DECISION REVIEW OFFICERS–AS SEEN BY…

download (3)Much has been said of VA’s hierarchy of raters known as Decision Review Officers, abbreviated as DROs. Their job is so thankless, their retention rate so low and the perks these days being bonusless, that many move on to greener pastures and leave us with a severe dearth of them. This is the primary reason we have such constipation at the VA when it comes to the dreaded DRO review. Most know that is a 600-day black hole. These are the high GS-12s and 13s-the ones with a 10 to twelve year tenure that see a dark dead end to this as a future. Much better while they are young and salable to move over to Allstate or USSA. With that said, let’s look more closely at these storied individuals…

The DRO as he sees himself:

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The DRO as seen by his supervisor:

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The DRO as seen by VACO hierarchy:

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The DRO as seen by Veterans:

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The DRO as seen by his ‘little people':

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The DRO as seen by his coworkers

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The DRO, and, by extension, the whole VA ‘problem’, as seen by the current administration:

 

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Day 58 of 168 on Sovaldi. Kidneys stabilized. Anemia is my constant companion. Welcome to Camp HCVets.

 

Posted in All about Veterans, Humor | Tagged , , , , , , , , , , , , , , , , , , , , | 8 Comments

BVA–3RD QUARTER DECISIONS OUT

download (1)BVA released their 3rd Quarter batch of decisions on Friday evening. HCV cases jumped from 446 this year cumulatively to 562. I have not had a chance to peruse them but feel free to investigate and report back on the tenor and quality of the  decisions. Remember, we did see an upswell in successful jetgun grants recently in the second quarter based solely on their inherent unsanitary attributes. Here’s the link for you.

Here’s the jetgun win  I spotted-seventh one down.

And #8, too.

Posted in BvA HCV decisions, Jetgun BvA Decisions, Jetgun Claims evidence, Medical News | Tagged , , , , , , , , , , , , , , , , , , , , , | Leave a comment

SMC-S–ATTEMPTING TO CUE OLD TDIU DECISIONS

downloadI was contacted by a Vet seeking to readjudicate an old award pre-Bradley that entailed the same or similar circumstances. To review, Bradley was awarded TDIU for one, single disability as the predicate for the total disability rating. Nevertheless, he had additional ratings that added up to 60% (or more) which ostensibly entitled him to VA’s Special Monthly Compensation ‘S’ worth about $300+ back then. He took Kenny the Carpenter up to the Fed. Circus and finally made VA read 38 USC §1114(s) exactly as it was written-not the way Dr. Peake insisted it was intended. Jim Buie did much the same and refined it further by adding up his disabilities not in the order received, but in the amount of percentages. Once one rating was granted at totally disabling (100% schedular), he merely moved the old, less-than 100% TDIU rating over into the SMC column to attain his SMC-S. VA doesn’t cotton to you playing their 3 card Monte game as they do. They fought him long and hard but to no avail.

Importantly, though, I came across a little-known panel decision from 2006 that illuminates another old ploy of VA’s to deny us “substantially housebound” status which I am currently seeking. It, too, was repped by the Kenster. In a nutshell, VA said I was totally disabled (100%) by a secondary disease (Porphyria Cutanea Tarda) yet they low balled me at 10%. After a DRO review, they zeroed out the DC 7815 Porphyria rating and substituted DC 7704 for 40% for phlebotomies. This was clearly and unmistakably erroneous (CUE). A total disability is just that-total. What Diagnostic Code they choose to use is immaterial.

The focus of the argument is twofold. I maintained prior to this that I was “substantially housebound in fact”. I lacked the requisite additional 60% rating or ratings above and beyond the 100% schedular or, in the alternative, a TDIU rating based on one single disability. VA regularly uses an odd means test if you can call it that. Their conceptualization is that if you can make it to the CBOC (community based outpatient clinic) or VAMC without an ambulance, they you must not be very “housebound”. Hell, for all we know, the ambulance is not even a viable excuse. Your mere presence at a VA medical facility argues against the fact that you are at home- ergo you aren’t housebound. Game. Set. Match.

As I gave Rick advice on how to combat what I felt was an interesting point of law worthy of review for error, my research led me to Howell v. Nicholson.  There I found the argument to defeat these idiotic straw man inventions VA used in 2009 to defeat my request for SMC-S based on a purely “substantially housebound ” reading.

Copy of Howell 04-0624 opinion final

Read this on page 7:

B. Permanently Housebound Status – 38 U.S.C. § 1114(s)

SMC-HB benefits will be paid to a veteran who, “by reason of such veteran’s service-connected disability or disabilities, is permanently housebound.”  38 U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2).  The term “permanently housebound” is further defined as being “substantially confined to such veteran’s house . . . or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout the veteran’s lifetime.”  Id.  The term “substantially confined” is not defined by statute or regulation.  See id.

The Howell court decided to define what ‘substantially’ finally meant here and this was in 2006. You will find that this didn’t percolate down to the VA judicial branch at the OGC or VBA level. It may have but I doubt they take any of this seriously until called out numerous times.

This is the stuff legends are made of. First, the Secretary (or what was to become the later DVA) insists on one broad interpretation of  what “substantially confined” is and then

Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder.  Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra.  The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the claimant is restricted to his house except for medical treatment purposes.  The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.  Mr. Howell does not contest this interpretation.

Having synthesized the essence of the interpretation, the Court proceeds to apply the coup d’ grace on the Veterans Law Judge.

Accordingly, we hold that leaving one’s house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC-HB benefits, and the Board’s interpretation of section 1114(s) to preclude the grant of SMC benefits on the basis of Mr. Howell’s leaving his house in order to attend VA medical appointments was erroneous as a matter of law.

That, fellow Veterans, is your can opener when you get hit with something like this. I have read numerous decisions that cite to the fact that the Veteran was able to attend his/her appointments and thus was free to move about the country.

The holding is well-cited and will stand you in good stead when they try to pull the blinders over your eyes. Always remember, Veterans. VA doesn’t know the law any better than your VSO or you. They make stuff up and run with it. If you are lucky enough to catch it or have an astute rainmaker who does, you will prevail. I can’t count how many Vets have come to me over the years and try to quote law to me to show why they lost. If 67% of all VA decisions are overturned, remanded, vacated or set aside for error or incorrect reasons and bases at the CAVC, then the smart money says appeal it. What is remarkable is that only a small number of Vets do so. Go figure.

Win or Die VA

 

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FED. CIR.–JOHNSON V. McDONALD-DISMEMBERING VA’S EXTRASCHEDULAR RATINGS SCAM

downloadFor scores of years, and certainly for as long as the post-1988 modern iteration of the VA as we now know it,  some interpretations of the VA’s regulations have been granted ‘deference’ if I can convey that politely and sarcastically simultaneously. In Veterans’ parlance, ‘deference’ means the USS Nonadversarial sailed without you. What appeared to be a level playing field was suddenly discovered to have a yawning chasm indiscernible to the naked legal eye. The chasm was so large as to be impassible. In Veteran parlance, we too have a name for it-the Thursday rules. Rule #1: If you weren’t born on Thursday, you don’t qualify for this special program. Rule #2, If, by a fluke, you can prove you were indeed born on a Thursday, Rule #1 is then for default application.

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A statute, 38 USC § 1155, was clearly phrased in the plural when enacted by Congress. We don’t need to repave the legal highway and bore you with legal tomes that presume Congress consisted of some pretty fart smellers back then and it’s presumed they knew what they were doing. Suffice it to say § 1155 was pretty clear to all except the few, and I do mean a select few entrusted with apportioning it out. Guess whoooo?

For the uninitiated, here’s the statute which is law-not everyday guidance.

 

The Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. The schedule shall be constructed so as to provide ten grades of disability and no more, upon which payments of compensation shall be based, namely, 10 percent, 20 percent, 30 percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90 percent, and total, 100 percent. The Secretary shall from time to time readjust this schedule of ratings in accordance with experience. However, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.

I  highlight, underline and bold the pluralities to show you how ludicrous the DVA’s rebuttal argument is that § 1155 clearly intended that each individual disability-all by itself-isolated if you will from any other service-connected ailment, be microscopically considered for Extraschedular Ratings. And here’s the added VA kicker, the BVA insists combining them together was not permitted. Each disease/injury had to be viewed apart from the combination as a whole for it’s added ‘impact’.

Rating: X (Not intended for children under 10 to view)

This woman controls your access to Extra-schedular benefits.

The VA Secretary wisely arrogated this valuable and lucrative contravening of the ratings scheme to a select few. The Director of Compensation and Pension Service and honorable Under Secretary of Benefits, currently Allison B. Hickey, are the few described in 38 CFR 3.321(b)(1):

(b) Exceptional cases—

(1) Compensation. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph…

an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.

The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.

Again, seems innocuous as a handful of potato bugs or a daddy long legs on your face. How did this regulation metamorphose into a knock down, drag out fight over the semantics of one absolutely unambiguous phrase:

The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture

 

Former upper management at Home Depot. God help us.

Former upper management at Home Depot. 21 years as a weekend warrior. A ‘company man’ and the other duly appointed guardian of Extra-schedular ratings

Tom Murphy (director of Comp. & Pen.) and his merry krewe have chosen to join Custer and his brave band and die on that hill as well. That the phrase “disability picture” is singular and not plural  is the main tenet of their argument. The fallback, Gorrilla Glue ®, last line of defense is that 38 CFR § 4.16 (TDIU) clearly supports it. Idiot’s delight. If the Federal Circus finds our argument is bogus and indefensible (which we already know it is), then we’ll fall back on yet another regulation (not statute) to defend the injustice. Nowhere in the argument is there a reasoned argument for this tortured interpretation based on statute.

What about the CAVC?

Just so. What about the CAVC? How in hell did this escape them? They thought it of such import they convened no less than an en banc Court of eight to consider the implications. Then they promptly threw in the towel and gave the VASEC a pass on it without any introspection.

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What ensued from that decision is so clearly in error as to be indefensible and the Federales said as much. This, fellow Veterans is what the focus of justice should be directed to. What possible reason could any majority of the en banc CAVC hang its’ hat on to defend this? A tortured interpretation arrived at by pandering to the DVA and going along with it? If the reason is simply to grant deference to an ambiguity, then show us the ambiguity. There is none and that is what should make your hair stand on end. Kasold pointed it out in great detail in his dissent and it became the gist for the Federal circuit reversal-almost chapter and verse.

Everyone with an ounce of legal sense should wake up and take notice. The author of the en banc decision was none other than whom many of us had come to think of as a Veteran-friendly judge (Schoelen). Conversely, Chief Judge Bruce Kasold, admittedly the most onerous and least Veteran-friendly, dissented and was joined by Davis and Bartley. We expected Meg to come down on our side but this decision  is warped beyond credible belief for the lineup of the players alone. How often are you going to see Bruce and Meg play house together with or without Davis?

Johnson, in Schoelen’s and the other five judges eyes, didn’t have a pot to piss in  or a window to throw it out of. They even strayed off the reservation in search of this epiphany, in of all places, the M21-1MR. What was simply constructed long ago as a How-To instructional manual of how to rate claims, the modern M21 is carefully infused with many little fenced-in areas. Ingress to service connection is limited at every turn with an “except in cases of…”. I submit in this case that it was a mere surrender of any semblance of judicial interest in favor of a disturbingly “far reach” of English to lasso in the singularity of the definition of “disabilities”. It is so glaringly bereft of precedence to depend on that it merely turns on the whim of six judges too lazy to read 38 USC §1155 and intuit the clear implication of plurality. This smacks of the “Predestined Interpretation” theory espoused by Henry Campbell Black. Ben Krause made a great analogy to it in his recent article about fixing this uncanny 85% predilection for Vets’ denials down at the RO and BVA level. Too bad he didn’t consider the implication that this is a far bigger Dog and Pony show than even he conceived of. How else would (or should) we Joe Average Vets interpret it? When examined in the light of all the other VA intransigence, disinformation and obfuscation, and the VAMC dishonesty, finding out an extra-schedular rating scam was afoot should not be cause for alarm. It should be expected. Additionally, finding out that it was abrogates yet another presumption of regularity. At what point does this whole presumption gig collapse for lack of evidence it exists?

This wasn’t even a brain teaser for the Feds. At nine pages, it is a remarkably short-winded rebuke of the CAVC, and by extension, the whole DVA adjudications/regulations/interpretations schematic with an “s” after each noun. Much like the overlooked clear meaning of 38 CFR §3.303(b) that was “misconstrued” in Walker v. Shinseki last year, Johnson unmasks yet again the impression that the DVA is unaware of what it is about. Walker will now permit thousands of decisions to be CUE’d by VA themselves and reduce erroneous grants. Similarly, for years we have been sandbagged by an equally narrow minded interpretation of how extra-schedular determinations are determined. Mr. Johnson just brought it to the fore and with the help of Ken the Carpenter, they finally discovered the meaning of what ‘disabilities’ is (are?)

I suspect the barriers to getting this valuable consideration will take time to rend asunder. As with all VA bureaucracies, The Tomster and Allison are going to have to stand shoulder to shoulder to staunch the influx of now-legitimate claims and will not go willingly into the night without a few more discussions about what the meaning of “is” is. Oh and as for CUE on all those old Extraschedular decisions for the last 25 years? Thursday Rule, dude.

The most telling bitchslap was left for last, too:

Given the intention of the regulation [38 CFR §3.321(b)(1)/38 USC § 1155], the government’s argument that the consideration of the need for extra-schedular review should occur by evaluating each disability individually, without considering the impact on a Veteran of his or her collective disability picture seems difficult to defend. In Veteranspeak, that’s abbreviated as WTF. Over?

Seems if anyone had read 38 CFR § 4.25, the ratings table, they would have noticed it discusses the cumulative effect of a number of different illnesses/injuries and contravenes the whole argument put forth to defend § 3.321(b)(1) espoused in Johnson. Regardless, all’s well that ends well. I wonder how many more aeons we’re going to suffer this warped ‘predestined misinterpretation’ nonsense.

 

 

 

 

 

Posted in Fed. Cir. & Supreme Ct. | Tagged , , , , , , , , , , , , , , , | 4 Comments

VASEC–TOWN HALL MEETINGS

10475963_809545875767566_7904001166678239804_oThis should be interesting. Our new Fearless Leader has announced town hall meetings but they are to be conducted at all VA Regional Offices and VHA Medical facilities. They are slated to be done by the end of September yet we have not been told where these Come to Jesus Meetings will be held or when. Nothing like a good Kumbaya party after the dust settles.

Will there be just one at, say, Sioux Falls VARO/VHA in South Dakota or numerous ones across the fruited plain? Will there be any press releases to announce the dates? So much promise and so much opaqueness concerns many of us when we hear once again that VA has finally heard our plaints and feels our pain.

Goin’ Places that I’ve Never Been

Judging from the content of the newest Congressional compact with Veterans, the opinion on the street is “Just got screwed again.” sung to the tune of Willie Nelson’s On the Road Again. Any new legislation that resurrects VA bonuses again in light of all the recent abuse of said bonuses is a fool’s bargain. VA has been unmasked numerous times for their perfidy, unreliable statements and statistics, and lastly, cheating on something as mundane as scheduling appointments for us. The punishment? Why, more bonuses at the same rate and quantity as before. I suppose they’ll actually have to prove they earn them this time around.

The VA’s Bonus Army

Let’s compare the old to the new.

Old bonus program: up to $360 million in bonuses for simply doing your job, or, in the event that you couldn’t accomplish the job with the available number of doctors/ appointment slots, inducing your subordinates (who, incidentally did NOT get that bonus) into fudging the numbers so as to qualify you for the bonus.

downloadNew bonus program: No more than $360 million in bonuses but document it all regardless of whether you can make it work; don’t get caught cooking the books; collect bonus in December for making an effort even if nothing changes. Reinstitute one week, all-expenses-paid Human Resources getaways to Orlando for training/implementation of all the new changes. Find a new Patton look-alike, improved Karaoke machines with higher-quality teleprompters and enforce media blackout of festivities.

Getting Rid of the Miscreants Who Lied and Cheated

How about firing the incompetent, sleazy upper management types for their misfeasance. Yeppers. That’s covered as well. All McDonald and his minions have to do is prove the secret waiting lists were wantonly created to ensure bonuses. That’s a pretty fancy trip wire that everyone can see and avoid. There will be more fingerpointing than an incest-plagued family reunion. VISN managers have secretly been instructed to use the Shinseki/Obama technique and bemoan the fact that “Nobody told us”. Their minions in high places likewise have been instructed to stare stoically at the ceiling and repeat ” Mea culpas are long overdue but we had to wait for the OIG investigation to play out. But for my ignorance, I singlehandedly could have prevented this. And since I was in the dark due to the intransigence of those below me, I should not be demoted  or have to return my prior bonuses. In the future, I promise to punish those beneath me and move on.”

The Lowly, Well-Intentioned Whistleblowers

Scapegoat-03-10-13-400x400How about protecting the whistleblowers? That was a pseudo-concern addressed during the lead up to the Senate vote on it. The consensus was they should not be dunned for coming forward. In the future, if anyone tries to bring attention to “systemic problems”, they will be rewarded with nice corner offices in the basements of ROs and VAMCs to guard the archived paper files. These are  much sought-after jobs and there will be fierce competition for them. Understandably, promotions in this dead end exciting new field are few and far between due to the scarcity of positions. Whistleblowers are advised to check openings before opening their pie holes to ensure transitional compatibility.

Guidance on Who to Fire?

Firing well-trained higher echelon personnel is messy and to be avoided. VA has a lot of time invested in these goldbricks and where possible, retraining and indoctrination are the preferred path. In the case of the small fry who were caught holding the bag, wholesale dismissal shall be the panacea. GS-7s to GS-10s are renowned for acting on their own and coming up with nefarious schemes to line their own pockets -even if they never benefit with bonuses.  VA’s OIG has determined this time and time again and it is statistically documented. These personnel will not be considered essential and should be considered first and foremost for scapegoat material.

And that’s the gist of the new bill. They promise we won’t get fooled again.

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Out of sight but not off the payroll.

P.S. VA Secretary McDonald announced this morning that Ms. Sharon Helman, former VISN director of the Phoenix VAMC has been chosen to replace retiring VISN Director Victor Maninguez of the Manila, Philippines VAMC. She is reputedly taking Rosetta Stone courses in Spanish which explains her low profile for the last three months.

Posted in VAMC Scheduling Coverup | Tagged , , , , , , , , , , , , , , , | 4 Comments

CAVC–BALLARD V GIBSON–BACK TO SCHOOL ON INFORMAL CLAIMS

thumb_d10d7a64-04ab-4462-9561-19cb885ef6d9Reversals are like high-Greek drama compared to vacaturs  and set asides for remand to rehang the Vet. They always invoke the ‘aha’ moment where the Judge points to that fatal flaw of law and says “You can get away with  quite a lot here and we’ll even give your reading of the regulations great deference, but this is over the top, son. You need to go back and crack the law books again because you’re way off the reservation. And be quick about it.” This coming from Judge Hagel is amusing but every Judge gets handed a case where the error against the Vet is so egregious that it demands a bitchslap. Poor Rebecca Ballard had valiantly picked up the standard where Danny Ballard dropped it when he died on the VA Hamster Wheel of Justice in August 2010. 

Seems Danny had some big back/hip issues which he (and I) didn’t communicate in English to doctors too well. Since we were not acquainted with polysyllabic terms like ‘radiculopathy’, we kept getting denied. Eventually you prevail like Danny boy here did, but VA immediately gives you the newer C&P exam date for your effective date of rating or increase because that is the first time, to them, that it can be conclusively proven that you actually carried this diagnosis.

Ballard reversal

downloadThis bait and switch is so old, it predates the Cliff Notes book of VA excuses. “Oh. The hips? You never mentioned the hips, Danny. Let’s open a brand new claim for hips.” VA knows you are going to win this pissing match eventually but they try to impede the inevitable for as long as possible to make more work for all of us as near as anyone can tell.

Danny filed in 88 and won 30% straight out. He never came back to the trough for an increase until he was in serious shape. At that point, VA decided to become adversarial. Szemraj v Principi F3d (2004) pretty much invented the term ‘kid gloves for pro se claimants”. Comer v. Peake cemented it when they referred to VSO reps as ” the mailmen with the funny hats”. VSOs have a long memory for insults.

images2VA knows better than to play dumb. Hey, they have 500 staff attorneys all jostling for a position to move into a Veterans Law Judge slot when a retirement comes due. They learn the path to promotion is to bring in the denial for the team. When you arrive pro se, or nearly so, VA is required to inspect every possible permutation of what you might be entitled to. It’s not meant to be a “Well. You said you had a back problem. You asked for an increase for a what? A back injury. You never said anything about your hips. Now you want us to believe your hips are related to this and pay you back to 2004? Sorry. It doesn’t work that way”.

The BVA dragged it out further until Danny went to his maker. Rebecca immediately picked up the appeal and continued. When she got to the Court, I’m sure NOVA or NVLSP were more than happy to take this one on. Easy EAJA funds and no discussion of whether it was a win or loss for the attorney.

The irritating thing about this is always the fact that VA knows better than to pull this crap. It’s an art form to them. They string together phrases from a menu on an old Adobe 2 and end up with semantic coleslaw. They do convey the essence of the denial but the logic is often twisted as here. I see one problem. Someone should put them on the Lexis Nexis VBM list to receive a new one annually. Perhaps they’re just missing out on all the Federal Circuit Court stuff. Look at this and try to imagine not understanding that Mr. Ballard is evoking a request for an informal claim.

In September 2004, Mr. Ballard sent a follow up letter to VA stating that he was seeking an “increase in  disability compensation and rating.” Mr. Ballard further stated

“The ability to do even the most simple things such as putting on socks and shoes is now impossible. Anything that requires bending my legs at the knees, hips, or the combination of both[,] is almost impossible. Climbing stairs, walking even small distances, sitting[,] and getting up from the sitting position is extremely painful.”

Hey, that didn’t faze the raters. They sharpened their pencils and warmed up the M21 Ouija Board.

In November 2004, the VA regional office denied Mr. Ballard’s claim for an increased disability rating for his back disability. The rating decision did not consider entitlement to benefits for a hip disability. Mr. Ballard filed a Notice of Disagreement with that decision and ultimately appealed to the Board. In his April 17, 2006, Substantive Appeal, Mr. Ballard indicated that he
believed his hip problems were related to his service, which VA construed as a new claim for benefits for a bilateral hip condition.

Sure enough, a whole new claim for the hips materialized and finally, in November 2007, five years later Mr. Ballard finally got the popsicle stick without the pop on it. Had VA gone back to 2004 as they legitimately should have, he and Rebecca would have picked up a tidy $90,000 check and an effective date of 2004. VA wasn’t having any of that. Ignoring precedence, they treated old Danny and Rebecca like a couple of Perry Masons and gave them no kid glove treatment whatsoever.

The decision wisely mentions the Clemmons precedent and with good reason. Mr. Clemmons was similarly vocally challenged and had difficulty diagnosing himself mentally. VA ‘fixed’ it for him with a new diagnosis and a new effective date much more recent like Danny’s but he finally prevailed after proving he wasn’t a psychiatrist. A great read.

JudgeHagelUsing Brokowski v Shinseki 23 Vet. App (2009) brokowski.349-wp-  as the canvas to paint this decision, Judge Hagel clearly shows the error of the BVA and ROs ignoring the screams of an unrepresented Vet. Worse is to purposefully misconstrue the word “hip problems” used throughout the course of the accretion of evidence as merely a problem but not a problem specifically rising to the level of a VA claim. Using this logic, the BVA Veterans Law Judge Milo Hawley referred to Rule 75-The Vet didn’t actually vocalize the phrase ” I want to file for my hips.” In VAland, that means you blew it. VA just hates informal claims because the whole concept means they have to perform due diligence and actually check all 2000 of your body parts, not just what you are asking for a raise on. And if you say your hips hurt, they have to acknowledge it.

As usual, at the end, every Judge has to slip the knife into the back between the seventh and eighth ribs deeply. Judge Hagel adroitly plants the shiv into Milo Hawley’s back with gusto in his parting sentence:

Accordingly, this matter is remanded to the Board with instructions to determine the proper effective date for the award of benefits for bilateral hip vascular necrosis. In this regard, however, the Court notes that Mr. Ballard submitted his informal
claim on September 2, 2004, and the examination that first revealed a hip disability was conducted on September 25, 2004. This is a factual question to be decided by the Board in the first instance.

Such is VA justice. Hagel takes great pleasure in rubbing it in. Hell, he even tells VLJ Hawley what the correct earlier effective date should actually be to the day.

Posted in CAVC ruling, Informal Claims | Tagged , , , , , , , , , , , , , , | 1 Comment

ILP–NOD DOES FARMVILLE

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Just cleared 10′ tall this AM

Corn is interesting. The more sun you give it, the taller it gets. Ditto on the water and fertilizer. However, this year, something is afoot. I vote global warming and I like it. Last year I blamed the good fortune on chemtrails but they haven’t been spraying 3,000 miles to the west of me over the Pacific Ocean this summer. I calculated that based on the prevailing winds and my new chemtrail spray aircraft finder

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Posted in Food for the soul, Independent Living Program | Tagged , , , , , , , , , , , | 3 Comments