VARO–REQUESTS FOR RECONSIDERATION

Posted on October 23, 2015 by asknod

VeteransAdministration.12755109_stdFor many moons I have read and reread other Veterans’ reports of requests for “reconsideration”. Much has been written on this subject over at our sister site Hadit.com and there is a large school of thought that it is a legal mechanism that exists to provoke a de novo review of a denied claim. In other words, simply sending in something that says “I request a reconsideration of your denial for my Hepatitis C dated September 7th, 2015.” Newsflash. There is no such animal.

Attached here is a BVA decision that addresses this dilemma. There has been one and only one path to Nirvana in this process and it has been published, described, talked about and lip-whipped to death. When you are denied, you have one alternative. You file a Notice of Disagreement (NOD) disputing the decision. You may submit new and material evidence to rebut the denial. If you are, or were,  represented by a Veterans Service Organization, now is the time to study up on what you should have been told to submit when you first filed the claim-i.e the three basic ingredients you need to win.

In this decision, you see Johnny Vet is being repped by the American Red Cross. They are just about out of the VSO business but we see these every so often. The ARC suffers the same problem as all VSOs do inasmuch as they rarely tell you how to win. It would seem that they also told Johnboy to ask for a “reconsideration” as well. Since there is no such thing at the VARO, the raters laughed long and hard and promptly opened a new claim for him. This fails to explain why anyone would want to give up a favorable date of claim and begin anew with a newer one that screws them out of a lot of money. It also begs the question of why  the rater didn’t call the Vet (or his representative)  and query him as to his intentions rather than give him the worst alternative.

I have long preached that VA is not our friend in this nonadversarial process. Many of the actions they take on claims are counterproductive and harmful. Fortunately here, the BVA Veterans Law, Judge Jeffrey D. Parker, made the right call and converted the reconsideration into a true NOD to save the Vet his filing date.

In a June 2007 written statement, the Veteran asked the RO for “reconsideration” of the denial of service connection for a liver disorder. A notice of disagreement must be a written communication from a claimant or the representative expressing dissatisfaction with an adjudicative determination of a Regional Office. The notice of disagreement should be in terms which can be reasonably construed as a desire for review of that determination. It need not be expressed in any special wording. 38 C.F.R. § 19.118 (2014). A notice of disagreement must be filed within one year from the date of mailing the notification of the initial review and determination, otherwise, that determination will become final. 38 C.F.R. § 19.129 (2014). While the RO treated the June 2007 letter from the Veteran as a new claim for service connection, the Board finds it to have been a timely notice of disagreement to the December 2006 rating decision. See Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute a notice of disagreement under the law), rev’d sub nom Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (an effective notice of disagreement need not contain any magic words or phrases). As such, the period on appeal runs from June 6, 2006 (the date VA received the original claim for service) to present.

Please do not listen to well-meaning Veterans who are not acquainted with the law. Please do not heed the advice of VSO representatives whose legal acumen came out of a Crackerjack® box. Fortunately for this fellow, VLJ righted the wrong. Far too often we see an entirely different outcome that takes another 8 years and a trip to the CAVC to correct the injustice.

I suspect the Vet has poorly described his symptoms in his own words. VA is fond of this technique to lowball your ratings. Had he been adequately represented by a lawyer, I’m sure he could have prevailed at a 20 to 40% rating but he chose what most do- VSOzoom.com. One will notice Johnny has nothing supportive from a doctor showing the degree of severity of symptoms. Everything is self-reported.  Free representation is not always fruitful if you get the short end of the ratings stick.

For the record, a Motion for Reconsideration exists at the Board of Veterans Appeals only after you have been denied on appeal. There is a formal process for it that requires you to file for it within 120 days of your denial. There is no guarantee you will be granted one. It must be supported in law or evidence that rebuts the decision with substantial evidence that a legal mishap occurred. It cannot be a gripe that you feel the Judge is racist or biased towards women.

A similar mechanism exists at the Court of Appeals for Veterans Claims called a request for a panel decision following an affirmation of the BVA decision by a single judge in a memorandum decision. Again, to prevail and be granted a panel decision, you must present a novel appeal that asks for a precedental decision based on a situation that represents case law never before decided. It is referred to as a matter of first impression.

No Bozos

No Bozos

Posted in BvA HCV decisions, research, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , | 6 Comments

VVA images: October is Agent Orange Awareness Month

Posted on October 22, 2015 by Laura

This is a quick follow-up to Nod’s post with the terrible news about the Agent Orange Act of 1991 and the back-stabbing members of the House and Senate Veterans’ Affairs Committees.  From Stripes:

“Two weeks ago, the House and Senate veterans affairs committees quietly allowed a provision of the Agent Orange Act of 1991 to expire.  How significant that will be for Vietnam veterans and their benefits is disputed.”

Click on the above link for an overview on hypertension but be forewarned that if you have hypertension, from AO or another cause, the Stripes article, and others we’re sure to see in the following months, will guarantee to make it worse so read with caution.

The Vietnam Veterans of America have been advocating on this issue for many moons.  Below are some recent poster images than can be downloaded (LINK) from their website for printing for making up postcards to mail to the back-stabbers, or other stakeholders.  But honestly, these messages are too polite.   This is not a time to be mild-mannered about the AO diseases (LINK, page 4-5) that afflict veterans and their descendants.

11by17halloween2015

ToxicExposureResearchAct8.5by11

A brochure entitled “Are You the Survivor of a Veteran” is also a VVA download (LINK) that might be useful for those dealing with AO.

Recent Reuters photo essay, Legacy of Agent Orange, shows the ongoing suffering of the Vietnamese (LINK) people; it includes a color photo of Danang Airport –forty years later–which still shows where AO barrels destroyed the land underneath them.

Posted in Agent Orange, AO, General Messages, Guest authors, vA news | Tagged , , , , , , | 2 Comments

AGENT ORANGE ACT EXPIRES–VA WILL “BE THERE”

Posted on October 21, 2015 by asknod

thAnytime you hear the government gomer say ” Hey, dude. Not to worry. We’ll take your six on this. Trust us”, think about moving your wallet to a front pocket and sitting in a corner seat. Having done the “We’ll call you” dance with VA so many times, I know better. For you of my generation who were exposed, we’ve been given the short end of the stick so many times, it’s like Charlie Brown and the football with Lucy.

I don’t expect things will be much different on this one. Big Mac signaled he wasn’t going to waiver and anything in the pipeline that can legitimately be linked to Agent Tang will be. What concerns me is that there are so many variables we haven’t even considered and then this monster pops up this morning from Dustoff Chet Crump.

That is my worst fear. My son has Ulcerative Colitis. My daughter had major TIAs. I developed Crohn’s late in life at 45. Far too many unknowns to be pulling the plug. They diagnosed Porphyria in 92 after I’d been afflicted since 72. Sorry, Mr Graham. You had to manifest Porphyria at a compensable level of 10% of more within a year of departing Vietnam-and be able to prove it too. We oh so wish we could give you that but unfortunately we forgot to mention that until we promulgated the Agent Orange Act in 1991, you pretty much didn’t know that would be a requirement in 1972 when you came home with it. We here at VA call that the DeLorean Effect. Get it? Back to the Future? Doc Brown?

Posted in AO, Veterans Law, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , | 4 Comments

VIETNAM REVISITED –SEAWOLVES

Posted on October 21, 2015 by asknod

64f1d24df6794feed4d5bd23d3f35833Just got this in from a salty dog in response to my erroneous remark about the Navy being possession of Huey Gunships in the Vietnam War. I apologize. To be truthful, I was being facetious because I never so much caught a whiff of saltwater in my two years over there. I would have no reason to believe they would possess them and the version I saw on the deck of the Midway was the oldest one I’d ever set eyes on.

It figures the Army would “donate” them to the Navy after they were no longer air worthy. Every tail number of the A/C I ever flew up north, with the exception of the AirAm  aircraft, was prefaced with an “O” on the tail number indicating obsolete.

Great article. Thank you Fred for setting it straight.

Huey gunship

Posted in Vietnam War history | Tagged , , , , , , , , , , , , | Leave a comment

VA emails not true for Vermonters: “When you’re in, you’re in”

Posted on October 20, 2015 by Laura

The return to our home in Vermont, from MN, hasn’t been too easy or too hard–we are managing and making progress.  However, attempting to transfer care from the Minneapolis VA to White River Junction/Burlington Clinic continues to be a miserable experience. Therefore the recent cheery emails gmail“After you enroll, you can immediately start receiving your health care at a VA facility, or at a later date – the choice is yours,” are particularly irksome and even downright scary with their false promises.

The Minneapolis VA is far from perfect but it is superior to White River.  Our most serious current problem concerns  getting my old Marine’s critical maintenance medications–even after one PCP appointment, labs, and the “seamless” electronic records.  The first month, the Minneapolis pharmacy mailed his meds to Vermont.  Then White River filled the second month.  Now, month three, the retiring PCP, arbitrarily fills some meds but not others.  No calls are returned by anyone at the VA, pleas for help via “Secure Messages” are ignored, so we have resorted to requesting the Minneapolis VA Pharmacy to refill meds online.  That will only work for meds with refills remaining in the MN VA system, if at all.

cat

VA to VT vets: When you’re in, you’re in. Image: Wikipedia

But then there was the (soon-retiring, thank God) doc’s remarkable comments about hepatitis transmission:  you can get hepatitis from a toilet seat but not a jet injector!

Alarmingly, she was unable to find any lab results from any previous VA HCV tests so ordered new one(s).  A letter came in the mail stating that the test was positive for HCV.  (Shock. Fear.  Not the dragon again.) But she didn’t indicate which test was performed, the HCV antigen Ab test or HCV RNA test, so I tried to calm myself with the idea it was most likely the antigen test.  It was, but she never bothered to follow up when a later RNA test showed, “not detected.” Checking the updating Blue Button information supplied that answer. (Whew…)

The list of unpleasant issues we are encountering with the VT VA is growing longer by the week and this seems like the perfect forum to vent.  Thanks for your patience in advance because there are more complaints to come! 

Posted in Guest authors, HCV Health, HCV Risks (documented), Jetgun Claims evidence, Medical News, VA Health Care, Veterans Choice card | Tagged , , , , , , , , , , , , , , , , , , , | 1 Comment

ALLISON HICKEY-THROWING OUT THE BABY WITH THE BATHWATER

Posted on October 17, 2015 by asknod

imagesIt is with great sadness I read of Brig. General Allison Hickey’s decision to pull the yellow and white ejection handle over her head and punch out yesterday. We cannot say we didn’t see it coming and I, for one, commiserate with her. Had I been faced with the same imbecilic employees stealing from the till, I expect I would be embarrassed beyond words and consider moving on.

As much as I have disparaged her over the years since her investiture in 2011, no one can say that she hasn’t whipped the VBA into shape. Considering VA was the last bastion of ignorance in computers (and gleefully proud of it), she performed yeoman service to drag them to this stage. I shudder to think where we’d be now without her. The curse is the stain her little people will indelibly leave on what might have been her most enduring gift to Veterans- a decision on their benefits in their lifetimes. I began when I was 38 years old. I finally won at 64. Without her reforms, many coming after me could never look forward to accomplishing it in far less time. That’s an impressive legacy to leave behind.

I spent 26 or more years struggling to attain service connection and stumbled over and over again in the paper jungles of the c-file. At the end of my travails, she introduced the modern ‘gitterdone’ techniques many in the private sector bring to the VA when we are lucky enough to get one. Fighting for acceptance in an entrenched hierarchy of indifference and ennui, she prevailed impressively. No one can look back and say she shirked her duties on her watch. I honestly believed she would have taken a knee when Eric the Clueless discovered his minions were ignoring his orders. That she stayed and stuck with her modernization program in spite of all the flak speaks volumes about her resolve. In retrospect, I can only apologize for my shortsightedness and sarcastic blogs in view of her accomplishments. Forgive me, Allison.

Repairing the VBA is going to be a prodigious enterprise. Hickey began reform where all should have done so before her-at the Regional Office level. Obviously, this was going to compound itself with interest when all the denials metamorphosed into appeals and arrived at the Board of Veterans Appeals. That would have been the next repair order. BVA Grand Poohbah Laura Eskinazi doesn’t have the expertise to fix it. Absent Hickey, the bottleneck is destined to continue for another decade until America’s Veterans die off or give up. Prior to the VJRA of 1988, that’s exactly how it worked. Absent any insightful change orders or streamlining, the intractible backlog will merely inhabit a new location-the BVA. That cannot be blamed on Allison’s shortsightedness.

downloadMany are quick to denigrate the fallen and find all manner of deficiency in the way they ran the office. I’d liken her plight to being the Captain of the Exxon Valdez. It takes 3.5 miles to stop it and 3 hours to change course to a new heading. The Veterans Benefits arm of VA has been idly cruising on autopilot (and paper) for eons and showed no proclivity to change before Eric and Allison showed up. Even when prodded, the majority at 810 Varmint Ave NW ignored them and merrily continued to do nothing proactive or constructive. In the military, when faced with insubordination, you write a few OERs that state in no uncertain terms the offenders aren’t qualified to be in charge of an outhouse and things change. Not so government and sadly, never at VA.

The mere fact Allison was able to institute any changes at all in a timely manner was due to the force of her personality. Nobody can say Representative Jeff Miller was a driving force. Hell, all he did was hurl nasty epithets and tell her she was screwing up. Not once did you hear any encouragement or suggestions. Sen. Bernie Sanders didn’t contribute much as he was too busy trying to do whatever folks from Vermont are fond of doing- woolgathering, I surmise. All the recent new legislation in the world promising to hang ’em high in Phoenix didn’t impress the laggards in DC. VBA has been a wasteland of ineptitude and squandered opportunities for decades. VHA, say what you will, at least had the wherewithal to dive into computers in 1996. No one can pin the state of emasculation at the VAOIG on Allison. That was not her bailiwick. Nevertheless, she set her goals at the VBA and never wavered in her resolve. How many can we say that about?

In the future, we’ll all look back longingly at Hickey’s tenure and realize the dramatic changes she made to modernize the VBA in the face of blatant, subvert resistance. I saw this localized phenomenon of arrogance as recently as last October following my plea to VA Secretary McDonald to resolve my two decade-old Odyssey. A Decision Review Officer in Seattle, one Cheryllanne Mackey-Rivas,  audibly snorted in derision at the mere idea of helping me out. So much for Veteran-centric, nonadversarial, Veteran-friendly representatives emulating ( and instituting) Ms. Hickey’s imperatives. Something was lost in the transmission from DC to Seattle. Either that or VA employees have an entitlement mentality that has run amuck for so long they feel they are their own masters. Whether Gen. Hickey had a hand in fixing it or simply ordered the hired help to repair it RFN, within 45 days of filing my Extraordinary Writ everything I had asked for came to pass. The Seattle RO then magically arranged a Travel Board Hearing in less than two weeks and the Board advanced my appeals on the docket granting them in less than four months. This simply doesn’t happen in VAland. And now that wind of change is gone.

No one in authority can be expected to have their finger on the day-to-day pulse of the job. This is why we delegate authority to ensure a smoothly running machine. The financial shenanigans of Hickey’s underlings starkly reveals the old boy network that allowed this to happen is alive and well-albeit well camouflaged. It’s simply more of the Shinseki redux. What? No more bonuses? Hell, we’ll fix that.

Veterans are in for a major disappointment when the 56 Puzzle Palaces across the Fruited Plain suddenly discover there is no pressure on them to continue Allison’s reforms. The proverbial sails of change will go slack for lack of wind. The backlog will begin to creep up slowly with no apparent reason. Real reform at the Board of Veterans Appeals will sink on the list of priorities and the “norm” for an appeal will grow to unheard of lengths. As it is now, Veterans are now waiting in line conservatively for three years or more. Expect to see that soon grow exponentially absent any concerted pressure from a new Under Secretary of Benefits. The old c- file rooms at the Fort Fumbles across America will now become repositories for  mass quantities of VA 8s certifying Veterans’ appeals -but with nowhere to go like a plugged up sewer.

Big Mac is soon going to feel the ire aimed at Allison from Miller et al. With no panacea for improvement, VA is headed for a new spate of sudden ‘retirements’ a  hop, skip and a jump ahead of firings. Morale will sink to new lows and SES golf handicaps will tank. I predicted over a year ago Allison was not going to hang around and carry the water for all the flunkies who were stabbing her in the back with their indifference and resistance to change. I take no pleasure in being right but had I been in the same saddle, I’d have ridden off into the sunset a year ago. It’s one thing to be correct and underappreciated. It’s an entirely different proposition to have your employees doing their damnedest to undermine you and make you look like a boob. Mostly, it takes great intestinal fortitude and a love for the Veterans’ plight to stay and fight to make a lasting difference.  No one can say Hickey didn’t make an immense improvement in the way VA has been running things since 1917. But, as with any endeavour, you will always find detractors unhappy with the short-term outcome. Far thinkers are in short supply at VA-if there ever were any.

I, for one, know the walk she’s walked. I was an Air Force brat and almost decided on the Air Force Academy. As a Lieutenant General and vice-commander of TAC, I’m equally sure my father could have pulled the strings to get me in. Being born on April Fool’s day is not a glowing endorsement, granted. Neither is graduating 59th in a class of 64 from a prestigious private school.  With the unenviable prospect of Vietnam being over before I got there, I threw away my slot at Hartwick College and enlisted in 1969. Being a brat of any service is guaranteed to draw scrutiny too. Somehow, they always find out. Being a female in the first Air Force Academy class ever allowed in must have seemed even more daunting. Her decision to stay and fight for us after Shinseki’s humiliating downfall must have been a deep, soul-searching one. We all benefited from it-most especially America’s women Vets.

We will sorely miss her.

 

 

Posted in Food for thought, VA BACKLOG, vA news | Tagged , , , , , , , , , , , , , , , , , , , , , , , , | 5 Comments

DIAGNOSTIC CODES IN RATINGS GRANTS

Posted on October 16, 2015 by asknod

haditlogo2007I frequently see claimants on Hadit.com’s forum mention they cannot decipher their grants and that the decision doesn’t specifically identify the rating by Diagnostic Code or DC. Duh. VA really would prefer to keep you in the dark on that one. We don’t need a bunch of VSO lawyer wannabe’s dissecting the grant and trying to find out why you only got 10% when you should rightfully have been awarded 20 or 40%. This requires some sleuthing on your part. 

The trick to this is to look in the diagnostic codes pertinent to your rating. Find the phrase they copied and pasted into your decision and the assigned rating. From there, you can easily see the rating requirements for the degrees of disability higher and determine if yours merit an increase. Most times they do because VA is fond of using information from 20 years ago to rate on. They myopically try to ignore that C&P several months ago unless and until you point out the more recent findings. This gives them a 16-25 month breather to work on another Veteran’s stuff and then get back to you with a favorable DRO decision you should have gotten at the outset.

On the other hand, an SOC will go into great detail as to why you are not going to get the higher rating. They will parse every ‘if…then’, ‘and’ and ‘or’ in a convoluted argument that stands reason on its head. At this time, you will discover the DC that you were rated under.

Allow me to use some of my own more recent decisions to illustrate this point. First, a rating decision granting fibromyalgia/cryoglobulinemia (below). I filed for these in 2008 after I won the big one for Hep C. The Seattle rater, Victor Morales, either purposefully or in ignorance of SMC S, informed me there was no higher rating than 100% and that any claims above that were pointless. I withdrew them to allow other Vets a stab at justice. About six months later  I discovered the world of Special Monthly Compensation (SMC) and had a few unkind words to say about Victor. Live and learn. The decision below doesn’t contain one diagnostic code and is ambiguous as to what is for application other than what the rater deigns to inform you of.

4-6-2015 rating 40% for cryo-fibro Redacted

Note the language.

“Widespread musculoskeletal pain and tender points with symptoms of headache, paresthesias, sleep disturbance, Raynaud’s -like symptoms, stiffness and irritable bowel symptoms that are constant, near constant and refractory to therapy.”

Turn to 38 CFR  https://www.law.cornell.edu/cfr/text/38/4.71a and look up  Diagnostic code 5025 (fibromyalgia) and lo and behold there it is in VA English. They do not make it easy to find but then it can’t be said they are obscuring it.

5025———Fibromyalgia (fibrositis, primary fibromyalgia syndrome)

Widespread musculoskeletal pain and tender points with symptoms of headache, paresthesias, sleep disturbance, Raynaud’s -like symptoms, stiffness and irritable bowel symptoms that are constant, near constant and refractory to therapy—————- 40%

Whereas when you are denied and have filed a long-winded Notice of Disagreement objecting strenuously to your injustice, the VA is required to inform you in no uncertain terms as to why you lost.  They will send you a Statement of the Case (SOC) that goes into great detail about why and gives you sixty (60) days in which to complain and complete your appeal with a Form 9. 38 CFR 19.29 states:

§ 19.29 Statement of the Case.

The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans’ Appeals. It must contain:

a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement;

(b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and

(c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.

Here’s a classic SOC  I received that was a Clear and Unmistakable Error (CUE) filing.

10-6-2014 PCT CUE SOC Redacted

After I filed my Extraordinary Writ at the Court of Appeals for Veterans Claims (CAVC) several months later in January 2015, the Seattle VA surreptitiously “reaccomplished” that horrible DRO review with a SSOC that “corrected” their defective logic.

SSOC PCT 2-17-2015 Redacted

Unfortunately, it still did not grant the 100% for Porphyria I sought . I was forced to go to the BVA on appeal and win it there this September 4th.

VA is fond of camouflaging their artwork to make it difficult to follow. That’s why they invented VSOs to mislead you into thinking it’s way over your head and requires a Sherpa to decipher it. Nothing could be farther from the truth. Any Veteran with half a brain could excavate this information. Even if you didn’t know the Diagnostic Code (DC) for Fibromyalgia, or Cryoglobulinemia for that matter,   a simple Google™ search would turn it up in a second.

Enter “How does Vet Admin rate Fibromyalgia” and you get this:

Capture

Open the Hadit article and scroll down to the fourth comment by Pete 992 and there it is. DC 5025. Pretty cool beans, huh?

Capture 22

For hundreds of years, VA has made this anathema to Vets such that they felt it necessary to seek professional help. Unfortunately, VSOs are anything but that. That isn’t a blanket rule but it’s substantially the case for the most part. With Al Gore’s handy new invention called the Internet, we can find all these things out without resorting to legal channels…or VSOs.

Do not expect VA to “give” you anything. Most often, when you win, it is just the beginning of a long struggle to obtain the ultimate rating you set out for. The more clear and concise you make your claim, the sooner you will realize it.

 

 

Posted in Diagnostic Codes (DCs), SOCs and SSOCs, Tips and Tricks, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , , , , , , , , , | 9 Comments

#ALLVETSLIVESMATTER

Posted on October 15, 2015 by asknod

downloadWhat’s wrong with America? Are politicians so shallow that they willingly abrogate the compact between Veterans and their Nation? Rarely do I inveigh in the political sector as it is the third rail that impedes our cause. The moment the “P” subject enters the conversation of Veterans claims, partisan bickering ensues as to which (of the two foremost political parties) is the “Veterans” Party. Which political behemoth best stands up for our rights? In truth, neither. Sorry to let the air out of your campaign balloons.

Let’s look at this from a neutral perspective. Over the years, certain things have happened to brighten our plight. I’ve seen pictures of my fellow brothers from Vietnam warehoused at a VA hospital in New York City after our “boundary dispute”  in the late 70’s caring for one another amid rats, feces and urine.June 2009 Ileostomy Were a Senator or Congressman of either persuasion to have encountered this back then, there would be no end to the subject until the practice was banished across the 56 VARO/VAMC mini-states of America. Having spent a year recently (2009-10) as a guest of the VAMC Seattle and enjoyed their surgery suites four times,  I can say our plight has improved significantly. Maybe not mine, but the majority certainly. Alas, not so the food but allowances must be made for the medical aspect.

Nevertheless, from a political perspective, no side in recent memory has been a true, staunch advocate- a defender of the disenfranchised minority- for more than a photo-op or a reelection strategy. Far too many politicians are all hat and no cowboy. I do take exception to that proclivity as far as my own Congressman ( Derek Kilmer) is concerned. I don’t need to blow his horn but he has been there for my friends and me each time we reached out. As most know, he was, and still is, the driving force behind my neighbor Butch Long’s quest for his medals and his long overdue VA compensation. Hell, he even volunteered to come over to my place and pin mine on me. He probably has a gazillion Vets in this district but he and his staff are all over a Vet’s problem like white on rice. I like that. He actually puts some mustard on that arcane, hackneyed and overused saw “Thank you for your Service to America.”

Talking with my friends and far neighbors on the Right Coast, this success at having your Congressmans’/Senators’ ear is not always as fruitful as imagined. Many, as I say, are more than happy to take the complaint and promise much. Delivery of the product is what we Vets look for. A callback that offers nothing more than “We passed on your concerns to the Veterans Administration representative in Seattle and they are looking into it. We will get back to you when we hear anything.” is nothing more than a panacea- a get out of jail free card than is useless.

We can probably conclude the malady afflicting our elected representatives that produces ennui and lip-whipping is not specifically indigenous to one party. My good friend Bruce of the Atlanta area tells me his elected representative(who doesn’t share the same political persuasion as Derek) is virtually emasculated when it comes to dealing with the VA. Too much “ol’ boy” networking. Why is that? What combination of manhood, what “do it because it’s the right thing to do”, what enervating impulse can produce such disparate results such that a member of the minority party in Congress, no less, who isn’t even on the House Veterans Appropriations Committee (HVAC), can move mountains for one of his constituents like Butch in such a brief time? Derek isn’t very imposing in person but you can see the iron in his eyes up close. No photo can capture that.

CaptureAs most know who read this blog fairly regularly, Butch’s path to a fair resolution of his injuries, not to mention his overdue medals, has been thwarted at every turn. Seattle’s Fort Fumble went so far as to dig deeply into Butch’s c-file (which they had to summons from St. Louis) and pull up a 40-year-old address to send his C&P exam notices to. Each time, he and I have turned to Congressman Kilmer and results are virtually instantaneous in VA time. As a test, I invite any one of you reading this to call your DC warrior(s) and see if you can produce the same. Surely one of you has a horror story hundreds or thousands of times more egregious? I read about all of you on VA’s Vantage Point so I know you’re out there.

Congressman Gitterdone

Congressman Gitterdone

Not since the time of Sen. Patty Murray’s tenure as the Head Honcho of the Veterans Affairs  have I seen such celerity. I could see it in her case. If Shinseki or his minions dawdled, he risked her ire and his funding. Congressman Kilmer doesn’t carry such a big stick- or any stick- I can discern. He’s not even on the HVAC.  Left with those parameters, we have to look to the man. I’m a one or two-issue voter, and with that narrow focus, I can readily see Kilmer as an asset. Can you say the same about yours? That is the acid test here. Don’t be swayed by the totality of a man’s beliefs to the exclusion of his being an asset versus a liability in any given instance. I console myself in knowing you can vote one way to get the best Veterans representative but sometimes still pick and chose others in Senatorial races that might appear to conflict. Remember, there are 535 of those critters in DC. Many cannot even agree in the same party on what the meaning of “is” is. I point to McCain-a Veteran and POW- as an example of one who cannot always be counted in our corner. Finding one to carry the water is a valuable voice.

If we were snail darters, our numbers would put us on the EPA’s most endangered species status. That’s no small feat. There are less that 855,000 Vietnam Veterans alone left alive. Our numbers shrink quickly these days. Of more import, the future of America’s military is once again shrinking as it did in the post-Vietnam era. That guarantees our invisibility soon as America returns to a peacetime economy and steels itself to the task of earning a living. All the yellow ribbons ’round  them oak trees will be folded up and put away. Life will return to normal. Dover AFB Delaware’s mortuary staffing levels will gradually subside. VA hospitals will once again fall into disarray. Waiting lists will grow with exotic electronic programs designed to call and let it ring once to divest themselves of the stupendous backlogs. Funding will increase and the Veterans’ cyclic downward spiral will return. Well, everywhere but in my neighborhood if my vote has anything to say about it.

This electoral season, vote #Vetlivesmatter. Vote for the politician of your choice, be he D, R, I or TEA. Vote for her/him because they promise to do that one thing that will keep America strong. In the immortal words of George Washington, who probably had seen far too many Large-hatted cowpokes by the time he let slip this:

“The willingness with which our young people are likely to

serve in any war, no matter how justified, shall be directly

proportional as to how they perceive veterans of earlier

wars were treated and appreciated by this country.”

Most folks who know me realize I’m not a parade-kind -of-guy. My focus in life is never to leave another Veteran behind. I look at VA justice as a perversion. The only way that process can exist is by the government allowing it-they condone it by their inaction. Any member of Congress who subscribes to that philosophy, even if the rest of their political platform is pure as the driven snow, is my enemy. If someone like Senator Bernie Sanders can plausibly say that the motives of the Phoenix VAMC bonus recipients busy killing 43 Veterans cannot be summarily condemned without a complete investigation- but says it six months after the revelation- is part of the problem. Sitting as the head VA Congressional poohbah makes it all the more egregious. Allowing Veterans to die on your watch should never be excused.

My teaching moment is simple. If you do vote for them next November and they don’t pass the audition, vote them out and try, try again. Eventually they get the message. I thank my lucky stars we in my own congressional district have been blessed for years with someone who is a far thinker like George Washington was. And remember. The test as to their worth is simple. Call them up and ask a favor. What do you have to lose?

P.S. For those keeping political score, I mentioned five figures. Kilmer, Sanders, Murray, McCain and President Washington. Not knowing what political persuasion Washington was, and as it is also immaterial due to his demise, let’s discount him and call it four. I disparaged one republican and one democrat. I gave a neutral treatment to one democrat and I praised one democrat. In the other Washington on the Left Coast, we are not required to register our political persuasion, but I most nearly identify with the conservative groups of America. I guess no one can say that was a ringing endorsement for the GOP, Rush or Fox News. I report. Then we get to vote.

Posted in Complaints Department, Congressional Influence | Tagged , , , , , , , , , , , , , , , , , , , , , , , , | Leave a comment

BVA–WHY VETS WILL NEVER ‘GET’ THERE

Posted on October 13, 2015 by asknod

prd_sm_199As in years past when I first began this blog as a teaching tool, I still love to use BVA decisions to illustrate what can go wrong. They  comprise approximately  70% of all published so there’s no dearth of them to pick from. Hepatitis ones always come up on the asknod radar as that’s what we do here. Here’s one that will roll your socks down. Twenty years invested in the drilling of this hole and it comes up dry. 

Consider Mr. Johnny Vet from Detroit or thereabouts. We all know the Detroit RO has the rudest, most intractable personnel in the 56 universes comprising AOJs.  Jez. Just ask Keith Roberts. Paralyzed Veterans of America (PVA) is repping our Mr. Vet in this. In fact, unless I miss my guess, they’ve been repping him since he filed all this in….early 1995? Ruh-oh, Rorge. Read on.

You can see he was drafted as he served two years from 1970 to 1972.  If he’d enlisted, he’d have been in for three. Chances are he served in SEA in the Army. See how easy this is? Now watch what happens on the hamster wheel. Down below in analysis, you see the third paragraph.

The evidence shows that the Veteran is currently service connected for residuals of a left fibula fracture (rated as 20 percent disabling from August 28, 2008 and as 10 percent disabling prior to that date) and hepatitis C (rated as 10 percent disabling from October 10, 2000); his combined rating is 10 percent prior to October 10, 2000, 20 percent from October 10, 2000, and 30 percent from August 28, 2008. Hence, at no point relevant to this appeal has the Veteran met the criteria for schedular TDIU as per 38 C.F.R. § 4.16(a).

That’s odd. VSO  Service Officers would never file a Form 21-8940 and ask for TDIU if the Vet wasn’t eligible… or would they? So, the score appears to be 10% for a fibula fracture in 1995-1996 and then 20% five years later in 2000. In addition, he picked up SC for his Hepatitis C in 2000 as well. That’s 30% which is woefully short of what he needs to be awarded the IU. All this time he should have been seeing the doctor and upping his rating for his hep as his disability increased. Instead, we read he’s pursuing a host of minor increases as well as a bunch of new claims. At this rate, he may get at least one 40% disability before he reaches room temperature at 90%. He’s the same age as me- about 64-65.

The Board also remanded the matters of entitlement to a rating in excess of 20 percent for residuals of a fracture of the left fibula as well as applications to reopen the claims for service connection for low back, lip hip, and left knee disabilities for issuance of a Statement of the Case, consistent with Manlicon v. West, 12 Vet. App. 238 (1999). In December 2013, the AOJ issued the Statement of the Case pertaining to these issues, and they were addressed again in a June 2014 Supplemental Statement of the Case. However, a VA Form 9, Substantive Appeal, is not of record. Accordingly, these matters are not before the Board.

Oh shit, oh dear. The Service Officer forgot to file a timely VA 9.  Here we go again. You can’t get this all rolled into one appeal without it. Seems that would dawn on someone at PVA before it left Detroit. They were wasting their time filing rebuttals to the SOC and not paying attention to the big picture. Knowing it’s the Detroit RO, PVA should have trailered this hoss up and shipped it to DC if for no other reason than to get it the hell out of Detroit. The AMC might have been the better choice with a waiver of review in the first instance. This c-file already has more miles on it than Voyager 1.

This claim came before the Board in July 1997, February 2000, August 2003, June 2006 and September 2007. The September 2007 Board decision denied the Veteran’s claims of entitlement to service connection for a low back disability, to include as secondary to a service-connected left ankle disability; entitlement to service connection for a left hip disability, to include as secondary to a service-connected left ankle disability; entitlement to service connection for a left knee disability, to include as secondary to a service-connected left ankle disability; and entitlement to TDIU. The Veteran subsequently submitted a notice of appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claim for TDIU. The Court issued a December 2008 Order vacating, in part, the September 2007 Board decision and remanding the appeal for readjudication consistent with the parties’ Joint Motion for Remand. In August 2009, the Board, and in conjunction with the parties’ Joint Motion for Remand and the Court’s Order, remanded the TDIU claim for additional development. In May 2012, the Board again remanded the matter of entitlement to a TDIU for additional development. The case has since returned to the Board for the purposes of appellate disposition. For the reasons stated below, the Agency of Original Jurisdiction (AOJ) complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Whoooo, doggies. That’s seven more claims if you throw in the TDIU. And go figure- 0/7. I would never start filing claims secondary to every bone from the ankle up. What the hey. Go for SMC L and say the whole shebang is shot. Loss of use. This is a recipe to entertain a whole ‘nother generation of PVA service reps. You just have to know Johnboy here has already gone through at least one. They retire after 20 years too, you know.

Next up? Attack the credibility of the Vet. I’m not suggesting one way or the other that he’s a goldbrick or the genuine article but I read this so often, I have to assume it’s predictable. If we were talking about the Hep C, it would be “Someone at the VAMC penciled in a note in the computerized VISTA records that he snorted cocaine a lot, but we couldn’t find out who wrote it in so we were unable to substantiate it.” Remember Phil Cushman?

A November 1996 VA examination report reflects that, as far as the fibula injury was concerned, there was no residual at that time and the functional loss as complained by the Veteran was subjective. The examiner noted that the movements seemed to be voluntarily resisted.

The examiner noted that the Veteran used a brace for left foot drop, and he also used a cane for balance. The examiner indicated that she could find no evidence to substantiate that the cane was required and prescribed for locomotion and functional mobility.

I’d be inclined to say the examiner’s comments were pretty subjective too considering Johnboy’s already rated for it now. That is a vicious attack that is immaterial and uncalled for- not to mention unsubstantiated.

Next we move on to the bait and switch. Remember, all the possible rating he needed to build to  get to 70% and a potential TDIU weren’t before the Board because the Einstein PVA rep. didn’t get them certified for appeal simultaneously. That means this whole charade was a milk run absent those other disabilities. The VLJ sums it up thusly:

Rather, the record reflects that the Veteran stopped working due to physical disability related to his ankle, left foot, lumbar spine and other musculoskeletal complaints.

Why, exactly. In fact, he’s collecting SSD or SSI for just those disabilities. Twenty years of litigation to get here and the PVA somehow disremembered to make sure Johnny had a nexus letter or letters to cover this contingency. You cannot depend on your SSA records or the VA Examiners to give you glowing medical diagnoses that confirm your ailments. It’s antithetical to their motto

For He Who Hath Borne The Battle

635646931319099161-veterans-administration-logo

…If He Can Prove it™

downloadThere. You have a wonderful teaching moment. Johnny leaned heavily on free VSOleaglezoom.com for his leagle beagle help. He got little or nothing and is still faced with another assault on Hamburger Hill as soon as he can snag a  VA 8 and a docket number. The waiting line outside 810 Varmint Lane NW currently stretches to about ten miles west of Louisville. As I said, Ruh-oh Rorge.

We expect to see him back there shortly in 2019. According to the 2014 BVA Year in Review, he’ll only have a short 235 days after that … if they can keep it out of the VSOs’ death grip. I hate to be the bearer of bad tidings but if the Johnmeister expects to prevail in this lifetime, he may want to transfer his flag to another legal entity-preferably one with a Juris Doctorate who does this for a living rather than a hobby. Twenty years with only 30% to show for it is like batting .080. I’d be embarrassed to go out in public with my PVA campaign hat on. File this one under Missing In Action.

Posted in BvA Decisions, BvA HCV decisions, TDIU, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , | 3 Comments

BVA–ANOTHER JETGUN WIN WITH GOOD NEXI

Posted on October 11, 2015 by asknod
bva

810 Yellow Brick Ave NW

We at asknod always have our ears peeled for anything useful coming out of the BVA decisions on Hepatitis C. In their haste to rush more decisions through with the ever-increasing numbers of appeals, the Board is shoveling these claims out the door at record speed. The encouraging news is many are winning…finally.

I try to find as many Hepatitis decisions as possible for the same age-old reason. BVA decisions were my sole source of education about legal proceedings, evidentiary requirements and techniques to win when I began. Furthermore, they continue to evolve and metamorphose in their denial logic.

The well has not run dry on the number of applicants. Certainly, the numbers of appellants has begun to decrease as we’re dying off more rapidly. Nevertheless, the number of true jetgun wins is astounding. Gone are the days of the BVA Veterans Law Judge (VLJ) blindly reciting a boilerplate denial concocted to fit every case.

I like to subscribe to the faery tale that Theresa’s Hadit.com® and asknod jointly are responsible for educating Veterans in the claims process. It certainly is a novel theorem but one that is supported by fact. More Vets nowadays know they need the Caluza/Shedden/ Hickson elements to win that in the whole of the 20th century. The only ones losing with regularity are those represented by VSOs. That is indisputable and easily proven by looking at how many repped by, say, DAV lose and the VLJ’s reasoning is because they arrived without a valid nexus.

Here’s another one that clearly reflects the last man standing technique. Johnny Vet hired a lawyer and presented two nexi on appeal. VA demurred and said it was too speculative to venture how he got it.  The important facet in not the attorney’s presence but the act of submitting to the VLJ after the appeal is certified. VARO weenies will never approve these jetgun claims so it’s smarter to submit the dynamite to the BVA.

http://www.va.gov/vetapp15/Files2/1517212.txt

A big round of applause is due Matthew D. Hill for a solid offense and a great win.

On the other hand, we are still seeing far to many of these:

http://www.va.gov/vetapp15/Files2/1516302.txt

FINDING OF FACT

The Veteran currently has hepatitis C, but there is no nexus 
between it and his service to include a hepatitis C risk factor 
therein.

Six years of patiently waiting for the big day and your “free” legal help arrives with no ammo. If this were an anomaly, everyone concerned would be outraged. Sadly, it happens about 75 times a day at 810 Vermin Ave. NW. That, my friends, is why we at asknod advocate you use a NOVA attorney if you are not well grounded in VA law. I’m the poster child for that stupidity. It took me almost 20 years and several trips to the Court of Appeals For Veterans Claims (CAVC)  to realize VA is not going to cave in- even when they know they’re holding a losing hand.

Posted in HCV Risks (documented), Jetgun BvA Decisions | Tagged , , , , , , , , , , , , , , , | 2 Comments