CAVC–ANDREWS V SHINSEKI–15 YEAR APPEAL TO BVA for VR&E

thumb_d10d7a64-04ab-4462-9561-19cb885ef6d9Here’s an interesting case to put in the ILP file. Marine Veteran Tyrone Andrews has a problem. VA has been dogging his claim as they did mine. And much like me, he knocked them up about fifteen years after filing his Form 9. The BVA promptly gave him a hearing and a wonderful “Thank you for your service but your time to use your Vocational Rehabilitation benefits is long gone.” Nowhere in the decision was there a reasoned discussion of the fifteen year hiatus between his Form 9 and the subsequent hearing and denial nor was there any explanation about how a delay that long pretty much punches a hole in the 12 year limit. VA does that a lot. No explanation. No apology. No “Gee, we sure stepped on our necktie. How about we make this right with you?” No sirree, Bob. To VA this is bright line jurisprudence-You lose, Tyrone.

Tyrone had what VA considers to be a “minor employment handicap” for employment service help under the VR&E regulations. He was only 30% and got this one year after his separation in 1986. Some of you I have been attempting to shepherd through the ILP process are virtually horizontal cases and considered  to have a “serious employment handicap”. Projectile emesis (vomiting) combined with the inability to remember your middle name on any given day can often screw up your resume. VA comprehends this and segregates us accordingly. Under their definition, you’d have to be at death’s door pounding on it with a five pound sledge hammer to truly quality for the higher of the two. But I digress.

The VR&E folks at VA are very narrow minded and tend to husband the VA’s limited financial resources for bonuses. Thus, with only a paltry 30%,  poor Tyrone was not accorded that higher standard of “serious”. Okay so far. The T-meister moved right along in his studies and finally saw daylight near the end. He also was running out of time (five months) and finances to finish his desired goal of a degree in Politics (Political Science).  We get 48 months on the hamster wheel of VR&E services and moolah. We also get a 12 year window in which to  use it much like the GI Bill of “use it or lose it”. That VR&E codicil can be extended indefinitely or applied for decades later if you are 100% disabled like us Heppers and bent brainers.

After completing about as much education as he was going to, he returned hat in hand and asked for help to obtain a job. This really doesn’t cost VA a lot of money. They claim to have job fairs once a week and do this for us (or claim they do) gratis. VA took the position that they had changed his pumpkin into a four horse carriage and he was not entitled to any additional help. And so with heavy heart, they had to say Adios Tyrone. An important point here is to be noted. He was at 30%, which, as we mentioned above, is sub-serious employment handicap. He dutifully filed a Notice of Dispute and completed the requirements for a substantive appeal. Cue the Alex Trebek music, please.

VA sent out his SSOC a month after the Form 9 asking him what part of the interjection/adverb “No” was he unclear on.  We are not legally required to answer a SSOC and Tyrone did not. After a year, unsure of what to do as most of us are, he refiled the same Form 9 substantive appeal all over again. And here matters sat for the next fifteen years while they waited for either, death, ennui or Alzheimers to kick in and dull his memory.  VA got the newForm 9 but what to do?

For some reason, this art form escapes VA raters and invariably results in them a) doing nothing : b) doing the ostritch and shredding it or c) their favorite fallback position of calling it a reopening of an old claim. How many of those ” VA construed this to be a reopening of his old claim for…” have we seen over the decades? This is invariably followed by “since no new and material evidence was submitted, the claim was not reopened.” Neat hat trick but you cannot get away with it unless you have a good document forger.  There is always a paper trail but VA lacked any documents saying as much. Usually they bluster their way through until caught red-handed at the CAVC where a different set of police get to inventory the evidence bags.

Now let’s throw a wrinkle into this which is what I love about VA forensic claims reconstruction.

Tyrone had also been busy over at the VBA and had lassoed another 30% rating in the interim putting him into a 60% bracket. What’s more, the effective date was pushed back to January 1991. This means he was now suffering a “serious employment handicap” and well within that 12 year window. What’s more, it effectively abolished the 12  year limiting rule entirely. VA never noticed because by now this was in the VARO basement in cold storage. At the same time the T-bow filed yet another substantive appeal of the original denial and asked that burning question: “Yo. Whazzup with the appeal?”

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BVA Starship Eric S. Leboff. Able to make the run from Baltimore to 810 Vermin Ave. at .65 lightspeed (2 mos.)

Bingo. We all know the BVA is backed up like a monkey after consuming a pound of extra sharp Vermont smoked cheddar. Here it is 2009 and they promptly order up a BVA hearing in March. You would never expect to see anything back for 15 months but the BVA outdid themselves. VLJ Eric Leboff promptly cranked out a denial in the unheard of time of two (2) months on May 27th.

Leboff mysteriously concluded that if you delay a substantive appeal for fifteen years, it has the uncanny effect of running out the twelve-year clock on Tyrone’s claim. Some of you claim that VA is now using “core mathematics” but to date no one has proven it.  Not to be outdone with that revelation, VLJ Leboff agreed with the VR&E counseling psychologist that declared Tyrone had actually been “rehabilitated” way back in 1991-before the Form 9 filing. Rehabilitated is not the same as a felon who has paid his debt to society by his incarceration for fifteen years. In VA parlance, rehabilitated means you are good to go. There is absolutely nothing you need to succeed now and VA is not going to even rehash that argument. This was the exclamation point to the SSOC back in 1992 that never metamorphosed into a timely BVA decision.

Mr. Andrews finally explained the core math issue of 12-15 = -3 years. He also helped Kasold, Hagel and Davis, unarguably two of whom are the most anti-Vet judges on the bench, that justice had been delayed, denied and fortunately he had not died in the interim while waiting.

Read here of Tyrone’s most excellent VR&E adventures. Just for the record, he was represented by the able fellows at Disabled American Veterans, by far and away the go-to guys for real legal help. He lost until he finally got his own rainmaker. Funny how that works, huh?

AndrewsTA_09-2065 (1-31-2013 ILP

This will invariably help some of you when VA pulls the “Time’s up!” card out of their hat. It probably won’t avail you of any substantial justice until you get to Indiana Ave. NW but it’s the right calibre ammo for the defective legal posture. Far too often, we get into these “Back to the Future” scenarios where VA grants an earlier effective date but steadfastly refuses to honor the concomitant legal ramifications that it provokes. I find myself in the same boat so I gladly offer this as a panacea. It’s just too much fun to pull out the “No it isn’t!” card out of your hat and have the Judges all nod their heads in agreement. Sure, it may take a few years or a decade but as William so aptly opined -revenge is a dish best served chilled. When served on a bed of ice at the CAVC, it hits the spot.Win or Die VA

Posted in CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, Independent Living Program | Tagged , , , , , , , , , , , , , , , , | 5 Comments

DAV’s excellent report out–Women Veterans: The Long Journey Home

dav female reportSome of the topics, as they relate to post 9/11 female vets, include the following:  wounded in action, limb loss and amputation, traumatic brain injury, mental health, suicide, VA health care system, VA Mental Health Care, legal problems, military sexual trauma,  re-integration support, education, financial insecurity, shelter and homelessness, and unemployment. Findings on benefits for post 9/11 veterans start on page 21. 

Download the pdf here.

DAV leadership is to be praised for commissioning the report and getting a major news outlet, CNN, to promote it.

female vets unemployed

Post 9/11 skilled women have higher rates of unemployment. Why?

Odd facts:  females have higher rates of unemployment that their male colleagues. And 1/3 of VAMC don’t have a gynecologist on staff.  At the VBA, these younger combat veteran women get the runaround as we have read about recently in NOD’s post about Shanniqua, wounded Army vet

The report also reminds us that

After more than 20 years’ work and expenditure of billions
of public dollars, the DoD and VA electronic health records are
not interoperable and have limited communication capapbility.
Creating a single, integrated electronic health records system, outhouse
or at a minimum, systems that possess the technical ability
to communicate with each other, is a requirement for seamless
transition. Two successive Administrations have committed
the government to implement interoperable health information
systems.

Hire Google, or Adobe, or Amazon, or Apple, or IBM, or Microsoft to fix these programming problems!  The VA, DoD administrators and Congress piddle ’round and ’round wasting billions.

Governments have problems hiring and implementing IT.  I checked out Vermont’s Health Care exchange site, and believe it or not, parts of it are down with 2015 renewals right around the corner.  You’ve got to hire the best of the best, not the cheapest bidder, to get IT right.

 

Posted in All about Veterans, Guest authors, Medical News, VA Health Care, vA news, Women Vets | Tagged , , , , , , , , , , , , , , , | Leave a comment

BREAKING NEWS: SPECIAL FORCES FREE ISIS SEX SLAVES

securedownloadThis just in from member Tombo who always has the skinny on the SF and the Marines. 

Posted in FACE HUMOR | Tagged , , , , , | 3 Comments

MN VAMC: Walgreen-VA flu shots- Shhhh, it’s a secret

downloadThe VA flyer for the  Minneapolis 3-day Flu Clinics (late Oct.) arrived today but is silent about the Walgreens option.  Not exactly in the “partnership” frame of mind yet, I guess. The Minn. VAMC is about 35 miles away so my spouse agreed to be a test case and went to Walgreens last Saturday instead of waiting. 

cdc fluA staffer consulted her instruction papers and asked for his VA ID card.  She entered some info. into the computer.  Then she asked if he had any other insurance cards like Medicare.  He provided his Medicare Advantage card.  She entered more information into the system and confirmed his allergy history.

She said that the VA is the secondary payer if the vet has other insurance and that Walgreens bills Medicare or the private insurance first.  (She asked if he wanted a three or four quad vaccine but said not all insurances pay for the quad.) He opted for the three.

After filling out a brief questionnaire, the pharmacist then gave him a safe injection (one needle, one syringe, used only one time) in a private room.  The whole thing took 10-15 minutes.  No co-pay.  The record of the vaccination was transmitted to the VA electronically and should show up in his medical records.

We should get some balance reward points for the shot.  And because he had it before Oct. 13 deadline for the Get a Shot. Give a Shot. UN vaccine donation program got a donation.  Staffers said the program was nationwide.  In fact, whoever heads this pilot program, might actually deserve a modest bonus if the roll-out is a big success because many veterans don’t get a flu shot for a variety of reasons.  But only if there is NO co-pay for any enrolled vet.  

By not informing vets that they can go to Walgreens for the shot is simply one of their mailcontrol games. Please, please,  don’t waste our time, energy and taxpayer money for massive mailings and leave out facts vets deserve to know.  But wherever you get a flu shot, be sure it’s not attached to a multi-dose vial or god forbid, the new “state-of-the-art jet injectors that medical device companies are still trying to push.

 

Posted in Guest authors, Medical News, Medicare for VETS, VA Health Care, VA Medical Mysteries Explained, vA news | Tagged , , , , , , , , , , , , , , | Leave a comment

BVA–IT ISN’T THE IVDU, TRUST ME.

2011-02-07_181719_alfred_e_neuman

Alfred “Einstein” Neuman

I love to read about impossible quests and the path ridden to arrive there. Here is one for the ages. I must give Johnny “Einstein” Vet the “What? Me Worry? Award for this one. He has earned it. He takes clueless to a whole new level.

Instead, VA treatment reports provide accounts of the Veteran’s extensive use of heroin since separation from active service. In February 2008, the Veteran indicated that he had been using heroin twice per week, and the most recent time was that very morning. The Board notes that post-service risk factors were previously addressed in the [unappealed]August 2003 rating decision.

One hundred and one ways to successfully lose your claim at the VA. We note in passing that he wisely chose the legal service of the VFW.

ABANDONING VETS SINCE

 

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1899–ONE CLAIM AT A TIME

 

Posted in BvA HCV decisions, HCV Health, HCV Risks (documented), Nexus Information | Tagged , , , , , , , , , , , , , , , , , , | 8 Comments

BVA–CLASSIC HCV JETGUN WINS

GaryJETBasicVeterans would do well to bookmark this decision as a “how to” if they are going to attempt to win a VA jetgun claim. They also might consider looking in the phone book for Veterans attorney Daniel G. Curry’s name, rank, airspeed and last known heading. Relax. I did it for you.

P.S. And another well-presented victory of jetgun science over VA quackery. Note the rainmaker is none other than Virginia Girard-Brady.

 

 

Posted in BvA HCV decisions, HCV Health, HCV Risks (documented), Jetgun BvA Decisions, Jetgun Claims evidence, Nexus Information | Tagged , , , , , , , , , , , , , , , , , , , | 3 Comments

BVA–WRONG GENOTYPE FOR GERMANY

3375662_yjbm_85_2_249_g03I have counseled Vets to use a double-edged sword to prove service connection when filing- i.e. genotype and biopsy. Forty years ago, genotypes had a distinct geographical distribution. A good biopsy-preferably based on the Metavir scale -shows the approximate age of the disease and it’s linear progression. 

Using these two tools and a nexus from a gastroenterologist who succinctly connects the dots for the VA, it’s a virtually bulletproof combination to prove service connection. Using the genotype is very useful as the geographic distribution forty or fifty years ago was a unique, signature footprint.

Here, the Vet is pointing to genotype 2b as being proof of contraction during his service in Germany. Unfortunately, he would most likely have had 1B were it indeed from die Stricherin. On the other hand, if he had service in Japan, Korea or Okinawa he would indeed have been infected with 2b (or 2a)  had he contracted the local, homegrown version.

He does have some self-confessed ‘Imperial Entanglements’ of snorting the white lady and post-service tattoos. These could easily be overcome by a preponderance of the risk factors and evidence (genotype and disease progression)  pointing to service connection as the greatest risk. Having that nexus and a clear, concise rationale that precludes speculation are how these are won.

Johhny Reb was on the right track but went off the reservation with the 2b theory. As I have taught here, it is viable and persuasive evidence when correctly used. I won based on mine being 3a- indigenous almost exclusively at the time to the Indochinese Peninsula and also, of all places, Australia. Since we know it didn’t swim there, I suspect R&R played a great role in its migration.

duel-headerSince he didn’t play the hole card with the biopsy results, and VA noticeably did not volunteer any input in that regard, Johnboy lost. This is a game of inches and Johnny missed by a large margin. I suspect the American Legion was not there to hold his coat during the dual or perform the gentlemanly function of being his second.

Winning VA HCV claims absent any defining “aha” moment like a diagnosis of Hepatitis during service isn’t impossible. Success depends exclusively on risk and exposure to same. Having the correct geographical genotype and a Stage four biopsy simply cements the theory of it’s origin and age. As usual, the third leg of the stool is the nexus but that becomes academic after your evidence proves that the genotype theory and relative age are sound.

Posted in BvA HCV decisions, HCV Health, HCV Risks (documented), IMOs/IMEs | Tagged , , , , , , , , , , , , , , , , , , , | 5 Comments