CAVC–MITCHELL v McDONALD–THE NEVER-ENDING BERAUD REDUX

Posted on November 23, 2015 by asknod
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St. Meg throwing the unsportsmanlike conduct on Kasold

Ever since the Bond v. Shinseki dustup that had to travel to the Fed. Circus for clarification, we see the VA’s continued intransigence toward the concept of new evidence submitted in that golden window either with the NOD or within the ensuing year following denial to perfect one’s appeal. Beraud v. Shinseki (2013) and it’s companion Fed Cir. decision in Charles v. Shinseki (2009) pretty much put a fork in the idea of being able to blow off Veterans like me who show up and ask what happened to the new and material evidence we filed in 1994.

The concept is boringly simple. You file. You lose. It dawns on you that they don’t have everything they need to decide your claim. You send in the new stuff that supports your version and…silence. Nothing. You start over several years later and reopen the claim. You lose again. You are not a lawyer so you don’t notice they never finished the first claim by looking at the new evidence you sent in. At some point, you hire a savvy lawyer who spots the error and the wrong is righted on appeal to either the CAVC or, in the case of it arriving in front of a CAVC judge enamoured of the VA, to the Federal Circuit Court above. There, they actually read the c-file and do the timeline investigation of what happened when and what was supposed to happen subsequent to that.

Each step in jurisprudence at the lowest level is controlled by regulations that are designed to protect the Veteran against arbitrary injustice. Often we see the mission creep of 38 CFR twisted to “fit” the circumstances so as to leave you, the Vet, outside the wire. Bond and Charles were established case law when Leonard Beraud showed up with a vaguely similar contention. How Judge Lance and Coral Wong could screw this up with so much case law to lean on speaks volumes about IQ. Saint Meg of the Our Sisters of Indiana Avenue NW Order fortunately put forth the correct argument in her dissent that carried the day at the Fed. Circuit. When remanded, the Commandant of the CAVC, then Kasold, was too embarrassed to assign the same panel to correct it. Instead, he pawned it off to St. Megan and she quickly set the record straight for all to use as the primer on 38 CFR §3.156(b) henceforth. Or so we thought.

Granted, Leonard Beraud’s contention was somewhat a duty to assist argument in that he insisted he had medical records stashed at a Nasty Guard base or his weekend warrior outfit. VA ignored him, gave him no time to retrieve them and equally made no effort to assist in locating them. This effectively put the claim on hold while the evidence was fetched. VA never sees things this way. Most of the errors I see in this vein share the same circumstances. When viewed twenty years later, VA looks in your c-file for the documents and doesn’t find them. Therefore, they surmise that they did their duty and you did not. If the documents in question are there but no resolution was arrived at, they claim you never perfected the appeal with the Form 9. This excuse is the oldest one in the M 21 Cliff Notes® denial book.

No Bozos

No Bozos

The correct procedure has always been to review the new evidence ( or pretend to) and then send out the SSOC “redenial” saying “What part of ‘no’ don’t you understand?” At that point, if you (or your VSO) have not been proactive, you have 30 sunrises and 30 sunsets to get your Form 9 in with proof of mailing.  Messieurs Beraud, Bond and Charles  were ignored in similar situations and no SSOCs were forthcoming. VA continues to misinterpret the idea that finality attaches to a RO decision in this circumstance. It doesn’t. That is the problem. If you send in new and material evidence in the course of the claim after the denial and before the claim is certified for appeal, VA is required to review it and make a new ( de novo) decision. If they do not perform the review, the claim goes into the deep freeze and awaits a new decision or until a SSOC is forthcoming.

The only way finality can attach to this would be if it was adjudicated at the BVA and denied. Were that to happen, that’s all she wrote. The big if would be “if they included the evidence previously overlooked” The only way to get a can opener into it afterward would be via CUE or the introduction of new service department records that had never seen the light of day as defined in § 3.156(c).

§ 3.156(b) is a handy dandy little tool in jurisprudence because it keeps the VA from going off half-cocked. Well, it’s supposed to. This explains why we are experiencing déjà vu here in the Mitchell case. What concerns me is that the Office of General Counsel dialed this one in way back in 1995 and issued VA General Counsel Precedent 9-97 which describes this to a T.

Read this holding first:

VAOPOGCPREC 09-97 (2)

Now read the case law I unearthed to show VA’s continued, purposeful misconstrual ever since on what § 3.156(b) stands for.

9-97 Cases- Very imp. info 4 both of mine

Now for the meat of the decision. This is the first outrightly hostile assault by one CAVC Judge on another for their failure to grasp VA Law. Sister Meg goes off on Kasold for his off-the-wall concept of an “interlocutory” decree- a temporary decision that is subsumed by follow-on decisions. § 3.156(b) cannot be abrogated by a subsequent decision that failed to address the underlying new and material evidence submitted. That violates every precept of law-both civil, criminal and VA’s version of joke justice. Simply ignoring a contention or evidence and hoping that it will go away is a gross violation of far more than just §3.156(b). It cuts to the heart of due process.

DickandJane Vetspeak can boil this down for the legally challenged thusly:

If you submit new and material evidence after a denial but within that golden window of one year after the denial, and VA never addresses the new and material evidence, the claim remains on the books until it can clearly be seen that they reviewed the new evidence and gave you an up or down on that specific evidence. Even subsequent decisions (including BVA decisions) cannot subsume a claim where the evidence submitted was never reviewed in a de novo decision.

CJK

Bu-bu-but Beraud is wrong!

Mitchell is powerful ju-ju, Vets. It illustrates a situation where a dissenting CAVC Judge [Kasold] says he doesn’t buy into the majority opinion simply because he doesn’t respect and adhere to established Federal Circuit precedence already on the books. This is asinine. Being a judge entails reading the law and obeying it. You can argue until you are hoarse on what you think the interpretation is in a vague unexplored situation but you can never base your dissent on the mere fuzzy feeling that you think Bond or Beraud were decided in error. That’s what we used to call being a poor sport and unhappy with the outcome of a game because you lost. Justice doesn’t work that way. Either the decision is clearly and unmistakably correct-or it isn’t. You cannot have two disparate opinions that are equally correct.

Saint Megan knocked this one out of the park in what will undoubtedly resonate for years to come and be quoted endlessly in future dissent arguments (assuming this degree of animosity between justices becomes the wave of the future).

Click to access Mitchell_13-1245.pdf

In sum, Cook is not in conflict with the precedent of this Court or the Federal Circuit, both of which have held that § 3.156(b) is an exception to the rule of finality. Beraud, 766 F.3d at 1404; Bond, 659 F.3d at 1367; Young, 22 Vet.App. at 466; see also AG, 536 F.3d 1310 n.8. At bottom, the dissent is based on its author’s [Kasold’s] belief that Beraud was wrongly decided by the Federal Circuit. Witness, for example, his continued emphasis on the facts that Mr. Mitchell could have appealed the September 2003 decision, challenged its determination that new and material evidence had not been submitted, and raised the fact that VA never responded to the December 1973 audiogram, but failed to do so, even though the Federal Circuit explicitly rejected almost identical objections in Beraud, see 766 F.3d at 1406 n.1. Predicated on the—as we have explained—unnecessary belief that Beraud and Cook are in conflict, our dissenting colleague calls upon the Federal Circuit to take this case en banc and overrule Beraud.

This case, however, must be decided on the law as we find it, not on the law as we would devise it. See United States v. Microsoft Corp., 253 F.3d 34, 118 (D.C. Cir. 2001) (en banc) (per curiam) (“Appellate decisions command compliance, not agreement.”).

We note that the Secretary [McDonald] filed a petition for rehearing en banc in Beraud, and, on April 16, 2015, the Federal Circuit issued a per curiam order denying that petition.

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Sister Meg.

If the Feds denied Call me Bob’s petition to rehear Beraud, that pretty much means it is solid case law. If that isn’t bright line law and easily absorbed, then the Brucemeister needs some CLE big time. It must be a bitch to have been the big cheese for 10 years up at 625 Wagon Burner Lane NW and suddenly have some whippersnapper babe still wet behind the ears from the NVLSP show up and teach him what he should have already learned in law school aeons ago. Worse, Coral Wong is nodding her head in full agreement as well and she’s the FNG. Hell, at least she learned from her Beraud error.  If we get another pro-VA judge in the future, the Court is going to become a fun place to take our appeals. I like to think we have four who are “enlightened” at the moment.

Veterans do not aspire to have justice subverted to win. We expect to win on the correctness of our contentions. All we ask is that the regulations be interpreted in a fair manner and not one where being born on a Thursday in a leap year is a prerequisite for winning.  §3.156(b) was not written to be a “gotcha” against Vets. Quite the contrary, it was to allow us to submit new and material evidence to improve our chances of defining our claims and aiding in the eventual decision-up or down while still at the Agency of Original Jurisdiction. It doesn’t put the thumb of justice on one side of the scales in our favor. It just insures that all that we submit actually will be reviewed. I think the Congressional term in 38 USC controls-“One decision on appeal.” That certainly doesn’t encompass picking and choosing which evidence will or will not be reviewed nor when. When the VA becomes truly nonadversarial, you will see less of these frivolous OGC attempts to define the meaning of what “is” is.

Mitchell is going to be enshrined in the pantheon of important CAVC decisions alongside Buie, Bradley, Fenderson, King and the like. With all Kasold’s caterwauling, I expect Call me Bob will be knocking on the Fed. Circus’ door and asking for a do over. On what grounds, I haven’t the faintest. Maybe because it was unjustly influenced by two women with the vapors- or they were at that time of the month…

Win or Die VA

Posted in 38 CFR § 3.156(b), CAVC ruling, Important CAVC/COVA Ruling | Tagged , , , , , , , , , , , , , , , , , , | 1 Comment

BVA–WE FIRED OUR GUNS AND THE GOOKS KEPT A’COMIN’

Posted on November 21, 2015 by asknod

From the Johnny Cash Memorial 

VARO in New Orleans, Louisiana

VAEvery once in a while you read a decision and you ask yourself “What was this Vet thinking?”  Trying to blow bubbles about your service is all well and fine, Trying to revamp history after you’ve already told your version of the story is going to create a niggling doubt in the Veterans Law Judge’s mind-and anyone else reading the narrative.

http://www.va.gov/vetapp15/Files1/1502307.txt

Our Johnny Vet either disremembers a lot of his prior service life or else he’s trying to rebuild it with the assistance of the Joint Services Records Research Center (JSRRC). The eleven able-bodied employees down there in DC might be slow but they are precise. If you say a guy got blown off the flight deck and drowned, you have to pretty much stick with the story or fold up and go home when they discover you are lying.

This poor boy is caught out so many times that he’s an embarrassment to Vetkind. His DAV rep. must be shitting bricks and trying to figure out how to spin this. In spite of it, VLJ Shane Durkin tries to keep a straight face and remand it for more info. What kind of info is no longer in doubt. Chances are we’re going to read about this again in a year after the JSCCR inveighs and says no sailor on the USS Kitty Hawk was cut in half by the arrestor cable.

Consider these anomalies.

The Veteran served on active duty from Feb. 1976 to August 1977.

That means he missed the boundary dispute that officially was called on account of our US Embassy no longer being staffed by us after May 7th, 1975. Actually, we bugged out on the 29th of April. Maybe his DD 214 is in error.

The Veteran has alleged that he contracted hepatitis C through air gun inoculation in service. At his July 2013 hearing before the undersigned, in reference to potential avenues for contracting hepatitis C, the Veteran provided contradictory statements concerning whether he had used intravenous illicit drugs, at first testifying that he only had contact with needles when he was inoculated in service and never using drugs with needles. He subsequently asserted that he was inoculated by air gun in service when so questioned by his representative. He then conceded, when confronted at the hearing with the fact that treatment records provided a history of intravenous drug use and snorting cocaine, that he had indeed previously snorted cocaine and had previously “a few times” used intravenous illicit drugs. He qualified this changed narrative by asserting that he had only used intravenous drugs with “a brand new needle.”

Sure, that’s how it was. Brand new needles. I bought them by the six pack- but just once.  And when I did the White Lady, see,  I used my own brand new straw because I’m like-you know- an obsessive/compulsive kind of guy and a clean freak. That’s why I didn’t mention it.  Nope. No risk factor there either.

At his July 2013 hearing, the Veteran testified to witnessing a fellow soldier whom he did not know cut in half by a cable when an airplane landed on the USS Kitty Hawk sometime in 1977 in the Pacific Ocean on a cold day most likely in the winter.

While the Veteran in his October 2009 submission also reported that he witnessed a fellow soldier cut in half by a cable, the RO made no query to the JSRRC for verification of that incident. The RO must attempt to verify this reported incident upon remand.

 

images VLJ Durkin has now remanded to see if this stressor exists. My guess is Johnboy had no idea they could find out what was happening on the Kitty Hawk back in 1977. My second guess is that Shane and the JSRRC gang are not going to find any sailors in two pieces. Navy’s OSHA guys are pretty strict about doing the Macarena around the arrestor cables during air operations.

The Veteran also testified [at the hearing] to witnessing a fellow soldier being blown off the ship and being saved. This is notably a changed narrative from the Veteran’s written submission in October 2009, when he asserted that the soldier who was blown off the ship was ‘pronounced dead.’ Following the Veteran’s October 2009 statement the RO made a stressor query to the JSRRC concerning a fellow being blown off ship in July 1977, and the reply indicates that two soldiers were blown off the USS Kitty Hawk that month and both were recovered by rescue swimmers and by helicopter. The RO in an April 2012 Statement of the Case noted this information from JSRRC contradicted the Veteran’s report of a fellow soldier being pronounced dead following being blown overboard. The Veteran may have changed his narrative in light of this JSRRC report.

Gee. Ya think?

In a request for assistance from his U.S. Senator and received by VA in July 2014, the Veteran asserted that he “almost died” in service, though he failed to provide additional relevant details except to note “Vietnam.” The Veteran has not elsewhere alleged almost dying in service, and absent additional details there would not appear to be a specific stressor to be verified. The record does not reflect that the Veteran served in Vietnam or that he had service in the Vietnam Era.

I think the Senator misunderstood me. You guys took it out of context. We were in the South China Sea off the coast of Vietnam when I almost died. That was when I was having nightmares about being blown off the ship. I swear my heart stopped while I was dreaming and I thought I was gonna die. I never said I fought in Vietnam. Where did you get that from?

Poor Johnny is going to have some mighty tall explaining to do when JSCCR comes back with no arrestor cable deaths. I note his 4-year enlistment ended after a mere seventeen months but there is no discussion on that. It’s probably still classified.

Posted in BvA HCV decisions, Frivolous Filings, Jetgun BvA Decisions, Jetgun Claims evidence | Tagged , , , , , , , , , , , , , , , , , , | 1 Comment

A COMBAT VETERAN’S THANKSGIVING

Posted on November 20, 2015 by asknod

 th (1)Arliss,  the wise old Eleven Bravo Vietnam Vet  had six stars on his VSM and was getting on in his years. By now, he was a year-around resident with his high school sweetheart wife in Phoenix. Prodded by his wife, he picked up the phone Wednesday morning early, calling his son Zeb in Nashville to inform him of the impending divorce…

“Have you lost your senses? That’s impossible. You and Mom are like peas and carrots. You better think this over. This is way too abrupt. It isn’t like you, Dad. Are you depressed? What is it?”

Arliss paused and sighed “We can’t stand the sight of each other any longer, I guess. Your Mom ain’t exactly an Oprah Winfrey of conversation, you know. We’re sick of each other, and I’m sick of talking about this, so you call your sister in Chicago and tell her.” He promptly hung up and consulted his watch.

Frantically, Zeb texted his sister in Chitown, informing her of the imminent breakup. In a flurry of thumbs, moments later Nadeen texted back ” F*** tht noise. Lik hell they r. Pak ur bags. We re going to fenix. Im bookng for both of us. See u ther tomro pm. Luv n”.

Nadeen deftly switched to voice and called her parents’ number from memory. In her haste, she had to redial it twice. Her shaking thumbs refused to obey her commands.

“Dad, you’ve had a stroke or something. Relax. Don’t do anything until we get there tomorrow. Zeb and I will be flying in and we’ll get a rental car so you and Mom can just sit tight. We can work this out. You guys have almost 50 years invested in this. Don’t do anything rash. Promise me?”

Arliss sagely nodded his head in agreement and and allowed as how he and Cupcake could try to be civil to one another for a day or so more maybe but there were no guarantees in life. He mentioned an address at the local Holiday Inn if she arrived and found him gone. After exchanging tearful endearments with one another, they hung up.

Hanging up the phone in the front hall, Arliss yelled to Doreen in the kitchen.

” Three and a half minutes. Damn, you won. They’ll both be flying in tomorrow afternoon and they are paying their own airfare. Jez, you had that dialed to a T, Sugar. I wonder how many times we can get away with this?”

Thank you to lifelong Marine and genuine Vietnam Veteran Tom (180%) of the Win or Die Club for this one. Happy Thanksgiving from one corn dog Veteran to all of you Veterans.

th (2)

 

 

 

Posted in From the footlocker, Humor, KP Veterans, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , , | 2 Comments

HOW TO PICK A GOOD VSO SERVICE OFFICER

Posted on November 19, 2015 by asknod
th

1815 New Orleans Turkey Shoot

Well, kids. It’s degenerated to that point in the twenty first century where the actual majority of all claims going to the BVA for adjudication are riddled with errors. Instead of just by Regional Office personnel, it’s clearly becoming apparent that Mario Caluza, Arthur Hickson and Jerry Shedden have not yet become household names around the VSO universe. 

Ever since that dawn of the New Orleans defeat for the British in  January 1815 ended the war of 1812, so too has it been a oxymoron that you had to have proof you were damaged in service for the claim to prevail. VA had done a pretty good job of hiding the requirements up until Mario Caluza tried to smoke the VA with a really lame claim.  The difference this time was Westlaw. It got published. The new Veterans Reform of Justice Act of 1989 allowed any who wished to go up to a new Court a fairer shot than the judges on the VA Secretary’s payroll. Funny how once you get out from under that umbrella, the judicial weather improves vastly

Caluza finally vocalized what everyone knew but had never summarized in public. To Veterans, it was the Holy Grail. The Rosetta Stone. Like graduating cum laude from an EST retreat in the Nicaraguan jungle. Enlightenment. The secret password with magic handshake all in one. The “knock” on the door.  Caluza made it common knowledge to all VSOs on April 12, 1995, just in case they hadn’t been getting the wire feed from the War Dept. who used to run this gig. In order to win a claim. it required three things. This is cast in stone and immutable.  After 1995, it was called the Caluza Triangle. It’s so old, Abraham Lincoln was in diapers when it was invented.

  1. disease/injury/ risk  in service
  2. disease/injury now.
  3. letter from doctor say the two are related and why.

When Arthur Hickson showed up pro se in August of 1998, the Court rightly tossed it because Art had no nexus- just bunches of hunches. Caluza was trotted out and cited as the controlling precedent. That was 15 years ago and if the VSOs had missed it before now, it was a clear shot across the bow to them. The Caluza triangle was rechristened The Hickson Elements. The VSOs never dialed in on it or never saw or heard it (again).

Jerry Shedden showed up in August of 2003, five years after Arthur. He was claiming CUE for a number of reasons why his PTSD was denied illegally. Unfortunately, he too fell victim to the desperate need for the IMO requirement. Ken Carpenter couldn’t even fix it. They gussied it up and added two more obvious elements and renamed them the Shedden requirements. Six of one and half a dozen of another. VSOs everywhere were holding annual conventions and getting extremely trashed or hammered but again. nary a Shedden requirement was shared.

No Bozos

No Bozos

Twenty years and some change later, 50,000 appeals are en route to the BVA sponsored and represented by the 96 VSO service officers. All these fine upstanding ladies and gentlemen are certified as trained professionals by their respective VA-chartered Veterans Service Organizations. All are presumed capable of their jobs. Yer more than half of the 50,000 claims lack that Caluza triangle. Qu’est-ce que c’est ?

Today we offer you, Johnny Vet, a “test quiz” you can download at the bottom of the article. It is a simple ten-question test that even the most claims-challenged service officer should be able to pass with flying colors. Remember, he can’t consult the VBM or 38 CFR. This is not an open book test.  As usual, Cupcake suggested this.

Closed Book Test For Potential VSO Service Rep.

Q #1) What are the three ingredients for a successful VA claim?

Q#2) Would having VD in service be considered Willful Misconduct ?

Q#3) What is the maximum compensable VA rating for tinnitus? Is it for each ear or both?

Q#4) How many days are you permitted to file your VA Form 9 after receipt of the Statement of the Case?

Q#5) Does the clock run from the time you get the SOC or the date on the SOC document?

Q#6) Does VA guarantee they will get all my civilian records if I sign a VA Form 21-4142 requesting and authorizing them to do so? (assuming they are readily and locally available).

Q#7) What are my rough odds of winning here locally if I am right and can prove it?

Q#8) Have you ever heard of the VR&E’s IL Program? What does it stand for?  Do you know what the IL program actually does under 38 CFR 21.160? Have you ever handled a VR&E claim for an IL Program? Has your VSO ever handled one?

Q#9) What is your win/ loss ratio on claims you have personally handled?

Q#10) What was your personal best biggest win on a compensation (not pension) claim based on rating percentage and effective date? This is a question for the representative, not the whole office. There’s no “we” in service representative.

Those are the bedrock questions. If the prospective representative still sounds intelligent, we’ll move to the bonus round. If s/he misses more than four, it is suggested you thank him/her very much and note you are late to pick up your Cupcake at work.

 

Here’s the download to print.

VSO service officer Questionnaire

My guess is 50% of the service reps will throw it right back at you and make you sign a POA before they pick up their pen and look at it.

 

Posted in All about Veterans, Nexus Information, VSOs | Tagged , , , , , , , , , , , , , , , , , | 6 Comments

BVA–VLJ URSULA R. POWELL–HANGING JUDGE?

Posted on November 18, 2015 by asknod

haditlogo2007A Vet on our sister site at Hadit.com has an appeal before VLJ Ursula R. Powell.  Judge Ursula is in the habit of signing her decisions U.R. Powell which can cause confusion when you use the VA ‘s searchbar system. VA never heard of of Ursula. Nevertheless she’s mentioned in the BVA’s 2014 Glowing Success Story.  Hey, if you’re too lazy to follow the link:

Capture22

Long story short, the gentleman was reading her newfound decisions (444) and surmised she’s a hanging judge with no love for Veterans. Relax. That’s not news. Any Vet who loses probably feels s/he got the short end of the Punji stick with the brown stuff on it.  Fortunately, they aren’t all that way. I’m one for three in the VLJ lotto personally, but the one win was the powerball ticket for my greenhouse and 100% for Porphyria analogous to dialysis. That, in itself, is a tremendous bellweather for others who follow in my path..

The dynamic I see at work from reading a number of decisions follows this particular gem that emanated from the Danial Boone Memorial RO in Louisville, Kentucky. Their local DAV chapter service representative, certified as mentally oriented in all three planes of existence-i.e. free of mental defect- allowed Gomer Pyle, USMC(Vietnam Artilleryman) to file for a higher rating for tinnitus than 10%. DC 6260 is short and sweet. You have two ears. You have one ring. Bilateral minimum is 0% and max is 10%. It’s like a hand grenade. There is no one thousand and four. Certainly, an extraschedular rating for depression secondary to it is for application, but that claim is absent. Any discussion of it is absent. No case has been put forth for a rating higher that 10% based on an extraschedular basis. The only other thing I see in this fustercluck is an equally futile, meritless claim for an earlier effective date for the tinnitus. How can you ask, with a straight face, for that which you never asked for in 1984?

Judge Ursula has him dead to rights. If you had tinnitus in ’84, how come we never heard about it until 2007? VA screwed him by never asking him if his ears rang. DAV, the claims experts,  never told him about it even though hearing loss and tinnitus are like mashed potatoes and gravy. Whoever heard of one without the other?

I’m reading a lot of VA regulations because I’m preparing to become a VA claims agent¹. One of them, 38 CFR §14.630-32, discusses filing fraudulent or meritless claims that tie up valuable VA claims resources. This claim is a classic example. DAV has a cadre of “senior expert claims adjudicator representatives” at the BVA who handle all the VSO appeals. They sometimes mix and match using guys from the VFW or AmLeg. They all have one thing in common- no law degree. I think maybe they use ask.com and solicit legal help for about $25/hour on an as-needed basis but that is purely rumor. But….that might explain how this had to get all the way to VLJ “U.R.” Powell’s desk to bring the DAV up to speed on DC 6260.

Johnny Vet already has a 20% for bilateral hearing loss (since 1984) and nobody told him about tinnitus?  I want you to let that sink in. No one told him? As in the DAV didn’t ever tell him to file for tinnitus? That’s like free Mardi Gras beads on Fat Tuesday at the VA. So when Gomer goes in for a hearing loss “reassessment” in 2007, he and the VA hearing specialist finally agree that the bodacious ringing noise in his ears  for the last 45 years isn’t hearing loss at all-but something called tinnitus.This is an informal or inferred claim. Because it was “discovered” while assessing his hearing in general in June 2007, that is the first knowledge VA had that he was diagnosed with tinnitus. VA, nor DAV, has ever informed him of this entitlement in the 27 years of representing him. Scary, huh? When the VA finds a 10% doggie biscuit and offers it to you free with no strings, it’s easy to figure they felt guilty for funnin’ you all them years they haven’t been paying it-like since 1984. So, who’s to blame? Gomer Pyle for trusting DAV or DAV for having a service representative with the IQ of a pet rock?

Another thing jumps out at us. Gomer’s leagal beagles in Louisville carefully arranged a VLJ Board hearing for him so they could all have a beer summit and iron this out before wasting a lot of VA’s (and Judge Ursula’s) valuable time. For those of you not in the know, a Travel Board hearing is before a live VA Veterans Law Judge.  Sometimes you have to wait a year (or more) to get the slot. Here, Gomer and his DAV buddies had specifically requested one in-person rather than the videoconference version which could have been scheduled many, many months earlier. A real face-to face sit down is worth a lot of credibility to a judge, too. That’s why a lot of VA lawyers prefer this when possible. The camera can never capture your earnestness adequately.

So, for Gomer to blow off Judge Ursula and leave her at the judicial altar all alone that morning, one might expect a little animosity-that perhaps Justice Powell might get her undies in a knot.  Judge Powell conducts herself very well in spite of the bitchslap.

The Veteran requested a travel Board hearing in his November 2008 substantive appeal. The Veteran received a letter scheduling his hearing for September 2010. The Veteran failed to appear for the hearing. Therefore, as the Veteran has not provided a reason for his failure to appear, the request for a hearing is deemed to have been withdrawn. 38 C.F.R. § 20.704(e) (2011).

So why would Queen Ursula of the “Abandon Faith All Ye Who Enter Here” hall of  VLJ justice not be a little brusque with this asinine performance? Well, folks, because she’s a professional. The BVA is more backed up than a shipwrecked sailor with a lifetime supply of canned cheese. If you let this kind of  VSO legal help navigate your claim, you are going to incur the ire of a woman who feels she has much weightier things to be adjudicating. I wouldn’t blame her one iota.

CONCLUSIONS OF LAW

3. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus. 38 U.S.C.A. §1155; 38 C.F.R. §4.87, Part 4, Diagnostic Code 6260 (2011); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

I can’t even conceive of doing something like that. Worse, it’s like a booger hanging out of your nose or being one of those Commando jocks (sans underwear) with your pants unzipped and no one telling you about it. Seriously, this made it all the way to the Board of Veterans Appeals after four or five years of ratings back and forth. Shucks, could be they really sucked ol’ Gomer up and also talked him into the DRO review option prior to this fiasco which delayed it another year.

VLJs,  with the exception of a few I know personally, are stand up judges but your evidence has to be over the top and better than what the Puzzle Palace clowns generate. Remember, even if you have these bozos dead to rights, the best you get is the “Well, the evidence being pretty much in equipoise, we’re willing to liberally extend the concept of benefit of the doubt on this particular one and grant the claim.”

VA had to sink to that level up at the CAVC in 2013 when the OGC gal said “Well, if you look at this SOC written in 1995, it’s not exactly the model of clarity, now is it? Someone who wrote ‘We received your new evidence with your appeal and we’ll be gettin’ back to you real soon with a new decision after we review it. Hear?’, might mistakenly have thought you’d  know they wanted you to drop everything you were doing and file that VA 9 RFN.  You can see where the VA raters were confused and didn’t know how to proceed…so from the OGC’s perspective, it appeared for all the world like Grahambo was abandoning the claim.”

No, I don’t see an elevated degree of ire or disgust with  Veterans on VLJ Ursula R. Powell’s part. I do see a subtle, angry streak about a mile wide aimed at Zombie VSO reps and their appeals “experts”. That can be said for all VLJs without singling a particular Judge out for his or her conduct. The true test of incompetence or misfeasance would be better researched at the CAVC and the Fed. Circuit. If an inordinate number of her (or any VLJ’s) decisions were reversed or vacated/set aside for error, then possibly yes.

I guess I'm not seeing any ankles or elbows here.

Pardon me counselor. Perhaps you could show me the 20% for tinnitus in DC 6260? I must be blind.

¹ An addendum. I was accredited on 4 August 2016 and accepted to practice at the Court on 11 November 2017. Additionally, Judge Powell granted one of my appeals without much ado in March 2018. I consider her to be very competent and more than fair in her jurisprudence.

Capture was here

Posted in All about Veterans, Informal Claims, KP Veterans, VA Medical Mysteries Explained, vARO Decisions, Veterans Law | Tagged , , , , , , , , , , , , , , | 5 Comments

BVA–ISOLATED AND INFREQUENT USE OF DRUGS CODICIL

Posted on November 16, 2015 by asknod

VeteransAdministration.12755109_stdI have seen this one used before several years ago but it has always met with mixed success at the BVA. 38 CFR § 3.301(c)(3) is  rarely employed but here it worked. One might note the Vet was represented by an individual rather than an attorney or VSO. This is permissible on a one-time basis if another Veteran chooses to do it. Here, it worked quite well. Mr. Christopher Loiacono was either being coached or has an inordinate amount of knowledge on the subject of willful misconduct. 

http://www.va.gov/vetapp15/Files3/1521535.txt

38 CFR §3.301(c)(3)

(3) Drug usage. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin.

The above in red is most often employed where a Vet with PTSD “self-medicates” himself into a ripsnorting case of HCV via injection of drugs. The “isolated or infrequent use”  defense can only be used if the Vet candidly admits it (in moderation) but has never been convicted of it via a UCMJ sanction or LOD determination.

P.S. Ever since the revelation in Walker v. Shinseki over the true meaning of 38 CFR §3.303(b) and it’s sole application to the diseases described in 3.309(a) , I have always parsed the way a regulation is written. Much like a cheap Walmarket® sweater, 3.303(c)(3) above is saddled with a huge glorious hole for Hepatitis C sufferers. Stay with me now lawdogs. Remember Good Samaritan Hospitals v. Shalala? First we begin by ascertaining the clear meaning of VA’s regulation. Also the Chevron defense of having the agency of jurisdiction be given deference to their interpretation.  Now read the Miriam Webster definitions (VA’s favorite) of two adverbs used above with their root adjectival meaning…

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So, the clear meaning of this phrase is:

If you used a drug (or drugs) such that it (they) impaired you instantly, harmed you permanently by either killing you or rendering you immediately and permanently disabled, it will be considered willful misconduct.

But, if, on the other hand, you used a drug or drugs that DID NOT proximately and immediately harm you at the time but, quite the opposite, infected you with an organic disease (think hepatitis c) that quietly began destroying you over a period of 30 years, then this cannot be considered willful misconduct.

But see the sentence immediately following the one above discussing “immediate” disability or death states:

Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin.

Hepatitis C is an organic disease as it destroys or alters the focal architecture of the liver (cirrhosis). It is obvious that when this was written in 1961, and last amended in 1995, the cryptogenic nature of Heptitis C and its deleterious, long-term damage still had not been comprehended  nor contemplated.

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The clear reading of 3.301(d) attempts to clear up any misunderstandings about Line of Duty (LOD) determinations regarding the abuse of drugs or alcohol:

(d) Line of duty; abuse of alcohol or drugs. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects.

(Authority: 38 U.S.C. 105(a))

Now, let’s disassemble section (d) and see what applies and what does not. First of all, let’s toss out all the extremely trashed or hammered language and focus on drugs. The key word here is “abuse of drugs”. the last sentence in bolded red is the meat.

If you were in pain and injected a prescribed narcotic pain reliever for its therapeutic effects even though it was not prescribed to you and you did not become addicted to it and classified as an addict, you would be accorded service connection if you somehow contracted Hepatitis C-an organic disease. The definition of “illicitly obtained” is a red flag.

If you get to the high ground first and say you used it to enjoy or experience it’s effects, you’re okay. If you kept using it to the point of addiction, it was Willful Misconduct. If it almost killed you and left you brain dead immediately thereafter, it was Willful Misconduct.

 

But… if you come down with hepatitis C 35 years later after sharing a needle with a junkie one time while enjoying and experiencing the heroin’s effects, it is not Willful Misconduct. As long as you never abuse a drug  by using it for a purpose other than the medically intended use, it is not Willful Misconduct. Narcotic pain relievers are many and varied. Absent abuse or addiction, any disease or injury incurred  is not grounds for a finding of misconduct. 

That is our Chevron deference teaching moment today. I don’t make this stuff up. Here’s what  I see. Just as Venereal diseases are repugnant but still not willful misconduct, so too is Hepatitis C. It has to be cast in that light as an interpretation of 3.301(c) (1). Absent any abuse of a drug or addiction, as defined, the use of the drug is not willful misconduct. Ergo any contraction of a cryptogenic organic disease that takes forever (as opposed to immediately) to metastasize due to the injection of that drug is not, in and of itself willful misconduct either.

The Veteran would have to be pre-cognizant of the knowledge of a) the risk involved contracting Hepatitis,  and/or b) pre-cognizant that becoming addicted to or abusing injectable drugs, that contraction of the organic disease could ultimately result in disability.

Absent the knowledge of the long-term risk, there can be no Willful Misconduct if the drug was merely used to enjoy and experience its effects without ever abusing it to the point of addiction.

Interesting legal theorem. Yes, your honor. I shot up Morphine with junkies a few, rare times but only did it to enjoy or experience it to see what it was like. Later, I used it occasionally to quell the pain of my  service connected bad back -but never to  the point of abuse or addiction. I had Hepatitis C by then so it wasn’t willful misconduct anyway.

P.P.S. Here’s LawBob Squarepants’ weigh in on this misbegotten regulation. It’s quite cogent and he’s mentioned it to me before on several cases.

But, on a more fundamental level, only the SERVICE BRANCH can make a willful misconduct determination.

At least as to willful misconduct during active duty.

The VARO holier than thou’s try to change the ruling on the field 40 years after the game is over.  NO can do. I have busted them 3 times on this.

VA can make a post service willful misconduct determination but often that is trumped by Allen, drug/ alcohol as secondary to PTSD or other mental illness.

[Law]Bob

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Posted in BvA HCV decisions, Medical News, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , , | 3 Comments

BVA– ANOTHER JETGUN WIN IN ST. PETE’S W/ COMBAT EXPOSURE

Posted on November 16, 2015 by asknod

CaptureHere’s a great BVA read from a good attorney in Florida. Ralph Bratch nailed this one with good cites and an excellent nexus for the Vet. As is standard operating procedure, VA tried to hang the drug allegation around his neck. Unfortunately, they forgot to specify which kinds of drugs and via which method of ingestion. I’ve never heard of anyone shooting up LSD. Apparently, neither had the VLJ. Result. Bratch 1, VA 0.

Some of you might want to put Mr. Bratch on the rolodex. He appears to be quite knowledgeable on Hep C claims and is a member of NOVA. Anyone that does this deserves a medal anyway. Speaking of the devil, Mr. Bratch is a Veteran. All the more reason to use him.

http://www.va.gov/vetapp15/Files3/1521791.txt

Posted in 1154(b) combat presumptions, BvA HCV decisions, Jetgun Claims evidence, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , , | 1 Comment

AO DISEASES ADD ON–DON’T FORGET THE LEWY BODIES

Posted on November 15, 2015 by asknod

CaptureReceived this through the NOVA circuit yesterday. Those of you filing for AO presumptives on Parkinson’s Disease for yourselves or your loved ones should have Johnny Vet examined for Lewy bodies. These nasty little blobs of protein deposits develop and lodge in the nerve cells of your brain and cause you to have Alzheimer-like dementia and far more. The classic hallmark identified is usually the onset of vivid hallucinations. Put this on the to-do list on the next physical if you have been diagnosed with PD.

http://www.mayoclinic.org/diseases-conditions/lewy-body-dementia/basics/definition/CON-20025038

Agents Orange, Blue, Green, Pink, White and Purple were a gift to warfare that we are now coming to realize has lasting consequences. Parkinson’s was added to the burgeoning list in 2010. With the sure knowledge that Lewy bodies will be co-travelers, filing for future claims should include this automatically. It may take a while for VA to add it to the list but when they do, the earliest filing for it establishes the effective date of your claim.

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Agent Tang- Don’t start a war without it

Posted in Agent Orange, AO, KP Veterans, Porphyria Cutanea Tarda, Thailand AO presumptive path, vA news, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , , | 3 Comments

BVA–CHEESEHEAD FINALLY HITS PAYDIRT ON JETGUN

Posted on November 14, 2015 by asknod

FROM THE BEER CAPITAL OF WISCONSIN

635646931319099161-veterans-administration-logoVA denies. Let’s face it. You could have 7 out 8 salient factors pointing towards a cryptogenic liver ailment (read HCV) including elevated ALTs and fatigue and the VA rater is going to say  you were just having the vapors, it was acute and immaculately resolved before separation- and you suddenly came down with it in April 2004 because that’s the day you were diagnosed. 

Combating that level of medical ignorance is what asknod is all about. From the day I figured out the secret handshake, I have vigorously tried to share my secrets. Yes. Secrets because another soul arrives every day and suddenly discovers why they lost. This should be front page news but you never hear about the little guy. You never see the denied ratings of 150 others who gave up before they got to the BVA.

When a Vet has this much evidence for and gets denied, it’s no longer a mistake. It’s a committed decision to deny and see if anyone bitches a pitch. If sending it out to a truely independent gastrodoc for an unbiased, probative opinion is the default setting for granting a claim, then the bar is set far too high.

Denying a claim is an art form as you can see here. 

The VA examiner is chided by VLJ Michael Martin

In April 2012, the Veteran was afforded a VA examination where he was diagnosed with Hepatitis C. The examiner provided a negative opinion on the relationship of the condition to service. The examiner stated that although the Veteran was noted to have a mildly elevated SGPT (ALT) during active military service, there was minimal evidence that these abnormal liver test results were specifically caused by Hepatitis C. The examiner further stated that the liver test abnormalities were asymptomatic during active military service. However, he did not discuss in his opinion the Veteran’s complaints in his service treatment records of fatigue and decreased energy, or the questions raised in his records about the etiology of these complaints of fatigue.

Viewed in this light, you can see the lopsided tilt of justice at the Milwaukee’s Fort Fumble. Their motto?  Why, what else. Mr. GS-12 Cheesehead VSR says:

WE DENY CLAIMS

download (1)

BEFORE YOU FILE ‘EM

Posted in BvA HCV decisions, Jetgun BvA Decisions, Jetgun Claims evidence, KP Veterans, Tips and Tricks, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , , , , , , , | Leave a comment

VETERANS PRESIDENTIAL PREFERENCE POLL #1–12 MONTHS OUT

Posted on November 13, 2015 by asknod

Welcome to the voting booth. I trust you all to vote once so I don’t have to hang cookies all over it and keep out all you Vets from Chicago that died during the Civil War. I am not interested in why you voted or for whom. Some candidates are far more Veteran-centric than others. Amen. To be frank, I’m not terribly enchanted with very many of them.

Posted in polls | Tagged , , , , , , , , , , , , | 2 Comments