BVA–OPEN MOUTH/INSERT LSD

VeteransAdministration.12755109_stdIn what might be one of the largest wastes of judicial time in the history of the VA, we are saddled with PRC 100 repairman Johnboy Vet. Johnny has yet to meet any drug he doesn’t like. The cumulative effects seem to have clouded his judgment. HE has somehow wandered all the way up to the hallowed halls of  BVA justice only to encounter the frightful reality that at some point in the past, his commanding officer decided he wasn’t be all you can be material.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files1/1505994.txt

 

Worse yet, they wrote it all down and preserved it for posterity on the off chance he might show up and claim it was all a big misunderstanding. I see and read a lot of these where the Vet claims PTSD due to experiences in Vietnam. Some are humorous such as the one where the wife testified to any number of stressors her hubster suffered (hearsay). The problem was he never left the United States. BVA records don’t tell us if a divorce was forthcoming after the combat deception was unmasked.

Acting VLJ L.M. Barnard summed it up thusly:

It is inconceivable that given this extensive use of drugs, which rendered him habitually disoriented, while in Vietnam he could possibly have participated in any meaningful combat role.

No Bozos

No Bozos

I feel compassion for these Vets but I have no sympathy for their utilizing the judicial system as a welfare lever to extract money. Lord knows, many of you wait an interminably long time for justice and a small part is due to these chuckleheads. The VFW should have better controls in place to “vet the Vet” and prevent this kind of abuse.

Posted in BvA HCV decisions, HCV Risks (documented) | Tagged , , , , , , , , , , , , , , , , , | Leave a comment

BVA–PERSONAL LAY TESTIMONY IS A VALID TECHNIQUE

VeteransAdministration.12755109_stdI love BVA decisions for their simplicity. Here’s a great jetgun win that stands up on its own two legs because there’s really nothing to poke a hole it. It helps when the VA examiner quotes the FAST let Letter in 2004 and lets slip the “plausible” word. That was probably helped more Vets than we can count and now it is becoming more prevalent. Use this decision as a template to a win. 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files1/1506800.txt

Posted in BvA HCV decisions, HCV Risks (documented), Jetgun BvA Decisions | Tagged , , , , , , , , , , , , , , , , , | Leave a comment

BVA–PADDING THE MEDICAL RECORD

download (3)I do not know how many times I have seen this phenomenon occur in VA law. Johnny Vet goes to VAMC for ailment. Johnny Vet is tested for HCV and turns up positive. Mr. Vet’s doctor, in true VA style, inquires as to his personal recreational drug habits. Johnny Vet assiduously avers any such activity and cites ETOH abuse with maybe a side of Cannabis in the remote past. Follow on doctors decide to “improve on his statements and ascribe all manner of drug abuse to him with no basis in fact. 

Several years/decades later, when applying for comp. benefits, Johnny gets tarred and feathered by things he never said- and  in this case, previously denied. This is a classic case but Johnboy upsatged them to his credit. He denied this activity in 1990 but it came back to haunt him in an unsubstantiated and undocumented remark eleven years later.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files1/1506919.txt

Post service medical evidence reflects that at the time of a hospitalization in September 1990 for treatment of an unrelated condition, the Veteran denied intravenous drug abuse (IVDA). However, a November 2001 evaluation by a professor of medicine reflects that the Veteran “does have a history of multiple recreational drug use including intravenous but has not done this since 1975.” In correspondence received by the VA in August 2011, the Veteran explicitly denied any intravenous drug use.

Once the stain is on the sheets, nothing can stop the pell mell rush to denial as witnessed here.

The June 2011 opinion is inadequate because the examiner erroneously relied on a statistical generality about cause of Hepatitis C without specifically explaining why, in the Veteran’s case, other potential causes were not the likeliest cause of his Hepatitis C. Additionally, the examiner accepted intravenous drug use as a reality without crucially analyzing, considering, or addressing the other medical records that contradicted the assertion.

This is prima facie evidence of why you need your VA medical records as well as your c-file to investigate what will eventually be used against you. That the Vet prevailed and won is due in no small part to his “prepositioned”statement in 1990. Had this been absent, I wouldn’t be writing this. It also helps when idiot VA examiners get diarrhea of the mouth and run on about things they know nothing about.

Mostly, this decision illustrates what I have encountered over and over again in eight years of helping Vets. Robert, of Los Angeles was similarly smeared by this technique but the chowderheads entered the damning notation in pen into VISTA records (which were printed) much like what happened to Phil Cushman. Quite simply, don’t like the diagnosis or the facts? What the hell. Write your own in. Who cares if they’re aftermarket and undated with no corroboration? We’re VA. We don’t need no stinkin’ corroboration. Incidentally, Robert won with no big deal at the BVA. That it had to go up to Vermin Ave. NW for that determination is the non sequitur.

Posted in BvA HCV decisions, HCV Risks (documented), VA Conspiracies | Tagged , , , , , , , , , , , , , , , , , | Leave a comment

Good news: Statins and liver cancer study

artery

Most graphics I’ve looked at show the liver and digestive organs in isolation. This one helps me grasp the liver – heart connections.  This slide, # 24, was published on Slideshare by Eman Abdallah. Brooks/Cole–Thompson Learning.

Quick note.  A private doctor has recently prescribed statins to improve my husband’s lipid numbers. Previously, safety concerns about hepatitis and statins have kept them out of his medicine kit.  I’m assuming these fears are now allayed for many other people with a history of HCV.   Our amazing livers, which make cholesterol (LINK), are workaholics.  

The VA writes (LINK):

All the blood that flows from the intestines, stomach, and spleen is filtered through the liver. The blood flows into the liver through the portal vein. It filters through the liver in a system of smaller and smaller veins. As blood passes over liver cells, these cells process nutrients in the blood. This processing makes products like proteins and sugars that can be used by the body. Blood is carried out of the liver through the hepatic vein to the heart.

A large literature metastudy, Statin use and risk of liver cancer: an update meta-analysis (LINK) by was published in 2014. Chinese researchers searched the following databases with relevant keywords:

The systematic computerised search for eligible studies were performed on the database of PubMed, BIOSIS Previews, Web of Science, EMBASE, EBSCO and Cochrane Library, covering all studies published from their inception to 5 March 2014.

The full text of the study is free to read online if you want to dig into it.  Their overall conclusion, “suggests that statin is associated with a significant risk reduction of liver cancer when taken daily for cardiovascular event prevention.”  The researchers also make this surprising statement:  “Statins might be considered as an adjuvant in the treatment of liver cancer.”

Even people with a “higher baseline risk of liver cancer, defined as patients with older age, HBV or HCV infection, there was a trend towards more decrease of liver cancer risk …than in the other eight studies with general population.”  But liver cancer risk reduction was less when there were other “confounding” conditions such as alcoholic liver disease.

The FDA has a webpage devoted to statin risks (LINK) such as muscle pain.  However, the agency is upbeat:

This new information should not scare people off statins, says Amy G. Egan, M.D., M.P.H., deputy director for safety in FDA’s Division of Metabolism and Endocrinology Products (DMEP). “The value of statins in preventing heart disease has been clearly established,” she says. “Their benefit is indisputable, but they need to be taken with care and knowledge of their side effects.”

grapefruit

FDA: “Examples of some types of drugs that grapefruit juice can interact with are: some statin drugs to lower cholesterol, such as Zocor (simvastatin), Lipitor (atorvastatin) and Pravachol (pravastatin)”

 

The VA has posted information online about their research on statins, statins and exercise, drug interactions and much more.  A brief VA fact sheet on cholesterol medications (LINK) outlines some other options.  The FDA also reminds people to check to see if they have to give up grapefruit with these or other meds (LINK).

So the news seems promising for people, with or without a history of hepatitis, who want to try statins after weighing the risks and benefits.  The potential to reduce cholesterol and the risk of liver cancer at the same time is a huge plus.  I am curious to know if the VA is prescribing statins for patients with a history of hepatitis and if others have experienced negative side effects from statins that made them discontinue their use.

 

Posted in Guest authors, HCV Health, HCV Risks (documented) | Tagged , , , , , , , , , , , , , , , , | 4 Comments

BVA–TRAVEL BOARD HEARINGS

va_sealI see much written both here and over at HADIT.com about BVA hearings. For the majority of you, in the interests of getting rated as soon as possible, waiting for a Travel Board hearing face-to-face with a Veterans Law Judge is a two-year plus extravaganza you can ill afford. Most opt for the Videoconference method by their local VARO connected to the Judge sitting in DC. Few are willing to wait out a shot at the eyeball-to-eyeball  poker game and fewer still are willing to fly back to DC for a one-on-one in the Judge’s conference room.

Every hearing I’ve had-all two- have been the face-to- face version. I count the first DRO hearing in  October 1990 as one. This was before the term DRO existed. He was the rating officer, the senior rating officer and the DRO all rolled into one.  Mr. J.F. Wallace went on to become what we now call the Veterans Service Center Manager or VSCM and actually was there when I reopened in 2007.

I missed the second one. In 1991, they didn’t tell us these things. It disappeared off to DC and then surfaced like a bobber after a strike in a year or so- denied. IN fact, old Ron Ampe, my DAV rep. never bothered to mention the CAVC  option. I was so naive back then. Ouch.

A Board hearing with the judge is a disconcerting occasion for many. If you have any practice in public speaking, it’s far easier. Looking the judge in the eye when you’re talking is paramount. I’ve discussed this in my book but the crux of the matter is now that you have his undivided attention in this setting, you have to impress him/her with your intensity, your commitment to justice and your willingness to wait a long time to face him/her to communicate what no one else seems to have been able to convey- what happened, how it happened and why you’re there.

Having a VSO representative, to me, was about as effective as an umbrella in the far wall of a hurricane. He contributed nothing. In my second hearing before Judge Mark Hindin, I had a bobblehead doll who nodded and took no notes. I showed him every point, every legal turn and gave him the proper cites. It was all for naught. He skipped right over the 1994 NOD with N&ME like a stylus on a scratched record and kept on going. It was the only way to make the denial stick. Most oddly, he gave me not 45 minutes to discuss Air America but fully one hour and twenty minutes. I cannot say there was planned denial but one must admit that VA didn’t cotton to the idea of another Leroy Macklem on their doorstep asking for 200% back to 1994. It’s far easier to deny a pro se Vet on the off chance he’ll fold and never even call up NSVLP or file a NOA.

When I filed the Extraordinary Writ of Mandamus or EWOM for short, I knew it would ignite a firestorm. I submitted my letters to Call me Bob. I submitted all the IRIS messages from VA that clotheslined them with their own statements. I screenshotted eBenefits every time something changed though it rarely did over 4 years. In short, the Writ evidence exceeded 95 pages alone. It was particularly damning and gave them little cover to hide behind. As documented in  The Birth of A Writ, the VA magnanimously slipped into high gear and granted almost all I asked for. Almost.

No Bozos

No Bozos

Left unfinished was the 60% for Porphyria that I asked 100% for. Also missing was the ILP Greenhouse. VA insisted I never filed a rebuttal to the SSOC issued May 5th, 2014 and therefore there was no need for an additional one in the answer to my Writ. Silly VA. Green cards are for Vets.  ILP SSOC rebuttal rcv’d by SEARO 346 5-22-2014 .That’s the oldest trick in the book.  And, as we all know, if you send in a rebuttal to an SSOC with New and material evidence, the de novo crew has to get to work, fabricate another Adobe 2 denial document with the wrong tense and dangling participles- and- in a separate document, reissue a new SSOC continuing the ongoing denial. Under no circumstances can you blow off a submission of new and material evidence-ever. That’s a major Bozo No-No. Here, we have the hierarchy, the crème de la crème of the Appeals team dropping the ball- or not.

unnamed (3)Remember? We’re talking VR&E Officers trying desperately to be DROs. That’s like trying to pretend to be a pilot. Eventually it’s going to become evident you don’t have a clue what you’re doing in the left seat when you can’t even turn on the engine. Throughout the denial game over the last four years, these chowderheads have misquoted 38 CFR, denied with no reasons and bases, miscounted greenhouses and lastly issued a SSOC using  brand new 2014 regulations in the M 28 R manual. Failing to rebut my answer and issuing a Form 8 certifying this is virtually impossible to comprehend. A first year law student isn’t that stupid by the third day.

While I was in San Francisco at the NOVA conference, I got a frantic call- actually three in a row- from our old friends at the VA Prize Redemption Center on Friday the 17th.  The 800-827-1000 was a dead giveaway. I smiled as I answered. Sure enough, the VA travel board coordinator was eager to pencil me in Wednesday the 29th of April for 1030 hrs with VLJ Vito Clemente. I gladly accepted and waived the 30-day requirement for scheduling board hearings. I managed to also inveigle “Peggy” into relinquishing my VR&E file so Bob Walsh can defend me properly. Considering he’s my mouthpiece, seems the call should have gone to him anyway. Mostly, we want it to make sure they have my SSOC rebuttal in the file so we can hang them.

Two scenarios unfold. We could logically ask for a remand back to have the Seattle bozos redeny the greenhouse and issue the missing SSOC-or- we can overlook their stupidity and submit my rebuttal as a new document-yep- as in new and material evidence, submitted directly to the judge with a waiver of review in the first instance in Seattle. The latter seems to be the preferred choice but we get to reveal the SSOC presumption of stupidity attaches to the Seattle VR &E office.

I wish to thank Bruce McCartney for the prodigious amount of statistics he has unearthed showing the ILP is a chimera. His greenhouse appears to be the only one issued to date. Much of my evidence is his evidence. If it were not for him, I would probably still be oblivious to the ILP.

imagesThe hearing this Wednesday will be attended by my trusty rainmaker LawBob Squarepants who is flying in Tuesday from Detroit. I’ve been waiting for this do over since 1994. Now I have the moral high ground. VA has little left to use in their defense for arguments. In any case, this isn’t a Perry Mason moment. It’s more an opportunity to sweep up the broken glass and close the book on my  burgeoning eleven-volume c-file. The appeals seem to have been advanced on the docket under 38 CFR 20.900 (c). Which clause they chose to employ to justify it is immaterial.  A decision will in all probability, be forthcoming within two months or so. The evidence is dispositive and the case law/regs for the ILP are iron-clad.

Of course, that’s what I said after I walked out of the hearing with VLJ Hindin April 5th, 2011. It ain’t over until the Vito sings this time.

freezing Hell

Posted in BvA Decisions, BvA HCV decisions, Extraordinary Writs of Mandamus, Independent Living Program, Presumption of Regularity, VR&E | Tagged , , , , , , , , , , , , , , , , , , , | 4 Comments

THE ROADTRIP POSTSCRIPT

coast road

North of Bodega Bay.

Returning from San Francisco’s NOVA conference was a case study in how you cannot get here from there. Cupcake insisted on taking the Route 1 Coast road. It has more turns than a pissed off sidewinder. The only positive feature is that it doesn’t move or strike like one. A massive traffic jam in Petaluma for road construction caused us to miss the first opportunity after Sausalito. We finally took a cuttoff down a mule track to Bodega Bay. Some may remember Alfred Hitchcock’s movie on that but we sure didn’t see the same town. Typical Hollywood. Go to Victoria BC to get the ambiance and “feel” for something in California. 

The back way to Bodega Bay

After about four hours @ 20 mph, we decided it might take two weeks to get home. Sadly, we decided to make the break from the lovely view and return to the game plan. Unfortunately, we didn’t have one of those Doc Brown DeLoreans with a flux capacitor. In California, they have roads that do not necessarily go where you want to-on the order of a hundred miles backwards to get fifty miles sideways. All this time we thought they just suffered a dearth of water. Check this little 78-mile nightmare backtrack towards San Francisco out.

The long and winding road

The long and winding road to I-5

We arrived in Corning at 2100 hrs., did the choke and puke at a Mexican restaurant and then hit the Holiday Express Inn.

Now, for all of you Veterans, I wish to warn you. In spite of what Holiday Inns say, they do not, I repeat, do not offer a discount to military or Veterans. The young lady in Corning indicated they do offer AAA and AARP discounts but when queried, I was told categorically the Mil/Vet discount does not exist. Holiday Inn advertises to the contrary so do not depend on their ads. Thank you for your service. That will still be $116 samoles.

The high point of the whole road trip, and the primary raison d’etre, in my book, was the last stop. I have not had the opportunity to visit my Uncle Jay for twenty four long years. Sunday, the 19th of April, I was able to do so on a glorious sunny afternoon. I still remembered my way to the old Comstock Cemetery in Curtin, Oregon.

Jay grave

Jay grave 2

 

Cupcake’s trusty 2007 Prius Vetmobile ate an astounding forty eight gallons of gas and came through the experience with flying colors and nary a hiccup. Amenasknodmobile

Too bad we couldn’t just click our ruby red high heels together and keep repeating “There’s no place like home” to speed our journey back to Gig Harbor. One last question for Brad. What in heck are these flowers?  My term for what they resemble is unprintable. They infested the coast road in both deep blue and purple.

Purple  plants all over Route 1

 

Posted in 2015 NOVA Conference | Tagged , , , , , , , , , | 7 Comments

BVA ANNOUNCES FDA (FULLY DEVELOPED APPEALS)

download (1)Not to be outdone by the AOJs, BVA spokeswoman Sharon “Hell No” Hellman, recently promoted and transferred in from Phoenix to 810 Yellow Brick Rd. NW 20420, today held an important press event. Sure enough, at the corner of Delay Street and Deny Avenue, Ms. Hellman announced the roll out of the new Fully Developed Appeal and what to expect soon.

Said Hellman”Due to Director Laura Eskinazi’s unparalleled success with the Rocket Docket program, we were able to jettison, er, remand 25% of our backlog onto the AOJs in FY 2014. Sadly, it didn’t make any difference. Hey, we get it. The BVA appeal backlog is expanding exponentially like that National Debt clock in Times Square. Ms. Eskinazi has correctly identified the problem was Congress’ decision in 2007. They had no business letting attorneys into this process at the drop of the denial word.  Now, because of  NOVA and the NVLSP intransigence and insistence on real law, it takes four years to get an appeal decision. Everyone thinks they got dissed at their RO these days and Veterans’ lawyers aren’t doing anything to dispel the myth.  To add insult to injury, they  continue to clog the system with foolish, meritless appeals.”

Ms. Hellman’s assistant, Mr. W. E. Gunn went on to explain the process in more detail:

“The new Fully Developed Claims Process at the AOJ was built on the 125-day “develop to deny” theorem. Consequently, VAROs were clearing their backlog books and merely transferring the problem to us. Punting to the BVA on fourth and long was, and is, unfair.  Two can play that game so we simply punted back and remanded 25% of the certified claims back for whatever we could find wrong. In any event, it was to no avail. Therefore, VA stakeholders convened at an unnamed Orlando luxury resort this spring and came up with some innovative ideas on how to fix the intractable problem.

First of all, the BVA prefers the term “Rapid Remands Program” over the boorish “Rocket Docket” vernacular  coined by Veterans Law Judge Kelli Kordach. It more properly describes the process in terms Veterans and their representatives can assimilate. VA product testers insist it has that same catchy caché as “rapid rewards program” and Veterans are more liable to misinterpret it as such.

In order to eliminate the backlog for certification and appeal permanently, however, Ms. Eskinazi proposes the new Fully Developed Appeal or FDA for short. FDAs can also be decided within 125 days with 98% accuracy as soon as the VBA can run it up the flagpole in the Federal Register. VA will propose that Veterans, through their VSOs, summarize, in 300 words or less, why they think they should prevail. Their lay testimony will be accepted without regard to credibility, they are free to opine medically on their symptoms and in all cases the benefit of the doubt will be employed assiduously as it always has in the past. Since most Veterans and their representatives are functionally illiterate, most will not need all three hundred words to communicate their desires. In fact, few, if any VSOs, will actually see any change in the process except for the accelerated time to a decision. This is a win-win for all.

downloadBVA law judges will decide these cases within 125 days or the Veteran wins by default. What could be more fair? There will be no Reasons or Bases section to explain the decision. There will be no legal cites. The 125-day process will commence when the BVA officially acknowledges it has. It is up to the Veteran’s representative to ascertain that date so as to avoid a failure to timely appeal.  The decision will be a bare bones one-either thumbs up or thumbs down in much the same way the VA ran this show before the VJRA was enacted in 1988. The VBA proposes putting a thumbs up on all grants of compensation with a Smiley Face. They will be affixed to the Rating Decision envelopes. BVA psychiatrists tell us this improves Veterans perception of VA fairness and “balance”.

download (1)Should the Veteran or his representative desire a copy of the denial, we propose to attach the denial decal (ULUZ) to alert the Veteran of the impending depressing news. Far too many Vets get their Big Brown Envelopes (BBEs) expecting a win. Since this only happens 15% of the time, it would only be fair to prevent getting their hopes up.

If by some mira- ah- if the Veteran prevails, his/her claims file will be returned to the AOJ and a rating decision will be promulgated within six months or as expeditiously as possible after that. Should they lose, they will receive no notice. This is established VA law currently anyway and  called “deemed denial”. It will be up to the Veteran or his designated VSO to contact the AOJ within sixty days of the expiration of the 125-day time limit to determine the loss and file the Notice of Agreement (NOA) with the Court of Appeals for Veterans Claims. Failure to do so will void the right to appeal to the CAVC. To simplify the process, Veterans or their representatives can mail in a self-addressed and stamped envelope within the sixty day period to ascertain the status. VA will promptly mail out a response in the envelope provided. Failure to affix postage to said envelope will be construed as noncompliance with the FDA offer and automatically renders it null and void.

Any failure to comply within the sixty day limit following the designated 125-day decision phase will not be granted equitable tolling. To take advantage of the FDA offer, the Veteran or his representative must file the VA 9 within 14 days of issuance of the SOC or SSOC at the AOJ. The request must be checked off legibly on the VA 9 and specifically enumerate which claims have been chosen for FDA status. The maximum number of appeals for an FDA is two (2) claims. Again, the strict word limit is three hundred per claim for a maximum of six hundred words over two. The address on the envelope will count towards the word limit (40 words). All claims must be sent to:

Department of Veterans Affairs

Cheeseville Intake Center

Building Number Six

Intake Loading Dock # 78

Attention: Fully Developed Appeals Supervisor/ Deputy  Fully Developed Appeals Supervisor

Rule 900 Expedite  (Optional)   Yes [  ]  No  [  ] (check one)

Cheeseville, Wisconsin 86739-2440

Misaddressed mail to Regional Offices or the Board of Veterans Appeals will be forwarded to the Cheeseville address but the VA cannot, and will not, guarantee delivery within the 14- day time limit to protect the Veterans’ appeal. The above address is the only one approved. The date stamp, in any event, will be the deterministic metric. Equitable tolling is not for application with FDA claims.

At this time,VA is not able to extend this process to pro se Veterans or attorneys licensed to practice law with the Department of Veterans Affairs. This offer is only open to Veterans represented by the 46 Veterans Service Organizations currently chartered with Congress. We hope this will bring relief to hundreds of thousands of Veterans who are currently disenfranchised by the long waits. This equitable process is nonadversarial, Veteran friendly and will be a long-awaited shortcut to speedy BVA justice. VSOs have long advocated to remove the attorneys from this process as they are preying on gullible Veterans. We agree and the VA Secretary Bob concurs that to allow lawyers into the FDA process would merely throw more sand in the gears of BVA justice with no benefit accruing to the Veteran.

A comment period will begin today for sixty days and then VA will begin to institute the proposed changes. Thank you for your time. We have brochures on this but the printer ran out of ink. I’ll make sure all interested parties get copies of this briefing as expeditiously as possible. I hope that clears up any confusion on the new FDA.”

P.S. I am forced to add this postscript to say this is more of my humor. I honestly thought everyone would catch that. Apparently not. I assure you there is no such thing as a Fully Developed Appeal which is not to say Ms. Eskinazi won’t plagiarize my idea and create one.  Amen

Posted in Humor | Tagged , , , , , , , , , , , , , | 7 Comments