Who will it be?
P.S. This is an accurate poll. I inserted a cookie that prevents morally challenged folks from voting more than once. As such, it can be used as a barometer for what the Veteran population may decide to do. However, there are many months between now and November and ample opportunity for contenders to step on their neckties.
Sorry for the late info but we’ve been running a race against time to combat the denial of my CAVC EAJA Fees on #15-0112. I have ten days to file for a Panel review. This evening we are going to go out onto thin ice, we being John, Jerrel and myself, and discuss who is the most pro-Vet candidate among the thinning herd of Presidential contestants and why. We will not be entertaining politics per se, but trying to touch on who would be the most beneficial to Veterans in the next four years.
Please do call in and give us your opinion. I, for one, am undecided for any number of reasons. I vote a straight NRA/ Veterans ticket. Little else interests me. Bogus boondogles into far away country’s politics are going to have to be put on the back burner. China’s hegimony in the Spratley Islands is our biggest military threat since Iraqistan. Russia is now openly sailing it’s spyships past Georgia. They even plan to reopen a “base” on Cuba.
Whoever we choose as President is going to be required to take a different tack than in the past as we seem to have lost the respect of the World Powers who joust with us for the upper hand. That will have grave repercussions on more and more of us as Vets. Additionally, this implies we may have more disabled Veterans in the future. As spending isn’t keeping up with VA’s requests (or is it vice versa), funding in the next four years will be critical. Any President unwilling to consider this possibility is not presidential material. We cannot simply turn tail and run because we refuse to allocate the money to be a Super Power.
And that’s all I’m going to say about that …until 1700 Local. I have to take my neighbor Butch Long of LZ Cork Fame in for an extensive x ray party to find all the metallic pieces because VA is not being honest in their appraisals of what constitutes retained metal fragments. If I am a tad late, sit tight. I’d never blow you all off. I look forward to a lively discussion on who and what we should be looking at.
VR&E’s fearless leader
Ah, my stars. Look how time flies. Spring is only moments away and the greenhouse I anticipated is nowhere on the horizon. No, joking aside, folks, VR&E SES’s were put on notice September 4th, 2015 that they were going to have to forego bonuses this year. While they dawdled, the cost of the building increased dramatically-as did my imagination.
When I first found about ILP in 2010, I was sick and naive enough to believe you could walk in and ask for a greenhouse. ILP Guru and Jedi Master Bruce Almighty McCartney back east gladly sent me pictures of his 2007 success story. He spent three years waiting.
Knowing I needed to teach this new VA skill set to others, I dutifully filed in March 2011 and began my own Trail of Tears. A relatively short time later (in VA time) in September 2015, I was granted this tool to help others. The Agency’s delay in implementing it speaks volumes to the ineptness of the VR&E hierarchy. At what point does it cross the line from ludicrous delay to purposeful? I grant they are in a quandary. Nobody since Bruce has been awarded one to my knowledge. Maybe they forgot how.
I, like King Canute, cannot stop the tide nor put Spring on hold. Nature operates on a far different esoteric level than what we are capable of discerning. And, moving on while waiting for Col. Kammerer to send me his ILP credit card number and info, I am forced to make do with what I have. I take the three carbon emitters to help increase the CO² inside.
Cherokee Purple was the winner in 12 days
the three carbon emitters
I’m thinking about asking Col. Kammerer to add cable TV internet access and a new computer out there. I might need to know something about hydroponics and it’s a three minute stroll back to la maison. Maybe WiFi too. And some stereo music speakers. I hear tell plants cotton to Country and Western tunes. But what am I saying? The reason it’s taking so long is because they want to get it perfect, right? Shucks. Here I was all worried they were going to cheap out on me. I’m betting they’re burning the midnight oil down at 810 Varmint Ave, NW and slaving over a very generous VR&E Individualized Independent Living Program (IILP) ’til the wee hours every day. I bet that contract encompasses all my needs. Actually, if I’m going to spend a lot of time out there, seems a big screen TV would be a good idea too. And a 12 K generator with a deadman autostart in case of power failures.
Funny thing is this six-month delay must be dragging down their efficiency numbers. Whoever expected there to be a backlog of ILP claims?
Judge Davis just announced my denial for EAJA fees yesterday afternoon. It took him almost six months of struggle to write it. As the decision is horribly flawed, it will be appealed for a panel decision first. If that fails, we set sail to the Federal Circus. It’s not about the $3,904.11. It’s the legal stance he took. It shows he was asleep at the wheel.
I have been using Bob Walsh for this but he doesn’t have the deep pockets for a big assault on the Feds. Instead, I hope to enlist my fellow members in NOVA/NVLSP to take it up.
As some will recall, I won it all, or what appeared to be all back in April, 2013. The CAVC sent it back with a Joint Motion for Partial Remand (JPMR) to grant me everything I filed for in 1994. Unfortunately, the Veterans Law Judge was not happy with being overruled so he simply ignored the full thrust of the remand.
I did wait patiently for over 13 months from the date of his legal abortion to file my Extraordinary Writ. As most know, I won everything I asked for. Judge Davis doesn’t cotton to LawBob Squarepants. This we know. It came as no surprise that he took six months to craft a denial. The problem is that it is flawed.
In VA jurisprudence, when the Court remands a case back to the BVA via a joint remand, it is an acknowledgement of an administrative flaw in the decision. Judge Mark Hindin (bless his pointed little head) bifurcated two inextricably intertwined claims and denied one for failure to timely file a VA Form 9. I was in the Seattle VAMC sailing my bed around high as a kite on Dilaudid. I filed the VA 9 when I regained my senses but VA refused to accept it. I filed a request to grant equitable tolling in light of the medial situation. They never even bothered to answer it. He denied it in May 2012 and that was the end of it until the CAVC pulled their plug in April 2013. VA agreed to grant everything back to 1994 with no codicils on the porphyria. Hindin refused to honor it.
This creates a situation, judicially, where a lower tribunal refuses to obey the Court. This cannot stand for any number of reasons. Why even have a CAVC if the DVA and the BVA are going to ignore them? Judge Davis just put his imprimatur on my decision and said it’s perfectly legal to screw Vets over for as long as they want to. Up to now, when someone like me arrives again and complains via an Extraordinary Writ of Mandamus that the job was incomplete, the Court merely asks the VA Secretary if he can defend his actions. This is usually the “catalyst” for VA to fix it pronto. They did. They gave me everything I asked for in 45 days after fighting me tooth and nail for 22 years. What they refused to do was reimburse us (LawBob and moi) our legal fees for having to fix it.
WANTED- for stupidity above and beyond the call of jurisprudence
Yesterday, Judge Davis agreed with the VA and said Veterans have no right to EAJA fees in the absence of an order from the Court demanding they perform as promised. This casts a pall over Veterans Justice. If the Court will not reimburse our attorneys for the correction of this type of injustice, they will invariably shy away from helping us knowing there is no money in it. Always remember, VA asked to strike a bargain with me for the JMPR. I agreed. Promises were made and gifts were exchanged. The BVA decided to renege on that agreement. That is really all this is about.
The call has gone out to my fellow NOVA attorneys seeking help.
Here is the CAVC remand: April 2013 JMPR to BVA
Here’ LawBob Squarepants argument for EAJA: Request for EAJA fees
Here’s the Davis abortion: Graham v McDonald ( Ex Writ EAJA fees)
I suspect the next stop is the Federal Circuit in search of a different interpretation of law. I sure don’t see Judge Davis or some of the others getting a case of remorse for hanging me out for 22 years.
Forty five years ago today, the war in Laos was booming (pun intended). The Pathet Lao were advancing on General Vang Pao’s Long Tieng redoubt, Lima Site 20 Alternate. The week before, on Valentine’s day, they’d had to call in an air strike on the base itself to drive out the attackers. Unlike the Army, we didn’t have a true perimeter. The limestone Karst mountains, which were virtually impassible, were our natural defenses there. Since all the local Meo (Hmong) tribesmen were our allies, sneaking up on us was virtually impossible.
I had come down with hepatitis on January 11th, and was at an Air America contract hospital in northwest Thailand. I would be discharged two days later on February 24th to housebound status for several weeks. I would find out about this January 9th, 2008 when I began my search for Lt. Engle. I was hoping to get a buddy letter for my hepatitis claim. I was flying with him when I was wounded back in September- several months earlier. The Seattle VA rater had suggested it to help me prove my claim. I had no military records showing my GSW and subsequent transfusion.
Chuck was due to DEROS in several weeks. I knew that because I had run into him at the Class VI store at Udorn stocking up on Scotch in December. He’d been shot through the foot recently and was down at the 432nd Combat Support Hospital getting it looked at. He was on crutches. We talked briefly and that was the last I saw of him. I presumed his luck had held and he’d made it home. Thirty seven years later I would find out he hadn’t.
Alternate-the one way runway with the “titty karst” vertical speed brake at the end
Chuck, like me, was ostensibly stationed at Udorn Royal Thai Air Base but that is deceiving. Many of us who were in places that didn’t exist on maps were listed as being stationed at Udorn. He flew with the Ravens. They were Detachment 1, 56th Special Operations Wing. Their official “headquarters” were over in the Air America Complex where they did all the maintenance on the aircraft. The true TOC was up in Long Tieng- or Alternate as we called it- at the Air Operations Center. I was listed as Operating Location “C”, 1973rd Comm. Sq. -again, stationed in Udorn but physically 413 klics due west as the crow flies. Nothing was ever as it seemed over there. O/L Charlie, like Alternate, didn’t exist. It was marked T-11 on the old French air maps left over from WW2 so we called it Tango 11.
I have very little knowledge of how Chuck augered in. I have variously heard that he was down on the deck cutting elephant grass in his O-1 when he crashed. I do know he was breaking in his replacement for Raven duty as a FAC but little else. By this time, Alternate was becoming untenable due to the repeated attacks by the Pathet Lao and I had heard through the grapevine the pilots were all commuting daily from Wattay (L-108) down in Vientiane or out of Udorn. Based on this, I’d assume he was returning there.
We had horrible luck with aircraft maintenance and the AvGas always had a lot of particulate from the red clay that was constantly stirred up by propwash and choppers. This caused big problems with the carburetors and we usually ran the engines way too rich to compensate. It also makes the engines run hot. I doubt we’ll ever know the how or why of what happened but Chuck was an expert pilot in small aircraft and I doubt it was pilot error. Using your prop to cut elephant grass is airicide in my book but Chuck was not your average by-the-book conservative aviator.
Today dawns again forty five years later with that same realization recently gained, that 1st Lieutenant Charles Edwin Engle (posthumously promoted to Captain) will not be with us. His bravery was never in dispute. He was awarded the Air Force Cross as a substitute for a Medal of Honor for his actions several months earlier. Being in Laos meant being off the books back then. Nixon could not very well award him a CMOH posthumously for actions above and beyond the call of duty in a neutral country. I note that since I discovered his passing he has subsequently been awarded the Distinguished Flying Cross and the Silver Star. They keep adding to his medals on the Virtual Wall. I hope they eventually will award him his oak leaf cluster to his Purple Heart. I suppose you could say in a roundabout way that dying in an airplane crash constitutes a “wound” even if it’s terminal.
I was lucky enough to find his sister Roxanne and locate his gravesite up in Indiana in 2009. Cupcake and I went back to pay our respects in 2013 when I was well enough to travel again. “Welcome Home!” rings hollow in these cases but it is all I have to offer. And that’s all I have to say about that. What happened in Laos stays in Laos.
We search the BVA constantly for these kinds of decisions. Here’s a daisy. Not only did the Vet win entirely based on the supposition that it was caused by jetguns, He also convinced his VA doctor who did the transplant to write a glowing nexus letter implicating one, and only one risk- our old friend Mr. Pedojet.
http://www.va.gov/vetapp15/Files5/1538486.txt
Few Hep decisions rest entirely on a sole risk factor when you do claim a jetgun risk. The VA usually has to throw in a STD or two and a side of tattoos. This one stands alone and also stands out for another reason. He was repped by DAV. I’m sure it was either an exceptional service representative or the efforts of the Vet entirely by himself. They are so rare to see unshepherded by an attorney as to be an anomaly.
Many of you who approach me and ask for help with your VA claims for Hep C have already pissed in the well and have a higher level of burden of proof to overcome. One thing I see repeatedly is the taint of drugs and therefore the willful misconduct hurtle. While many consider this insurmountable, they do not comprehend the nature of VA jurisprudence.
Here is yet another case of the same. This one could easily be reconciled with the Veteran’s list of known risk factors.
http://www.va.gov/vetapp15/Files5/1539276.txt
Veterans soon discover that the VA will zoom in on any drug use and focus on it to the exclusion of all other risks. Having admitted it and recognizing it was a risk is done willingly with no thought of hiding it. This speaks loudly to credibility. However, to focus on this risk-indeed, to categorically declare it the reason to the exclusion of all others- is myopic at best and adversarial at worst.
When weighing risks, VA will always endorse any substance abuse as being the culprit. The CAVC has looked askance at this shotgun approach to any form of drug abuse in the past and has vacated and remanded like cases for an explanation of just how alcohol abuse could ever be a risk factor for Hepatitis C. I suppose if you shared a pipe while smoking Tangueray or a straw when snorting a line of Bourbon it could make the case. Since we know Hep C is transmitted by blood, we can use VA’s favorite analogy and say there is no evidence in the service medical records of a Veteran sharing a bottle of whiskey with another who had an open cut on his lip. VA regularly says we should be able to find this kind of evidence of Vets who shared razors or toothbrushes in the STRs. My favorite is one VA examiner’s innocent observation that a medic who claimed he was stuck with needles repeatedly over several years was not a credible witness because the needle sticks were not documented in the STRs.
If a Vet engaged in boxing and ended up with a bloody lip, that would be an enormous risk for HCV exposure. Here, the VA examiner gives it short shrift-along with multiple exposures to unprotected sex, and, indeed the subsequent STDs associated with it. In sum, what we have here in service is the Perfect Storm of risk factors. Nevertheless, the VA examiner discards all of these as low-risk in favor of the ones post-service as well as the potential drug taint. When all else fails, throw the willful misconduct flag.
Please note the non sequitur. Johnny Vet has acknowledged he used toot and smoked the O in service. Those two, in and of themselves, are not a dealbreaker for one primary reason. They are simply two of several enumerated reasons which include boxing and sexually transmitted diseases. Given the pool of risks, no single one can be definitively proven to be the culprit. Merely seizing on the drug usage as the most likely doesn’t give the Veteran the benefit of the doubt that his HCV might have been innocently acquired by a defective cherchez les femmes technique or boxing while bleeding.
Johnny Vet’s loss here is clearly attributable to one missing ingredient- an IMO (nexus) that could link his STD’s to HCV. A nexus letter is so powerful that when properly constructed, casts doubt on any one risk factor being the culprit. Considering this is all horribly conjectural in the first instance, for anyone with a smattering of medical knowledge to gaze into the crystal ball and definitively diagnose the Vet with HCV due to willful misconduct is ludicrous. Ignoring the documented STDs is a classic VA technique often employed in the absence of a nexus letter . The VA examiner would never attempt this had Johnboy arrived with a note from his doctor.
A well-reasoned IMO would categorize each and every risk as an equally weighted item. The use of gunsha or smoking O do not rise to the level of risk. The consumption of mass quantities of adult beverages alone could never rise to that level. To use each and every one of these as precursors or to cast them as behavior that would automatically lead to risky drug use via injection of drugs is pure supposition. Using the same line of arguments, a good case could be made for a flat earth.
Sadly, even the Alabama Dept. Of Veterans Affairs appears to be no more talented than the major league VSOs in this game. Allowing a Veteran to go to the BVA gallows pole without a nexus of any kind is gross negligence on its face. Considering Mario Caluza taught us the wrong way to go about this back in 1994, it would seem that information would have been disseminated widely by now and the error would be almost non-existent.
As my daddy once said, a mistake made twice is a conscious decision. I couldn’t agree more.
First 
, a close look at a BVA decision on SMC that is completely lost in space. While it may appear the Vet (Fred) has knocked one out of the park, VA has instead substituted Spam for Prime Rib dinner.
Sorry about the link problem. Repaired.
Take a gander at 38 USC § 1114(K):
Please note the clear indication of one (nung) (một), (une) as in singular. One foot. One hand. One eye.
But, SMC (l) states:
Please note the clear indication of the word “both” as in two feet. Or two eyes.
But SMC (O) states:
Fred has loss of use of two feet ergo SMC (l). The Aid and Attendance, although it would also entitle him to SMC (l), now acts as a force multiplier and the two disabilities-in concert- act to boost him to SMC (o). The Vet will notice someone has borrowed the Veterans Law Judge’s copy of 38 USC § 1114(o) or he does not have a copy on file. The absence of discussion on SMC(o) in the above decision,in spite of an intensive discourse on all the other possible combinations of SMC (p) seems to be an obvious oversight… or is it? I contend VA is entitled to the Presumption of Regularity in their decision-making unless it is irregular and incorrect.
SMC is a complicated regulation with many conjunctive and disjunctive pitfalls. What it is not, is ambiguous. Congress was mighty picky about what you needed to advance from SMC (k) to (l) -or (o). Absent the required ingredients, there is no advance. Here VLJ Matt Tenner has overlooked SMC(o). Was it intentional?
Stay tuned for more notes during the show.
One thing Vets are going to see is what I described on the show. More and more of us are timing out at 60-70 years old and have time now to pursue their illness/injury. Handwritten records are going to put the brakes on this unless they are transcribed. VA raters were never far thinkers. The news flash is they are getting worse and relying almost entirely on the M21 abortion like a HAL 9000. We know how that story went down.
Jerrel slipped and fell on Missouri ice and broke his hip. He just had surgery and will be fine if he stays away from VA hospitals. In the meantime JBasser and myself will be doing a show tomorrow in the PM as soon as he gets back from Alabamy. We’ll be talking about the new VBMS and how it will be affecting all you old coots like John and me (and Jerrel).
We want to review old news and new news on this subject as it changes like the weather. Speaking of ice in Missouri, I didn’t know they had any there unless it was tucked in with Southern Comfort or a Mint Julip. The crickets and the frogs woke up three weeks ago hereabouts.
We also want to talk about SMC and how it relates to us old folks when things start breaking down on our bodies. I just had a fellow asknod member named Fred who went for the Big Banana of SMC L/Aid and Attendance based on some of my Hadit shows on the subject. He’s been doing his own claims and took his denial up to the BVA on appeal pro se. He just won but they screwed him out of SMC (o). That’s a pretty big difference from SMC (l) and two (k)s.
You will not believe what the BVA judge came up with. I’ll publish a redacted copy of it tomorrow for the show so you can see that even the chowderheads up at Fort Fumble in DC don’t know how to read 38 CFR §3.350. Imagine handing out two (2) (deux) (song) (số hai) SMC K ratings for two feet. What flavor of left-handed tobacco are they smoking down in Foggy Bottom? Is that why it’s foggy?
How about this daisy from Veterans Law Judge Matt Tenner:
It appears as though it’s time for some VLJ Continuing Legal Education (CLE). Seems like old Matt hasn’t been clocking any hours on SMC.
Over the last decade, I’ve been inundated in contemporary pictures of guys getting poked with jetguns. I love that word. I e-invented it back in 2007 and it’s gradually taken hold since I published the first book. All those pictures bespoke the horrors of the shot line. I can’t begin to describe the chaos. There were 44 of us in Flight 1644 and we went through there in about 10 minutes-even less the second time a week later. There were countless other flights with equal numbers queued up behind us awaiting their turn.
I never questioned the sanitary aspect. I’m a man. We ate and drank things most women wouldn’t consider in the 60’s. Surely you remember the $5.00 bets to drink the beer with the cigarette butts in it? The $10 dollars for the bottle of Syrup of Ipacac and a vodka shooter on top? I held that one for almost a minute. It burned. God how it burned.
Getting back on subject, we didn’t waste time investigating the jetgun. No one who was operating it would purposefully endanger us. If we were stupid enough to say ” Pardon Me, Sergeant but aren’t you going to wipe the blood off the tip before you hose me?”, we’d be on KP peeling potatoes for a week.
All these years I have told Veterans the pictures were useless. A picture could not show the spray of blood from a Veteran who flinched. It could not show whether the tip was wiped with alcohol in a vain attempt to keep it sanitary. It could not show anything more than that a bunch of guys in white t-shirts were getting hosed with a jetgun. For evidentiary purposes, they were useless as mammary glands on a steer. I lied.
Today, I had the revelation. Nurse Sylvia has been sending me extra parts and pieces for my jetgun to ensure it’s eternal survival. There are only three 1960s-70s period ones in known captivity. This picture shows the little device Sylvia had described as essential to the sanitary operation of the device. Well, one of many. It covers the Luer-style air return to the vial. All three we have arrived without them. As most know, when the nurse loads a syringe from a vial, they have to insert air or the resultant removal of vaccine would eventually create a vacuum so great the vial might implode inwards. The other potential would be for air to be sucked in directly through the rubber dam that seals the vial through which the needle is inserted. This jetgun is equipped with the air filter. You can clearly see it located behind the vial. If you are vision impaired, it’s the thingy circled in blue. The absence of this little doomoflotchie is the visible proof to anyone that the gun is being operated in an unsafe, incorrect manner. In a court of law, this is the kind of thing that will win a case. We call it precedence.
Now for the revelation. Look carefully at all the pictures of military inoculations and note whether the device is absent. This means air-more precisely, room air unfiltered- was allowed to enter the vial with each shot. The potential for a flying drop of blood to land on, or be sucked in, might be miniscule-but the mere fact that it can be has to be accounted for. Consider how close that port is to the injection site. The mere absence of the device on the jetgun abrogates the presumption of sterility. Now, it is not only plausible that Hepatitis C could be transmitted by a jetgun but that it was at least as likely as not that operation of the jetgun in this unsanitary configuration was more likely than less likely liable to transmit any disease-including Hepatitis C. Not could of, Not might of. This is the proverbial smoking jetgun evidence we’ve been looking for. Every one of us has a talisman of Basic Training they sent home or kept. Some got “yearbooks” full of crap. I got the Earl Schieb $9.95 black and white special.
This pic has a gazillion pixels. Left Click on it a few times to magnify it. That’s me in the blue circle. I will have to examine my jetgun picture more closely to see if it contains enough detail to reveal the absence of the air filter. The point being that you now have a valuable piece of evidence regardless. Presenting even one picture of the jetgun missing the filter is proof that the device was used improperly some of the time. We are accorded the presumption that we can observe and report that which comes to us via our five senses. This is called the Layno v. Brown presumption. You can’t say the jetgun had Hep C on the end of it but you can sure as hell say the thing was dripping blood or the technician failed to wipe it between uses. Now you can point and say “Oh, and by the way, the return air filter was absent as you can see in this picture.”
Here, you can clearly see the device is missing. Were it there, it would project up further and be visible.
There is no doubt whatsoever here.
Evidence is where you find it. VA has made this project almost insurmountable. Every little trick we can come up with about the jetguns may be the path to getting it listed as a presumptive cause of Hep C. I look forward to that day.
Talk to me, Johnny Vets. Got a picture? Send it to me so I can add it to this post.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
