CAVC–COLLAZO V McDONALD–COULD’VE, WOULD’VE, SHOULD’VE

vetcourtappealspromoThose very same three horses ran in the fourth, fifth and sixth races of innumerable visits to the track until I met Cupcake. She feels  the heat in her fingers and can feel the winner on the program. But that’s another story. This is about Veteran Maria Collazo and her semantics jousting match with Veterans Law Judge Stephen Wilkins. It has now spilled over into Judge Bruce Almighty Kasold’s docket. Granted, it would have flunked any win test for any number of reasons-even with St. Meg’s or Brother Greenberg’s introspection but it bears repeating that this was a lose-lose case. I commend the DAV for even choosing to defend her. By law, we cannot accept what might appear to be fraudulent claims.

Veterans Attorney Arvind Jairam, Esq. appears to be a stand up guy but is in far over his head. Hanging your whole legal theory on a VA training letter written in 2002 about Hepatitis C risk factors is already shaky ground but having a nexus with the word “Probably, possibly, could’ve, might’ve, it’s conceivable, wasn’t ruled out” or “My Uncle Lemuel had that very same thing and he got it from Hep C” is akin to having no nexus at all. The good news is Mr. Jairam undoubtedly got his 30 hours of pro bono in on this one.

Collazo BVA decision

What Judge Kasold never had to say and Judge Wilkins politely avoided, was the clear evidence of willful misconduct. If you’re shooting up drugs in service, that’s a Bozo No-No- period. It doesn’t make any difference if you’re sharing the experience and the needles with others. Even for argument’s sake, as Maria would have Judge Wilkins believe, that she never shared the needle because she was an OCD type of junkie, she still cannot erase the leopard’s spots. If Mr. Jairam had read Sickels v. Shinseki he might not have even taken the low road. The loss of credibility has taken it’s toll as well. You cannot have two versions of a story on file. Using drugs often wrecks our memories of what we say in those VA Kumbaya encounter groups. Standing up and announcing “Hi. I’m Suzy Vet and I shot up waaaaaay too much junk but I’ve been clean now for over twenty years. Jane is my sponsor and here’s my twenty year pin.” will not go unnoticed at these meetings. It always comes back to bite you on the ass.

Although she apparently stated she used intravenous drugs in service on at least one occasion, more often she identified her intravenous drug use as taking place exclusively prior to service. The private treatment records reflect that she admitted sharing needles when she was using intravenous drugs.

The private and VA doctors have opined that the Veteran’s hepatitis C was most likely due to her intravenous drug use (including at a private pain management consultation in June 2003).

The exception is one physician who noted that there was a “possibility” that the Veteran contracted hepatitis from receiving tattoos or dental work during service in a July 2011 letter. This physician did not address the Veteran’s history of intravenous drug abuse prior to service in her letter.

It just gets worse. This is why I couldn’t see a DAV VSO touching this with a ten foot pole. Lady speak with forked tongue. Bad Juju. This suitcase don’t gots no handle, Jose. If she contracted Hep B with the C before service, that pretty much pokes a big hole in claiming it in the first instance. The only thing that can be said is the evidence for tattoo risk was flat out wrong. Any instance of blood exposure before 1992 and the advent of the protection of the American blood supply leaves the risk of transmission plausible. Here, absent an honest weighing of all risk factors, the decision was arbitrary and capricious but well-balanced vis-à-vis  the drug baggage.

Believe it or not, I’ve seen wins under some of the darnedest circumstances of folks with Hep C and many “Imperial Entanglements” like Maria’s that would seemingly preclude service connection. Poor Maria was ill-advised on this one. I don’t know if they have lead in the water in Hartford, Connecticut or if it’s just bad plumbing in the water fountain in the DAV’s lobby but it appears somebody had a severe case of dumb and ran with it. A bigger waste of scarce judicial resources has seldom been seen.

CollazoM_14-3309 versus McFlougal

What I find sad is that some chucklehead VSO rep. probably got her hopes up she might prevail on some of this. The Hepatitis B dog won’t hunt because, for all but rare cases, Hep B is acute and resolves with conferred immunity for life. About the only ploy she didn’t resort to was jetguns.

 

 

 

 

 

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HADIT RADIO SHOW THURSDAY @ 1900 (L) EDT

haditlogo2007Jerrel will regale us with his three-judge BVA hearing that shrank down to a  GS-11 (Step 7) Decision Review Officer hearing with LawBob Squarepants Bob Walsh. John will take a break from scuba diving in his underwater kitchen looking for his plumbing leak and/or the potential natural springs that have taken up residence under the kitchen floor. And I will add legal commentary on the important subject of the very real difference between an IMO and an IME and what each term really means in VA Jurisprudence. Be there or be square tomorrow afternoon at 1900 Hrs L on the Least Coast and 1600 Hrs L for Vets on the more enlightened Left Coast. 

imagesAs usual, we welcome questions and even look forward to them. If anyone out there knows it all, then you have the potential to be very rich. VA law is so rife with error, a determined Sherlock Holmes-type sleuth can always find gross error in past VA adjudications. And since we inhabit a Veteran-friendly, nonadversarial environment, we can always go back in our DeLorean Time machines and rectify it to our financial advantage. Assuming we know how. Tune in to learn. Tune in to win.

 

The number remains

347-237-4819

The gal with the English accent from Wellesley is still aboard

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And to speak to us, press the number “one” on your phone and we’ll bring you in.

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Tomorrow’s show is brought to you by the letter J and the number 3

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Nodster

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ILP–CORNY JOKES

downloadI went out to the non-ADA, non-ILP greenhouse yesterday morning and was greeted by 834 brand new friends and neighbors. Ladies and gentlemen Veterans, I’d like  to introduce you to the September class of 2016 Silver Queen. I spotted about 3 no-shows but the majority are above ground and will be ready to hit the dirt soon. I like to spoil them in the g-house and make them think they’re in South Carolina. This year’s crop is planted in memory of a tough Marine named Paul Burch who passed far too soon in January of this year. He and his lovely wife Leigh gave me the first batch of Silver Queen back in 2013. We’ve been planting it ever since.

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The balance of what we cannot plant will be sold by Sunnycrest Nursury and the profits donated to Veterans’ causes locally. As it should be.

Posted in All about Veterans, Food for the soul, Independent Living Program, KP Veterans, Memorial Day | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

MEMORIAL DAY 2016–WHERE HAVE YOU GONE JOE DiMAGGIO?

Memorial Day 2016 comes at a time where our great Nation is roiled in extraordinary controversy. With respect to us Veterans and our Alma Mater, the DVA now finds itself armed with all manner of new legislation from Congress to root out dishonesty and waste-yet cannot fire the authors of the waiting scandals, let alone the hierarchy of  miscreants running this insane asylum. VA Secretary Robert “Call me Bob” McDonald, in spite of his continuous acknowledgement of the VA’s shortcomings,  is no closer to reining in this runaway agency than Ric Shinseki ever was on his best day. Quo vadis, Bob?

Being the lead off news item on the six o’clock CBS news once a week cannot be conducive to good health. Proctor and Gamble carries a wide variety of panaceas but even their best,   Pepto-Bismol™, has its inherent limitations. Secretary Bob should be well-acquainted  with that one by now.

But let us return to the fond memories of those we grieve and to those we hold in high esteem and owe so much. I don’t know how many of you have yet had an opportunity to hear the sound of  the thousands of motorcycles in unison heard every Memorial Day in Washington DC. We were back visiting my family in 2000 and decided to take the train into town to do the Vietnam Veterans Memorial and a Smithsonian or two. We could hear the roar of Artie Muller’s crew approaching for miles in the distance. Sixteen years later, I cannot even imagine how it might have increased in volume. The chill it sent down my spine cannot be described. To be a Veteran that day was a combination of pride with a cherry on top.

ROLLING THUNDER’S ROOTS

BEFORE THE VIETNAM WAR

The roots of Rolling Thunder bring back vast memories of 1963. My father had recently gotten his first star and decided he needed to go to parachute school over at Fort Bragg. As the new Vice Commander of the “suitcase” 19th Air Force under Mo Preston at Seymour Johnson AFB in North Carolina, he figured it was a valuable asset. At 44 years old, that was biting off a big chunk of macho. He did it. Shortly afterwards, the Army and Air Force held Operation Blue Chip 4. It was a demonstration of the new “joint” concept of embedding forward air controllers on the ground with tactical air communications in the 81st  Airborne component. Everyone had to be jump qualified. Forward Air Guides, as they were known, were not unheard of before this. The Army was always just a little leery of the Air Force’s accuracy when a FAC called in an air strike to support ground forces. The Air Force blamed it on the Army puke’s coordinates. This begat a turf war over who was qualified to do it. The Army rightly settled on an Air Force puke on-site being the fall guy because if he fried friendlies  in a nape strike, the Army was blameless. This worked in a fluid, moving airborne assault but was unwieldy when applied to Vietnam later. The solution was simply better maps and more attentive pilots. Yeah, right.

Blue Chip 4 was my first experience seeing the new M-60 in action.  In addition, one C-130 after another disgorged endless jeeps, troops, tanks, 6 bys, 105 howitzers and anything else you can imagine with multiple parachutes. Then the rolling thunder began.  Brand new F-105s from the 4th Fighter Wing which my father had recently commanded at Seymour came in low at full military thrust. Low meaning 100 feet. I’d never seen any fighters outside the USAF Thunderbirds fly this low.  Approximately a quarter mile away right in front of the bleachers we were sitting in, they cut loose strafing  fixed targets with their six-barrel 20mm GE Gatling gun cannon. This, to me was Rolling Thunder. It approximated a man with a loudspeaker clearing his throat to expectorate in a howling F5 tornado. Impossible as it may seem, the Gatling gun was even louder than the Pratt and Whitney J-75. Pretty cool beans to an 11-year old Air Force brat. Blue Chip 4 was also the first time I saw Army troops with the new green berets. They were quite obviously proud of their achievement and full of esprit de corps. Vietnam was a distant future event still in the nascent stages.

Dad arrived in Saigon as Vice Commander of 7th AF under Spike Momyer in June ’66. Operation Rolling Thunder was in full swing having commenced in March of 1965. The biggest problem was having to run every little bridge or SAM site past the White House for permission. Many targets were spontaneous and time-sensitive. Routing the request to the White House often resulted in approval about five hours too late to matter. We discovered this shortcoming up in Laos when begging for permission to drop napalm in 1970. We had to get approval from the Air Attache in Vientiane -who, in turn, had to ask the US Ambassador personally. This unwieldy Rules of Engagement (ROE) resulted in even more lost opportunities and perhaps General Vang Pao’s ultimate defeat.

THE FOXTROT ONE OH FIVE

The introduction of the F-105 as the natural successor to the F-100  was a fool’s errand. For many years, General Sweeney had driven the purchase of Air Force fighters. Fighters had always been under the command of Strategic Air Command (bombers).  Sweeney’s idea of the perfect fighter was a cross between a  Maserati and a Buick Riviera. He wanted the impossible-a fighter with a good gun/rocket platform for air superiority juxtaposed with a quasi-bomber capability. In the event of nuclear war, he could outfit a gazillion fighters with tactical nukes and air refueling and turn them loose like Kamikaze-MIRV’d ICBMs. Seasoned fighter pilots knew that  didn’t pencil out because the Soviets kept building air superiority fighter aircraft.

image001When we decided to commit to Vietnam and Operation Rolling Thunder, we employed the old (by now) F-100s as the day-to-day workhorses. It was guaranteed slaughter against a determined and skilled Mig-17 or 19 pilot. For too long we had taught fighter pilots less in in air-to-air dogfights and more on air safety. Gone was the derring-do of World War Two. The William Tell annual meets at Nellis AFB were all about hitting a ground target with a bomb or scoring a hit on a passive, air-towed drogue. No emphasis was placed on hitting an opponent in a prolonged aerial dogfight. In Korea, the ratio of aircraft downed versus aircraft lost was twelve to one. In the early days of Vietnam and Rolling Thunder, it was 1.1 to 1.  The F-100 was an overweight lead sled compared to a Mig-17 flown by experienced Russian pilots.

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Mig 17 circa 1966

The entry of the F-105B was a flop. It took five days to get one airborne for a mission. To say they were plagued by maintenance issues is an understatement. Republic sold us an Edsel and the Air Force kept trying to reinvent it right up to the introduction of the F-4. I watched my first one auger in right over the Capehart Housing area at Seymour Johnson AFB in April 1963. The pilot punched out sideways as the A/C began its death role over to the left. Here’s some of the Air Force fighter pilot humor on 105s.      Red River Valley songbook

Rolling Thunder continued until November 1968. LBJ could never bring himself to order an all-out attack commitment. Incremental response was the game plan to avoid a full-blown war with China and/or Russia. Having tipped our hand to the enemy, it was a recipe for incremental failure. The only thing we accomplished with Operation Rolling Thunder was to insure the DRV didn’t have air superiority. Any other objectives via bombing were fleeting and temporary at best.

ROLLING THUNDER TODAY

American Veterans’ choice of Rolling Thunder today, while perhaps a mixed metaphor for what they do, is nonetheless a poignant reminder of the loss of many brave aviators- many of whom never returned or were not honestly accounted for. My father’s successor, Major General Robert F. Worley, was shot down on his last mission in an RF-4 north of Da Nang on 7/23/68. He already had his orders for #2 at PACAF and his third star. His pursuit of one more Oak Leaf cluster (#9) to his Air Medal was his undoing.  His was one more casualty of the meat grinder known as Rolling Thunder and the one closest to me. I went to Hampton Roads Academy with his son Rob in 1965-67.

Major General Robert F. Worley

Memorial Day weekend is, and always will be, synonymous with a remembrance of our dead. Today’s Rolling Thunder procession is a fitting tribute to all of those who are truly unaccounted for and missing in action (MIA). We salute all of them and pray Americans keep them close to their heart. We also pray they will eventually all be accounted for- most especially in Laos. Accounting for the brave pilots of Air America should also be considered just as paramount.

 VA IS LYING POW WOW WITH  VASEC

We also fervently hope that the future meeting(s) reputedly arranged between VA Secretary Bob and VA IS LYING founder Ron Nesler turn out to be fruitful and yields positive results. The Veterans Administration has a lot of explaining to do as to why spending $99 million on PR trying to refurbish their image is somehow more important than hiring more doctors at the VHA…or why standing in line at a VAMC for months waiting for medical care is not uppermost in Veterans mind. How Bob views the “total experience” we receive and how the average Vet in the trenches perceives it is immaterial. The quality of the product received and how timely it is delivered is the bone of contention. Let Secretary Bob partake of the “total VA medical experience” for the remainder of  his tenure as Secretary and see how it feels to eat cake. In fact, let the VAOIG inspectors be embedded the VAROs/VAMCs 24/7 on a full time basis and report back their observations firsthand. I warrant there would be fewer findings of “We were unable to substantiate Veterans were impacted by having to wait two years for an appointment”.

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10,077 page c-file

Remember all of your ancestors that served us in war and peace this weekend. Raise a toast to them. Most who did serve did not need the cattle prod of the draft to join. Being all you could be in Canada was always an option for those with an objection to serving. In retrospect, I fault no one for their choices. I only throw stones at those chosen to administer our benefits who go out of their way to deprive us of that which we were promised. The VA koolaid serves to its personnel is quite potent. Brainwashing has always been considered a tool of the Soviets but I see its application daily in the administration of VA justice. I have experienced it firsthand for years so it isn’t a fig newton of my imagination. No one can amass a 10,077-page c-file over twenty seven years and have complete, utter legal success unless a mistake was made. VA cannot say I am an anomaly and statistically insignificant if I continue to find others similarly situated as myself. To claim 98 percent accuracy is the worst hubris imaginable. To dishonor those who are deserving by denying them to their death should be punishable with jail time. And that’s all I’m going to say about that.

Nodster

P.S. To VFW Post 4342 in Lancaster, California.

By turning down my application for membership in March of 1973, you have saved me untold thousands of dollars in membership fees. I concur with your findings back then. The Vietnam conflict was a boundary dispute-not a war. Nevertheless, you might want to explain that to the parents, wives and children of the 58,278 folks who didn’t come home. They died somewhere.

P.P.S. Thank you member Bobcat for these poignant images. While searching for Chuck Engle’s grave in Fountain Lawn  Cemetery In Illinois back in 2013, I ran across a gal who was similarly mourning her recently slain son.

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Posted in All about Veterans, Food for thought, Inspirational Veterans, Memorial Day, VA Medical Mysteries Explained, VAMC Scheduling Coverup | Tagged , , , , , , , , , , , , , , , , , | 5 Comments

SECRETARY BOB’S DISNEYLAND

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VA Secretary Bob

Unless you recently disembarked from the USS Mayflower late at night (shortly after birth), you probably are aware of VA Secretary Bob’s observation that Veterans are not concerned with wait times at VAMCs across our globally warmed plain. I assure you based on talking to numerous Veterans, that we, of all cohorts, are the most experienced at long wait times. The very phrase “Hurry up and wait” was a time-worn synopsis of much of our service careers. 

Over the decades since modern media communications began saturating us with   extraneous information, one unique thing VA does has evolved into a science in its own right. I speak of statistics. This exciting new field drives VA’s hierarchy to focus myopically on the “total experience”.   Sec. Bob ineptly phrased it several days ago at the expense of the Veteran population with boots on the ground. Apparently, we don’t see eye to eye with Sec Bob.

As a disabled Veteran, I’m a stakeholder in this conversation (with laryngitis, apparently) and what I gather from many of you is that we couldn’t give a damn about the “process” or total experience as long as the wait time was minor and the quality of care was above average. Since we rarely get in to see doctors in a timely manner and the quality of care is  extremely debatable, what possible statistic is ClownBob alluding to that confirms his misguided belief system?

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George Washington coupon

Over the years, VA has squandered mass quantities of George Washington coupons on studying this phenomenon. Statistics, as we all know, can be bent to the task at hand. VA seems to decypher these mysteries at great research cost and then attempt to justify their rationale for their actions predicated solely on the faulty results. Bonus awards to SES VISN bigwigs in the tens of thousands of dollars were a product of this statistical misinterpretation. Anyone who engages in prognostications of “trends” at VA is suspect like the VAOIG. Interviewing the foxes to get their take on why henhouse egg production is down or, for that matter, a discourse on why missing hen reports have not been timely filed, often yields a discussion on something entirely off subject. Nevertheless, it’s statistically annotated and published to support VA’s theory of what we all “feel”.

VA statistics are far off the mark on patient wait times, patient mortality due to the wait times as well as obscured by VAOIG collusion as in “We were unable to substantiate that delay of medical care was responsible for 3,800 Veterans’ deaths. Our statistics show quite the opposite and by the way did you all know 89.9% of Vets are just pleased as punch at the care they receive?” Unacknowledged is the fact the statistics were based on interviewing 100 Vets at one above-average VAMC on one sunny day and then touted as being representative of the whole VA universe.

Sec Bob is now guilty of that which he promised to correct. Ric Shinseki fell victim to this ploy when he blindly accepted the statistics proffered by his underlings that everything was hunky dory and the skies were not cloudy all day. With ClownBob’s background, we seriously expected a new dawn of glasnost and transparency at VA. Petty squabbles would abate and we’d roll up our sleeves to work together to insure progress. Now it is clear this is not going to be forthcoming. As some of us are wont to observe, same old shit-different day. We should have figured something was amiss when SecBob told the homeless Vet he was in Special Forces.

I always try to stress to folks I help to buckle on a new philosophy when dealing with VA. Give them no more than the Presumption of Stupidity. Assume their statistics are self-serving. Presume that 67% of the time they are wrong using CAVC statistics which are immutable and independently corroborated. Remember that Under Secretary Allison Hickey promised 125 day/98% accuracy by 2015. Remember  further that she had to walk that back and say “I didn’t specify what day in 2015 that would occur.” As it turns out, that statistic and her prognostications were far off the mark.

Secretary Bob does Veterans (and Disneyland) a major disservice by speaking in our stead with no statistics in this case to back it up. Veterans are very much concerned by wait times as would be anyone with a medical condition requiring prompt treatment. Insinuating that Veterans are not perturbed by this is tantamount to heresy. It also indicates he has been infected with  the Marie Antoinette disease that leads him to opine “Let them eat cake”. As Veterans, we have a wonderful agency dedicated to doing one thing-taking care of America’s fallen to insure they get a good deal-be it in the field of medicine or compensation. That such an inordinate amount of time is devoted to gathering worthless statistics to support the unsupportable smacks of indifference to our plight. Add to that the hubris of believing everything you are told is the truth and you have the perfect storm of statistics to support shoddy medical care and more bonuses.

I hear many demand his head on a spear but that defeats our cause. Anyone nominated and approved to the post will still be faced with an impenetrable wall of indifference brought on by the presumption that while SecBob will only be there for several years, they (SES) will be there for 20 years and need only pay him lip service and little else. In the long run, nothing will change and the status quo will remain static. Change at VA will be hard to enforce. Ennui is emblazoned on their flag.

Until we change the metric by which we measure success in outcomes for Veterans, we’re all just pissing into the wind. SecBob reaffirmed that when he suggested Vets are interested in the bigger VA picture and not the reality of everyday life. He has the right to remain stupid. He’s the boss. If Mr. Trump prevails this fall, one of the hardest tasks he faces is finding a VA Secretary that will do his job and not become beholden to any political interests or philosophies. It might help if he fires the whole VA PR machine that creates these fantasy statistics, too. Hell, that might give them enough extra shekels to finish the Denver VAMC boondoggle next year without asking for more funding.

Bob the beggar

Please Senators. May I have more bonus money?

Posted in All about Veterans, Medical News, VA Conspiracies, VA Medical Mysteries Explained, VAMC Scheduling Coverup | Tagged , , , , , , , , , , , , , , , | 7 Comments

ILP–GENTLEMEN, START YOUR CORNDOGS

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Paul Burch

Quite possibly, one of my favorite pastimes in spring is getting a leg up on Mother Nature. A greenhouse greatly facilitates this. Finding enough containers means a concerted search for them at my relatives’ business (Sunnycrest Nursery). I plant 800 or so seeds and they give me the potting soil. In return, I give them about 500 starts that I cannot use. It’s a win/win for Veterans as Claudia and Dale Loy donate to the Key Peninsula Veterans causes. What could be more fun than helping down and out Veterans?

Paul and Leigh Burch got us started using Silver Queen seeds about four years ago. Truth be told, I was always a Jubilee yellow corn fan but sweet white corn is hard to beat. With Paul’s recent passing, it resonates even more deeply that we continue this tradition. It might not be much consolation for Leigh but it’s very à propos inasmuch as it keeps Paul’s memory alive.

MILESTONES–PAUL BURCH

Most times I have spouses come to me for help or questions. Virtually 100% are wives with very ill husbands. Paul was the exception to the rule and we worked long and hard for years to get Leigh her benefits. People sometimes complain that it takes months and months to extricate their c-file from VA. It took two years and an Extraordinary Writ of Mandamus to get VA employees off their poor tired, bonus-callused asses and comply with Leigh’s anguished plea. Even then, it was still a spell before the claim was won at the BVA.

Whereas before Harvoni we all faced inevitable death sooner rather than later, we HCVets have reason to rejoice now with the disease in full retreat. Leigh was given a transplant in 2011 that was immediately contaminated by the virus within. Fortunately, she was accepted for the early trials of GS-7977 (Sofosbuvir plus Daclatasvir) and protected her new liver box in time to save it. Many were not this lucky and expired waiting for the miracle cure to materialize.

But I digress. This is about life, not death. Spring brings us the promise of new life, new beginnings and new hope where there was a dearth of it before. This Silver Queen’s for you, Leigh but we will never forget Paul.

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Silver Queen 2014

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And yes, Strawberry Wars continue unabated here at LZ Grambo.

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Posted in All about Veterans, Food for the soul, Independent Living Program, KP Veterans, Milestones | Tagged , , , , , , , , , , , , | Leave a comment

CAVC–THREATT V. McDONALD-SLOW! EQUITABLE TOLL AHEAD.

vetcourtappealspromoHere we have almost the perfect triumvirate of Judges aligned like the stars and one has to spoil it with a bogus “I concur but I’m butthurt about Willie’s due diligence in this matter”. Trust Judge Coral to be the one to go south, too. With all her judicial education and glowing rèsumé, it’s just incongruous to me how she began dwelling on that facet. VA screwed up. Strike that. They didn’t screw up. They purposefully played the same exact ‘Keep Away” game with Willie that they did with me in 1994. Gregg Block has an infinite number of combinations available to construct panels. We have yet to see a Schoelen, Bartley and Greenberg combo. That would be like drawing to a royal flush. Whoooo doggies. 

DAV_Eagle_ColorWe are considered babes in the woods if pro se. We are considered by the higher Federal Courts to be represented by neanderthals with funny hats of many colors when we have a VSO. Not until we hire a Juris Doctor do we have to worry about procedural rules. Which brings us the marvelous tale of one Willie J. Threatt and his adventures using the DAV to hold his coat.

Threatt Order fm CAVC15-835

Willie began filing for left/right hip and bad back- probably back in 1999 0r 2000. By 2003, he’d advanced to center court at the BVA and gotten his Warholian fifteen minutes of denial fame. What came next was the VA three-card Monte game. Think of this. It’s as obvious as the nose on your face that Willie was a hands-on guy and did a little filing himself. Hey, we’re Veterans and masters of the hurry-up-and-wait game. Willie probably just tried to ‘facilitate’ the process.  By the end of the BVA hanging, he’d figured out he needed to see VA’s hole card (the c-file) to fight the claim. He must have surmised there was some corroborating evidence in the file the Roanoke Puzzle Palace wasn’t absorbing. The fact is, he may have visited Hadit.com and discovered he needed an IMO to win it.

Willie J. Theatt BVA Hanging

The 120-day clock was now ticking inexorably. Willie began a mad scramble to get his medical records from Fort Fumble. Think about it. Where else do you see a fellow filing a claim (think lawsuit), losing and then filing his appeal at the same court? Nowhere. Most would catch a cab and zoom to the state capitol to file the appeal at the higher venue. If one lost there, it would be off to the proper Fed. Circus wherever they were seated. At the VA, on the other hand, you file your substantive appeal at the same “court” or, in this case, the Agency of Original Jurisdiction (AOJ). Given this, why wouldn’t Willie send in any Notice of Appeal or Request for Motion for Reconsideration to the RO? Remember, back in 2003, as now. if you have no law degree, you cannot dress up  like an attorney-wannabe and carpool over to the CAVC. That kind of took DAV out of the running right there. Absent any meaningful representation, he turned to his Congressman for help.

With June 20th or so as Bingo Day, Willie lit into this with true verve. Coral Wong would say this hardly constituted due diligence. I disagree. Mr. Threatt did everything he knew how to given his abrupt lack of judicial assistance. Within fifteen days he was on the horn to his Congressman trying to get Vermin Ave. NW personnel to cough up the c-file or, at the very least, just the contemporary SMRs from his service file. What does Representative Scott do? He kites it up to the BVA about a month later on April 9th.

Finally, on April 22, 2003, fully 62 days after Willie’s first missive, some chucklehead at the BVA did what they have been doing since 1989. I call it willful misconstrual for lack of a better judicial epithet. Judges are far more introspective and bandy about words like misfeasance. Six of one, half a dozen of another. The end result is to fritter away time in useless gestures until the right to appeal has come and gone. We see this being employed nowadays by VSOs asking for “Motions for Reconsideration” at the RO level. This allows AOJ to delay until a NOD is past due. The Veteran, unaware that this mythical Motion for Reconsideration is a fig newton of the VSO’s imagination, blindly agrees hoping it will fix things pronto.

Capture11This little dance of mailing futile missives out continued right on through past Mr. Threatt’s June 20th, 2003 suspense date. With perfect aplomb, and knowing full well the magic moment had passed (willful misconstrual), the BVA sent Roanoke his latest plea for medical records and what could only be construed as a desire to hotly contest the BVA denial. One little problem. The  forwarded letter didn’t make it the paltry 240.7 miles from Vermin Ave. NW to Virginia’s Fort Fumble until August 11th, 2003. For the number-challenged, that is a full 52 days after a NOA or BVA Motion for Reconsideration would have been accepted. Perhaps they didn’t have UPS or FEDEX in the back woods of Virginia way back then. But why send it to Roanoke-late or otherwise? Why not send it on to the CAVC and let them tangle with it?

On August 7, 2003, the appellant’s May 30, 2003, letter was forwarded to the RO. The RO received the letter on August 11, 2003, more than 120 days after the Board mailed the February 2003 decision, and processed it as “congressional liaison” correspondence. On August 12, 2003, the RO replied to Representative Scott’s office, stating that the appellant’s service medical records had been mailed to him, and that “Mr. Threatt must initiate the appeal to the Court. . . . He must send his appeal directly to [the Court]; he cannot submit his appeal to [the Court] through either the [RO] or your office.” The RO’s letter was copied to DAV.  It was not sent to the appellant.

Ah, the wonderful world of nonadversarial, Veteran-friendly adjudications where every benefit of the doubt is accorded the claimant. No tricks or traps for the unwary here. Just simple ex parte justice anyone can understand in the absence of guidance.

Going even further with this obfuscation, the BVA let Willie to chase down even yet another Hoodoo Lane after he sent in and asked for a belated Motion For Reconsideration at the BVA. A second letter revised that and asked for a Motion for Revision of his BVA decision.

On January 23, 2004, the appellant sent two letters directly to the Board. In the first letter, the appellant stated that he was filing a motion for reconsideration of the February 20, 2003, decision. In the second letter, the appellant stated that he was filing a motion requesting the Board revise the February 20, 2003, decision based on clear and unmistakable error. There is no evidence the Board responded to these letters.

Okay, Judge Coral. Just exactly how many times do you have to get the VA bitchslap before you get the idea that even due diligence is going to be met with the sounds of silence?  No one can say Willie sat around and played solitaire during his 120-plus days diligently awaiting his medical records request.

Finally, almost four years later, on January 31, 2007,  Willie got the impression VA was funning him. In order to get the ball rolling again, he reopened the old claim only to find out VA wasn’t having any discussions about 2003 or earlier. That’s when Willie caught a bad case of litigation fever and went on the warpath. Roger that. When dissed, get a law dog.

18248Which pretty much brings us up to date and to the CAVC. St. Meg and Brother Greenberg don’t have any problems seeing through these types of shenanigans. VA’s very modus operandi never changes. The OGC’s deer-in-the-headlights imitation is pure hokum. They’ve pulled this stunt so many times it’s even published by Cliff Notes®. I’m surprised they don’t include it in the M 21 considering how often it’s employed.

The rest of the decision eviscerates what’s left of the OGC’s tenuous grip on judicial respectability. One argument after another falls by the wayside. In quick succession, the idea that Representative Scott was acting as his de facto attorney illegally in violation of 38 CFR 14.629(b) is demolished but not before insistence that Representative Scott had no standing or authority to file his NOA. This list of butthurts the OGC brings up all end up in the post hoc rationalizations trashcan beside St. Meg’s bench.

Judge Coral’s plaint seems hollow. A clear path from the inception of the claim to the demented BVA decision by George R. Senyk seems to show an unbroken chain of events that depended not on Willie to prove due diligence in this matter but of VA’s utter lack of due diligence in timely providing him with that which he needed to appeal or to file for a timely Motion for Reconsideration. In this VA Bizzaro world, there was no equitable tolling to be had because VA never could accept they were the progenitors of the problem in the first instance.

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Willie’s most excellent law dog Aniela K. Szymanski, Esq.

Willie will now finally get his day in Court thirteen years late. When and if he prevails, he will have accomplished no small feat. Equitable tolling is a rare treat. VA begrudgingly did it for me twice back to 1994 but only when being prodded by a Joint Motion for Remand admitting defeat and later an Extraordinary Writ begging for closure. I expect old Willie is going to be pleasantly surprised. Face it. If VA screwed up this equitable tolling argument so completely, it almost stands to reason the prior denials were equally way off the mark. Kutscherousky v. West to the rescue. A warm thank you to Aniela K. Szymanski, Esq. for a splendid job sorting it out. No flies on her.

Posted in All about Veterans, BvA and VARO CUE DECISIONS, CAVC Knowledge, CAVC ruling, Congressional Influence, Equitable tolling, KP Veterans, Tips and Tricks, VA Attorneys, VA Motions for Reconsideration, VSOs | Tagged , , , , , , , , , , , , , , , , | 2 Comments

VARO–THE CONGRESSIONAL INTERESTS SECTION

StreetSign 1Subtly buried in every American VARO across our fruited orchards, is an office set up to deal with inquiries, complaints, and irate congressfolk. In all cases, the invective is one-way coming into the Regional Offices-i.e. Congressmen/women’s VA gopher calls up his Congressional Interests (abbreviated CI) officer, usually a GS-12 or 13, and asks what the status of a claim is. In almost all cases, they’ll get a canned, manufactured response that is tailored to assuage any ruffled feathers and satisfy the query. In most cases, the Dog and Pony show is at its finest hour. One of the lead off statements will almost invariably be ” I’d like to point out that VA recently settled Mr. Graham’s instant claim and he received a check for over $38,000.00. It can hardly be said we’re dragging our feet. We would be happy to look into any other perceived problems Mr. G has but we need more info.

 

Shoo doggies.What’s that c-file for then? The point I try to make is that VA has had this tool in their box for decades-certainly as long as they’ve had irate Congressmen calling them. One thing I have never seen, though, is the CI officer reach out to a Congressman and beg him to call off his constituent who is haranguing them unmercifully.

As some may recall here, I’ve been a little less than circumspect in my communications with the Seattle Regional VR&E officers. Please see my recent diatribe of emails exchanged asking them when (or if) they intend to build my greenhouse.  You can imagine my surprise when my good friend at Congressman Kilmer’s office, formerly in charge of VA trailer trash and now recently promoted to chief of staff in Tacoma, forwarded me the following email. Never in the history of CIs has one begged for respite from an abusive voter. I can’t begin to tell you how utterly shocked we both were. Nick wonder aloud if he’d even filed a VA Form 21-120 Report of butthurt before calling.

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Here was the email sent from the CI:

Subject: FYI -just got this from the VA

“A Board of Veterans Appeal decision dated September 4, 2015, found that the Veteran is entitled to a heated greenhouse that is compliant with the American with Disabilities Act of 1990 (ADA) as part of his independent living services program.

 Procedurally [sic], Vocational Rehabilitation and Employment Services (VR&E) contacted the Pacific District Contracting Office for an appointment of a Construction Manager to oversee the construction of the heated greenhouse that will meet the ADA program specifications.  During the week of May 11, 2016, the VR&E officer contacted Mr. Graham relative to the construction issues. It appears that Mr. Graham has identified someone who could build the greenhouse immediately for approximately $90,000.00; Mr. Graham was advised that this action is not allowable by regulation.  Additionally,   Mr. Graham was advised that bid for a Contracting Manager should be completed in about 45 days.

 Nicholas as you know it is always a pleasure to work with your office. We sincerely hope that the information presented in this letter will assist you in responding to your constituent.  Please thank Congressman Derek Kilmer for his continuing efforts on behalf of veterans and their families.”

 ***

I presume the *** are the initials of the CI. Browsing through the VA- Who’s who widget, I note that VA does not distinguish CI officers and give them the moniker. Generally, they are drawn from the ranks of the claims examiners at the GS-12 level and chosen based  their demonstrated ability to blow smoke into anal sphincters. This is a requisite assignment like an officer being sent to the War College in spite of having a Silver Star and a Purple Nurple. You absolutely have to have it on your résumé to be promoted.

I consider this a first. If any of you have used your Congressman to such deadly effect as I have, and had this occurrence where the CI begged his counterpart to call off the dogs, please do share it with us. It warms my heart that I am finally getting their goat enough for them to fill out a butt hurt form.

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Posted in Complaints Department, Humor, KP Veterans | Tagged , , , , , , , , , , , , , , , , , | 5 Comments

HADIT.COM BLOG RADIO–CIRCLING FOR BDA

haditlogo2007Last Thursday, we had a caller, a wife of a Vietnam-era Vet with Hep C who was having the devil of a time getting service connected. The problem was her nexus-or lack thereof. Using Internet cites and VA’s famous FAST letter of 2004, you can have a short trip to nowhere as most know. VA will kindly oblige and provide one (a nexus) for you. They are soooooo thoughtful.

Unfortunately, in spite of my giving her my email, I have yet to hear from this woman. This puzzles me. Why would anyone with this problem not have heard of HCVets or asknod and come forward for help sooner? No less than five hundred-plus folks, and a lot of them wives, have been the prime mover in their husband’s win. This is the rub of the radio show today. Where do you go for good help and can you trust it?

As most  know, we were discussing the gulf of animosity between a certain pink Veteran’s site and other sites.

HADIT.COM RADIO SHOW THURSDAY EVENING AT 1900 HRS EASTERN

The quality of advice and the “Abandon Hope All Ye Who Enter In” sign over the portal would scare the knowledgeable Veteran away from this site. Add in the propensity to airbrush out personalities who are brusque and confrontational and you have a perfect recipe for brainwashing. If the advice and personnel offering “assistance” were useful, there would be no quarrel. Quite the contrary, anyone who dares vocalize any dissent with their perceived treatment by VA or VSOs are considered persona non grata.

We accept that. This is America, fortunately for them, and they have the right to remain stupid. Our beef is simple. Why deprive Veterans of knowledge? Why train your VARO employees to the lowest level to accomplish nothing? Where is the duty to assist- both at the VSO level and the RO? Veterans are not leagle beagles. Absent any way to file, they turn to VSOs. If computer savvy, they eventually stumble across one of the bigger sites. And here we are.

Knowledge is power in this business. Our  mission-everyone’s- all disabled Veterans- should be to stand shoulder to shoulder to obtain our due. We can’t be having one site erasing good ideas because they are too controversial or might flame unstable Veterans into physical confrontation. If you want to talk ‘physical confrontation’, I’d like to point you to all the dead Veterans across America who died waiting for their number to be called. I didn’t see the big confrontation and riots at VAMCs. I saw Veterans who died from VA indifference. Is this the VA the Pink Site is so fond of? Is the four year delay getting a seat at the BVA Appeals table somehow our fault?

We didn’t make foreign policy. We enforced it. When the chickens came home to roost from burn pits and AO, the contract suffered ‘gaps’. What about the great stonewall of Camp Lejeune for the last decade?  Is this the VA everyone at VBN is crowing about? I don’t pull punches. Either you are all in and for Vets, or…. what? Your site is Pro-Vet but you disdain controversy? Censorship exhibits the hubris that you alone know what is best for Veterans. It’s an ‘us against them’ with the “them” being VA naysayers. Given VA’s track record for the last century, I don’t see the silver lining  in this that warrants any praise for their technique.

The call in number remains

347-237-4819

And the gal who greets you is still

ss-call-me

Call us and ask a question. Meanwhile we’ll chew on the quandary of why anyone-most especially a Veteran of America- would want to set him/themselves up as superior beings like the pigs who voted themselves the new overseers of the farm in George Orwell’s beloved Animal Farm. Can it be some pigs are more equal (and thus more knowledgeable about everything VA) than others? Call in and give us your opinion. We want to create harmony and spread knowledge. What Veteran would wish stupidity and ignorance on another? This VA poker game requires new techniques and new methods with every year we see new regulations. You cannot allow your claims knowledge to lie in stasis. You were taught the theory of offensive attack is far better than passive defense in the military. The rules have not changed. The need to know far outweighs the danger that too much knowledge might beget a violent response.

LOGO THAT OTHERS MAY WIN

Showtime in 21 minutes. I apologize for the short notice. My mother in law is dying and we are setting up Hospice for her today.

P.S. Short round. I just called Jerrel and found out the show was yesterday. Sorry folks. We’ll organize this roundup next week after everything settles down a bit. Jerrel and LawBob Squarepants are due to have a tête á tête with VLJ Barbara Copeland next week up in St. Louis so we may have to delay or even have a special on that. VBN isn’t going anywhere- both literally and figuratively.

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Posted in Uncategorized | Tagged , , , , , , , , , , , , , , , , , , , | 2 Comments

LZ GOLF HOTEL ONE CALLS RED SMOKE-REPEAT-RED SMOKE

dsc00077Last year, the sprinkler system went into overdrive after a power failure and put the fungus on a lot of my berries. It also rained unmercifully. This year, I wisely turned it off and Mother Nature promptly followed suit. In a fit of exasperation, the berries refused to mature. I relented and began watering several days ago and they exacted their vengeance this morning. It’s akin to the Sting song about a bottle and an SOS. One hundred million big red strawberries washed up on my embankment overnight. I cannot kneel anymore. My buckets runneth over. I’m debating calling in a Hugfest.

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photo 2 (2)

Holy Strawberries, Batman. A third strainerful is in the ice box. It filled up a five-gallon bucket and took an hour.  Golf Hotel One was a phonetic job designator for purchase orders when I had Graham Construction Inc. and built my hacienda in 2004.  The name stuck. Just think. I cut the water on to the raspberries a month ago…

Here’s a 2012 post on the subject.

Posted in 2015 Hugfest Gig Harbor Wash, All about Veterans, ASKNOD BOOK, Food for thought, Independent Living Program, KP Veterans | Tagged , , , , , , , , , , , , , , , , , , , | 3 Comments