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

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

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

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

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

ILP–SILVER QUEEN UPDATE FOR VLJ

635646931319099161-veterans-administration-logoLaugh if you will but I made sure I included the Asknod website in my Travel Board hearing briefing. Judge Vito Clemente is well aware of the website and my proclivity to question the nonadversarial posture of Veterans Law Judges. Fortunately for anyone who has the luck of the draw, it would appear we have a kindred spirit in him. He’s a Vet which, to me, goes a long way towards establishing an even playing field for an appeal. Considering my encounter with VLJ Hindin, he’s a breath of fresh air. As for the BVA Board in 1992 of VLJ Jane E. Sharp and J.U. Johnson, I was using DAV. That explains it all.

In impressing on the good judge that I was an avid gardener, I included links to the ILP blogs to brief him in on the concepts enumerated in VA OGC Precedents 34-1997 and 6-2001. They are the last touchstones to sanity left in ILP jurisprudence.

This summer, to inhabitants north of the 45th parallel, it has resembled the Mojave Desert- cool in the mornings and late evenings and hell after 11. With enough water, corn and ‘maters will grow faster than Jack’s bush beanstalks. And so they have. Yesterday was a cool 94 and today is slated for just a degree less.

SQ1

We always hope for “knee-high by the Fourth of July” but we hit that by the 28th of May.

sq2

Please don’t laugh. This is my first selfie and it’s my Sony camera. The corn was the object, not me.

yello toms

First tomatoes

And speaking of water…Our next door neighbor Rog, drilled to the first aquifer below us on a budget. He went for the 160-foot deep, eight gallons a minute vein. That’s all well and fine if you don’t plan on keeping 3 acres of rolling lawn looking like the Chambers Bay Golf Course fairways. Three of them big four foot tall Wilco®  Spik-spik -spik—-tig-tig-tig-tig sprinkers throwing a 100-foot circle can burn up 8 gallons in a heartbeat. Throw in the washing machine, dishwasher and a 18 year old boy taking a 45 minute shower getting ready for a hot date and you’ve got a recipe for a dry hole. Rog hit bottom last August towards the end of the last year’s dry spell. This year’s spell started a month earlier in May. His lawn is still looking like a million bucks-all green and wrinkled. For now.

Being a far thinker and a future Vet farmer , we opted to go to the deeper 336-foot aquifer and 27 gallons a minute. We ran it for 45 minutes and never lost pressure. And yes, my water’s for sale. Poor Rog got off on the survey pins back in 2004 and his well was accidentally drilled 19 feet onto my property. A man can never be too rich or have enough wells.

And lastly, for three years I’ve been trying to grow”creamsicle melons” they sell for $8  a pop down at the local Politically Correct Organic market. I couldn’t get one of them to do squat for three years. I planted the last 24 seeds this year to get rid of them and damn if 23 didn’t come up. Yep $5.00 a pop-Freight On Board-minimum order of 5. Dealer Prep and destination fees , fuel surcharge, shipping and handling and you can be eating these puppies for breakfast by late July for just … $8 a pop. (Local distribution only.)

creamsickle

The very best part of this ILP adventure is best summed up by our mentor Bruce Almighty, the ILP greenhouse guru- ” You’re gonna blow an ass gasket laughing after you win when you see the look on their (Seattle VR&E gomer’s) faces, Buckwheat.” It’s true. For almost four years I’ve patiently bided my time and kept hanging paper on their door. And now it all hinges on a fair shake from Vito. I trust him. Or should I say, I trust the statute and the OGC opinion to carry the day. As most know, we at asknod and everywhere in VA Legaland equally relish the idea of a panel on this at the CAVC. Talk about a matter of first impression. And that’s all I’m gonna say about that.

Happy 4th of July to all of you across this beautiful country who are finally slaying the “Dragon” as we refer to Hepatitis C. To Randy, Mark, Sam and all the rest who have gone before them, I salute you for surviving long enough for a cure.

And a P.S.

Never put your horses in the pasture that connects to the Raspberries.

rasp

Posted in All about Veterans, BvA Decisions, Food for the soul, Independent Living Program, KP Veterans | Tagged , , , , , , , , , , , , , , , , , , , , | 4 Comments

Board of Veterans’ Appeals Annual Report 2013

BVA cover Annual Report

click image to go to report.


A few notes about what veterans are up against at the BVA. (PDF LINK: BVA2013AR).

The Office of Veterans Law Judges (OVLJ) “consists of two Deputy Vice Chairmen (DVC), 10 Chief VLJs, up to 78 VLJs, and approximately 400 attorneys who prepare tentative written decisions for review and signature by a VLJ. ” In the third and fourth quarters they hired 125 new full time staff which included 114 new attorneys.

The new lawyers were trained in a new program including “3 months of intensive classroom and practical training, as well as 3 months of decision-writing under the guidance of more senior attorney coaches, sought to ensure that the new hires were trained uniformly and that each developed the skill set required to draft timely, high quality decisions in a short period of time. “ In contrast, they held some forums for VSOs.

They cite several cases in 2013 as significant–maybe NOD will explain why. 

  • Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) “This case is significant because it clarifies the role of § 3.303(b) so that this continuity of symptomatology provision applies only to the diseases specifically labeled as “chronic” under § 3.309(a).”
  • Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013) “This case is significant because it clarified the causation requirement under 38 U.S.C. § 1151.”
  • Jones v. Shinseki, 26 Vet. App. 56 (2012)  “This case is significant because the CAVC stated that to the extent that prior case law had not addressed this issue, it was now explicitly holding that the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.”
  • Johnson v. Shinseki, 26 Vet. App. 237 (2013):  “This case is significant because the CAVC determined that the Board is not required to consider whether a Veteran is entitled to extraschedular consideration for multiple disabilities on a collective basis.”
  • Romanowsky v. Shinseki, 26 Vet. App. 289 (2013)  “This case is significant because it requires the Board to address evidence of a potentially current diagnosis regardless of whether that diagnosis was made prior to when a claim was filed.”
  • Uh oh. The  Flexiplace Program allowed 165 of the Board’s employees to telecommute; that means that encrypted laptops went home with them.
  • Factoid: Video teleconference hearings saves average 100 days from decision times.

Quote: The average length of time between the filing of an appeal (i.e., Substantive Appeal (VA Form 9)) at the AOJ and the Board’s disposition of the appeal was 960 days in FY 2013. This time period reflects more of the multi‑step appeals process than just the time that an appeal spends at the Board. As reflected in the chart below, the average time between the time that an appeal was physically received and docketed at the Board to disposition was only 235 days.

bva 13

Click for larger image.

  • Board count at the end of FY 2013: 61 members.  In addition, there were 563 (largely attorneys) and administrative, clerical and other personnel employed.   Grand total: 624 churned out about 160.6 decisions per day based on 261 work days. 
  • Most successful representation (allowed): Attorney 31%; Military Order of the Purple Heart 29.6%; VFW 28.6%; Agent 27%; DAV 26.9%; state service Organizations 26.2%; AMVETS 25.9%; PVA 25.5%; Am Legion 25.3%; Other VSOs 23.9%; VVA 22.6%; No representation 19.4%. Attorneys had the most wins, the fewest denials yet less than 10% of the veterans’ appeals were represented by an attorney.
  • A handy infographic illustrates the process if you open the pdf to page 28 and flip it (LINK).  Sorry, I can’t enlarge the image.

bva info graphic wide

I think they should break out the VSOs rather than lumping them together in the “others” category.

I don’t know what the educational requirements are for certified VSO representatives however the BVA’s lawyers are well-qualified educationally.  And after three months of training, they will have learnt the wayward ways of VA benefit claim methods and apply them swiftly each business day.  So, as NOD reminds us often, lawyer up.

Posted in BvA Decisions, Lawyering Up, Uncategorized, VA Attorneys, VA BACKLOG, Veterans Law, VSOs | Tagged , , , | 8 Comments

NOVA NEWS–GRETCHEN AND BEN TIE THE KNOT

In spite of our attempted April Intervention in San Francisco at the NOVA conference, good friend and budding attorney Ben Krause tied the knot with Gretchen Prater. We will hold a minute of silence for Ben this coming Sunday 11659436_10153482663034973_5318678764856405721_nat 1200 hrs (L) on the Left Coast in mourning. Everyone please face towards Minneapolis during the tribute. Candles are optional.

Having now consumed the most poisonous substance on earth (wedding cake), we collectively wonder if Ben will be hyphenating his name to celebrate this momentous event. While I abhor the practice of conjoining names with a hyphen, it is becoming all the rage. Benjamin Krause-Prater. That ought to look good on a CAVC brief. You can see his new nickname from afar even now.

No, in all seriousness, we wish Ben and Gretchen the very best. Since he’ll soon be needing a lot more money to operate his larger household, we hope to soon be sending him lots of disgruntled Veterans with a VA axe to grind. If you or someone you know has been irreparably harmed by the VA Justice system (pun intended), we’ll be handing you his name, rank, airspeed, tail number and last known heading.

Ben also owns and operates the Disabledveterans.org website and is an invaluable resource for beleaguered Veterans.  I have a special place in my heart for fellow Air Force Veterans. Why walk (or parachute, march or sail) when you can just fly there? Some Vets failed to think that through before they signed up.

Posted in KP Veterans, Lawyering Up | Tagged , , , , , , , , , , , , , , , | 5 Comments

HCV–SUNRISE 9/17/1970–SUNSET 6/25/2015–RIP

Alternate today.PNG1

The funny airpatch

Once upon a time long ago in a mountainous Kingdom north of Thailand, nestled in a small valley was a funny airpatch but that is another story. I was the “chieu hoi boy” on Tuesdays and Thursdays unless I had another assignment. We’d fly a Porter PC-6 up Route 7 all the way to Khang Khay telling Pathet Lao or Neutralist troops to surrender to VP (General Vang Pao’s troops). I broadcast in French and occasionally in pidgin Hmong to small bands if they were wearing black PJs. Thursday, September 17th, 1970 dawned with a little overcast and  occasional rain squalls. Visibility was five miles.  Somewhere near Muong Soui L-108 just a bit southeast of the Plain des Jarres, we started picking up groundfire.

green footballs

7.62mm X 39mm Green footballs

Porters are mega-loud but the little green footballs of 7.62 tracer coming up at us were a dead giveaway. Somewhere along there a 7.62 bit my leg and I somehow missed it until I reached down to my cargo pocket for my Marlboros  10 minutes later. The Marlboros were all sticky and wet. I honestly thought it was hydraulic fluid from an engine strike.  About an hour later we landed at the Air America Hospital in Ban Sam Thong (LS-20). They had a 12-bed “hospital”/chalet for flight crews and ailing airmen. I remember the autoclave was the same sauce pan they boiled afternoon tea in on the propane stove. Glass syringes were de rigueur and if the needles got dull, they sharpened them up with the flint strikers on match packs. Brand new sterile match packs, mind you.

Several Hmong Tahann (soldiers) with O Positive were rounded up and I got a quick transfusion of two pints. Sunrise. 1745 HRS Bangkok Time. Eighty nine days later I came down with ‘hepatitis NOS’ (Jan. 11th, 1971) and was hospitalized for six weeks.

In 1992, I finally got a diagnosis of Porphyrea Cutanea Tarda after suffering it since June of 1971 when I began coughing up blood. Our Flight Surgeon back then had suggested I switch to the new Marlboro Lights. I did. It didn’t help my skin but the blood expectoration abated.

In 1995, they discovered the C and said I was very, very unique and might hold the key to the cure since I had the rare antibodies for it.

In 1998, the same doctors were begging me to go on the Interferon because I had too many of those rare antibodies. I smelled more money thinking I had lots of antibodies to sell. It didn’t pan out and I passed on the Interferon.

In 2006, my old buddy Doc Kevin allowed it was time to bite the bullet and do the dirty deed. I did. One blast almost killed me. Funny how all them doctors and nurses look at you and say “you’ll be, ahhh, feeling some flu-like symptoms from this medication so you may want to ahhh, do it Thursday about noon. That way, you’ll be chipper by ahhh Monday morning for work.” They’ve never taken it or I assure you they would never ahhh, say any such thing.

I finally got my bite of the Sovaldi apple last June. Six months-168 days- ending Pearl Harbor Day 2014.  It appeared I had won. I still had the three and six month tests to pass.

Thursday marked the six month anniversary ( or close to it in ACA time) which Minder Tobi said would be the acid test. I came up zero so I’m officially cured and it will never come back. Of course, I called Cupcake to tell her the bad news in case she was out husband shopping. Sunset. June 25th, 2015. RIP HCV

HCV svr

To say that I am overwhelmed is hard to vocalize. So I did what every man does when he finds out he’s once again bulletproof -buy another horse. You can never be too rich, too thin or have enough horses. Shoot, maybe I’ll go transgender, too.

Super Duper Cooper

Kona and Cooper

The next hurtle appears to be the Hepatocellular Carcinoma or HCC. Liver Cancer in Vetspeak. HCV tends to do that to you. Of course, so does Agent Orange, Blue or White. Porphyria increases the odds to 67% more likely. Some of you may not realize I am incredibly lucky and worry about me. Hey, I’m sure I’m in that rarefied 33% who get a bye so relax. I’ve got this.

Posted in HCV Health, HCV Risks (documented), KP Veterans, Medical News, Sofosbuvir, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , , , , , , | 6 Comments

THE CONFEDERACY–A TRIBUTE TO AMERICA’S VALOR

Battle Flag of the Army of  Northern Virginia.

Battle Flag of the Army of Northern Virginia

Lost in all the kerfluffle over Charleston’s atrocious racial shooting recently, the insidious mindset of politicians (both stripes) came to life and determined something-anything- needed to be done to prevent this from ever happening again. Our President trotted out a long diatribe about how guns were at fault and, had the proposed law after Sandy Hook been implemented, this would not have occurred. That Bill was a “long gun ” bill as in Assault rifle. Dingbat used a .45 ACP pistol so that dog won’t hunt in Charleston. For those of you from St. Paulsburg or inside the Beltway, a pistol is a “short gun”. 

And then we come to the real reason this chowderhead did it. The Confederate flag. Here lay the culprit all these years moldering in the grave. What an easy repair order. Simply rid ourselves of this racist throwback to an earlier era of slavery and white supremacy will go into decline. Whoda thunk it?

Flag Identification Day

Original combination govt. and battle flag in 1861.

Original combination govt. and battle flag in 1861.

Let’s take a gander at the original Battle flag first. As I was born and raised in Virginia, I’m more than familiar with it and all its iterations. I did a book report on this in Fourth grade (Williston Elementary -Seven Corners in Falls Church). I didn’t wear a KKK suit when I read it to my class. The “Stars and Bars” was never the official government flag of the Confederacy. In fact, it didn’t surface until later in the war when the original Battle Flag was determined to be too similar to the Stars and Stripes. General Beauregard had his Aide de Camp, William Porcher Miles fetch something that was not so confusing to his troops as the above. His choice was the famous emblem at the top of the article that is now causing so much angst and heartburn to millions… including Gov. Nicky Haley. Funny how this flag thing has been around for over a century and some bright fellow finally ascertained it as the root cause of all this dissention. Amazing.

Note that in 1863 they decided to change it yet again from the above to accessorize it, I guess. Either that or they were having an identity crisis and wanted to rebrand with something that made a fashion statement. Thus  there were three follow on flags below that overlapped or were in dual usage from 1863-early 1865.

Capture 1

Capture2

Also used as the Navy ensign on ships

Capture3

The earlier ones had too much white for southerners and military commanders felt it might resemble a flag of surrender. For the record, the last one was the official flag at the surrender at Appomattox Courthouse in 1865. By rights, it is the one that should be flying over the Confederate Memorial in Columbia. Therein lies the error-if indeed there is one at all.

Touchstone or Incendiary Device?

I can speak succinctly about this as I was born and raised south of the Mason Dixon Line and spent my formative years between Fort Five Sides in DC all the way to Turner AFB in Albany, Georgia. I can remember going to see Cinderella and the twelve Dwarves when very young and getting the shush from Momma on why there were two water fountains. Things like this do not escape little people or at least it didn’t in 1955.

I have witnessed the Stars and Bars throughout the south and never had occasion to note its use to incite white folks to loot and burn or commit racist acts. On the other hand, I’ve seen it predominantly displayed in Idaho at White Supremacist parades in Coeur d’Alene. Of course they’re big on the Swastika too but when you think back, the Southerners didn’t gas their Jewish population during the war. Why so much opprobrium over the Battle flag? Nowadays, no entity can legitimately lay claim to the Battle Flag other than the Sons (and Daughters) of Confederate Veterans who, bless their hearts, merely wish to honor their relatives who fought and died for a lost cause. I severely doubt they harbor the idea that the South Will Rise Again, and with it, slavery.

Capture4America went to great lengths to reincorporate Confederates back into the fold. They did not preclude them from being buried in Arlington National Cemetery as over two hundred that we know of are ensconced there. Hell, they even threw up a memorial for them down in the SE corner. There was some friction right after the war but the Spanish American War soon saw North and South fighting shoulder to shoulder against the Spanish. Boy howdy-nothing like a little war to turn old enemies into friends again. Maybe that’s why my Orbit® sprinkler timer says Made in Vietnam. War must be good for reconciling our differences.

Now we reach this new crossroads of relegating a symbol of loyalty and valor to the ash heap of history simply to appease a very small minority (most of whom don’t live there or have no roots) who suddenly claim to be offended. The offendees have no history with this flag and thus no grievance other than a vague feeling that it is politically incorrect. Relegating the Battle Flag to museums and striking the symbol from any flags still sporting it like Mississippi’s seems to be the order of the day. This brand of politics of exclusion is  employed by the gun ban crowd, sadly. They have no constructive proposal to reduce gun violence and instead advocate for the complete ban on firearms period. Screw the Second Amendment. It was written for muskets. Muskets didn’t have thirty round clips. Now, about that flag…

Similarly, doing away with the Battle Flag simply because the Ku Klux Klan embraced it over a century ago is asinine. The same argument could be said for the White Supremacists. One thing we all know about America, and relish even if it makes us uncomfortable sometimes, is the right to remain stupid. You can’t fix stupid. The government foolishly outlawed prefrontal lobotomies so that one is off the table.

Rather than engage in the rhetoric of exclusion, I propose we engage in glastnost and embrace inclusive politics. What about putting up the last official flag of the Confederacy over the Confederate Memorial In Columbia?  With all that white, it implies purity of soul and atonement for sins past. Why not have a broad conversation about racial harmony in 2015 without dragging the past into it? I’m surprised the Most Rev. Al Sharpton didn’t fly in for this (and simultaneously relieved he didn’t). Charlestonians seem to be handling their grief quite well without him and his Rainbow Coalition cheerleader squad.

The Stars and Bars is recognized at the Arlington National Cemetery without being flown. The dead of both sides were accidentally interred together early on and are inseparable to this day. We can no more divorce ourselves from the cataclysmic events that engulfed our country for five years than we can the imbroglio of Vietnam. For those of us born and raised in the south, the similarity between the two wars is eerie.  While roaming around in Vietnam and Laos during the Boundary misunderstanding, I had occasion to see this symbol painted on aircraft, helmet liners, affixed as a decal to the butts of M-16s, thousands of tattoos-and more. To a man, not one of the gentlemen pointed to it as a symbol of white pride or racism. It was merely a talisman for good luck by some of our Sons of the South who were (and still are) extremely proud of their heritage. Why is that so hard to fathom or digest?

Politically Correcting the English Language

I wonder how many remember a certain politician uttering the word “niggardly” in reference to the paucity of spending on Veterans Affairs several decades ago. I also defy you to name him. You’d be hard pressed to as he is no longer a politician. But for that one error in speech, he might have gone far. Similarly, I fear the day when the wordsmiths will venture forth, emboldened by their successes in ridding us of obnoxious, racially divisive flags, to declare that the word ‘Confederacy’ is now verbatim non grata because  it, too, evinces racism and drips with (old) thoughts of enslaving others. If the Confederate Battle Flag is such an incendiary visual statement as accused, it would seem that Chicago would be immune to racism-and thus gun violence. But how to explain 43 shootings (with short and long guns)and seven deaths in the last week in the virtual absence of any Confederate Flags of any stripe flying in the Windy City atop any edifice? Moreover, that was a good week for the populace. For the record, the only ‘racial aspect’ of this violence was black-on-black killings which makes the tenuous argument about the Flag fall rather flat.  None were waving any flags (let alone Confederate ones) according to the press.

A flag elicits many emotions. The American Flag makes my heart swell and a lump to form in my throat after seeing so many draped over the coffins of my brothers. Had the South persevered and won at Gettysburg, that flag bedraped coffin would have been, in all probability, the one with the large red border- but not the Battle Flag. It would still provoke the same emotion in my breast nevertheless. Valor. Loyalty to a cause-however misguided. A touchstone to a distant relative who fell beneath it.  In a word- a brotherhood born of arms on the field of battle. And if for even one moment, if I thought that removing a flag of any type would result in the saving of one life or the reduction of one racist organization anywhere in America, I would personally lead the fight to have it removed.

Sometimes it’s difficult to accept that there are warped minds in the world. They inhabit all walks of life, profess all manner of religion, and appear normal in all outward respects. To try to envision every possible permutation of insanity and pass laws against them all after the fact merely creates a tapestry of laws where there are no freedoms. You cannot legislate sanity. The politics of inclusion have always proven to be the most formidable and lasting when Americans gather to create law and vote on it. Chicago’s woes are a classic example of throwing more and more restrictions (read exclusion) at the populace and making no headway. In Illinois’ case, they compounded the carnage by depriving most of innocent the ability to defend themselves whatsoever.

In South Carolina, and all over the south, the wise politicians are preparing to emulate Chicago. If the Flag removal/restriction doesn’t quite work out as expected, well, then it’s time to have a conversation about doing away with guns. If it continues, then removal of all Battle Flags from museums should be the next logical step. The dictionary will be the inevitable last victim if that fails. I love politicians. They can fix anything…again and again and again.

I was born about two miles from ANC and I’ve already got a nice plot picked out there. What’s one more Confederate cum American Veteran in ANC? And that’s all I’m gonna say about that.

Posted in Food for thought, General Messages, History, KP Veterans, Military Madness | Tagged , , , , , , , , , , , , , , , | 2 Comments

CAVC–SCHWARTZ v McDONALD–HORS DE COMBAT REQUIRED?

news_vetbeneVeteran spouse Shirley L. Schwartz has the fire in her belly. Husband David fought the VA delay/deny until you die machine from 2003 to 2012- to the death. Mrs. Schwartz took his place and trusted VA to do the right thing with a Joint Motion for Partial Remand (JPMR). After discovering she’d been hornswoggled, she got a good law dog and a sympathetic ear at the Court in the person of St. Mary Schoelen. Herein lies a tale of “and for his widow and his orphan child…”

David Schwartz was a peacetimer in 1956-57. I’m just guessing but I’ll bet they had him loaded up with that 60 lb. backpack and an old Garand when he ate it in the foxhole on maneuvers. You can imagine falling into a void unexpectedly. That sinking sensation is like no other.  It’s like that feeling when the chopper ceases pulling pitch.  Try to imagine it running full tilt with a 80 lb. bag of beet pulp. The miracle would be if you didn’t injure something. Apparently, David did. He suffered silently for years until one of his buds clued him in. I’d bet it was his wife. They have quite the network on these things.

In 2003, he finally put in his marker based on being unable to make a living. From the get go you can see the legitimacy of the claim. Unless old David was a prime time huckster, he had immense foresight to begin building a disability folder all the way back to 1994 in preparation for a VA claim filed in ought three. He did it by the book with excellent evidence and VA still denied. He had all the Caluza ingredients for the recipe. He had a doctor opining that it was very disabling. An actual nexus/IMO was perhaps vague but nonetheless conclusive that the injury in service, the four month recuperation in the hospital and subsequent medical discharge were pretty compelling evidence in his favor.

The Portland RO  held the Schwartzenmeister  hostage from  November 2003 to June 2009 before they gave him his service connection. With no less than three doctors attesting to this, a wealth of medical evidence in his court and a nexus, VA still stonewalled him for six long years- and then they screwed him by only giving him 40% for thoracic syrinx. Note that David had medical records clearly showing he was driving the morphine bus and hopelessly addicted to Demerol in 1994. Hell, he even “retired” to get SSI early to put food on the table. Note also that VA was careful not to let David anywhere near TDIU.

Here’s the December 2014 BVA folly with VLJ Larkin behind the wheel.

schwartz BVA

As most know this is an incremental “Mother, may I? ” game. Each succeeding paltry grant came with narrow parameters and surprisingly, the wrong effective date that took much time to correct. Not just once or twice either. Whoever was handling this claim had Max ADHD. First, a reaffirmation that the original date and rating were correct, then an additional 10% (to 50%) from the 2010 DRO review effective in 2010. Then another 10% each for each lower extremity but still not within striking distance of the 70% and TDIU. All the while, Mr. Schwartz was gradually going down to the tubes. The race was on for TDIU back to 2003 and a hopeful Dependents Indemnity Compensation (DIC) of about $1200 a month. VA staunchly refused. In the interim David became room temperature and this pissing contest began in earnest.

VA finally sent it up to Tom Murphy’s Comp. and Pen. office in late 2012 and Mrs. Schwartz got a late Christmas present in January 2013. TDIU from 2009 but the April Fool’s joke was that it wouldn’t help one whit with the DIC. For that she needed the IU back to Novenber 2003. VA was well aware of that and played innocent. Using an impossible standard of being “totally incapacitated”, the BVA affirmed the RO’s bogus logic and off to the races Shirley went.

The CAVC could see the problem instantly and remanded it back to correct the TDIU from 2003 as a viable claim rather than just consider it from 2009. Shirley and her shield bearer Mary Anne Royale signed off on the JMPR and probably breathed a collective sigh of relief-far too soon, it turned out.  Veterans Law Judge M.E. Larkin wasn’t going to go down without a valiant effort to save VA $150-250 K. This is where he reiterated his utter lack of comprehensive knowledge about the very laws and regulations he is foresworn to uphold. He didn’t create the new ” totally incapacitated ” standard that the RO demanded but he reiterated it in his December 2014 affirmation on the second JPMR. Most would get the subtle hint that there was a problem with this or reread 38 CFR 4.16 for guidance.

VA is fond of their ‘credibility ‘ talisman. If you so much as contradict yourself on which way you parted your hair in 1959, you are not credible. If you cannot remember who the Secretary of State was under President Roosevelt, you are not credible. And if your doctor cannot say with certainty what year he began treating you, then he is unreliable too. It makes no difference if you introduce medical records clearly showing him as your treating physician  dating back to 1994. The doctor’s testimony, and hence his IMO, are held to be worthless and some inane statement by a Veteran taken out of context,  while drugged out of his mind on Oxycontin, is substituted as being the only probative statement of record concerning this  disability. Fentanyl wins out over a medical degree for probity. That’s what this all boils down to.

This is why St. Mary reversed. As held in Gilbert v. Derwinski, if the facts just don’t line up with the argument, then you have CUE. The repair order for CUE is the grant of the claim to its inception and then a reasoned Fenderson approach. Since it was clear to everyone except VA, St, Mary sounded it in Dick and Jane speak just for them. Mary Anne Royale is a member of NOVA so she didn’t need it explained in pidgin English.

Schwartz reversal

Mary Anne Royale , Esq.

Mary Anne Royale , Esq.

Veterans Law Judge Larkin gets to fall on his sword and rewrite his decision incorporating the TDIU grant to 2003. The Portland, Oregon Regional office gets to rewrite the awards sheet on ratings to incorporate the newer effective date and contact the US Treasury to cut Miz Shirley about a $250 K retro check of which Mary Anne will get her walk about money for faithful services. Henceforth, Mrs. Schwartz will collect her DIC check monthly and live happily ever after.

But why the delay? Why did Mr. Schwartz hit the wall for all those years with the evidence right in front of them? It is a teaching moment of great import. VA doesn’t look at the evidence. They get a “feel” for it by topsheeting it. In this case, the rater glommed onto the fact that David had retired at or near 65. That derailed the train for seven long years. Even after service connection was granted, they still were not willing to give Mrs. Schwartz her due. This vindictiveness is the very heart of the problem. Until VA can engage in a truly honest adjudication based on real, on-the-ground facts, we are condemned to this insane loony tunes justice. My apologies for dragging the cartoon outfit through the mud, too.

th

Posted in CAVC Knowledge, CAVC/COVA Decision, CUE, Earlier Effective dates, TDIU | Tagged , , , , , , , , , , , , , , , | 3 Comments