OGC also determined every severely disabled Veteran has a right to the outdoors safely and cannot be deprived of that consideration. Et voila. The “greenhouse” codicil if you will.

Suddenly, a new metric was introduced. If a IL request was not absolutely necessary and vital to life, it wasn’t going to be granted. Add in that VRE folk were still mighty disgruntled about that bitchslap over avocational “gifts” in 1997 and suddenly, the IL program went south. It’s never been the same since. The irony is that all these “modifications” to what is, and is not, allowed were done without the approval of Congress. A nuanced reading of 38 USC §3120 and 38 CFR §21.160 is devoid of any of these revelations. Mere mortals who inhabit the halls of power for 20 years have usurped Congress’ edict and begun dictating how the funds will be apportioned. Sadly, ILP is the tail end Charlie in this parade. In order to keep up appearances, VRE sends out a Vocational Rehabilitation Counselor (VRC)to make a needs-based assessment of your situation. Said VRC surveys the house and determines what you might need to gain independence in everyday living but studiously avoids the “avocational” discussion. I have seen more enlightened VRCs offer headphones to plug into a TV (if the TV is equipped to do so) to supplement hearing loss. Most cases are more mundane. A can grabber or electric can opener to cope with peripheral neuropathy.; a grab bar at the toilet or shower to help you rise to the vertical; occasionally a recliner chair with an “eject” function if the VRC is in a good mood. A cordless phone is permissible to help call 911 if you fall down and can’t get up when your spouse is at work and you find yourself alone. Ad nauseum. The sum of all these cheap panaceas fulfills the tenets of what VRE thinks is appropriate for the IL Program. They have become the arbiters of what you will get-not Congress. This is where we found ourselves when I entered the picture.

Bruce had gotten his greenhouse after a four-year battle with the Atlanta RO. They had a whole new measure of respect for what the ILP stood for after that and he had great success advocating for others until recently. VRE, at the local level, is a power unto itself. Nowhere in the VA Table of Organization will you see a VA Officer who reports to no one. Yep. Read that again. Everybody has a boss at VA except the VRE Officer in charge of each RO. He or she alone makes the empirical decisions on who gets what. Guess who loses out in the ILP game? Yeppers. The absolutely, most severely disabled Veterans for whom a program was especially promulgated are fenced out of the very pasture set aside for them. Imagine a corral with no gate. Only at the VA could you have a 180 degree assbackwards result of this magnitude. Keep in mind that there is technically no limit to the amount VRE can expend in providing you with “independence in everyday living”. The devil is in the details and hence the mother of Catch 22s. VRE folk don’t see this as being “adversarial’. It’s all spelled out in the M28 R in clear English. The only problem is the M 28 and its newer successor, the M 28 R, are merely a manual on “how to”. Compare it to the instructions that come with an Ikea bookshelf. Slot peg A into hole B.  It is not a controlling regulation or statute. It is merely the machinations of a tired, overpaid VRE dink with a desire for more bonus money. I compare it to a “make work” job. They can’t get rid of ILP so they just hire folks to pretend to award it. In order to do that, they have to have a manual to teach the gomers how to deny. Bingo. Two jobs. One  to write the denial technique and one to go out to the Vet’s residence and explain why he isn’t going to get an ILP.

This is what I walked into in 2011. I researched every regulation and followed every link and BVA decision on VRE. It led me to the OGC precedents and far more. After researching the history of 38 USC §3120 and 38 CFR §21.160, it was clear that VRE had arbitrarily made a decision to change their policy and focus strictly on the vocational side of the sheets. All funding for ILP, if not spent in the first nine months of the fiscal year on ILP, automatically reverted back into the “vocational” pot and was no longer available for the last three months. Who decided this? No one was saying. It was just “policy”. This created the habit of denying a ILP until month ten when the question became moot on its face. Problem solved-well-unless someone appealed it to the BVA. Oh shit. Oh dear. Entre moi.

I spent a year trying to get the VRE rangers to issue a NOD to appeal from. The logic was “Put that thought out of your head, boy. ILP is for grab bars. We don’t issue NODs. We deny and you go home emptyhanded.” I  wisely opted to skip the administrative review and went for the throat- a full-blown BVA appeal. VRE Seattle “lost” my first Form 9 and closed out the appeal. I showed them the green card and they miraculously ‘found’ the lost VA 9. They then began the “We’re certifying it. Stand by.” excuse for a year in hopes I’d give up. After the first SSOC, I filed a rebuttal and it went unanswered. Again, the hope was that I’d forget and they could send it in the “We never heard from him again” file. I filed the Extraordinary Writ and got the VA 8 issued in February 2015 afterwards. Suddenly, they had nothing left in the tool bag to keep me out of the halls of justice. The BVA Judge saw through the scam and delays and granted the greenhouse but that didn’t daunt these chuckleheads one iota. I have since learned from flies on the wall that a decision was made to grant the greenhouse to keep it out of the CAVC and a panel decision. VRE did not want the ILP advertised far and wide because every Tom, Dick and Harry would be screaming for it in short order.

The Seattle VRE Officer spent four months after the BVA win trying to figure out how to use the M28 R to overrule the BVA Judge’s grant. He finally sought advice -from his superiors in DC. They had to sadly tell him he owed me a greenhouse. That didn’t even faze him in the least. He proceeded to figure out the least amount that could be expended locally and keep the project in his control. Knowing I’d blow an ass gasket and complain, he constructed a plan to avoid the stakeholder process and hand it to me as a fait accompli-take it or leave it. If I refused, in his eyes, the problem was solved. Veteran refuses to play ball. We did all we could. No flies on us. We gave him exactly what he asked for-albeit in May 2011 rather than what he needs in 2016…

That’s the beauty of Extraordinary Writs of Mandamus. You can’t hide your lyin’ eyes, hoss. At some point, they open the books and see who’s been naughty and who’s been nice. This also opens up the whole ILP to inspection and exposes ugly truths that have been afoot for decades. Towards that end, this ILP’s for you, folks. To be truthful, I could buy that $120 K greenhouse out of my pocket. I’d be eating bread and water and have a second mortgage and a Home Equity Line of Credit (HELOC) right off the map to do it but that’s immaterial. The program exists for severely disabled Veterans-the most severely disabled of all. There is no means test or whether it’s necessary and vital. There is no “avocational” test to pass that would disqualify you. All those roadblocks were instituted by mean-spirited SES types who desired more power and felt we are not entitled to such frills. Of course, they, on the other hand, are free to move about the country every three years with housing stipends and $150 K salaries with all manner of “work from the home” subsidies and codicils. Sauce for the goose is not in their lexicon.

Consider this metric. Mr. David Boyd is paid about $114 K a year as a GS 14 in Seattle to head up the VRE. His sidekick Kris Holloway makes about $101 K. The VA has paid them salaries equivalent to $1 million dollars or more over the last five years to deny me a greenhouse I estimated would cost  $5,000 in 2011. I was pretty naive  back then and would have settled for far less. As I became more knowledgeable (and far more disabled), that figure rose to $130, 000. A BVA appeal, a VLJ’s wages, two Extraordinary Writs that occupied two CAVC judges at God knows how much dinero and here we are in 2016. The greenhouse is still due and owing and no one has lifted a finger to begin production yet.

The VA Secretary has taken the project away from Mr. Boyd and returned it to Washington DC. We expect a response sometime in 2017 judging from prior performance metrics. Maybe 2018.

And we wonder why VA is begging for more funding to accomplish their mission? The Gods must be crazy. Share this Veteran’s Story with your friends and neighbors. It ought to give them a whole new appreciation for sick humor. It also supplements the Delay and Deny paradigm we often talk about. I can’t make this stuff up. Really.

Today, I see the CAVC has added my latest update to the ECF docket and I hope Judge Meg Bartley is  suitably appalled. Sadly, in all her years at NVLSP, I’m sure she has witnessed far worse.  VA’s adversarial posture is thinly masked and poorly camouflaged.

Solze notification

VRE

This is the eighth in a series on CAVC #16-2098. To view the next installment click here

 

 

https://asknod.org/2016/08/26/cavc-16-0298-the-rise-and-fall-of-another-ex-writ/

Posted in CAVC Knowledge, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

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

Posted on July 21, 2016 by asknod

vetcourtappealspromoTuesday’s on the phone to me-Oh yeah. (She came in through the Bathroom Window, Beatles). I note with some satisfaction the Clerk of the Court has uploaded my Petitioner’s rebuttal to Respondent’s Faery Tale. In this game of tennis, I’ve discovered you combat untruths as rapidly as possible to preclude post hoc rationalizations and mistruths from accruing and growing roots.

It dawned on me this morning that something amazing is transpiring here. On Tuesday morning, I received a phone call from our regulations-challenged VRC/VR&E Officer-in-charge at Fort Fumble that he ‘contended’ he had recently ( within the last hour) received a phone call from the VA Secretary. As he is frequently confused as to what he does and where/when it occurred (as evidenced by his “repeated consultations’ with me in the spring of this year), I presume he means he allegedly talked with one of the VA Secretary’s staff members or with someone in authority at VR&E Services in D.C. What the hey? Maybe Secretary Bob did call him and ask him if he had the vapors. If he believes he conducted numerous imaginary conversations with my doppelgänger, he may be laboring under the delusion he talked to “Call me Bob” as well. You know these GS-14 AFGE blowhards. They’re all name droppers.

What became apparent is that Mr. Boyd is operating in what we call a “real time environment”. My filings with the Court of Veterans Appeals had not been posted to the ECF docket appendix yet. In fact, it was not published until this morning or overnight. As such, it could not have fallen into the constructive possession of the Veterans Administration prior to delivery at 810 Yellow Brick Rd. in Oz, DC yesterday morning-fully 24 hours after Mr. Boyd’s phone call. Ruh-oh, Rorge. That can only mean Secretary Bob and the  Keystone Kops Krewe are reading this blog. Who woulda thunk it?

Mr. Boyd reluctantly stated VA Secretary Bob instructed him, that upon hanging up from their call, he call me directly and explain that he had been pulled from the case. He went further and explained that he would not be my VRC in the future and that my VR&E services request for a Greenhouse had been forwarded to Washington DC to “comply” with the BVA decision. No apology was proffered and none requested. I acknowledged that if asked, I would confirm our conversation occurred.

If VA SES poohbahs can use “realtime” communications like asknod.org to access sensitive information as it occurs, just think what this means for VBMS. If every Veteran had his own blog, s/he could transmit live denials and express the rationale for why the denial was flawed. RO investigation of misfeasance/malfeasance could be instant or near-instant to rectify these rare mistakes and correct them promptly. From the record, it is obvious that VA could not have the requisite knowledge to call Mr. Boyd 24 hours prior to receipt of the OGC’s courtesy copy of the Court filing rebutting what appears to be the perjured testimony of Mr. Boyd.

clotheslineAh, the miracle of the internet. We live in exciting times my friends. Would that I could have been a fly on the wall for that alleged telephone call from Secretary Bob. Without seeming gleeful, I will note there was a marked change in Mr. Boyd’s telephonic demeanor when he called. Gone was the arrogant, self-assured persona and in its place was a hollow, resigned, seemingly deflated employee. Can’t say I didn’t give them about a mile of rope before I clotheslined them.

In this business, evidence is king. If you send pleasant emails chirping like a songbird and later find out VA has been reading to you from Grimm’s Faery Tales, it makes you far more credible when you finally pull the rug out from under them. VA uses the paper trail to hang you. I discovered the reverse is equally true. If they lie and say they planned your ILP in great detail with you and have no evidence, it’s lay testimony tenuously held up by the presumption of regularity. When you demolish the presumption with unequivocal proof otherwise, suddenly there is a presumption of lying. Throw a tablespoon of perjury in and you have a recipe for VA humble pie.

Capture55

Petitioner’s rebuttal of Boyd fiction

Like sand through the hourglass of life. We’ll keep you all posted, hear?

Nodster

LOGO THAT OTHERS MAY WIN

 

This is the seventh in the Extraordinary Writ #16-2098 series. To view the next one click here

CAVC-ILP #16-2098–THIS ILP’S FOR YOU

 

Posted in All about Veterans, CAVC Knowledge, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans, Tips and Tricks, VR&E | Tagged , , , , , , , , , , , , , , | 5 Comments

CAVC-BELL V. McDONALD–SPECULATIVE VERSUS NEGATIVE NEXUS

Posted on July 20, 2016 by asknod

vetcourtappealspromoOnce again, Veterans Law Judge Ursula R. Powell and her staff attorney(s) have struck out on Hepatitis C. Why is it so difficult to arrive at a nexus/IMO in this subject? With the wealth of knowledge we have accumulated over time, PCR DNA microtesting and Metavir scoring via biopsy to determine the probable age (give or take 5-10 years), why is it those VA Examiner sleuths continually claim it’s a speculative enterprise? Could it be they have already arrived at a denial but lack a probative risk that qualifies as willful misconduct? 

To begin with, let’s look at VLJ Powell’s medical assessment and how she arrived at this “medical misepiphany”:

http://www.va.gov/vetapp15/Files2/1512625.txt

Schafrath v. Derwinski . 1 Vet. App. 589; 1991 declared in the dawning days of the new COVA that if you offer a C&P to the Vet, it better be an informed one that will stand up to inspection. It can’t be has-affed and slipshod. More importantly, it cannot create more conundrums than it hopes to solve.

Schafrath_89-114

VA began this “speculative” venture in the early to mid 2000s and almost exclusively used it to deny Hepatitis C claims. It stood the test of the BVA who went along with it part and parcel. Their reasoning was poor overworked VA examiners had worked themselves into a lather and had blisters on their fingers from searching far and wide for something- anything- to exonerate the poor Vet. Alas, nothing was forthcoming and after much soul-searching, a decision was made that, short of flipping a coin, it was just too complicated and there wasn’t enough evidence pro or con upon which to formulate an opinion. Well, hey. That worked out so well, they began mass producing the speculative theorem for application to everything. Pes Planus? Whoa, pilgrim. Waaaaay too speculative to go out on the little branches and attribute it to nasty, ill-fitting Army combat footwear. 173rd Airborne with a Master Parachutist’s badge? It would be speculative to attribute a compressed spine to any event in service. And so on.

downloadAs with any mission creep, when the repair order becomes a universal fix for denials, careful introspection of the HAL 9000 logic circuits is called for. Judge Coral Wong Pietsch disassembled this and found the logic so defective that it essentially proved just the opposite- that our poor Mr. James W. Bell more likely than not should be service connected for his Hepatitis C. First of all, Powell had to step over Groves v. Peake 2008 to make this ruling. To add insult to injury, she had to somehow mentally arrive at the conclusion that a speculative declaration was really camouflage for “not at least as likely as not” service connected. This speaks volumes to a) her powers of reason, and b) her definition of equipoise.  A quick trip to Meriam Webster’s to determine if they changed the definition of speculative last night while we were sleeping reveals all’s well. Mission creep it was. Yessssssssssssssss.

If this keeps up, Judge Coral Wong Pietsch (pronounced Peach) will be officially canonized and receive her Sainthood. Imagine how simple this was and yet it still went off the tracks. Jetguns were in heavy usage in 72-75. The FAST letter said it was plausible. He had a Dx of “resolving hepatitis” in service affording him Groves protection. Lastly, he had two nexi albeit nexi that would give most attorneys pause before they introduced it into evidence. It’s fairly common knowledge to everyone outside the VSO arena (who still haven’t read about Mario Caluza’s misadventures in the Philippines), that a good nexus cannot contain coulda, mighta, probly, ruled out, possibly or my Uncle Earl had that same thing and it turned out to be Hep C. Sadly, it appears VLJ Powell myopically dialed in on that one “probably” of Dr. Sreenath’s and tossed the other one in the trash as there was no MD after the name.

A conceptual misapprehension pervades the Board’s analysis. The September 2010 examiner’s opinion “provides neither positive nor negative support for service connection.” Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). “Therefore, it is not pertinent evidence, one way or the other, regarding service connection.” Id. The Board, however, labeled the September 2010 examiner’s opinion a “negative nexus opinion.” R. at 9. The Board later stated that the examiner opined that “it would be speculative to medically attribute the [appellant’s] current hepatitis C to the in-service injections via air gun.” It should have stated that the examiner opined that she could not answer the medical question presented to her without resorting to speculation, a subtle but important
difference. In general, the Board chose to view neutral medical evidence as medical evidence against the appellant’s claim.

I do not propose to make the leap of logic that all BVA Veterans Law Judges are this lazy or logic-challenged. I know several and their powers of observation are not nearly as compromised. However, in the arena of Hepatitis C law, I see far more defective decisions than correct ones. Sadly, the fault lies in most cases with a VSO rep. who lets the Veteran advance to the BVA with no nexus whatsoever rather than a poor one. It might be noted that Mr. Bell actually had an attorney holding his coat at the BVA- one Peter J. Meadows, Esq. I also see he wisely resaddled his horse with one far more knowledgeable (Danial C. Curry) who is far more well-versed in the subject of Hepatitis.

Generally, in Hep C jurisprudence, absent any other risk factor than jetguns in service, it ought to be an open and shut case if the service medical records show a dx of hep even if it is not otherwise specified what flavor it was. In 1972, the state of the art amounted to the Australia Antigens Test. A positive test result indicated Hep B and a non-reactive result reflected Hep A. Unfortunately, Hep C often caused a positive reaction. Worse, Hep C would not be identified until 1989 and a commercial test available until 1992. Imagine how many have been crucified on the cross of “We don’ see no Hep C in your 1972 medrecs bubba. All it says is Hepatitis”. A litmus test for all the wrongly decided BVA decisions would be to see how many invoked Maxson v. Gober.

Ladies and gentlemen Veterans, I give you a classic reversal well-reasoned and a well-earned bitchslap for legal ineptitude. Meet Mr. James Bell, newly service connected and an unwitting member of  HCVets .

Bell v. Ronald McDonald

No Bozos

No Bozos

 

Posted in CAvC HCV Ruling, CAVC Knowledge, HCV Risks (documented), IMOs/IMEs, Jetgun BvA Decisions, Jetgun Claims evidence, KP Veterans, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , , , , | 1 Comment

ALEX GRAHAM–NON ATTORNEY PRACTITIONER

Posted on July 18, 2016 by asknod

280px-Plainofjars_1Gee. Does this mean I get to put NA P after my name? Or N-A P. Or is it NAP? Or the mundane VA Agent? All these queshuns and no guidance. Boldly going where no Air America Veteran has ever gone before. Who would ever have thought that joining the Plaine Des Jarres Golf and Country Club could ever lead to a cush job in VA claims half a century later?  Go figure. How about Agent at law? NQE (Not Quite an Esquire)? 

 

capture

 

Sorry they got the email and phone number wrong. I’ll fix that tomorrow. Until then it’s still asknod@gmail.com.

Thank you. All of you. I mean that. I know I say that you’d do the same for me if the shoe was on the other foot. At least one of us has shoes to put on another foot.

Nodster

Posted in KP Veterans, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , | 8 Comments

ILP–WHEN IN ROME, ACT LIKE A ROMAN

Posted on July 18, 2016 by asknod

imagesOver the years, I have been appalled to discover VA is prone to either breaking the rules or feigning ignorance. Rarely, however, do they engage in post hoc blatant lying to defend their actions. What am I saying? Of course they do. That’s where the term “post hoc rationalizations” originated.

I spotted it several years ago and have since seen it used by succeeding Courts to demolish after-market rationale for why the VA acted the way they did. When the CAVC or the Fed. Circus defines your actions as unconscionable and that further argument only shows you grasping at straws to exonerate your stupidity, you suddenly discover you finally earned their disrespect and, depending on the level of perfidy, a loud, resounding bitchslap.

ILP is greaaaaat!

ILP is greaaaaat!

In the five years I have spent trying to learn the ins and outs of ILP for all Veterans, I have discovered VA VR&E folks have a singular flaw- a mental disability if you will. Much like the military, and indeed the VBA adjudicatory arm, the presumption of guilt or unworthiness precedes you. Fighting for the greenhouse was illuminating. Usually, when denied, a fixed set of reasons is stated. It is static or unchanging. Unless, or until, you mitigate this with an IMO or letter from a licensed vocational therapist that says a greenhouse would look greaaaaaat on you, you are not going to prevail.

Which brings up the next contretemps. What happens if you meet or beat that denial rationale? Bingo. Greenhouse, right? Well, not exactly. In VREland, this often segues into a new denial based on an entirely different metric. And so on and so on… After three different theories of denial, it became apparent to me that I was never going to prevail because no matter what repair order I initiated, the new denial would be predicated on something I had never addressed or contemplated. Why would I try to cover every contingency? Who could possibly dream up each and every scenario in advance and formulate an argument to counter it?

But what if? What if, during the whole five years of appeals, there was never any intention of bargaining in good faith? What if the principle actors in this novel had no intention whatsoever of acquiescing when you had finally crossed all the t’s and dotted the i’s correctly? Worse, as here, what if they lied and cheated to accomplish the denial ?

VA personnel, for the most part, are honorable folk. With that said, it is inevitable that there will be a few bad apples-a few unsavory characters- that somehow escaped detection for many years and wreak untold havoc on Veterans. These employees feel they are above the rest and serve a purpose by protecting the VA financially against all assaults. Using any means handy, legal or illegal, is perfectly kosher. When those barbarian Veteran untermenschen are storming the gates, resorting to illegal means is considered fair and appropriate to defeat them.

Seattle’s VR&E Officer has never been faced with an attack of the magnitude I mounted. He was unprepared for my tenacity and staying power. True, most Vets would have thrown in the towel by now. I know many of you attempted to follow in my footsteps for various things like riding lawnmowers and metal detectors and were summarily denied. Almost to a man, you gave up. I don’t fault you. Most would. VA can be very overbearing and the old wive’s tale that you can unceremoniously be stripped of your compensation poker winnings is still perpetuated by VSO representatives daily across our fruited plain.

Being twenty-year protected is an asset in this even if you believe the claptrap VSO reps spew out “beware of becoming uppity”. Unless VA can prove I obtained my ratings fraudulently, they are inviolate. With that sure knowledge, I feel more confident in bearding the VA lion in his own den. What I never expected-what no Veteran would expect- is that an employee, having been overruled by the BVA, would cheat and attempt to substitute a cheap knockoff version of an ILP and say the Veteran agreed to it wholeheartedly- and what’s more- was part and parcel in the formulation of the deficient plan from start to finish. Welcome to the Hotel Seattle.

Last Wednesday was a sobering experience. I anticipated some animosity and ill will. I was prepared for a bait and switch, too. What I was not prepared for was the level of animosity generated by having a higher Court of law finally call bullshit on the VR&E and overturn all that hard, well-reasoned denial work. Well, that and the ensuing lies. How do you deal with it? Why, bust out that keyboard and let ‘er rip. If VR&E can take it up a notch, it’s time to become more rambunctious in the playpen. Ladies and Gentlemen Veterans ( and you all do act like well-bred folks), I give you an opus for the ages.

No Veteran should ever be subjected to what I went through last Wednesday. I don’t care if you are a combat Vet or one who flew a desk for 20 years in peacetime. You earn your stripes. If, in the course of doing so, you became irreparably harmed, you get certain promised remuneration. For the most egregious who suffer major, severe disability, there is a final level of reward above and beyond SMC that Congress set aside for us. I speak of ILP, of course. For VA to offer such a program and then make it impossible to attain is the height of hypocracy. To hide it in a dark corner and deny its existence is one thing. To refuse to implement a legitimate award is quite another. But the true crime is where the Agency resorts to misfeasance-nay, malfeasance- to show their displeasure at being dissed. Committing perjury on top of all that to justify one’s actions is simply beyond the pale. That, my friends, is where we have to draw the bright line and say “He’s lying”.

Janis-JoplinBeing a chucklehead know-nothing, I take it upon myself to call out this lie and let them know we’re mad as hell and we’re not going to take it anymore. You have to choose your battles wisely but Janis Joplin also said it quite eloquently as

“Freedom’s just another word for nothing left to lose.”

Fly at it, gentlemen. I won’t back down. I was bushwhacked for calling a certain unnamed VA “charity” a scam last year. I was also exonerated by CBS News. My personal ILP experience so far is equal to, or even more obscene, than the treatment I received then.

Cupcake admonishes me constantly to entreat the Lord to keep his arm around my shoulders and his hand over my mouth but even she realizes there comes a time to stand your ground and fight. This ILP’s for you, my fellow Vets.

VASEC +VRE letter 7-18-16

LOGO THAT OTHERS MAY WIN

 

 

 

Posted in All about Veterans, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans, Presumption of Regularity, Tips and Tricks, VA Conspiracies, Veterans Law, VR&E | Tagged , , , , , , , , , , , , , , , , , , , | 11 Comments

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.

Capture54

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?

th-12

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.

13590455_1215415215188421_4251941036470264549_n

 

13592679_1215754841821125_9079370337355162920_n

13237859_1024765597591303_2943710522317490208_n

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?

unnamed (2)

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.

Capture333

 

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.

Capture444

“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