VBMS–THE NEW ELECTRONIC FRONTIER PART II

thVBMS is truly going to take Veterans Claims up a notch and make them faster than a speeding bullet. VBMS reputedly can jump across town at a single bound-in a day if necessary. The VBMS server is more powerful than a locomotive and can almost accommodate 29 VAROs at once. Soon, it will be nothing short of the derniere cri in computer claims processing.

I get the impression that GEICO® and AllState® are not flocking to 810 Varmint Ave. NW 20420 to get in on the ground floor. Quite the contrary. The automobile claims folks I’ve spoken with, once apprised of how it works, admit it’s the cat’s pajamas from the corporate standpoint. But then the ‘what if’ s begin to crop up like unwanted house guests and the whole construct goes haywire.

What if:

you served before 1990? You have to know that if you have contemporary hand-written records by a doctor or lab, hell, anything- even military files-VBMS is a non-starter. Word-searchable .PDFs do not recognize anything but the type-written word. It can be hyphenated, capitalized or lower case, even misspelled occasionally as long as the mistake is incorporated as a default for another spelling of it. In short, a .PDF is the neatest thing since the wheel for Vets claims right up until it isn’t. The majority of claims coming in now are from the Iraqistan War Games. VA raters only encounter typed documents.

va CLAIMSKnowing how hard it is to get the bait under VA’s nose-let alone  get them to strike- it seems adversarial to older Vets-especially my Vietnam Brethren with Agent Orange Presumptives- to electronically fence us into a pasture with no gates. VA Raters’ proclivity, their very propensity in fact, is to top sheet a claim. The in by Ten and out by Two pressure on them has been to get the backlog down to the magic 125-day duration. Figuring out how to bullshit your way through to a 98% accuracy percentile for a second signature on the denial is the only roadblock. Regional Office Directors have no qualms using this ‘Gimme 2 ratings a day or else” technique on the staff to attain the Holy Grail by the end of 2015. I hate to say it but USB Allison Hickey stepped in that Tar Baby with Rep. Filner and then with  Rep. Miller all over again. She is the inadvertent, unwitting author of the new “develop to deny” assembly line technique. For us old guys now, any claims depending on the written word for a nexus or proof of disease/injury in service are automatically denied because the round evidence doesn’t fit in the square .PDF hole. Knowing this ahead of time is the repair order to make sure they are reviewed.

Conversion Zone

Fortunately for all of us, doctors with atrocious handwriting abound. Whether due to lethargy and sleep deprivation when a resident, or just a laissez faire attitude towards patients in general, their notes often have to be decyphered by wordsmiths and made whole again in typewritten form. But it’ll cost ya. Yep, depending where you live, if you go local (think NY City) it will be steep. Fortunately for us again, in this new electronic VA poker game, we google medical transcription service and voilà! – there you go. A marketplace teeming with competition for your dollar.

We’ve seen this pay-to-play phenomenon developing for years on Veterans claims since Mario Caluza threw his hat in the ring back in 1994.  It’s no secret we have Dr. Craig Bash and  the Dr. Ellis’. They provide a valuable service for us and get remunerated for their work. They are the perfect counterfoil to your win. Not all do. It’s difficult to be a jack of all trades and master of one or two. VA looks on you as a Witch Doctor who unfortunately possesses a valid MD after his name. We have slightly more success with Dr. Ben Cecil on our Hepatitis C claims but that is simply because it’s his specialty. It’s hard for VA to argue with a noted gastroenterologist as well as a pioneer hepatologist in the field of HCV. For AO skin claims, I have my secret PA-C weapon in the Fortress of Solitude on the East Coast. These are real Veterans or sons/daughters of Veterans who pay it forward.

Doctors who you hire for this Independent Medical Opinion  purpose usually have the contemporary service medical records typed and certified as true and correct copies of the originals so help you, God. They are then notarized and given the Good Housekeeping Seal of Approval. When introduced into the .PDF the VA is building, they finally become probative evidence in your favor.

UCAN2

Thus the teaching moment is simple. All you gomers like me from the stone age are going to pencil whip this computer thing and become VBMS scholars. Sit tight. I have to wait until my appeal is over so I can begin the second book. Nevertheless, there’s certainly no reason I can’t teach this for free in the interim.

Your children or even grandkids are already computer whizzes now by the sixth grade. You’re going to get them to take you where you need to go to send things using the eBenefits platform. Technically, you can sit at home, mail out hand-written records to be converted, or just as easily send them via a cloud service like Hightail or Dropbox electronically. You can pay via credit card the same way- via your new computer knowledge. Next, you can file the new and material documents at the eBennies site or mail them in the old-fashioned way. The important takeaway is that everything be in typewritten format for Mr. Ratings Ranger and his word searchable lasso. It uses no gasoline so if you have Greenpeace in your blood, it’s planet-friendly.

I know it isn’t pleasant to find you have to start paying to get what you need to win at the VA. I get that. The only difference in what I teach and practice versus what a Veterans Service Organization service officer does is how to win. They do it for free and you will never be told this simple truth. We’re heading into a new era and every trick they know can be turned around against them to your benefit.

Think of me as the LRRF looking for chinks in the VBMS armor to exploit. What if…….

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VBMS–THE NEW ELECTRONIC FRONTIER-PART I

VeteransAdministration.12755109_stdAs the title suggests, we’re Boldly Going Somewhere-finally. In fits and spurts, we are dragging, and being dragged, into the new claims frontier known as the Veterans Benefits Management System, or simply VBMS. It has a few other scatological analogies (VBSM) and reflects poorly on whoever dreamed up the moniker. Let’s face it. PR is definitely not VA’s strong point. With that said, let’s focus on what it means henceforth to you-Johnny Sixpack Veteran.

Congress put a gun to VA’s head and told them to go paperless a while back. They weren’t quite as specific as they should have been about when this was going to be required so VA, as usual, took that to mean it had to be done sometime in the 21st century. Great joy and good tidings like this naturally brought grins to all the folks down at 810 Yellow Brick Rd. NW. They relished the idea of adding $30 or $40 billion to to the budget.  Everyone would get new iPhones and big, fat bonuses for being the last federal agency to go electronic. Imagine getting paid handsomely for doing what needed to be done in 1995.

It’s almost time to pay the Pied Piper-Congressman Miller et al-over at the HVAC. Towards that end, VA has engaged in much PR hooplah rather than Marine Ooorahhh in an effort to distract from the obvious. The USS BVA (CF 810) is sinking under the weight of hundreds of thousands of beleaguered appeals and BVA Head Honcho Laura Eskinazi is cowering in place with what? Rocket Dockets. No overtime. Few, if any, new Veterans Law Judges (VLJ) and a plethora of inexperienced “Acting” VLJ’s who are being handed what can best be described as ‘gimme’s or Law Lite decisions which are, for the most part, foregone conclusions legally. They aren’t even beginning to keep up with the incoming appeals.

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My recent article on Butch Long’s plight is a classic example. Let’s look at the 125-day Archimedes principle. Butch went in for total immersion March 30th. Allowing for the VBMS to work it’s magic via Cheeseville, Wisconsin, he was scheduled in for QTC medical (or VA) Compensation and Pension Examinations by July 6th, 8th and 10th. That’s roughly 96 calendar days but in VAland, that ain’t 96 working days. Even so, let’s give them a round of applause despite the fact they chose to use Butch’s old address of June 1970 to notify him. Accidents happen at VA Regional Offices. That’s still a vast improvement over years past in timely scheduling C&P exams.

Next, the decision. It was announced July 27th- almost exactly 125 days to the minute. It was 98% accurate based on the dearth of information available. Again, no one can dispute that. The stunning revelation that it could only be arrived at by misfeasance and planned obfuscation is the due process crime. I give them 4 Pinocchios on that one. So how do we outwit these gomers?

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TACTICAL VBMS CLAIMS TECHNIQUES

th (1)2015 is also the first year we have been corralled onto the reservation using VA forms exclusively to the exclusion of paper towels and my favorite- putting the Tickle Me Elmo Stickers on the top right in my personal “In reply, refer to:” area. I see someone industriously peeled them all off before converting it into electronic format on the VR&E file. Quo Vadis,  VA humor? Those days of yore are politically incorrect now. Someone at VA might think you believe VA raters have the IQ of poor Elmo or are humor-challenged. If the rater is a woman, she might feel that was sexual harrassment. That’s grounds for a punitive Fiduciary decision these days at RO LZs.

From now on (March 25th, 2015) , we only get to play this game using their deck of cards. So, how can we improve our odds? Many of you (us) from my generation of Vietnam-era Vets, are not very well-schooled in computers. We have had to work for a living all this time before our bodies disintegrated. We never had the time to sit down and get computer educated. My advice is to pair up with another Vet who is versed in the c-box and can teach/lead you. It’s going to be a life skill soon just for VA claims if nothing else. My Cupcake showed me little more than where to turn it on in 2007. My real education began on Google Search with “Veterans Administration” and “Hepatitis C”. But that doesn’t help you. If you can find me, you can find a VA Form 526EZ at the top of my site as well as all the other forms you may need. The knowledge is here. We’ve been left behind too long and lied to.

VBMS DOCUMENTS ARE .PDF WORD-SEARCHABLE

VBMS documents are word-searchable products. That means you can find anything in them with a little diligence. It also means VA raters can too. Whether they choose to or not will determine the success of this endeavour. Old paper documents converted into word-searchable .pdfs simply will not pick up the written scribblings of a tired doctor. For that you need a new breed of forensic medical sleuths who charge about $40 an hour with a minimum of 5 hours. Starting to get the picture? If you were born after 1990, this all works out fine. Medical records were in typed format by then. Everyone born before undoubtedly has written stuff somewhere and that will never be reviewed by the new Dick Tracys of the 21st Century. You have to be proactive and get them into submittable format or lose them as evidence.

A Form 21-526EZ is now the beginning of the new Frontier. From here on out, it’s a Follow the Yellow Brick Road process-but with a few new twists. It’s fairly simple if you are remotely savvy but again, this assumes you have a computer and a combination printer/scanner/fax machine. If you are going down the pension path rather than the compensation one, you’re going to use the VA 21-527EZ. Pensions are for non-service connected injuries and are available to Vets who served in time of war-even if it was only for one day. If your income is an either/or proposition versus Social Security, it might be more using a VA pension. Check it out.

NO DUTY TO ASSIST WITH FULLY DEVELOPED CLAIMS

The Fully Developed Claim, or FDC, is a new program VA designed to relieve them of mounting a posse and going after all your documents. This consumes a lot of time and is one major reason why our claims have taken so long to accomplish in the past. By arriving with all the ingredients, it becomes a denial based on what you, Johnny Vet, bring to the table. At least you have a better idea of what’s going on.

The 526EZ is going to harvest information you provide. The days of the sacred duty to assist are too cumbersome. We now live in a post-Shafrath DIY world. VA has finally come around to my theory and employed this. Chances are you know where your supporting civilian medical documents are and can obtain them if you have not already. Since most require a payment for the records copying, and the fact that VA refuses to pay anything, we often never get those records into the evidence file. You, on the other hand, can obtain them for free by asking for them. Tell your provider you’re doing it for VA and they fairly jump to the task. I guess they watch the news about VA on TV.

DBQs 

The first thing you notice on a Disability Benefits Questionnaire (DBQ)  is the fact that it is a report on how you are now. Nowhere is there a real place to note the history of the claim. The VA requires us to provide a cohesive, cogent, well-reasoned theory of how we got the problem and when it started. A DBQ is thus a checkup. It’s like a physical where you list all your defects but not how you got them. This  sin of omission effectively prevents your physician from opining on the subject. It requires a complete, new submission from him if he wishes to. Considering these are electronic documents, how much effort would it be to alter them to permit it? Apparently far too much in the VA’s eyes.

The Disability Benefits Questionnaires are also a slightly bigger obstacle with conflicting rules. VA doctors have been ordered to do them. Not all are smiley and helpful, though. Tough luck. It’s the law. Go to their VA Medical Center (VAMC) superiors and drive a hard bargain. The regulation simply states they must include the truth about your current medical condition but are not allowed to theorize on the cause. Period. No nexus letters from VA doctors who are employed at VAMCs by VA. However, doctors who work in research symbiosis with VA like Duke with Winston Salem and UW with Seattle, often allow their doctors to do as they please. I’ve run into a few civilian doctors who are not as amenable either. Face it. Filling out a DBQ can be a long, tedious process and detract from a doctor’s other duties. That can pose a problem. You can’t force them to and bribes are right out. Even my fresh peaches didn’t work.

Independent Medical Opinions

The path to a purchased independent opinion, called an IMO or Independent Medical Opinion, is always for consideration. If you’ve had your personal physician for ages, this is probably going to be easier and no cost. For those who don’t, paying for an opinion that passes muster is a prerequisite. You are going to get this benefit for life. Why not pay the doctor once, get it in the record and chalk it up to the cost of doing business.

HOW TO MEET AND TALK TO YOUR VA RATER AFTER A DENIAL

The next layer of bureaucracy after denial is normally the filing of the Form 21-0958 which I’ll discuss someday soon. Too many rush into this without thinking it through. You lost. Why? What was missing that was needed? Doing claims by rote is a thing of the past. If the denial only takes 125 days, you still have 365 days to tune this puppy before you push the NOD button. Analyze the denial and repair it. You have a year to do so before the carriage and the horses turn back into a pumpkin and mice.  One of the strongest methods I have discovered is to show up at the front desk of your Regional Office and ask to talk to the rater who authored your denial. They hate this. You can also inform the 827-1000 Prize Redemption clerks that you’re coming in so they can be forewarned on the off chance you cannot convince the rater to call you back. My favorite is to use your celphone outside to tell them all this and then walk into a building with zero signal. Dang. The phone dropped the call. Go figure. Right before I heard Peggy say “But sir, You can’….

The closer you can get to the decision maker, the sooner you can resolve this amicably. In this new day and age, assuming your file is entirely in VBMS and converted into a portable document format (.pdf), the easier it is for the rater to pull it up for review. Now watch closely on what you can do to enunciate a point of important fact. A .PDF is a document with the newest information submitted always at the forefront of the document. Thus, if you are preparing to have a conference, a hearing before a judge or any interaction that will require opening that .PDF, you can ‘pad the record’ by electronically faxing in an existing document in the file to Cheeseville or Newnan- thus placing it at the top of the file and the first to be viewed.

This is an electronic variation of the old ploy I suggested in my book a few years ago when I said to get all the salient facts onto your initial VA Form 21-4138 at filing. In the paper days, that would have the most french fry grease or mustard stains on it than any other document in the claims file (c-file)-and the one a lot of raters would read. Transferring the grease onto an electronic document is more difficult as the rater can only view one page at a time. Ergo, you get the winning Lotto ticket info on the top of the pile to be spotted instantly. There is no law against submitting duplicate documents to VA. Do it at least 10 to 14 days before your sudden, unscheduled appearance so it will be there waiting.

th (2)VA uses ex parte justice to decide claims. Simply put, it’s like a rock/paper/scissors game with a nasty twist. At the count of three you throw out your hand and display your ‘sign’-let’s say, paper. VA analyzes this for 125 days and responds with the appropriate sign to defeat it-in this case scissors. The inherent unfairness is self-explanatory. The only recipe for success is to adhere to the old Caluza/Shedden/Hickson path. You arrive with all the ingredients to win with and a spare Independent Medical Opinion (IMO) up your sleeve. When VA pulls the standard scissors out, you meet them with the extra IMO ‘rock’. It’s in there because you faxed it in. It’s new and material.In the event it is the only IMO you have, getting it up on top of the .PDF claims file makes it unavoidable. It’s still material evidence and indisputable. You have no idea how often VA raters top sheet our claims. This effectively  circumvents their bad habit and rubs their nose in it. Nevertheless, having more ammo is the ticket. Never shoot your gun dry. Don’t you remember you were taught that once in Basic?

I find too many of you who represent yourselves or ‘oversupervise’ your service representative, want to ‘lipwhip’ a claim to death. You want to write endlessly on and on about why you’re right and what VA did wrong. Newsflash. You’re putting them to sleep, folks. The new .pdf paradigm is simple.

  1. Identify what they did wrong.
  2. Describe the normal procedure and what the statute and regulation state. Don’t waste a lot of time citing Fenderson versus West or Gilbert versus Derwinski.
  3. Inform them of what you should have versus what you got.
  4. Be sure to sign it. It’s a legal document.
  5. Fax it to Cheeseville/Newnan.
  6. Show up 12 days later unannounced and politely ask to talk to the guy who f—-ed up.
  7. Tell them you called and told Peggy you were coming. Make them feel guilty.
  8. Bring a day’s worth of loud, messy food and drink that stains carpets, a Tetra game with a loud audio and a friend with a hideous laugh that sounds like a goat.
  9. Keep your hands out of your pockets and in view for the security camera. Hum Kumbaya, My Lord sotto voce every once in a while each hour.
  10. Tap your feet a lot. Tell everyone you filed for restless foot syndrome.

Don’t be surprised at the outset if they say the VA employee you seek audience with is in a Human Resources Training Day  and can’t see you for five hours. Tell them you just drove XX(X) miles, simply have oodles of time and brought lunch and a large container of Pom®.  Eat while you walk around. Make sure the sandwich(es) gets crumbs all over Hell’s half acre. Tip that Pom® over occasionally down between your feet and apologize loudly each time. Blow your nose a lot and sniff loudly. Eat really loud potato chips with your mouth open like a front loading washer. Share your mastications with the others. Make frequent eye contact and smile like the Cheshire Cat. Use the bathroom about every 21 minutes religiously using your watch to time it by. Stay in the bathroom for exactly 30 seconds each time. Talk to yourself. Better yet, bring a friend and do a lot of Facebooking with suitably wild, off the wall comments in a loud whisper. Watch how quickly John Q. Rater shows up. Chances are it may be John Q. Rater’s supervisor (with security in tow).

Remember, VA is now ‘VA-centric’. The VA’s employees have been instructed to grin and say cheese. Every phone with a camera is a tool of destruction so they have to be careful what they say now. What happened to Butch recently was a slip-up of unparalleled stupidity and can easily be fixed using this technique.

One other excellent tactical approach is to call your Congressman. I’d do that anyway whether or not it actually has any effect. Here. where Butch is concerned, it’s quite apropos because Congressman Kilmer was responsible for getting Butch his CIB and Purple Heart- and most recently, his c-file.  He has a vested interest in how Butch fares and the Seattle Fort Fumble has been put on notice- again. Now that he’s seen the intransigence of VA in action (again), it takes very little to provoke an appropriate response.

VBMS is a new horizon we must be willing to learn in order to navigate. Each job needs the right tools but that doesn’t mean we are precluded from taking it up a notch and fashioning our own. Every VA scheme is rife with shortcomings, incongruities and misinterpreted statutes. When you try to computerize the process, you have to dum (without the b) it down as the village idiot will eventually gain employment there.  VA hasn’t done that yet with VBMS. Their M 21 adjudication logic looks like IRS law. That will take time to repair and is a different subject.

Why not boldly go where no one has gone before in Vet law and technique? As much as it sounds like a cliché, Win Or Die has great resonance in this argument. Many died waiting. That’s what my skull and crossbones were meant to convey.  Being a trailblazer is my cup of tea. I’m one eighth Ute Indian and part Contrary. I ride to the fight. I do not wait for it to approach me. Tactical approaches are dynamic as opposed to static. Sitting in Fort Livingroom doing nothing is unproductive.

VBMS may be a new requirement, but any law or rule can be brought to bear in Our favor by turning it on it’s head. Electronic sleight of hand is just the beginning. Here’s my nexus on Page thirty nine–but wait— here’s my nexus on Page one now.

Win or Die VA

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ILP–FALL 2015 PRODUCE

foghornAbout this time of the year the weather changes and Monsoon starts. It finally rained and not a minute too soon. I know the tomatoes will suffer  but we haven’t had any appreciable rainfall since May. The good news is a record harvest. This will be of immense interest to the boyz in the VR&Ehood. Ever since they surmised I had three greenhouses and didn’t need any more, I haven’t heard much from them. Nevertheless, it’s incumbent upon me to keep them up to speed and let them know how I’m fairing with what I have.  

 

Life is good post-hepatitis. I’ve managed to divest myself of everything VA and use the VA Choice Card exclusively for dental. Maybe I ought to start presenting it instead of Medicare.

DSC01381The farm is out of control. The big pumpkins we planted turned out to be small, ghostly white ones. Wrong seeds in the wrong package. I suppose if you’re a White Supremacist, they’re just the ticket. The manure pile, on the other hand, is regurgitating pumpkins from some we fed the goat last year. They, oddly, weigh more than a VW bug. The corn’s longer than my forearm. The butternuts need a hand truck to move. And the corn, ahh, what can I say. Thank you yet again to Leigh and Paul Burch for turning me on to Silver Queen. My chest freezer runneth over and we’ve just begun.

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Mark, formerly Hepsick and now, a winner, came by for his graduation present after being cured. Nice Bike, huh?

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This will be a year to remember for many of us. Our numbers have been severely decimated over several decades with Vets dying from worn out liverboxes. It’s refreshing to see more in remission and a future that we never thought possible. To think that a doctor would be satisfied with a 34% remission rate using Interferon/Ribavirin boggles the imagination in light of our more recent 99.999% numbers.

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VA VANTAGE POINT– PLEASE EXCUSE OUR CENSORSHIP CONSTRUCTION IN PROGRESS

Vantage PointOver the years, I wondered how long hiding behind asknod.org would be necessary. When I ‘called Bob’ last September to rescue me, I actually pointed out my blog and a link to it in case he or his little people wanted to research a case study in how not to adjudicate a VA claim. Having a bully pulpit of sorts gives you name recognition-eventually. Today, after numerous hits from a VA Vantage Point article and a heads up from several observant members, I discovered one Mr. David Tomko had attached a link to the article about my good friend and neighbor Butch Long.

Capture 1

Jason D.

Boy, howdy. That went over like screen doors in submarines. The resultant ill will and uproar toward VA apologist and head firefighter Jason D. NLN (no last name) drafted to contain this was deafening. It’s still pouring in this morning-several days later.

What you will see in the following screen shots is a masterful containment strategy that rivals the spoof film Wag The Dog starring Robert DeNiro. It’s funny how the author prefers anonymity-as do all who work at the VBA.  I share a few of these vignettes as they are priceless.

Jason D. VA Apologist

Does that sound like a blogger? A naive Vet trying to help another? A VSO? How about a VA Examiner?

Jason D. VA fact checker

Scanned-image“Hey, my name’s Jason D. and I’m one of you, guys. VA loves you.” In what alternative universe paralleling ours does the VA grant 70% of claims? True, they do eventually after a ten-year fight but I’m the 21-year old poster child on the telephone pole that refutes this. Butch is now the Poster child for HOW they deny you-in record numbers and in record time using the new VBMS technique. Here, Jason just admitted he works for the Veterans Benefits Administration and does this for a living. I wonder if VA gives him time off to come over to the Vantage Point to spew his propaganda.

Which brings us to censorship. Having observed the Referrers machine revving up with hits on my site,Capture 22 I went to the VP blog and finally found this from Mr. David Tomko. I do not know, nor have I ever met or communicated with Mr. Tomko. Apparently he found us all by himself. I apologize that my snipping device is limited to the on-screen image so I grabbed the beginning and the end of his dialogue needed to enunciate my discussion. I urge you to read the rest. Mr. Tomko is an informed individual.

David Tomko post 1David Tomko post 2That got the ball rolling. I decided to chime in and tell the truth. I’m ecstatic about how VA is prosecuting my claim. After 21 years and some change, I got more bang out of a $50 ticket to the CAVC than I can describe. 45 days to a complete resolution-or damn near. I want VA to know I’m appreciative so I told them as much. VA needs some good PR and I am more than willing to provide it.

Asknod post on hold

When I went on the site today-almost 16 hours later, I noticed it was still “awaiting moderation”. To confirm others were also awaiting this same treatment, I perused every comment posted. Lo and behold, down at the very bottom of the comments are a plethora of new ones submitted and already moderated-and published. What can this mean?

Last post at the bottom 8-28

 

 

 

 

 

Jason NLN now finds himself in a sticky wicket. Publish it and reveal even more VA lies or worse- publish it and allow VA readers to see a Veterans site that doesn’t blow bubbles like YUKU’s “VA-centric” site where their trolls advise you to fold up the claims tent and go home.

Capture 33

left click to enlarge

It’s fairly clear that if it’s still in moderation by this evening, VA knows who and what the asknod site represents. I don’t doubt it for a minute. I painted a target on my shirt when I set out to write my book. I expected no less. Relinquishing my anonymity was a given after winning the substantial portion of my fight at the CAVC. One thing I didn’t foresee was blatant censorship for all to witness nor the tarring and feathering of my friends and fellow combat Veterans such as Butch.

I had a long heart to heart talk with the wizard who works for Congressman Kilmer and have been assured Butch’s predicament will be swiftly revoked and the C&P exams promptly rescheduled. Most importantly, folks, the fact that VA fears us and our potential for wreaking havoc on the claims system with good advice is a harbinger of things to come. Censorship comes with a host of unwanted baggage. One is that we have the irrefutable evidence and are not afraid to tell you. Another is that VA is not above deploying it to squelch what we all know about the backlog. The timing of Butch’s denial letter and VA’s announcement that they under 100,000 claims is eerie.

 

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LZ CORK–VA RUNS THE TABLE ON BUTCH 46 YEARS LATER

VeteransAdministration.12755109_stdOver the course of years watching the claims process, rarely have I seen such a desperate gambit to clear the books of all backlogged claims by the magical 2015 date promised several years ago. Read this file closely and see how it comports with my recent write up of Carter v. McDonald. The same comedy of errors is paraded out for display with nary a batted eyelash at the incongruity of sending out all the correspondence to an address used to file a claim in 1970. They even have his VSO listed as AmVets!

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Me and Butch

Butch and I went over his litany of ills and decided to just pick the easy ones. No outlandish theatrics. This was a Joe Friday “just the facts, ma’m.” case. Butch gets blown up by 60 mike mike mortar. Butch files in 1970. C&P diagnoses minor this and thats and gives him 10% doggy bone. His VA Examiner writes in that he has tinnitus but somehow that never made it in to the rating.  He’s pretty much blind in one eye from the SFW that drilled into his eye box. The fact that Butch can’t even hear himself think through his right ear is immaterial. VA says that’s why God gave us two of them. Same for the right eye that had been remodeled by a big chunk of the mortar. TBI? Sorry Butch. We didn’t have TBI in Vietnam. You lose. The same goes for the PTSD. We didn’t invent that until 1981 so you couldn’t possibly have bent brain in 1969. Here’s the cheat sheet.

REDACTED Butch Long denial

Fast forward to 2014 and a nine-month chase for the c-file. Butchmeister finally refiles in March 2015 and what do you suppose happens to the mailed requests for him to show up at his scheduled Comp. and Pen. examinations? Those Einsteins down at the Seattle Puzzle Palace open up the c-file, which has lain in the dust down in St. Louis since June 1970, and rightfully assume that the address therein is the current address of record. They completely ignore that the C&P exams came back as undeliverable. They don’t even hiccup when no one shows up on the appointed time on July Sixth, Eighth or the Fifteenth for the scheduled exams.  No sir. They know Butch is in a bad way in a wheelchair needing Aid and Attendance and proceed to adjudicate his new and reopened claims using the June 7th, 1970 Comp. and Pen. exams because he failed to show up. Nothing nonadversarial about that. He had a chance and this is a two-way street. Maybe he had a change of heart.

No calls, no letters. No correspondence of any kind to rectify this injustice. The new address has been on all correspondence since this began. VA was put on notice that Mr. Long was seeking his c-file as early as December 2013 using the same address they suddenly “discovered” last week. This in no way encompasses Rios v. Mansfield and the Presumption of Regularity. VA clearly knows they cannot contact Butch and proceed to an adjudication full well knowing he has not been apprised of his need to present for the C&P exams. Occam’s Razor doesn’t leave much to surmise except for the village idiot’s observation that if he bothered to file,  then he would probably show up. Add to that the attempts to deliver the denial have been remarkably futile up to now, and you have successfully rebutted the Presumption of Mail Service. This is against the law in 56 states and their respective VAROs.

Now the violations of good taste:

Nowhere is there any mention of the off-chance that the Rater considered whether the Butchster is entitled to a Pension for serving in a time of war

Failure to grant the 38 USC 1154(b) Combat Presumption

Failure to grant equitable tolling to “Find Waldo”

Failure to recognize presumptive of herbicide exposure on IHD claim.

Coming to the conclusion that he most definitely does not have Tinnitus in spite of 1970 VA examiner opining just the opposite.

Cushman due process violation for denial of all claims due to failure to contact Veteran and ascertain his correct address. Being a pro se Vet, he is entitled to many protections and VA is giving him the Bum’s rush for his unwitting ignorance

Can we believe the M21 1MR is responsible for this miscarriage of justice? Can it be a glitch that slipped through the cogs and Butch was a unique anomaly never to be repeated again? Or is this the more nuanced “deny it all and see if he comes back with a NOD” technique VA is so famous for? You have to admit that Butch is the 46-year Perfect Storm for misfortune. It took that long just to get his Purple Heart and a CIB so he could get a seat at this table. Can you imagine the hard road he’d have gotten without? Jez, what am I saying? The road doesn’t get any bumpier than this.

Mr. Long was given an opportunity to present evidence of his injuries in service and to date, he has not.  There’s absolutely no record of him  being injured by a mortar. His testimony is merely presented as history and is not borne out by the record. The STRs go on to describe “SFW injuries” without substantiating what SFW actually stands for. The VA Examiner finds it far too speculatiive to just accept the Veteran’s assurance that SFW indeed stands for “Shell Fragment Wound”. Thus his credibility is rebutted and all his lay testimony is too incredible to be accepted. In fact, there is no record of his injury in his military files and no combat medals to prove what he alleges.

Now who can we pin the medal on for all this incredible investigation and subsequent address searching? Why, we simply look at the decision for the author. Watch closely if you want to learn something. Every VSR (Veterans Service Representative) has to “sign” his decision. VA tries mightily to redact that so as to not embarrass them later when 65% of their decisions come back as incorrect. I’ve even met attorneys who didn’t know this trick.

At the top of the decision on the right is the identifier. Let’s decipher the code. Here’s the “In reply refer to: box:

Capture346 refers to the Seattle Regional Office. No, there are not 350-odd VAROs but perhaps it makes them feel better like getting new checks from the bank and beginning the numbering at 5,001. It’s an ego thing. Next, we see WPS. These are the initials of the VA rater. In this case, they belong to none other than :

wps

left click to magnify it.

Mr. Wendell P. Skiffington (WPS), VA Examiner, GS-12, who recently received a $400 dollar bonus for being such a suuuuuuuper rater, is the progenitor of this abortion. In short order he has denied each and every request for increase or new claim based on…. yessir, the June 7th, 1970 VA C&P.  I find it admirable that they can do this with a straight face. If you’re hiding behind the barricades at Fort Fumble, you’re nameless-or were. This is the new Fully Developed Claim technique.  In their haste to deny him it appears the folks up in Cheeseville Wisconsin also misplaced the Form 21-8940 and that means no more 78 rpm claim. My, how do dey do that?  Here’s the game roster.

Ever since the War of 1812, a claim for compensation has always been a claim for pension. A claim for pension is always a claim for compensation. Look it up. VA even writes as much on their application form.

123

Butch has gotten the slap on both cheeks. He isn’t entitled to Agent Orange claim status and, from what we can see, he’s not even being accorded combat status or consideration for a non-service connected pension.

This has just begun. It may be time for General Allison Hickey, who was only 17 when Butch ate the mortar round, to intercede on his behalf. Butch is beginning that path now. He doesn’t have 10 spare years to play the Hamster wheel board game with Wendell P. Skiffington and his friends- nor should he be forced to.

What has America come to? What incredible force of events has led to the arbitrary denial of benefits out of hand with no opportunity to rectify or communicate with the Veteran? Really? This is VA’s new VBMS (Veterans Benefits Management System)-the much vaunted cure-all for the backlog -and it’s the best they can do? We’re in a world of shit, folks.

YOU REPORT 

635646931319099161-veterans-administration-logo

WE DENY

Capture

Celebrate a historic low for VA claims. Is that being sarcastic or is it merely a double entendre to imply how much lower they plan to sink?

Questions?

Posted in AO, C&P exams, Earlier Effective dates, Equitable tolling, Presumption of Regularity, Veterans Law, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , | 6 Comments

ILP–CORNDOGS AND CREAMSICLE MELONS

creamsicles

creamsicle melons (6″ diameter)

No crop circles this year to report but lots of phenomenal success growing the creamsicle melons. We had our first last night. Since I do not use anything but organic fertilizer specially produced by my horses on contract, they did not get nearly as large as their counterparts in the commercial arena.

 

Nevertheless, the fruit is an unparalleled taste sensation akin to a Good Humor creamsicle of yore. The melons even have a light orange hue, The taste is best described as honeydew in texture but that subtle cream flavor one associates with a dairy product.

Corn. What can I say about corn? For two years running, since the invention of Global Warming here in the NW, local corn is beginning to respond normally. This year’s ears are as long as my forearm from the elbow up to my wrist. How that is defies my corn acumen. By rights, they should be identical to last year’s. The only difference is the rain stopped falling in May this year instead of June.

corndogs

Silver Queen (first responders Friday 21 August)

For Mother’s day, I bought (and installed) Cupcake a new Induction cooktop. This baby is manufactured by Binford Tools out of Michigan (Mooooore power!) and brings water to a boil in about 4 minutes from room temperature. I had to run new 6/6/8 ga. copper wire because it sucks up amps. The all-glass surface is impervious to spills and a breeze for even an ignorant, lazy Vet to keep clean. It’s the cat’s pajamas but you can only use iron pots on it.

corndog production facility

 

As I near the decision day for the ILP greenhouse, I feel it is incumbent upon me to provide my VR&E minder with an update on ILP matters so he cannot claim I was remiss in my duties to apprise him of horticultural success.  So, Mr. Holloway, please note the bounty of my harvest re the potential greenhouse grant. I do hope we can do business on an amicable level without all that “It’s not vocational” negative ways business and the concomitant mental roadblock. Let’s practice being a Do bee and not a Don’t bee soon. Call me Bob says we are to now be Veterancentric. Everyone’s a stakeholder in getting this Department of Veterans Affairs’ house in order. There’s no “I” in Team, Kris. Pass that on to David for me if you would.

 

Posted in Food for the soul, HCV Health, Independent Living Program | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

FED. CIR.–CARTER v McDONALD–SURPRISE SURPRISE SURPRISE SGT. CARTER!

downloadIt is said sarcasm is hard to detect in internet postings. So hard, in fact, that over 60% of it goes right over the head of the intended recipients. How sad. Sarcasm is my forte. It’s my raison d’etre in a boring, predictable world of VA law. Without it, we would have to suffer a mundane existence devoid of subtle attacks on those who rightfully deserve to be outed for their ignorance or lack of judicial acumen. I suppose I could lie and say I take no pleasure in it. Here, justice had to run its pedantic path to accomplish what all but the densest jurist could clearly see. 

Meet Harmon NMI Carter Junior. There’s an economy of name. I’ll forego sarcasm on this. A name is a man’s talisman to take him through life. Each should be unique. Mr. Carter’s father obviously was enamoured of his own moniker and passed it on. Mr. Carter (junior) served in the Army from 1965-67 and his SMRs show a prior, pre-existing back injury that was perhaps aggravated while in service. He filed in 1989 and got the standard “Surprise, surprise, surprise, Sgt. Carter!” As most old hands at this know, you usually got a lovely personalized letter on onion skin paper ambiguously telling you that VA was unable to accommodate your request. The one I got in 1989 didn’t even mention what I was asking for but merely stated I hadn’t won the VA lotto. They did promise to keep the lights on for me in case I came back with more evidence. And yes, I used the DAV too, if you have to know.

Equitable tolling at the VA is a non sequitur. While it is amply described in law, finding it is akin to locating the Holy Grail. I, too, have found it elusive. My recent Extraordinary Writ  (CAVC-15-0112) shamed them into finally granting it to my twenty one year old claims. Mr. Carter had to go much further to obtain his. Harmon refiled for his back injury in 2005 using the Disabled American Veterans VSO. That was his first mistake. Hell, he may have used them in 1989 so this could have been the second try. The record is unclear but the constant, unbroken path of denials isn’t. After he lost yet again at the Board of Veterans Appeals in 2009, it dawned on him that he wasn’t going to win using the same tired method. He was now zero for three at bat using DAV as his designated hitter. Here’s the BVA decision:

Carter BVA Hanging

When you sign a new Form 21-22a Power of Attorney (POA), you expect VA to do what most responsible courts or legal entities do. File it and change the record to reflect your new representation. It does no good to send DAV the correspondence if they have no association with you anymore. It also deprives the new law dog (or VSO) of learning what’s up. Here, it created a bow wave of immense proportions. So high, in fact, that Mr. Carter was basically undefended for the better part of his Court-ordered  Joint Motion for Remand (JMR) that could have saved his bacon at the BVA.

Heather Vanhoose, Esq.

Heather Vanhoose, Esq.

Heather Vanhoose, of the Jan Dils legal firm in West Virginia, was equally left in the dark about what was going on. She had already asked for his complete claims file when they first filed at the CAVC to fix what the DAV had wrecked previously. The c-file is like a Rand McNally map to lead you through the maze. It allows you to find out how venal the VA can actually be-on paper.

Vanhoose did a magnificent job of salvaging Mr. Carter’s BVA loss and extracting a JMR. That much is not in dispute. What ensued afterwards is the problem. Ms. Vanhoose, from the moment the ink was dry on the POA in March 2010 began the process of extracting the c-file from the VA. This really should not have been an issue as the BVA is routinely required to supply the attorney with it as soon  as the NOA is filed. Something went wrong but this does not excuse the dereliction of duty. An attorney, by taking the Vet’s POA, promises due diligence in the prosecution of your claim. This includes obtaining the c-file in a timely manner or finding out what the delay is in an equally timely manner. As the VA likes to point out, this is a two-way street. Taking nine months to produce a document is unconscionable and most courts would view it as obstruction to discovery. Dawdling for two months before opening it up to find the 90-day letter was also not the smartest thing to do in retrospect. It was now a fait accompli and a stale 180-day letter.

So, while Ms. Vanhoose sat and waited patiently for the c-file to arrive, Mr. Carter’s remanded case arrived back at the BVA. As is the case with these things, the BVA sent out what we call the 90-day letter telling Ms. Vanhoose  she needed to send in the probative evidence lickety spit so they could make a new, informed decision on his claim. Unbeknownst to Heather and Harmon, the VA sent it to the DAV. The 90-day letter sat in Harmon’s c-file until Heather decided to review it in February 2011. We won’t fault her for the fact that she didn’t dive right in to the file when she got it several months earlier. I get that. Here you are thinking you have all the time in the world to begin anew building your case at the BVA and they have already decided it. To add insult to injury, she didn’t even get a copy of the BVA decision until December 2011-almost a year after it was decided. That’s how nonadversarial and Veteran Friendly we’re talking about here.

Equitable justice would almost demand equitable tolling here. How is an attorney to develop and build a case sans the essential evidence needed when VA is playing keep away with it? By the same token, how is said attorney to defend against the injustice of not being apprised of each and every motion et cetera that is taking place when they are mailing all the documents to the DAV in East Bumfork, West Virginia?

To add insult to injury, Ms. Vanhoose, instead of pursuing the most egregious violation of keeping her under house arrest in the basement with the mushrooms and compost, decided to fight the actual denial of the second BVA necktie party over the case and controversy of Roberson v. Shinseki. Idiot’s delight. This is where someone with extensive legal acumen should have stepped in and focused on the big picture. Instead, she soldiered on up to the CAVC again with a limp legal argument. Kasold, Hagel and Moorman made short shrift of her there as they probably should have. But it doesn’t end there.

In any nuanced judicial proceeding, a good judge, or at least a majority of a panel, should do some investigative work. You would never see this degree of ineptitude had Judge Meg Bartley been aboard. If you remember, she was the one who correctly identified the same (or very similar) treatment to Mr. Buie in 2013.  While the nonadversarial, give the Vet a bone ideology ostensibly ends at the CAVC, Mr. Carter was given short shrift from start to finish. Any judge with a reputable JD from a name-brand university should have spotted the incongruity of not having the c-file with which to defend Mr. Carter. Further,  even the village idiot can see that sending a 90-day letter (not to mention the BVA decision) to the wrong party creates an inequity so immense that it can never be righted by saying the BVA cured the fault by giving Ms. Vanhoose a humongous ninety days to figure it out.  Here’s the CAVC “Bruce Almighty”  blue plate special:

CarterH_12-218 (5-20-14)CAVC

WHO YOU GONNA CALL?

th (1)At this stage, there weren’t many options. Harmon Carter was luckier than most. He managed to finagle Kenneth “the Woodbutcher” Carpenter into repping him up at the Dead Circus in one last attempt to show he was hornswoggled by the VA . To give you an idea of old Kenny’s abilities, listen to him on oral arguments when you get a chance. This guy could talk the the white off of rice. Had he been born at the dawn of time, he could have talked the devil out of his virginity. He could sell Pacific Ocean beachfront property in downtown Tuscon and people would be doing it for cash on nothing more than a handshake. In court, that mellifluous voice of his can charm the pants off a judge. Add to that his able grasp of all things legal and you have the perfect attorney storm.

The Kenster marched in and laid out the equitable tolling argument Heather Vanhoose should have been hammering at down below at the second CAVC appearance. This is the meat of the argument. Having the judicial clarity to see that is what separates the ribbon clerks from the poker players in this game of VA justice. I have noticed over the last eight years that VA is fond of arguing apples while you’re still counting up the oranges and wondering what’s wrong with their evidence. When they can roll an attorney and her whole law office into fighting the wrong injustice as they did here to Heather and Jan Dils, we have to wonder if the forest escaped their attention in favor of a few well-placed trees.

In 1994, the VA promised me a de novo decision based on new and material evidence I submitted with my NOD. That never happened. In 2009, they said I never filed a Form 9 and the claim died. They were careful to say I filed no evidence after the Statement of the Case was issued. True, it was filed before. The clock thus was not started and the 60-day suspense date never began. A year later, they said they had read the new and material evidence, and, had I gotten off my dead ass and filed the Form 9, would have issued a SSOC.  Because I didn’t, the claim was dead. Both arguments rested on the wrong legal premise. VA does that a lot. Here, Harmon was given the Shortline Railroad to a denial because VA failed to give Vanhoose the most basic consideration–time. In a moment of blind justice, the panel at the CAVC narrow mindedly seconded the BVA and ignored the failure to equitably toll the BVA decision. How they could rationalize the inequity of the mailing snafu will die with Hagel.  Hence the polite Fed. Circus panel’s allusion to the CAVC judges having the vapors.

Carter_14-7122 Fed. Circus

I guess the most  egregious thing was not to approach the hierarchy of the BVA and  immediately point out the gross inequity of mailing all the info to the DAV. That, in and of itself, should have provoked a Reconsideration which would have avoided the follow-on disaster. A good attorney would have pursued the MFR (Motion for Reconsideration) first instead of blindly running out to file a NOA and chasing down the Hoodoo Lane argument of  narrowly interpreting a JMR versus a far wider argument on just what it did and did not encompass.

The good news is Harmon will now get a new adjudication. As with most of these, I doubt we’ll be seeing much of him in the future. The BVA will probably grant his claim using the asknod squeaky wheel theory and he’ll live happily ever after. Last but not least, look to the end of the decision. They awarded old Kenny the legal costs for defending him. To the uninitiated, this is the ultimate bitchslap to VA. It says “You were rude, crude, unattractive-not to mention boorish- in your treatment of Mr. Carter. Please make sure you don’t do that again. Veterans are a protected, endangered species and, as such, must be accorded more leeway in the misguided pursuit of their claims. What you did to him was tantamount to hooliganism and we don’t tolerate that kind of behaviour hereabouts.”

Posted in CAVC Knowledge, Equitable tolling, Fed. Cir. & Supreme Ct., Lawyering Up, VA Attorneys | Tagged , , , , , , , , , , , , , , , | 1 Comment