ILP–GENTLEMEN, START YOUR CORNDOGS

Posted on May 24, 2016 by asknod
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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.

Posted on May 22, 2016 by asknod

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

Posted on May 21, 2016 by asknod

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

Posted on May 19, 2016 by asknod

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

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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

Posted on May 15, 2016 by asknod

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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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

ILP–I CANE NA GIVE YEH NO MORAH, CAP’N

Posted on May 15, 2016 by asknod
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That’s all she wrote, Cap’n

I’m sure that at one time or another in our foggy, golden pasts during that disagreeable, humid hot spell in the South Pacific we endured for a year (or more), we all overheard Scotty tell Kirk more than once the Dilithium crystals were smokin’ and threatening to nuke. The analogy has always been drawn as synonymous with dire straits.  In the VA context, because that is the way my brain works, I find no matter how many times you evoke the dreaded dilithium crystals story of how your house is in foreclosure, you’ve been held hostage to a claims system for umpteen years and your wife is threatening to decamp- the VA is unmoved. Not even the least bit perturbed.

As most know, I am now the master and Seattle’s VR&E is the padewan. I control the Force. I have a BVA decision ordering them to fetch me a greenhouse and be quick about it. VR&E folks are 20-year shelter-in-place personalities. While I may have prevailed after a prolonged battle, the BVA decision doesn’t have that “expeditiously handle” sobriquet attached. VR&E pukes take that to mean they can dawdle and meander for months before “discovering” it in their in-basket. Even with a generous dollop of low balling, the cost is ratcheting up at a phenomenal rate. When I began, I thought a $30-35,000 dollar g house was exorbitant and figured I’d have hard time selling them on it even if I could memorize the password and the secret handshake to join this prestigious club.

bruce-g-house-2Bruce McCartney, the ILP guru who began this greenhouse parade back in the dawn of the 21st Century, suggested I contact the good folks at Farmtek. After all, they have a wonderful ILP gal named Karen Meister who has a Masters in VAspeak.  Being a novitiate, I gave her my parameters medically and asked her if she could whip up a basic Earl Schieb package. I never mentioned square footage. Her “basic package” was 24’X48′ $74 K plus install. Apparently Obamanomics was more successful than I had thought and a rising National Debt floats all ILP boats. Labor, too, for this shovel-ready job was far more than expected- from $27 K up to a lofty $45 K at New York City prevailing rates. Fortunately, we wouldn’t be needing traffic cops but VA has to write that in.

And so, as with most shovel-ready VA jobs, the VR&E now requires a GSA contractor on top of all the other costs, to run the dog and pony show. VA no longer entrusts this to Vocational Rehabilitation Counselors. You have to figure someone somewhere let slip the contract info to a brother or relative general contractor who by chance happened to be on the approved list of VA contractors(or became one in record time using VA’s Fully Developed Contractor (FDC) form). Add in that GSA contractor/leech and you siphon off another $25 K because you just know they’ll bring him in from Tulsa and put him up at the Hyatt Regency  in Seattle for three months. Two hours each way to commute and the fact that booze in the United Soviet State Of Washington  is going to cost them spells cost overrun.  From my latest email, I now note I have no less than three Vocational Rehabilitation Counselors as well. Que si passe-t-il? Their collective annual salaries are $122,783 (2015 bonus $1,250), $103,904 (2015 bonus $932) and $100,217(2015 bonus $783). I’d like to think they get their bonuses for working so diligently to help us Veterans with ILP entitlement services rather than the opposite.

In order to overcome this built-in ennui, and now being an ILP Jedi Master, I decided to stir the pot. I have now waited eight months and ten days. Allowing things to progress at this pace might mean I will run the risk of being rendered into soylent green and added to my future hydroponic tanks. With my new found knowledge and success at writing Extraordinary Writs of Mandamus, I set to and started building a new tarbaby for VBASEAT (Veterans Benefits Administration-Seattle).

You’re going to like this one. Nothing gets their collective goat at the Local Puzzle Palace quite like playing Badminton with their own regulations. I always serve a few back to them to begin with. It salts the conversation with equality and lets them know the U.S.S. Mayflower didn’t sail up unannounced and drop anchor in front of your home last night.

THE FIRST SHOT ACROSS THE BOW

Dear Kris, 

In order to accomplish this grant, VA is required to have a licensed Vocational Rehabilitation Counselor (VRC) implement it if I am reading 38 CFR 21.160 and .162 correctly. Reading the Seattle VA leadership team resumes, I note that Mr. Boyd’s accomplishments are 

“Prior to joining VA, Mr. Boyd served in the U.S. Army. Among other assignments, he patrolled the German border during the Cold War, commanded tanks in the European 7th Corps during Operation Desert Storm, and jumped out of airplanes with the 82nd Airborne Division.”

Nowhere do I see any of his professional qualifications that would permit him to be my VRC. 38 CFR 21.35 (k)(1)(2) is unequivocal as to what a VRC’s professional curriculum vitae need constitute and the professional requirements necessary to supervise my IILP- let alone write it. If, as you indicate,  he is in charge of my IILP (Individualized Independent Living Plan), my attorney questions the validity of his VRC qualifications. If he indeed has VRC credentials, please provide the attorney with them.

In addition, I see another insurmountable problem building here. It would appear from what you have said so far regarding GSA involvement, that you are looking at the new VR&E Manual 28R (M28 Revised)for guidance. Please be advised that my claim for the greenhouse was filed in 2011, several years  before the inception of the M 28R which became effective March 31, 2014. As such, the prior version (M 28) is still for application in this grant as it represents an unbroken claim stream from 2011 to present via my successful appeal. For legal cites, please see Holliday v. Principi (2001), Cohen v. Brown (1997) and Karnas v. Derwinski (1990). To wit, the regulation in effect at the time of filing will be the controlling one. Later changes to a regulation during the course of adjudication can never be for application unless the regulation grants retroactive reach. I see nothing in M 28 R granting that.

Further, the presumption of regularity assumes VA personnel are competent in the regular performance of their duties. However, that presumption can be overturned when what appears irregular is irregular. See Butler v. Principi 244 F.3d 1337,1340 (Fed. Cir. 2001). Considering the loss of not one, but two important documents I have submitted (2012 NOD & 2014 SSOC) which were documented via certified mail, return receipt requested, Seattle’s VR&E office clearly and unmistakably lost the protection of that presumption before my appeal began. I was forced to submit my SSOC with a waiver of review in the first instance at my BVA hearing April 29th, 2015 as it was nowhere to be found in the c-file. As for erroneously depending on the new M 28R for implementation of the IILP, once again, the presumption of regularity has been abrogated. Once abrogated, any and all presumptions of regularity regarding this grant became null and void.

All I asked for last month was an extended evaluation of two years versus your (or Mr. Boyd’s) suggested 60 days (or one year) rehabilitation initially proposed in the first Form 28-8872 which required little more than concurrence from Mr. Boyd. That is assuming, arguendo, that he is indeed “in charge”. That is within the parameters prescribed in 38 U.S.C. 3105 and 38 CFR 21.76. I do not see where this would require the involvement of a Vocational Rehabilitation Panel (VRP) or, for that matter, anyone above Mr. Boyd. 38 CFR 21.76 grants him that authority.

VA has been in constructive possession of the Farmtek bid now for over nine months. With this information in hand, planning for the grant can not come as an unexpected surprise requiring extensive planning. Knowing the cost, the obvious requirement was to forward it to VACO VR&E for their approval and action once the BVA decision was rendered. Eight months is ample time to coordinate this.

As all are aware, my health is tenuous and further delay based on inapplicable guidance dictated by relying on the wrong Adjudications Manual is no longer an operable excuse. I feel submittal of the IILP to Mr. Boyd along with the FL 28-520, IL Plan Approval Request this week is all that is required to get this project rolling. The old M 28 makes no mention of any GSA requirements or sending out for a GSA construction manager. As we have a qualified contractor on tap standing by ready to perform this at a confirmed price using both standard or prevailing Davis Bacon wage structure, the reason for further delay is useless posturing. Those in charge are free to disagree with my assessment and I welcome the dissent. Absent any positive action this week, Mr. Walsh or I will begin my legal quest to correct this at the Court.

Prompt attention is requested because any further delay will confirm one of two things: either an unwillingness to honor the BVA decision or an arbitrary refusal to act on the VA Secretary’s part. I do hope you understand my dilemma. I have been patient and awaited action now for eight months. Any further delay can only be, and indeed will be, construed as an implied denial.  Mr. Walsh  stands ready to file the Extraordinary Writ of Mandamus if I do not see tangible written progress this week in the form of a signed VA 21-8872. I would have hoped the Veterans Administration would have realized the tenor of my resolve after four long years of appeals and the filing of my last Writ in January 2015.

You indicated that once this surpassed $2,500.00, it was “above your pay grade” to authorize, Kris. I would strongly advise that I be put in touch with Seattle VA director Pritz Navaratnasingam in order to avoid this confusing chain of command of who is, or, perhaps, who is not, truly in charge. You have my telephone numbers.  Should Mr. Navaratnasingam feel it beneath his station to discuss this with me directly, please have him contact Mr. Walsh. He can be reached at 269-962-9693.  I don’t seem to be able to impress upon anyone there the enormity of the consequences of further delay. I am sorry that you have been caught in the crossfire and become a de facto message runner. A little foresight by your superiors and a professional hands-on approach could have avoided this contretemps early on. Sadly, it was lacking.

In the event you eventually become my VRC on this project, I do hope this unpleasantness can be put behind us and we can accomplish this in a professional manner. You have been very personable and easy to deal with over the ensuing four years we’ve been acquainted. I respect your professionalism and your willingness to roll up your sleeves and dig in to accomplish it. It’s unfortunate that all VA employees do not share your VA commitment to core values. I sincerely hope you can convey the urgency (and necessity) of a prompt response this week to the responsible individuals.

Respectfully,

Buckwheat sends

Dog and Pony show reponse

Dear Gordon,

 

Posted in All about Veterans, Independent Living Program, KP Veterans, Porphyria Cutanea Tarda, Presumption of Regularity, VR&E | Tagged , , , , , , , , , , , , , , , , , | 2 Comments

Important new CAVC ruling on emergency reimbursements 38 U.S.C. § 1725

Posted on May 13, 2016 by Laura

My old Marine recently received emergency treatment (LINK) at a non-VA hospital.  He is enrolled in Ambulanza-300pxMedicare and VA health care. We want to know who is legally obligated to pay what portion of the bills when they start rolling in but there is significant bewilderment on this issue. 

Richard W. Staab (AF-52-56, Korea) and his attorneys (George, Berkshire, and Stichman) from the National Veterans Legal Services Program (NVLSP LINK) took this issue to the United States Court of Appeals for Veterans Claims (CAVC).  On 4/8/16, the court found that some improper VA regulations have been applied to the Emergency Care Fairness Act for years;  they were, in fact, “…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Title: services provided at non-VA medical facilities  StaabRW_14-957 pdf.

Please note that I have no legal or medical training whatsoever.  I am merely sharing a few of my notes, the notes of a puzzled layperson.

Page 2:

  •  Mr. Staab had emergency open heart surgery at a private hospital.  A stroke rendered him unable to communicate with the VA (St. Cloud).  Nor was his family made aware of any need to seek treatment pre-approval from the VA.  His uncovered costs were about $48,000 after Medicare.

Page 3:

  • Mr. Staab “…sought reimbursement for the portion of medical expenses not covered by Medicare,” but was told to go away since he had partial coverage.
  • Section 1725 was amended to its present form (12/09), to “allow the VA to reimburse veterans for treatment in a non-VA facility if they have a third-party insurer that would pay a portion of the emergency care.”

Page 4

  • Because the Secretary made a rule disallowing reimbursement if veterans had any health coverage, “…the Court agrees with the appellant’s contention that the Board’s application of 38 U.S.C. § 1725 frustrates the intent of Congress to reimburse veterans who “…are not wholly covered by a health-plan contract or other third-party recourse.”
  • Medicare is a “third-party” insurer.
  • The statute establishes that VA reimbursement is warranted when coverage by a third-party is less than total.  But VA does not have to pay co-payments and similar cost-sharing amounts as per contract.

Page 6

  • Re: 2009 amendment to section 1725 “…Congress clearly intended that “…VA [be] responsible for the cost of the emergency treatment which exceeds the amount payable or paid by the third-party insurer.”
  • “Secretary’s regulation became wholly inconsistent with the statute, and the Secretary declined to remedy this inconsistency. Congress intended that veterans be reimbursed for the portion of their emergency medical costs that is not covered by a third-party insurer and for which they are otherwise personally liable, and because the regulation does not execute the language of the statute or the intent of Congress, it is invalid and will be set aside by the Court.”

Page 7

  • “The Board’s December 6, 2013, decision is VACATED; the determination that the appellant’s partial Medicare coverage is a bar to eligibility under 38 U.S.C. § 1725 is REVERSED; and the matter of reimbursement for the appellant’s claimed emergency medical care costs is REMANDED for readjudication. Further, 38 C.F.R. § 17.1002(f) is held invalid and SET ASIDE.”

If a vet has Original Medicare Part A, or Part A and Part B, and no expensive Medigap policy, uncovered expenses could be as high as 20%.  Similarly, cheaper Medicare Advantage plans will also result in large bills after an emergency, although they have an annual OOP cap.

In this article (LINK), According to Court of Appeals, Veterans Affairs improperly rejected vets’ emergency medical reimbursements, veterans like Mr. Nolsheim of Arizona (LINK) will be able to appeal past denials (showing CUE) when the regulations are corrected.

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Really can’t transfer now. PD Image: Open clip art

Many questions remain.  Does the VA still have to act as secondary payer if a vet declines transfer to a VHA? After all, numerous hardships could exist. Geographical.  VHA inpatient fees based on ridiculous income/asset rules may be prohibitive. Should the 72-hour notification rule still play a role in emergencies now? What about service-connection/non-service connection factors?

This wise decision by judges Lance, Pietsch, and Greenberg, offers financial safety net for some veterans, their families, and regional acute care community hospitals.  It advances the cause of quality health care close to veterans’ residences and the co-ordination of care between the private and VA sector. It exposed the regulations in question to be intentional errors.  True disrespect; perhaps even true hate.

Other resources:

Article: Court rules for veterans to receive medical payments (LINK).

Cornell  LII–38 U.S. Code § 1725 – Reimbursement for emergency treatment.  Read the amendments.  (LINK)

CAVC homepage (LINK)–at this time, fewer than a dozen hits have been recorded on the webpage.

NVLSP Brief for Appellant  Vet. App. No. 14-0957  (LINK to pdf)

Posted in BvA Decisions, CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, Complaints Department, Food for thought, Guest authors, Important CAVC/COVA Ruling, Lawyering Up, non-va care, Remanded claims, Uncategorized, vA news | Tagged , , | 3 Comments

THE RAINBOW COLORS OF FALLOUT FROM DEFOLIANTS

Posted on May 13, 2016 by asknod
Helps build strong bodies 12 different ways and include the needed nutrients of Vitamins Blue, Green, Pink, Purple White as well as all the need Orange supplements.

Helps build strong bodies 12 different ways and include the needed nutrients of Vitamins Blue, Green, Pink, Purple, White as well as minimum daily  requirement of Orange supplements.

While I cannot say I’ve seen Agents Green, Purple or Pink, in a barrel or out, I have seen Agents Orange, Blue and White (Tordon 101)-both falling from the sky and in drums. Fifty gallon drums are hard to miss. Either they are full, empty, marked as contaminated or stored in a specific area according to use.

AvGas or 130 octane was specifically marked and had nomenclature printed to that effect. 130 was generally in oversize numbers to distinguish it from JP 4 kerosene for jet engines and Hueys. 90 weight gear lube was indistinguishable in its OD green paint from any other petroleum product. They didn’t have color bands like AO and A Blue. Agent White didn’t have a white band at all. It was labeled as Tordon 101 and had a list of goodies including : 21.2% (acid weight basis) triisopropanolamine salts of 2,4-D and 5.7% picloram .Other than the stable 2,4- D, Agent White had no dioxin and was not prone to break down into toxic subchemicals…. that we know of… yet… This is why I so vividly remember seeing the drums in their own protected revetments. Moreover, in the helter skelter world of 20 Alternate, those colored bands stood out in a sea of OD green drums.  

At Udorn, all these were stored in the POL/bomb dump area at the far east side. At 20 Alternate, they were loosely shoved into a side area to the north of the C-123 that hit the Vertical speed brake (the Titty Karsts) at the end of runway 31 in 65. I’ve searched photos but found none during 1970 showing them.

Capturerunway 31

Capture 20a

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Why they were stored there after the 123 ran out of laterite is beyond me. They weren’t over in the POL/bomb dump. The Meo (Hmong) kids younger than 12 had access to this and spread it via bleach bottle scoops in each hand. They used it undiluted, without addition of any petroleum distillates.  By the time you were over 12, you got a reprieve from this job. You were inducted into Vang Pao’s army.

I often wondered in the intervening years after 1991, when I first became aware of the potential for disease and birth defects, just how much damage ensued. Not since the Thalidomide disfigurements in the late 50’s-early 60’s have we seen horrific damage due solely to a chemical so well documented. This morning I ran into a link sent me on FB that attests to the damage. While the article deals with South Vietnamese groundwater poisoning, the same identical circumstances were afoot at Ban Long Tieng and Ban Luang Prabang (L-54), not to mention our sister site five klics away over Skyline Ridge  at Ban Sam Thong (LS-20).

Flying to the east of the Plain of Jars near the Ho Chi Minh trail, you began to see light tan vegetation that had died out and never came back. Jungle plants are incredibly resilient but even they have limits as to what they can withstand. So too, humans.

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Vietnamese child born with no eyes courtesy Reuters “Legacy of Vietnam”

Having now had over thirty five years to connect the dots, the Institutes of Medicine,  or IOM, has only managed to figure out spina bifida may have a connection to dioxin. This flies in the face of what’s going on at ground zero- in Vietnam and Laos.  We, as in-country Veterans, know this stuff is more toxic than discussed. That VA continues to lollygag about and stare at the proverbial ceiling when shown the evidence is proof of a concerted effort to ignore it in hopes it will just go away.  The lag time from consideration of a disease to inclusion has always been interminable. Congress now has let VA off the hook entirely for investigating further and given them free rein to research as they see fit. We all know that is tantamount to no research at all.

Here’s the link. The pictures are pretty brutal but so is the dioxin.

https://widerimage.reuters.com/story/legacy-of-agent-orange

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Another link of graphic deformities is here

http://www.dailymail.co.uk/news/article-2579939/Children-suffer-horrific-effects-Americas-use-chemical-weapons-Vietnam-War.html

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Xuan Minh, right, 5 years old. Courtesy of the article above.

Seems VA could do a fly over at 25,000 feet and find this detritus of human life in the wake of AO. Hell, they don’t have to look any further than my Band of Brothers (and me). Seems some of these Vietnamese kids going into several generations now would be the irrefutable proof. My son was born with Ulcerative Colitis in 1988. I came down with it’s precursor, Crohn’s disease, twenty years after I left SEA in 1994. Most who are familiar with Crohns’-like diseases know this begins in childhood – and rarely, if ever, when you’re 45.

http://www.nytimes.com/video/us/100000002872288/agent-orange.html

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The truth is out there but why bother looking for it? The pesky truth is that the more you find out, the more you will be held accountable. At the VA, this means more work- pure anathema to them.

The smart money says VA will have their come to Jesus meeting on dioxin a few days before the last Vietnam Veteran passes in about twenty years-if any of us are lucky to survive that long. Much chest thumping and brow beating accompanied by mea culpas will fill the air. “If only we’d known.” will become the watchwords. VAOIG folks will be unable to substantiate that any of this was intentional but that new protocols have been instituted to prevent a recurrence in the future. In a tired hackneyed phase-Same Old Shit- Different Day- the IOM scientists will continue to research it-just in case.

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Meanwhile, I am being inundated by my friends coming to me asking how to file for Parkinson’s disease. I hold my own hands up every morning waiting to see the beginnings of the tremors.

Posted in Agent Orange, All about Veterans, DM II, From the footlocker, KP Veterans, Medical News, Military Madness, Porphyria Cutanea Tarda, Thailand AO presumptive path, VA Medical Mysteries Explained, vA news, Vietnam War history | Tagged , , , , , , , , , , , , , , | 1 Comment

HADIT.COM RADIO SHOW TODAY– BOOKNOTES YOU NEED

Posted on May 12, 2016 by asknod
Hugh Cox

Hugh Cox Esq.

I received this update on VBSM VBMS technique recently from Hugh Cox, one of the older premiere VA attorneys still standing. He cofounded NOVA in 1992 with several other prominent law dogs. These talismans are required now because we are dealing with VADHD issues at the Evidence Intake Center in Cheeseville,  Wisconsin. I leave it in Microsoft Word for you to revamp it  as necessary.  

VBMS Medical submissions to VA

Remember also that the VA OIG visited the Newnan, Georgia VA intake center last month semi-unannounced and found  rooms of unopened mail awaiting processing. Shocked. I am shocked.

Believe it or not, Secretary Bob (almost) immediately shut them down for the near-term and everything is being routed to Cheeseville until then. I wonder why he can’t do that with Diane and Kimberly? And about 500 other gomer VA GS and SES losers.

va snake

photoNot to bogart but I proudly display the decal of the Vietnam Dustoff Association “So Others May Live” and it inspired me to think that what I do is triage. I’m the last one they come to for advice and some are pleasantly surprised at what I can dredge up out of an old, old c-file. And so you just know what came to mind…

LOGO THAT OTHERS MAY WIN

Brings to mind a lot of old memories. Thank you all for letting me help…back then and now.

Somebody please call in and ask about “de novo review”  today. Also another topic of interest is Buddy Letters with too much kill zone and not enough Joe Friday “just the facts, ma’m. Just the facts…

Eleven minutes to the show.

Link to Federal  Circuit Bar Journal:   http://www.veteranslawlibrary.com/files/Articles/NowistheTime.pdf

And the ILP Greenhouse line…

Mr. Graham,

 

We acknowledge that this has been a long process and we thank you for your patience on what you may interpret as our unwillingness to honor the BVA decision or an arbitrary refusal to act on the VA Secretary’s part. The earlier delay in providing services was because your request is a highly unusual independent living request that required us seek advisory opinions from our higher headquarters to answer questions raised about the delivery of services. I would also like to clear up a few misconception you may have about the process, this is not a grant, but a service delivered by VR&E Services.  The greenhouse you are requesting must be provided by VR&E Services and we must certify both at the beginning of the process and again at the end of the process that it meets the required intent.

Although we are the regional representatives of VR&E Services, we cannot deviate from prescribed policies and practices for delivering those services.  As vocational specialist, we are not trained or prepared to oversee major construction projects, therefore we had to submit your request through the regional contracting office to solicit bids for a Construction Manager that will be assigned to work with Mr. Hollaway to deliver the services prescribed.  I contacted the contracting office today and they are working to bring closure to your bid process, they anticipate another 30 to 45 days for completion.  The intervention by a Construction Manager is necessary because in the past there were concerns raised by reviewing officials, permitting officials, as well as rehabilitation counselors themselves about assigned construction projects, therefore VR&E Services changed procedures a few years ago requiring the assignment of Construction Managers to provide guidance and expertise on these IL projects.

Again, I thank you for your patience on this endeavor and hope as you do that it can be accomplished as soon as possible.  If you have further questions or concerns, please contact your Vocational  Rehabilitation Counselor, Kris Holloway at (206)

Posted in Uncategorized | Tagged , , , , , , , , , , , , | 3 Comments

HADIT.COM RADIO SHOW THURSDAY EVENING AT 1900 HRS EASTERN

Posted on May 11, 2016 by asknod

haditlogo2007One thing about getting over the immediate symptoms of  heart failure (I hope) means  Jerrel and John are going to call and tell me it’s time for another show. I seem to break glass no matter what I do or say in this business, so I just stumble on through to the next blunder. John and I finally came to grips with the discussion of another website on a recent thread I posted. Rather than let it putrify and stink up the Veterans Help sites, we’re going to lance the boil and let it drain. 

I’m sure you’ve traveled all the major sites and seen what’s to offer. Some sites have blogs like mine and many use the Hadit.com forum style. All the older sites were constructed this way to allow questions to be posed and answered. Everyone benefited if…. if the one answering the question was knowledgeable in the subject matter. I stumbled upon Hadit.com in late 2008. I probably have another moniker in the system like gaegraham or GAG but I soon began my own site and worked exclusively on it. Patricia Lupole of HCVets.com built it for me on the forum model of all the others. Gradually I began looking at these other sites to offer Hepatitis C info to help win the new breed of jetgun claims.

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Which brought me to what some of call Peggy’s Pink Site or Veterans Benefits Network.  I kind of thought of it as the Jim Jones Koolaid Klan.  Veterans there would take anything said by a moderator as Gospel.  It wasn’t long before I hit an imaginary trip wire and began receiving demerit points for arguing law with idiots. This is the primary reason my present blog evolved into a one-sided conversation. It teaches the correct way to accomplish a VA task and then allows for discussion from the Peanut Gallery. Anyone is welcome to jump in and say what they please but the basic knowledge of “How To…” is presented without ten theories on the best way to get there confusing you in the process.

Most importantly, the tenor of conversation at Theresa’s and my sites practices respect for one another. Civilized discourse doesn’t need to descend into Ancestors.com© and  the concommitant research on whether you were raised by wolves. We were all raised properly by adults and can act like adults. If you can’t meet those baseline tenets of transactional analysis, then you probably hang out over at Peggy’s. There’s always someone there who has to find a problem with the tone of words another Vet uses to express his or her problem or observation. God forbid you find a flaw in the Department of Veterans Affairs. VA bashing is right out and exorcised as quickly as possible.

And then there was a soothsayer and Prophet who held sway every evening and enthralled his audiences with his wisdom as seen from his many years high in the VA Ivory Tower. The problem was the tone.  According to this Oracle at Delphi, most all Veterans were malingerers with the noted exception of His Band of Brothers there at Yuku. One never argued with the Guru because he had been a Senior DRO and reached an exalted height of GS-Maximus 15 Step 10. He had had more and varied jobs that any human known -and all of them before he enlisted. 

He was a combat medic with nary a combat medal. He talked policy with Tony Principi. He had the ear of Jim Nicholson. According to him, he walked the length and the breadth of the 11th floor of Vermin Ave. at will like he owned it. This was the era of Cruiser-VSO and the go-to expert for VA law. Every teaching moment always seemed to segue into a Vet who had filed for bogus injuries and was trying to game the VA benefits scheme. The 85% denial rate merely mirrored the number of claims which were meritless. Not withstanding the nearly 67% rate of reversals, vacates and remands with instruction to incorporate the CAVC judge’s findings, VAROs were the true Halls of Justice and mistakes were nonexistent. “C&UE” , as he was fond of writing it, was so rare, he’d never witnessed one-let alone committed the sin. The 22% success rate at the BVA merely reflected weak-willed  VL judges who caved in to Veterans with implausible, unsubstantiated stories. Likewise, the CAVC/CAFC.

I had the misfortune to cross swords on a “C&UE” claim I was fleshing out. He tried to set me straight and then began getting “snippy” when I didn’t accept the advice. This is the “CUE” I won up at the CAVC four years later all the way back to 1994. Apparently everyone in the Office of General Counsel had a different opinion from his on the regulations in question. Anyone with a copy of 38 CFR could run circles around him but…. everyone was quarantined or evicted who disagreed. No ifs ands or buts. If you argued with Him, you were shown the door. I could see it if I were wrong. I could walk away from it if I was willing to concede defeat and ignore CAVC and CAFC precedence. Slamming the door in my face via censorship and eradication of my comments simply made it worse. To this day, if I arrive and try to sign in, I am politely greeted by the bouncer. This is good. It simply proves the validity of my argument:

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Hit log in and voila!

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That’s right, Pilgrims. This is the nifty VBN tool for getting new members and tolerating the opinions of others. This is the VBN “big tent” everyone can fit under as long as everyone practices groupthink. And that’s what we’re gonna talk about tomorrow evening.

Be there or be square. The call in number remains

347-237-4819

The gal who says Blawg Tawk Radio remains

ss-call-me

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One thing you will not find on my site is censorship. I have never demanded a membership or entrance gate. I have never removed anything but the occasional expletive to maintain good taste. The body of any disagreeable comment will always remain. You have the right to remain stupid. Any stupidity you voice will not be held against you. We try like the devil to set you straight but there simply is no cure for stupid. There is no room in Veterans law for secret societies. Knowledge is to be shared with other Veterans, not husbanded and doled out full of errors to the Koolaid Drinkers.

Posted in Tips and Tricks, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , | 2 Comments