FAKE SOVALDI

Posted on July 18, 2015 by asknod

CaptureI have been asked to spread the word about a website (FacePlace, where else?) that is selling “fake” Sovaldi. I personally have no direct proof that this is indeed the case but it stands to reason that a sucker is born every day. It’s one of those “by invitation only” sites where you need the secret handshake. Check it out.

https://www.facebook.com/groups/443451385823142/

It seems like a cruel joke to play on anyone with the disease. It promotes false hope as well as divesting them of funds better spent on true relief. There is no magic panacea to remission of Hepatitis C. This is all the more true if you suffer from Genotypes 1A and 1B. Your chances  with success on Sovaldi alone are between slim and none. Of course, with fake Sovaldi, there is no chance whatsoever.

My Uncle Jay, while he was a Prisoner of War (or guest) of the Japanese during World War II, told me he’d pound aspirin tablets or quinine pills into a .30 calibre shell casing to approximate the shape of a pill to trade with his Japanese prisoners. He told them it was Penicillin so they could treat themselves for syphilis. If Japanese troops in war were that gullible, you can imagine the desperation and the lengths anyone would go to obtain a life-saving drug like Sovaldi. Don’t be one of those suckers born every day.

While it worked for me on a six month regimen, a large reason for my success with Sovaldi was the genotype. I have (or had) Genotype 3A indiginous to the Indochinese Peninsula at the time in 1970. 3A responds well to this all alone in conjunction with Ribavirin. As my autoimmune system is on DEFCON 1, I decided against the riba which is why I was able to do the whole six months.

There is no shortcut to this. I suppose  if you fly to India and are put on a carefully vetted regimen with a real Indian doctor and not a quack, you may be able to get Sovaldi there at a price of $10 a pill. It would still cost you more for the Riba. You would need to do it for six months which multiplies out to $1,680 for the Sovaldi alone. Now think about adding in medical visits, hotel, food and the riba. You’re still going to need some deep pockets and an honest doctor to make this pencil out. They aren’t just going to sell you 168 pills and wish you the best.

My belief is that the price will come down or you should avail yourselves of the Patient Access Network (PAN) as I did and pay it forward after you attain SVR. PAN is more than willing to accept donations. That’s how it works. Medicaid will pick it up in most cases and VA will eventually be able to if they can figure out how. Right now they have a few issues with putting VA’s budget in order and curtailing bonuses. The Phoenix Phiasco is going to haunt them for years to come when they show up on Capitol Hill begging for funding.  And then there’s the problem with VA’s construction arm. Seems they have a few loose nuts in development who can’t figure out a budget or the cost of widgits in Denver.

In short, please do not fall for “cheap” Sovaldi. Please be leery of signing up for a “medical vacation” in Bolivia where Sovoldi grows free on trees. Remember too, if you need it desperately, you can always call Gilead Sciences and plead your case. You’d be amazed to find out they have a heart in spite of all that hooey about them being intractable about price reductions or poverty cases.

There are far more options on the table than it would seem. Don’t opt for the Earl Schieb $99.95 paint job when you can get the real McCoy with a little sleuthing. Remember also that this field of medicine is in its infancy. Within five years this is going to be history. Cancer will undoubtedly be the next triumph. There is no shortcut to SVR. Fortunately, it doesn’t entail the horrors of Interferon now.

Posted in Sofosbuvir | Tagged , , , , , , , , , , , , , , , , | 3 Comments

CAVC–HUNT VS McDONALD–RED CLAY BETWEEN MY TOES

Posted on July 17, 2015 by asknod

vetcourtappealspromoI shudder to think how many of us who served in Vietnam have hit the wall when they tell you your Agent Orange claim cannot stand because you simply were not there. This is a default setting-one assumed before any cursory examination is even undertaken to determine if your really were. For some, they actually made an effort to find out. In certain instances, like mine, a hurried general discharge with no research left me with a DD-214 devoid of that determination. Mine said RVN–No ; SEA–yes. It took me thirteen years to prove it. Here, Mr. William S. Hunt made a similar Agent Orange claim in 2004 when the shitstorm of diseases began to rain down on him. Peripheral neuropathy and glaucoma were just the beginning. 

th (2)Willie was actually filing for Bent Brain syndrome when he started telling the VA weenies about going ashore for the booze/mail runs. He politely called the cherchez la femmes  expeditions “going ashore” parties or someone had to [expletive replaced] it to clean it up for Brother Greenberg. At any rate, he was doing what a lot of us did. Normal stuff that entails going ashore or flying in from another country like Thailand or Laos to report to 7th AF TAC Air Combat Control. Lots of times (read virtually all times), it was done on the fly. You might pack light and take your shot records if you were going through Aerial Ports of Entrys like Bangkok or Saigon because nobody went anywhere without them. You simply could not get on board a plane headed to Tan Son Nhut without proof of a vaccination for cholera and Yellow fever.

Willie didn’t get orders cut to go ashore. Why would he? It wasn’t like PCS or a change of where you hung your uniforms. It was a Gilligan 3-hour tour thing. VA assumes you are a liar and a cheat and would do anything to get that golden presumptive for herbicides. Being an ex-Marine is not a bye, either.

Thus, simple lay testimony that would certainly incorporate the 38 USC 1154(a) interpretation is suspect without some magic corroborating evidence to buttress it- until now. I’m waiting for McDonald’s henchmen to ask for either a CAVC panel or a quick trip up to the Fed. Circuit to put an end to this hooey. 1154(a) the orphan sister of it’s combat enhancement 1154(b) still has enough mustard on it to make it applicable.

 (a) The Secretary shall include in the regulations pertaining to service-connection of disabilities

1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence

The crime committed was simple. Willie showed up at the CAVC in 2010 appealing his BVA necktie party. All parties concerned (Willies’s atty. and the 027 OGC weenies) immediately agreed they took a phrase out of context and disunderstood it accidentally as they somehow do. Try this. Willie says “I was fighting the fire so I never left the ship.” VA turns that into a word-searchable snippet and says he admitted in his own words that he had never set foot on the land mass known as the Republic of South Vietnam. Ever. With a wonderful Joint Motion For Remand (JMR) to correct this obvious error, the BVA merely reaffirmed it and used the same logic. This is getting pretty brave on BVA Judge John Crowley’s part. He has just slapped the CAVC JMR down and reimposed his denial with no new logical basis for it. Willie wasn’t there because Willie said he wasn’t there. And no, it wasn’t taken out of context. Suck on that, Greenberg.

The CAVC wasn’t very impressed with Crowleys’s behaviour and promptly (in CAVC time) remanded it back again to discuss Judge Crowley’s theories the former Marine’s statement that he had been ashore numerous times on business and, mayhap, pleasure as well. You can tell the Vermin Avenue krewe is looking over Willie’s shoulder and seeing a tsunami of Vets approaching if they let Willie through the door. If lay testimony is suddenly all it takes to prove boots on the ground in Nam, VA is in a world of shit.

th (1)In 2010, the US Census revealed an interesting statistic. 10.2 million of us male Americans, and maybe even a few women, claimed they had indeed served faithfully in country. Keep in mind that up to now VA has artificially suppressed the number of Vets who claim to have been in country (2.9 million) by requiring proof (divorce papers, speeding tickets, a three day stay at the Long Binh home for wayward youth,  TDY orders- hell, anything that would put you there on paper). No one has ever beaten the game solo based solely on lay testimony. Willie was asking them to accept just that. You can see a precedent slipping away. Pretty soon those other 7.3 million Vets are gonna show up and want their AO presumption. Cap’n. The gooks are inside the wire! Whadda we do?

Sure enough, Crowley was handed his marching orders by Leigh Bradley and had to deny again like the cock crowing three times before it went back up to Greenberg. Greenberg didn’t like this. He said ‘I’m gonna get that boy’. This is how bad it got. Crowley actually published this with a straight face. He must be related to VLJ Hindin. Greenberg, not to be outdone, published his with a straight face too, but he used precedence to affirm his take on it-not blind denial for the sake of preventing a gullywasher.

On February 20, 2014, the Board again denied the appellant’s claims for service connection and secondary service connection, finding that the appellant had neither demonstrated that he set foot on the ground in Vietnam for the purposes of presumptive exposure to Agent Orange, nor had he demonstrated actual exposure to Agent Orange. The Board found that the appellant’s descriptions of his service on board smaller craft did not include an explicit account of setting foot on shore, despite the appellant’s understanding that “evidence of his presence on the ground in Vietnam was of utmost importance.” The Board interpreted the appellant’s phrases such as “we . . . landed several times on shore,” “[we] had a few going to shore parties,” and “[we] would take people, American[s], off shore and back to ship” as vague, and found that they failed to provide “specific details supporting the Veteran’s presence onshore or what activities he performed ashore.”

th

going ashore party

Seems mighty clear to me. The word that gave it away to me here was the various permutations of the word “shore” but the most important error is overlooked. Who gives a rat’s ass why he went ashore or for what reason? That is immaterial. The former Marine, under oath and the threat of punishment for lying, credibly testified he went ashore. Period. That’s pretty explicit in the country I come from. What’s more, he offered several reasons and mind you, all these were before he ever even filed for AO. That, in Black’s Law book means he was not using it for nefarious purposes or to pad the record.

My only regret is that a fellow Vietnam Vet had to wait for eleven years to gain that distinction and presumptive exposure. VA consistently evokes the nonadversarial line but who among us can see this as anything but? Not once but three times. Here’s the CAVC reversal and Crowley’s third BVA necktie party.

Hunt reversal

Hunt BVA hanging

Keep this decision in you inbox for AO claims. And a warm thank you to Nicholas L. Phinney  Esq. for his most excellent law dog  performance. He’s working out of the Chisholm, Chisholm & Kilpatrick Stable so this isn’t a huge surprise. That also might sound inconsequential before Greenberg but old Nick here just set a tepid precedent of sorts. If you’re from St. Petersburg, turn that into “sitting a president” to understand it, hear?

 

Posted in AO, CAVC/COVA Decision, Lay testimony, Medical News, Nexus Information, Remanded claims, Tips and Tricks, Veterans Law, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , | 3 Comments

THE ENIGMA OF VA TIME

Posted on July 15, 2015 by asknod
500 day VA calendar for DRO reviews.

500 day VA calendar for DRO reviews.

On average, on my email, I receive more mail asking me how long it will take versus any other subject besides “How high do you think they’ll rate me?” To both questions, I of course go out, slay the virgin hen in the henhouse and study her entrails. That’s why I charge $10 a pop for this. No. All funnin’ aside (the OGC might think I do it for a living), I use the coffee filter technique and it’s never failed me yet. 

We still shop at the restaurant supply place where they have the five foot long, uncut Fred Flintstone  half racks of Brontosaurus ribs. They also happen to be one of the few who carry commercial Bunn® coffee filters. If you’re one of those impatient people in the world who wants 10 cups now, it’s for you. It’s the Binford® of coffee machines. Mooooore power. More to the point, they only come in 500 round clips. Since I only make one pot a day, it’s an accurate measurement of time. Timing this year would have it that I bought the above a week after the VLJ Travel Board hearing on April 29th.

I’m on my second Bunn and sixth pack since I filed in February 2007. Our water here is very tasty… and acidic. It tends to be hard on hot water appliances but the taste trade off and being odor-free is worth it. 3,000 filters and I’m still not finished with my claims. A great way to count days too-2,920.

Time in VAland

VA worker bees see much hardship and  many homeless Vets. Some of you filing increases for meniscus of the knee from 10 to 30% don’t understand that a rater can be pulled off your claim to work a huge influx of Parkinson’s  AO presumptives in Seattle if the local TV station runs a special on Agent Orange. I compare it to the military. If they had an A/C taking off at the Aerial Port and you were in line, it meant nothing if five wounded guys showed up in a meat wagon. Now carry that analogy to a constant stream coming in ones and twos for medical or financial reasons or the Congressional Interests Section getting calls from Georgia every five minutes and you have a recipe for mayhem. Stir in a slow VBMS hookup and you feel like you’re in 1995 dialup land. Nothing can get done. Interruptions are the norm rather than the exception. And then the new VASEC says “Hey. Here’s my number.” to 3 million Vets.

Many of you have tried the “Call me Bob. Here’s my number” or Brigadier General Allison Hickey. Virtually all of you have essentially called “Congressional Interests” and the proper RO Section at your local Fort Fumble has called you and taken time to suddenly “fix” something that has been amiss for months, years or decades. Almost all of you over at Hadit.com are publishing their telephone successes in a forum there. What I wonder is quite simple. If VAROs are hopelessly swamped, what exactly ensues that warps the time vortex back upon itself such that a repair order is promulgated at the speed of light? I refer to the speed with which the funds appear in your bank account.

I suspect that one of you Vets still standing in the queue for a DRO review are being supplanted by the use of Call me Bob’s email addy. Face it. In a system that admittedly is backlogged out 200+++ days for even an initial up or down, if someone calls and gets his/her dependency issues ironed out after waiting 15 months, some one or more of us must have to take a new number. I think they borrowed it from Deputy  Board Mistress Laura Eskinazi. If it looks like a rocket docket, and it quacks like a rocket docket then it’s probably a reasonable facsimile of one especially bred for VAROs. Virtually all who talk with me say they are personally contacted by a DRO who is now doing something other than what she was slated to do today…

Getting bumped off the A/C is all well and fine but eventually something has to give. What we have here is a George Orwell Animal Farm construction where some pigs are “more equal” than other pigs. The pig smart enough to use a computer is now advanced in line ahead of a World War II Vet asking for SMC L or M or trying to get A&A for his wife.

I am ashamed to admit it but my father, as Commander of 5th Air Force in Fuchu Japan  sometimes managed to just have a T-33 or an RF -4C that happened to be in front of Base Ops  sometimes if I needed to get over to Cam Ranh in a hurry. I would normally have trotted over to 6th AP of Entry and waited for the next Klong flight. This is no different. The analogy is exact. I certainly have no gripe with Vets who choose to do this. I, myself, led the charge last September but it backfired. I received a haughty chuckle and a SOC six days later when I suggested an earlier effective date for SMC of April 1994.

The majority of Vets I’ve suggested it to have availed themselves of it to varying degrees of success. I’d estimate it’s running 71% to the good. Were it only for application like a writ where the wait time has to be over two years, it might make sense. Were it to apply this way to a homeless Vet in six days would be too cool for school. Somehow, I do not see that happening.

Time is more than an enigma at VA. Every day is hump day to the next. Overtime is normal for Saturdays. Mistakes are becoming endemic because they have created a nightmare computer hybrid that argues with itself. Every time they need to actually bite the bullet and get one big fancy Cray Cadillac, they cheap out and add another peripheral on top of Virtual VA. VBMS is slower than the seven year itch in Sioux Falls from what we hear- that is, when it’s up.

Time in real terms at the VA is immaterial. Being the only Veterans Life Insurance Company in town, They’ll get it done when they damn well feel like it—unless Bob or Allison’s chiefs of staff call up and want an in-depth briefing on Johnny Homeless Vet in 20 minutes from the VSCM. All of a sudden, faster than a speeding bullet, more powerful than a 100 gig Windows 21 Superputer, VBA gears up and does what Allstate does. And Geico does. And USAA does. They fix the problem in a few days.

small-farmers.inferior correct jpg

We know they can do it. Call me Bob shamed them into it after the Phoenix Phiasco. As for General Hickey’s promise of 125-day ratings with 98% accuracy, I am concerned. She genuinely has created a sea change and begun improving the air of indifference among employees. Whether it was Six Sigma, Rolfing or EST, we don’t care. If that enthusiasm and verve would just percolate down to the AOJs we’d be ecstatic. Happy raters produce more ratings. Eventually, they’ll be given realtime tools to adjudicate with in order to quell this ebennies demand for instant status reports at all hours of the day or night.

I propose an APP that automatically keeps you connected to ebennies throughout the pendency of the claim including the Appeal. Each Vet will be assigned an Advocate. You can leave a text message for the CA (Claims Advocate) to tell him what you’re doing today and a video of your cat tipping the flower vase over this morning. He can in turn ignore you or wreck your whole day and type in one of those 😦 thingies. Hey, go figure. Maybe I could create it myself and get insanely wealthy. The point here is to take the sting out of time and create a distraction that absorbs it. Bored Vets are unhappy Vets. In this new instant knowledge world we inhabit, idle thumbs are the devil’s workshop. We need constant input to fend off boredom. Simply knowing that the CA is at least receiving your babble is paramount to assurances that (s)he feels your angst and is pretending to be your BFF. You could share your Advocate’s selfie with your close friends and put it on Facebook. You could ‘friend’ your CA. The options to whittle down time into small, digestible blocks are endless. I’ll leave it to your imagination.

P.S. Yes. You guessed it. I had a phlebotomy today. Hey, I search for humor wherever my oxygen starved brain can find it.

\\!//
(o o)
–oOOo-(_)-oOOo–

Posted in Food for thought, General Messages, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , , , , , , , , | 4 Comments

About those urine samples

Posted on July 14, 2015 by Laura
urine cup

Image: NIH.gov

It’s hard for my old Marine not to get offended when every year his VA doc tests him for illicit drug use.  (His private docs NEVER test him for them.) The screening panel is extensive:  

Amphetamines; Barbiturates; Benzodiazepines; Cannabinoids;  Cocaine; Methadone; Opiates; Phencyclidines; Ethanol; Oxycodone; Burprenorphine. 

His results are always normal/appropriate (one prescribed RX) so why subject him to this belittling ritual? Is this suspicion-based testing based on his service in Vietnam perhaps?

In many states, drug testing is mandatory if one receives food assistance (SNAP) or Temporary Assistance to Needy Families (TANF). (LINK).  Here are the mean states:

At least thirteen states have passed legislation regarding drug testing or screening for public assistance applicants or recipients (Alabama, Arkansas, Arizona, Florida, Georgia, Kansas, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, Tennessee and Utah)

In Wisconsin, Gov. Walker wants to conduct drug testing for state unemployment benefits as is practiced in some other states. What next?

There can be valid reasons for the VA to test various drug panels since some physicians may be over-dosing patients (LINK) or if patients aren’t taking their medication.  But still, the cost to state taxpayers of these bodily-fluid searches is considerable (LINK) and one can’t help but think that the VA could better spend its limited dollars in more useful ways to help veterans rather than bother veterans with drug tests (random or routine) without good cause. The ACLU has up-to-date information if you wish to consider the ramifications of drug testing vis-a-vis our constitutional rights.  Has anyone ever declined a VA drug test?  I wonder what punishment would be meted out if so.

Posted in Guest authors, Gulf War Issues, Medical News, VA Medical Mysteries Explained, vA news, VA statistics | Tagged , , , , , , , , , , , , , , , , , , , , , , , | 5 Comments

CAVC–GOING FOR THE ATTORNEY’S EAJA ON EXTRAORDINARY WRIT

Posted on July 14, 2015 by asknod

vetcourtappealspromoThis is pretty funny. Hell, no. It’s a riot. Rarely in the history of Extraordinary Writs have petitioners (me) prevailed on all counts and made off with Monty’s Cookie Jar. It just doesn’t happen. If you asked VA to issue a SOC when they have been extremely recalcitrant about doing so for 3 years, there still is no money that trades hands. Just a long overdue response. The Court and VA have been monolithic in denying EAJA in Writ cases.

Of course, no one has attempted quite what I did in the way I did it.  In my case it was SMC S to 1994 and a few new ratings and some CUE clawbacks. The monetary take was over 60-odd thousand and therein lies the rub. If an attorney “substantially prevails” as LawBob Squarepants did and is remunerated at the 20% rate, he has “earned” his EAJA or Equal Access to Justice Act funds. VA has, to date, never paid anything to an attorney for repping a Vet at the CAVC on a Writ. LawBob and I don’t see it that way this time. It cost me personally about $400 and loose change in printing and postage to “writ” this up. I don’t get to charge for my research and cutting edge legal theories. Bob wrote many a new interim filing to clarify the Writ’s thrust and to report substantial compliance for the relief sought as it occurred in real time.

thAnd now it comes time to pay the piper. VA is speechless. 45 days have been begged for and granted to riff madly through Westlaw in search of cites to avoid paying LawBob’s $3900 bucks worth of EAJA. At $59 a minute, Westlaw research adds up. Forty five days of  OGC attorneys logged on to Westlaw tearing their hair out looking for a way out of paying. Hell, I’d pay $10 just to read their answer. Fortunately we’ll all get to read it for free but we’ll have to wait until almost Labor day because:

Due to numerous pressing deadlines, additional time is necessary for the completion of review of the [EAJA] application as well as the drafting and review of a response. An additional 45 days are requested for this purpose.

lawbob eaja

45 day plea for help

Hundreds of NOVA attorneys, including whoever it is that watches over Gene Groves’ well-being will be waiting for this response. One thing is for certain. Collectively, VA will probably pay over $70,000 in wages on staff attorneys and research in order to avoid an ugly $3,904 EAJA precedent. Such are the ways of the nonadversarial folks down at OGC 027 .

Posted in CAVC Knowledge, CAVC ruling, EAJA, Extraordinary Writs of Mandamus | Tagged , , , , , , , , , , , , , , , , , , | 4 Comments

RED SHIRT FRIDAYS COMING-REMEMBER THOSE DEPLOYED

Posted on July 14, 2015 by asknod

DSC01260Cupcake attended a Veterans Real Estate event last week and we’re armed and dangerous. From now on, wear red on Friday if you would. You’ll also spot kindred spirits and other Vets that way. In addition, I spotted this on the FacePlace news feed we run here. If it’s about Vets, it’s fit to print.

 

Buy a beer the next time you’re out. Leave no one behind. Until they all come home. We don’t care if its 45 years late in a pine box either. We just want them back.

DSC01261

Posted in All about Veterans, Food for thought, Future Veterans, KP Veterans | Tagged , , , , , , , , , , , , , , , , , , , , , | Leave a comment

CAVC–PARSONS vs McDONALD–I THINK I’M TURNING JAPANESE ATLEASTITHINKSO

Posted on July 13, 2015 by asknod

vetcourtappealspromoCatchy song that. I can almost see the look on Ivor R. Parsons face when he got the hearing lollipop for 0% back in 1971. He might have even said “What about that ringie thing in my left ear? It’s kinda in my right one now, too.” I’m equally sure his DAV/AL/VFW (pick only one) minder said “Ivor, you won but I’d hold up if’n I was you. You don’t want them to think you’re greedy. Best take that 0% and we’ll come back in a few years to ask for the tinnitus again. After that, maybe we’ll ask them for some money.” 

Here’s the case

ParsonsIR_14-2033

Meet Ivor the gullible. He came back in 1998 for a do over on the tinnitus but due to one of those “Phoenix-type scheduling snafus”, VA ascertained he had “called to withdraw the claim.” Right. That’s VAspeak for we forgot to do this one so let’s wipe the board clean. They did. They scheduled him for a C&P which he didn’t attend. I’m betting that letter went to the address of record on his DD 214. And he didn’t appeal again. Seems odd to go to all that work to refile and then  cancel out with a phone call. What’s even odder is that there’s no real paper trail of that on his part. We’re simply expected to believe this faery tale of Uncle Victor’s.

Fast forward to 2009. Ivor has been to school and is back. Meet Ivor the Pro Se invincible. By now, he’s realized he’s been had. No more Mr. Nice guy. He files with good stuff- well-you know VA hearing claims. You can be deaf as a post in one ear and 40% down the road on the other before they consider it a minor impairment. Mr. Parsons had tinnitus all over his STRs and now good private records showing chronicity in the 2009 reopen. VA screws up and continues the 0% popsicle for hearing but again ignores clear and unmistakable evidence (indeed a filing for) of his tinnitus.  And Ivor called them on it. I know the feeling. You carefully lay it all out at the BVA videoconference hearing in English and you get a decision back two years later couched in Japanese. I’m sure Ivor must have turned to his wife as I did numerous times and asked “Do you understand what I’m saying?  I have to ask because it seems my ability to convey my thoughts is failing me. Either that or they are purposefully ignoring the thrust of the appeal.”

thAbout now, he’s beginning to think he’s speaking Japanese because VA is preparing to play the three card monte on him. Now you see it now you don’t. Where’s the ace? Ivor quickly laid a NOD on them a month later pointing out that the tinnitus rating was still hanging. VA didn’t even blink. They handed him back a SOC six months later but it still didn’t even mention ear ring. He just as quickly submitted new evidence to rebut the SOC and reiterate the tinnitus claim all over anew. Wonder of wonders. Some AFGE wunderkind rater finally noticed it. They granted the tinnitus for 10% almost overnight. No C&P. No nothing. When that happens, you better stay in well-lit areas and move your wallet to a front pocket. Of course, Mr. Parsons was not going to get his money back to 1971. Shoo doggies. No way.

Having finally hit the Lotto for about $4500 worth of 10% tinnitus chump change, Ivor saddled up a new NOD for 1971. VA played dumb and said “We don’t see any claim for tinnitus in 71. That was a hearing loss claim. You didn’t file for the tinnitus until 2009. And this is where the teaching moment begins. I call this malfeasance. VA considers it an unfortunate misunderstanding. Were that the case, we’d have to do remedial Phonics© for all the raters to help them sound out “reopen”.

VA would have you believe, and they also managed to do an end run around the CAVC and Fed Circus on this, that ‘implied’ or ‘implicit denials’ can be discerned simply by their absence in a decision. Yeppers. We didn’t forget to adjudicate it. We just forgot to mention it. Any Vet with an ounce of deductive logic could clearly see there was no grant for tinnitus in 1971. Therefore, VA’s logic dictates that it was denied even if it wasn’t “explicitly stated”. Old decisions, especially denials  before the VJRA, were brief,  one sentence affairs. ‘TY4YS and we were unable to grant that stuff. If you get your shit together in the future, you come on back, hear?

Ivor wasn’t buying this hooey and filed his Form 9. He subscribed to the belief that if you file for something, you get an up or down on each element. They gave him half the cake and demurred on the other half. In Ivor’s mind, that tinnitus was still ripe for a decision in 2010. And, as most of you know in VAland, they are not about to start cutting big checks without a big fight. They called in all those 500 leagle beagle staff attorneys at the BVA to carefully craft a durable denial. But, just like a Hollywood set with fake veneers, it all came tumbling down.

Veterans Law Judge Tom O’Shay, usually a stand up judge, fell into the gravitational pull of the OGC and signed off on what is undoubtedly one of the more convoluted, piss poor stories they’ve crafted down at the corner of Delay and Deny Ave. NW. Sister Mary Schoelen must have gotten the vapors reading of the shenanigans they pulled. Fortunately for Ivor, being pro se has a silver lining. They have to treat you with kid gloves. And if they pile on with the implicit denial trick, the rules dramatically change.

Back in 2007, this whole implicit denial game went against Veterans in a line of cases beginning with Ingram v. Nicholson. It gained momentum with Adams v. Shinseki at the Fed Circus  again and finally became de rigeur with Cogburn v. Shinseki at the CAVC. Ingram held:

“where an RO decision discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not ‘specifically’ deny that claim“

However, Cogburn added some necessary parameters for this Texas necktie party.

(1) The relatedness of the claims

(2) whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied

(3) the timing of the claims

(4) whether the claimant is represented.

Obviously, hearing loss and tinnitus travel in pairs so (1) is met. Since there was no mention whatsoever let alone any reference to tinnitus, (2) hasn’t been substantially fulfilled. Both claims were filed simultaneously in 1971 so (3) is ironclad. Both issues had to be addressed but were not. And last but not least, Ivor was not represented because the Court has rightfully acknowledged that representation by a VSO such as Mr. Parson’s American Legion representative does not constitute representation in VAland. Having 50 hours on the CLE clock with your local VSO doesn’t cut it. Lacking the magic words Juris Doctor after your name makes you little more than a janitor at the legal firm where you work. What’s more, the BVA and O’Shay knew all this and skated around it or simply ignored it.

The whole business of what constitutes deemed denial only needs one acid test-(4). Failing that, you as a Vet are defenseless. Words like adversarial begin to populate the discussion. In Ivor’s case, Sister Mary began to pepper in a few “What were you thinking?”s and “You ignored (1), (3) and (4)”.

Implied denial is a game with set rules just like CUE. All of them must be met in order to prevail. Paying lip service to them is futile when you encounter a superior judicial intellect with an open mind like Sister Mary.

Judge Schoelen also artfully disentangled Ivor from his “late in the day” claim of CUE in the 1971 adjudication. Since he didn’t bring it up until he got to the BVA, it was moot. A CUE claim must be lodged at the Agency of Jurisdiction if it was never appealed. VLJ O’Shay really stepped on his necktie by even entertaining the motion in the first instance as he had no authority to do so. This allows Ivor to preserve that option for another day and frees Judge Schoelen to give his real claim from 1971 the introspection it so richly deserved.

In this day and age, we often think justice is steeped in tradition and errors are few and far between in the hallowed halls of 810 Vermin Ave. NW. Nothing could be further from the truth. The quality of justice there is spotty at best and borders on misfeasance on any given day. The CAVC isn’t much better if you draw the short straw and get a gomer with a tee time that conflicts with your brief. I personally feel they don’t even truly read them until they get to the CAVC and instead, merely plagiarize the last SOC or SSOC for enough verbiage to construct another denial.

Implicit denial is virtually a thing of the past. VA is getting anal about  constructing bulletproof appeals decisions. In Ivor’s case , they just didn’t have enough material to work with and Saint Mary did the famous knick knack paddy whack on the OGC.

A law dog’s takaway from this is elementary. Timelines once again intrude into the legitimacy of the logic. Redenying a 1971 claim in 1999 is fine but you have to use the old laws of a well-grounded claim and whether new and material evidence was introduced. Again, without a BVA decision giving the cachet of finality, and with a claim still ripe for a decision, you, as a BVA judge have to tread very lightly and make sure you’re on firm legal ground. O’Shay and his compadres went at this like bulls in a china shop with no regard for contemporary VA law of the time in 1999. They tried to cut and paste 2015 onto 1999 and it didn’t fly.

The real miracle in my book  is that Ivor did this pro se. Why not? Seems like everything else he tried turned to Japanese.

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THE MOUSE DISPENSER

Posted on July 13, 2015 by asknod

kittyOver the last four years since my feral kitty Ambush rolled in on Labor Day 2011, I have noticed her frequently hanging around what is called a D-box or distribution box that contains valves to regulate the amount of water injected into our septic drainfield. I piled a large number of rocks adjacent to it to keep the horses from stepping on it and breaking it. I figured it was one of those feng shui things where cats find that perfect place to meditate.

I have also noticed Ambush has an inordinate number of mice friends that come over for play dates on sunny days. For the most part, they don’t survive the encounter but I’ve never understood why she has so many for friends in spite of her lethal roughhousing with them. Seems they’d learn it was deleterious to their health and warn their friends to steer clear. She has a distressing habit akin to the Queen of Hearts in the Alice in Wonderland saga-Off with their heads.

DSC01256While out scooping poop the other day, I spotted some of my Cooper Horse’s mane I had recently trimmed to make his bridle sit more comfortably on his noggin. It had migrated 40 yards down to the d-box. Curious, I opened it up and Voila! The mouse house. Seems Ambush just has to sit there for a while until the mice come out to play. It’s user friendly. No buttons to push. I can only presume she thinks this is the smartest invention since sliced bread. Why spend hours lying in wait for the Meadowlarks who nest in the the barn to make the fatal flaw of flying past her too closely when she can merely stroll down to the mouse dispenser in the lower pasture and wait for her playmates to issue forth?

the mouse dispenser

the mouse dispenser

The mouse house:

The mouse house

The mouse house

Posted in Humor | Tagged , , , , , , , , , , , , , , , , , , | 4 Comments

THOMAS JEFFERSON MEMORIAL TO COME DOWN IN DC

Posted on July 12, 2015 by asknod

th (1)In a nod to the growing chorus of voices denouncing slavery and racism, President Obama signed an Executive Order yesterday directing the  D.C. Parks Commission to begin immediate destruction and removal of the Jefferson Memorial. “Many feel the Memorial glorifies slave ownership and prevents us as a Nation from moving past our inglorious past.”  the President said adding it stands for values Americans no longer respect or condone.

In conjunction with this move, government officials are taking an inventory of anything on Government property that signifies acquiescence to racism-both blatant and subtle. Many statues in southern states will be similarly slated for destruction or removal if they reside on federal property. Failing that, state and municipal governments will be coerced into removing them under threats of reduced federal spending.

th (2)Memphis, Tennessee mayor A.C. Wharton and his city council made the first overture and voted to remove a statue of General Nathan Bedford Forrest who epitomizes racism via his participation in the Ku Klux Klan. Not satisfied with that, they also propose digging him and his wife up and moving them out of the town square. Where they will end up is anyone’s guess.

The Very Reverends Al Sharpton and Jesse Jackson were on hand for the signing ceremony yesterday in the Rose Garden and wholeheartedly endorsed the President’s decision. Many feel these actions are long overdue and the removal will only strengthen ties between African Americans and white folks. We applaud the removal of the Confederate Battle flag from the Statehouse grounds in Columbia, South Carolina on Friday. It’s removal across the south and any last vestiges of the Confederacy are expected to completely eliminate racism as we now know it according to the President.

Amid rumors that Mississippi will be excommunicated from the United States soon over their continued use of this contentious symbol of racism, state legislators there are hurriedly making plans to convene and choose a new flag. Several selections have been vetted and the unanimous choice appears to be one that everyone can identify with…

th (3)

Proposed new State flag for Mississippi.

P.S. This post is meant as humor. No one here at asknod is racist or believes for a minute that what is afoot across the south is uncalled for. The Confederacy was a statement about states’ rights versus federal rights. That disagreement has been settled and it’s time to move on. As for contentious flags or statues, we find these talismans and touchstones to be innocuous at best and an argument looking for a place to happen in their worst context. It is sad to see Americans at odds with one another over something that no longer exists. My son best exemplified this as “Cry me a river, build me a bridge and let’s get over it.” If the removal of the flag would save one life, it would be worth it. As for tearing down statues and monuments, I don’t see the correlation. I guess I personally would sum it up as a futile gesture to appease the political correctness that infects society these days. However, it does seem to be all the rage.  My concern is that some day it will be unlawful to have it (a Confederate flag decal) in your rear window. For the record, I don’t nor do I even own one. And that’s all I’m going to say about that.

Posted in Humor | Tagged , , , , , , , , , , , , , , , , , , , , | 8 Comments

CAVC–BERAUD V. McDONALD–BERAUD III-SISTER MEG’S PANEL OF ONE

Posted on July 10, 2015 by asknod

Having received the bitchslap from the vetcourtappealspromoFederal Circus, Judge Lance and Coral Wong pulled the eject handle and left Sister Meg Bartley in the cockpit to handle this do over. And well they might as Sister Meg was the lone dissenter. I wrote these up several years ago when NVLSP attorney Amy Odom took Leonard up to the Fed Circus in 2013 after Lance and Wong erroneously denied him. 

https://asknod.wordpress.com/2013/05/16/cavc-beraud-v-shinseki-meg-bartley-to-the-rescue/

https://asknod.wordpress.com/2014/09/13/fed-circus-beraud-v-mcdonald-justice-interuptus-ii/

It’s always scarey going up to the CAVC but to have them turn this into hamburger helper was uncalled for- let alone unprofessional. This is why good attorneys use a timeline. When did it happen? Then what? What did VA do next? Was the duty to assist accomplished? Why not? Examine all the dates to confirm the timely compliance with all requests. Somebody failed this important test and we can only assume it was the slipshod clerks in either Alan’s or Coral’s office.

Sister Meg didn’t have any problem discovering it. She more than succinctly explained her dissent in DickandJanespeak but her compadres were not buying. Now that she’s been vindicated, they have promptly bailed out and left her to her own devices. Personally, I think Greg Block should have made Judge Lance grovel and explain his illogical, tortured reversal of why Mr. Beraud was now entitled to a new decision at the BVA. What the hey? Lance was the one who filed the opinion of the  Court panel. Seems only fair that he should be the one to suck it up (and man up). But nooooooooooooooooooooooo. They made a woman sweep up the mess-the very one who pointed out the problem.

Beraud panel haircut to single judge

Beraud reversal

th

Run, Lenny. Run!

And yes, you read that right. Old Lenny is back (again) in BVA court on the hamster wheel once again rehashing the 1985 CUE mistake or whatever VA would like to characterize it as. Technically, it’s a carbon copy of my dilemma- a 3.156(b) violation. If you supply VA with the needed information on where it’s located within the golden year following the denial, it constitutes new and material evidence filed within that window and requires a de novo adjudication. In Beraud’s case, they just denied again without giving him enough time to answer after asking him if (and where) they might find any new evidence that would clarify the claim.  The original error that  Lance and Wong glossed over so blithely was the VA said they’d hold the adjudication open for a month but nevertheless slammed the door shut about 17 days later. Since the VA raters gave him the headache owie for 50% back to 2004, it’s pretty much a given they are going to have to go back to the 1985 date as Leonard told them in 1985 where to go to find the STRs. But then you don’t know the VA. It appears they still haven’t even gotten off their lazy asses and sent a note to Lenny’s old Florida Nasty Guard unit asking for them as I write this. And we wonder why it takes a lifetime to get the record straight. I’m in my twenty first year and am back at the BVA on my third appeal of a 1994 necktie party. Poor Leonard has thirty years into this and is now on the way back down and headed into another two years minimum.

Backlog? What backlog? The system is working just exactly as preconceived in the 1989 VJRA. Justice delayed is not justice denied. I don’t understand why you fellow Vets have difficulty absorbing that concept. VA want to get it right and sometimes that takes time. Lots of it.

Posted in 38 CFR § 3.156(b), Earlier Effective dates, Fed. Cir. & Supreme Ct. | Tagged , , , , , , , , , , , , , , , , , , | 2 Comments