VASEC–CALL BOB

Call me. Seriously.

Call me. Seriously.

While preparing to withdraw my CUE Appeal motion in a valiant attempt to substitute a new one instead of waiting a million years for the BVA, I thought about what our illustrious new VA Secretary Robert A. McDonald said recently. “Got a problem? Call me”. He even handed out a valid phone number. The last time I pulled a stunt like that on April Fools Day, I used Tommy Two Tones seminal Jenny number -(800) 867-5309. Bob actually handed out his real one. Brave. Very brave.

So today, with nothing to lose and holding a weak pair of twos, I texted him. Being hamhanded and lacking thumbs, I promptly hit send before I was prepared to. This bifurcated the call and I had to start again. In spite of this, I got a response in record time inviting me to leave the info on his email. I hope he has an enormous inbox.

I sent him a small version of my woes and a prayer for relief. As most of you readers know, all I want is to complete my paltry claims so as to concentrate on yours, a new book and some quality time with the grandrugrats.

Here is the .pdf of my repair order proposed. Having a Record on Appeal at the CAVC is a nice orderly way to put it all at your fingertip and be able to access it at the drop of the hat. It may or may not speed things up. As I have said numerous times in the past, “Here. Allow me to jump off the cliff in the funny suit and see if it flies”.

Herewith, I jump into the new world of VA repairs.

Dear Sec McDonald

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HOUSTON, WE HAVE A PROBLEM…

 

FROM THE SAM HOUSTON

MEMORIAL VARO

houstonIn a change of pace, the Houston Veterans Service Center Manager (VSM) called the VAOIG and begged them to come on down to sunny Texas to arrange a necktie party for one of their own. Seems a former mailman turned VA rater was “stashing claims” in the “already done” file and cooking the books to make  the number of completed claims look marvelous. But wait. I thought that was how they always did it. Seems I was wrong. Well, partly. He was getting out of hand with a good thing. When you “finish” 31 out of 50 claims in a day, your bonus check is going to be stupendous. Just make sure you stamped denied  on them and not “to be continued.”

We were unable to substantiate that ...

I’m goin’ to Houston

This almost sounds like one of those VA Medical Scheduling bait and switches. I wonder how many Vets died while waiting for a decision that was just never going to happen? Now RO Houston has a “pause” button. That’s what the OIG discovered. Anytime you, a lowly untermenschen GS -11, can go into VACOLS and start overwriting Windows with your own version of “once upon a time” every Vet’s claim is endangered.

One wonders what is next.

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VA–WHAT EXACTLY IS A SSOC?

grenade_m26_400x314I keep seeing this popping up on my search parameters of what kind of queries lead people or Vets to my site. Obviously, there seems, even in this day and age, a large number among our community who are unfamiliar with this legal tool.  Lets look at what they are and, more importantly, what they mean to you and your claim.

Let’s begin with a primer on what each piece of legal paper actually means and what you need to do to protect yourself. Since 85% of us slice to the right and go out of bounds on the first tee, it pays to know how to hit straight before we tee up.

We begin, as most know with the Form 21-526 and provide everything there is to know about us and what we perceive as our complaint. VA promptly changes it into something else and off we go. The next step is the Disability Benefits Questionnaire- a modified Christmas list for Santa.

Six months later, if we have filed a Fully Developed Claim (FDC) we are given the “You lost” briefing. We file our Notice of Disagreement NOD which now has its own form 21-0958. We choose the Decision Review Option or a traditional appeal. In either case, we will be provided with a Statement of the Case or SOC. There is no official SOC form in the VA library-yet. The SOC arrives eventually but usually takes about a minimum of 13-15 months. If they decide to grant anything due to you having a winning NOD argument, you will be provided with a rating granting that part of you NOD. If there are any issues VA refuses to grant, the SOC, usually mailed in the same manila envelope, explains why they are not going to see it your way. This happens regardless of whether you elect a DRO review or a traditional appeal. By law, any new evidence submitted within the year window of the NOD and certification of Appeal must be readjudicated or what is called “de novo review”. The traditional appeal path doesn’t get this treatment although VA would hotly deny it.

The SOC is legally required under 38 CFR §19.29 and it has to be painfully clear what they are denying and why. You are going to use this document to argue your appeal. It has to be clear to the even the densest Vet as to why they disagree with your view. They may be horribly wrong (and often are) but they have to put it in layman terms so you can understand. If they forget to issue a SOC, the claim will be remanded from the BVA for one. Yep, it still happens sometimes.

Within sixty days you must file a Form 9.  If you are finished submitting evidence, the claim proceeds to certification and is sent to Washington DC this can take a year in some cases. However, if you find new evidence to submit with the Form 9, this provokes yet another de novo review decision process on your new evidence. At least that’s what it says in the regulations.

If VA is adamant about the denial, you will be issued a Supplemental Statement of the Case-usually within sixty to ninety days. This is the last call for alcohol. VA has declined to change their mind and the SSOC is merely a formality to express a “What part of ‘No!’ don’t you understand?” You may choose to submit yet more evidence if you have it and ask for a new decision yet again. VA is once more legally obligated to review it yet again. If their mind is made up and all that you have sent in is still not availing, you will receive yet another SSOC. There is no Supplemental Supplemental Statement of the Case or SSSOC. This form of Badminton can theoretically go on forever assuming you have a bottomless warchest of New and Material Evidence. Most of us don’t.

An SSOC  (or SSSOC) must be answered to within 30 days of the postmark. If you miss this day, the claim moves on inexorably to certification to DC.  Nothing can stop its forward progress from this point on. You are not obligated to answer a SSOC. Your claim will move on unhindered even if you don’t.

A SSOC is a last gasp of air before DC. It’s an attempt to get the chowderheads at the VARO to see reason. Considering how many claims I’ve seen that were in error that are overturned on remands from both the BVA and the Court, you’d think someone at VA would examine the SOC and SSOC very carefully to ascertain the correct facts. For the most part, you will find your SSOC simply echos and rephrases the denial in almost the exact same terms and English as the SOC. You could rebut the error and submit everything needed to prevail and the SSOC will ignore the thrust of the argument and persist in reiterating the denial virtually verbatim. Many feel it is a therapeutic effort on a Vet’s part to even squander the time to send one in. In twenty four years  I have never seen a SSOC rebuttal change the decision in the Vet’s favor,

When I presented my case to a Veterans Law Judge face to face, I thought I had drawn a nice stick diagram of what was wrong with the VA’s denial and produced documentation that clearly supported my case. This was my SSOC rebuttal presented in person.This was a DRO hearing, an administrative review and a VLJ hearing all rolled into one for all the marbles. Thirteen months later, I read about my BVA loss and none of what I had presented was discussed. Nothing. The denial rationale was still based on the same misconception begun in 1994. There was no evidence of record to support it but, more importantly, VA simply refused to even discuss my legal theory. Well, that is, until we got to the CAVC. Suddenly, after 8 years it was crystal clear to everyone present that I wasn’t lying.

The number of the counting of the Holy Hand Grenade of VARO

The number of the counting of the Holy Hand Grenade of VARO

If you stay in this game long enough, you’ll eventually get one of these. SOCs and SSOCs are part and parcel of this business and they must be dealt with promptly like a M-26. There is no one thousand four. Five is right out. You toss it on three or you stand a good chance of wearing it.  Years of effort go down the drain if you fail to timely answer the SOC with your Form 9. By law, you actually have one year to file the F-9 from the initial denial in spite of the sixty day suspense date following issuance of a SOC. There was a time back in the late eighties and early nineties where they would send out a SOC within three months of your NOD. In this day and age, you’d be better served to get the 9 in the mail before your sixty day suspense date is up to ensure VA doesn’t screw it up and say you failed to respond in a timely manner.

Likewise, if you want to answer a SSOC, the thirty days are tolled from their date of the SSOC mailing. Again, do not wait until Day 29 to act and be sure to use  certified mail to satisfy the common law mailbox rule.. They may or may not be lenient. Considering we live in an ex parte environment and everything is nonadversarial, we would never expect anyone to be a clock watcher. Welcome to the VA.

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VA REVERSES COURSE– UNEXPECTEDLY EXONERATES WHISTLEBLOWERS

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Carolyn Lerner

Carolyn Lerner, of the Office of Special Counsel (OSC) announced today that VA, caught with their pants down metaphorically, has been forced into actually doing something never before seen or heard of at 810 Vermin Ave. NW-actually rewarding whistleblowers and thanking them for their revelations; indeed, going so far as to give them their job back or even a promotion. Unheard off. Perish the thought. Isn’t this the staid, upstanding stonewalled bastion of imbecility that we have all known to abhor and fear? Wherefore art thou, Fort Fumble? 

If this is an example of what Robert McDonald is getting ready to unleash, then we have cause for hope. Never in the anals (sic) of VA history have we seen what should happen…happen. Short of a few bricks in their heads, these folks think the sun rises and sets over them. It’s a VA Central Office mentality of “I am, therefore I’m right.”   I won’t call it a breath of fresh air until Sharon Helman has been keelhauled along with her fellow conspirators at the VHA. Somewhere, there’s a fingerprint and an email that says “You have my permission to…”.

And then we can sharpen our knives and find out about Laura Eskenazi’s “Rocket Dockets”.

Meanwhile, it’s the Office of Medical Inspector that is on the hot seat now. This is better than the “independently organized” VA Office of Inspector General who don’t leave home without white paint and brushes.

Asknod-circa October 31, 1980

Asknod-circa October 31, 1980

My guess is we Vets all ought to pitch in and buy Ms. Lerner a bouquet about the size of a Rose Bowl float and have it delivered by FTD. I volunteer. I don’t know whether I mentioned it or not in the past but I have a lot of experience in these matters. One thing is for certain- I expect this is not the end of the problems VA is getting ready to “discover”.

 

 

And to member Dirk, the analogy that the VA Scheduling coverup is like untreated VD- It just keeps on giving- is very apt even if slightly off color.

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FORT FACEPLACE-SEPTEMBER’S FINEST

10641209_10152593912765700_6448163394073163943_nWe look long and hard for these so keep sending them in, ladies and gentlemen Vets.

 

 

10615503_984683501557988_9190678769245321438_n10665054_698426430231559_2785866249733353214_n

With horns?

With horns?

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Starbucks Salute

Starbucks Salute

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Real men meaning former Vets

Real men meaning former Vets

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MILITARY SITES ON THE EPA SUPERFUND LIST

downloadHere’s some good stuff for those of you filing for Stateside/ Guam chemical exposure. A regular grab bag of goodies for dang near every base in the states that had any aircraft using AVGAS or JP-4. The Fort McClellan stuff is great as is the Camp LeJeune info. A good place to start your claim.

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THREE BVA REMANDS–WHAT TO DO?

downloadMember Shanniqua writes me again after a three-year silence to tell of her ping pong match with the Veterans Administration and the apparent inability to get her claims to stay put at the BVA. This began when the Forrest Gump Memorial Regional Office (RO) in Alabamah sent her appeal to Washington DC without her Social Security Disability files. That’s against the law at all 56 ROs and it was guaranteed to provoke a rubber band remand. 

Shaniqua had an IED go off under her deuce and  a half near Tikrit in 2005 that turned her, her truck and her life upside down. She felt she had an able ally in the Military Order of the Purple Heart (MOPH) and things went swimmingly until they got down to the nitty gritty of an actual rating for her injuries. VA took the low ball approach and felt the damage to her knees was rather minimal (10%). That wasn’t the deal breaker. 24837Her back, more specifically the L5-S1 juncture, suffered major trauma that wasn’t visible on x rays. The military was “backed up” on MRI requests and somehow this fell through the cracks before she was given her Medical Evaluation Board (MEB) and separation. She was assured VA would pick it up from there.  Other than the wildly gyrating muscle twitches and spasms visible on the surface occasionally, the radiculopathy down into her legs from her hips jumped back and forth and never when she was in for a check up under the hood. VA deemed that 0% even though it effectively prevented her from getting up to go to work on any given day. I’ve been there and done that in 1989 so I commiserate. Getting your injuries to perform on command is a circus trick I have never managed to master. Shaniqua suffers the same problem.

When she approached her service representative to discuss an appeal, she said the look of horror that crossed his face was a Kodak moment she should have immortalized on .JPEG. He convinced her to ask for a reconsideration first which went nowhere fast and finally she filed her Notice of Disagreement (NOD) to protect her right to appeal. Again, the service rep. from MOPH intervened and turned it into a DRO review telling her it would be much faster and safer to handle this locally rather than lose control of it to others in DC.

By 2010, she had the shiny DRO review in hand and it said pretty much what the 2006 decision said- 10% for each knee and they magnanimously upped her back from 0 to 10%. The MOPH chowderhead was ready to rent a ballroom to celebrate the Big Win. Shaniqua now qualified for dependency at 30%- a whopping $459.00 samoles-per month, no less. Shaniqua didn’t share his enthusiasm and wrote me asking what most of you do. WWVD? What Would a Veteran Do? Some don’t always take advice well.

Given the most brief description of her woes, I suggested she get a law dog but she insisted on the idiotic faith she put in the MOPH. Her rep. had given her the standard “Why cough up 20% of your eventual settlement to a shylock when we can do it for free?” Considering two years of fooling around in Greenbough, Alabama netted her 10%, I’d say it was time for a change of scenery. She refused to answer my questions of just what it was up to then (the DRO award of an additional 10%) that made her so enamored of the MOPH’s legal acumen. Obviously she was disenchanted with the two-year wait and the resultant short straw but she said she would feel awkward trying to tell her rep. his services were no longer needed after he had invested so much time helping her. “Help” is a subjective assessment apparently. So, too, is the proclivity of women to allow emotions of loyalty to cloud their thinking in matters legal.

And here we are today (or yesterday to be precise). Shaniqua is angry. Shaniqua is not a happy camper and the object of her ire is the MOPH. After numerous attempts to speak to the Big Dogs in DC who are overseeing her appeal, she turned to her local rep. again and asked for some assistance, explanation or at least an accounting . None was forthcoming. Her appeal had disappeared into a black hole and nothing could be done to locate it. After talking personally with a nice old lady at the BVA, she discovered what most do when they travel this road. Her appeal was in the hands of several old timers who have lots and lots of experience in these appeals. They are a mixture of seasoned DAV, AmLeg and, of course, MOPH  representatives who “team up” and jointly represent Veterans at the BVA. What their representation consists of is unclear. Shaniqua sure can’t penetrate the veil.

Dear Mr. Nod,

 Perhaps you don’t remeber me but I contact you in 2010 when my claim got to the dock at the appeals court. They have remand it 3 times and no one tell me anything. I am on SS so they now that but they still want the SS record. Then remand I got CP exam for my knee just one. Then they remand again to do CP on right knee and back. Can they do this it is 3 years at the dock and my rep. says it just take time.

Shaniqua has hit an ugly nerve. She feels obligated after all this time to keep faith with the MOPH. Truth be told, she’s in an untenable situation. No one at the MOPH has told her to file a Waiver of Review in the first instance and just let the BVA adjudicate it. If and when they finally rule in her favor next year, it will be a remand back to the Forest Gump Memorial Regional Office for the same idiots to lowball her all over again.

A Waiver of Review gives the BVA the authority to fix this sooner, although with the interminable backlog, it may not feel sooner. The Appeals Management Center (AMC), sometimes called the 57th RO or the Black Hole, was set up in 2004 specifically to solve this dilemma. In 2014, they are hopelessly inundated in what the ROs are in but can marginally do better than the alternative of shipping it back to her local RO and let them play badminton with it for a year or lose it. The problem is multifold now. Shaniqua has given them her POA and cannot blithely skate away and begin pro se. She doesn’t have the legal acumen to attempt it. She could attempt to wrest control of the claim away from the MOPH but that will set her back further. She could file a Waiver of Review with the BVA on her own but by now, the decision is almost ripe for adjudication. I’ve noticed that when you have a VSO repping you and you start filing legal papers on your own, lots of mistakes, errors and anger surface. No one knows definitively who is driving the claims boat and which “dock”(et) it is tethered to. Throwing more legal paper at it is like sand in the gears.

Sadly, my advice to Shaniqua is sparse. I think she should wait and pray for one of two things. downloadIf it comes back from the BVA with another remand, she can revoke the POA and get a law dog involved pronto. On the other hand, a denial allows her to proceed past Go and head to the CAVC with a real leagle beagle at her side. The National Organization of Veterans Advocates (NOVA) or the National Veterans Legal Services Program (NVLSP) are set up to help Vets after they escape the ferris wheel of VA justice and VSO “help”.

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No SSD-No dice

Filing a Waiver of Review now is locking up the barn after the horses have departed for Calgary. Shaniqua’s case is not complicated but VA (and MOPH) have played her for a fool. We all know in this game that when you appeal, your SSI/SSD records ( if you are on SSD or merely applied for it) must be a part of the file on appeal. To ship the c-file there without them is a Bozo No-No and a guaranteed remand. Strike one on the MOPH and RO for doing so.

Remanding for only one part of the appealed claims and ignoring the rest is a classic ploy. Shaniqua did not indicate if the RO simply screwed up the C&P request or if the remand was actually just for one knee to the exclusion of all the rest of her injuries. Again, VA knows better and this myopic, singular approach to her injuries by investigating part, but not all, is another attempt to buy more time. Strike two.

Lastly, it is well known in VA legal circles (meaning the VA attorneys who rep. us) that VA purposefully attempts to misunderstand anything it can by claiming we are unclear in what we seek. Here, they cannot feign stupidity or ignorance. Shaniqua was injured in a quasi-combat environment. She was boarded out medically with certain injuries which were “pre-rated” by the Army at her separation. VA purposefully downgraded these ratings to much less than what was awarded based on their C&P assessment of what currently exists in 2014-not what was extant in 2006 when she filed. They know she’s not going to get better but is delaying the inevitable award of a suitable rating for as long as possible. This is what I suspect is happening.

6881499716_9e5142bb31_kI have often theorized that VA’s rationale for this is funding. If there are only X number of dollars available to Vets for compensation and the cookie jar is nigh on to empty, it follows that you have to wait for a few Vets to reach room temperature for the coffers to replenish themselves. VA bonuses cut deeply into this pool of money and we know how important it is not to disturb that sleeping dog. Quality help in the Senior Executive System (SES) is hard to find. All you need to do is witness the exodus now afoot to confirm they are leaving for greener pastures due to this VA scheduling scandal. Why hang around when you aren’t appreciated?

I think Shaniqua has struck a bargain with the devil and cannot rescind it. She is now finding out you get what you don’t pay for in shoddy legal help in this game. Unfortunately, coming to me at this late date and asking for a repair order is equally futile. She’s in so deep now, it’s probably in her best interests to just allow it to reach its logical conclusion (if such a thing ever happens at the VA) and either refile or get a law dog to sort it out. It’s not complicated. It was just severely mishandled. No Vet should have to suffer 8 years on welfare with two kids and have their country treat them this way. That to me is a crime. VA feels it is just “part and parcel of an orderly process that ensures Veterans get everything coming to them”.

 

 

 

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