VA CHANGES 40-MILE RULE

CaptureSecretary Bob announced today they will be changing the unique language that measured the distance from a Veteran’s house to the nearest VA facility as the crow flies and in nautical miles. Since odometers measure it in statute miles, this has caused endless confusion and many is the Vet who paid to have his odometer checked for accuracy.

As some of you are wont to say “Get the f*** outta here!”, I will voice your incredulity for you. One would almost have to ask why anyone would measure miles in any format other than the standard, accepted practice. Here’s the explanation from none other than the whizbang who ordered it up.

“We’ve determined that changing the distance calculation will help ensure more veterans have access to care when and where they want it,” Veterans Affairs Secretary Robert McDonald said in a statement. The change will be unveiled at a hearing Tuesday before the Senate Veterans Affairs Committee.

How ’bout them apples? VA working for us rather than against us. I told you all that they are nonadversarial and Veteran friendly but no one would believe me. I stand vindicated.

I do love the aplomb with which ol’ Bob can stand there in front of the press and say something inane like:

McDonald told senators last month that he was open to changes in the way the 40-mile rule is interpreted, but he and other VA officials stressed that relaxing the rule’s requirements was likely to result in higher costs for the program. 

Hellooooooooooo? Enacting the program in the first place was a thorn in the VA’s bonus program from the get go. Having to actually measure time and distance the way all of us do was going to be more expensive? Who do they hire to research these weighty subjects? The same gurus who determined how many shekels the new Denver VAMC was gonna run? And we wonder why it takes two years to do a claim for a burial flag?

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Benefits may appear larger than they are in the mirror (but certainly no closer).

Here’s a precursor to this post in the same vein.

 

Posted in Medical News, VA Medical Mysteries Explained, vA news | Tagged , , , , , , , , , , , , , , | 2 Comments

THE CIGARETTE POLICE

images (1)I know it sounds pedantic in this day and age to be discussing the politically correct folks out there who give you the hairy eyeball and the “talk” about smoking close to entrances to restaurants. Some high-minded individual who has never tasted tobacco will always be the first to inveigh on its evils. Journey back with me to the glorious age before it was frowned upon everywhere. My belief is it began at Disney World/Disneyland and I have irrefutable proof of it.

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Disney’s SS. VOMIT (circa 1996)

Cupcake, Buckwheat Junior and I set sail on the Great Big Bacation (as he called it) in early summer of 1996. #1 son had seen Disney World in 1991 when he was three, but for the most part, only from a stroller. This trip was to encompass the new Disney Cruise to the Bahamas and then a week at the Park. We especially chose this period as there are no hurricanes at that time of year. Unfortunately, “tropical depressions” do occur and the difference is measured in wind speed. A depression is measured as “less than 79 MPH”. Even though Disney’s boat was laid over at a 30° list and passengers were hurling chunks in the hallways, we were assured it was a minor perturbation and we were in no danger but to watch where we stepped. This was the first instance I ever saw where any ship’s crew smartly taped barf bags to hallway railings for convenience’ sake. Hell, Carnival Cruises could learn from these guys.

After returning ashore from the Bahamas Triangle, we proceeded to Kissimee and Terra Firma. I enjoy reading the newspaper in the morning while performing my ablutions and back in those days, I smoked. What could be more natural than a cup of coffee, a compendium of the previous day’s political foibles and a smoke? The only thing missing was an ashtray. After breakfast each day, we’d return to the room to gather our cameras, sunscreen and snacks for the day’s expedition. As usual, the urge to void would strike about an hour later into the morning walk. Since Mr. Disney was a far thinker, there were numerous restrooms available along any route one took.

On the first day, I announced I would be utilizing one of Walt’s outstanding facilities and asked my family to grant me my usual 15 minutes of newspaper/ tobacco appreciation time. Cupcake pointed out the absolutely ginormous sign on the entrance that forbade smoking in the boy’s room and suggested it might be grounds for ejection from Epcot Center if I disobeyed. In what is now immortalized in the Graham history books, I turned to Cupcake and Buckwheat junior and opined in the most sarcastic tone I could summons ” What’s going to happen if I do? You think the cigarette police are going to descend on the outhouse and drag me out in handcuffs?”

downloadI settled in to a nicely appointed, clean stall, lit up and proceeded to immerse myself in the National scene section. In less than five minutes, I heard much commotion and a faint alarm in the distance. Another father and his son were in the restroom and the little boy’s voice sounded very excited: “Daddy, what’s the red flashing light outside on the roof mean?” Daddy averred it might have something to do with the fetid smell of burnt tobacco emanating from a stall near mine. I hastily extinguished the cigarette and made my exit as surreptitiously as possible. Too late. Two uniformed security guards appeared out of nowhere and blocked me as I attempted a hasty retreat. By this time I was the sole denizen left in the restroom. Even a rent-a-cop could sound this one out.

“Excuse me, sir but were you smoking in here?” they both asked simultaneously in unison. I was going to lie but the perfectly synchronized delivery of the question took me aback. I sheepishly acknowledged my behaviour  and feigned ignorance of their policy. This is a character fault I suffer from along with Tourette’s syndrome. It did come out with perfect aplomb though. ” Why yes, officer. Is there some stricture against the practice in here?” Following an in-depth briefing of the evils of tobacco and having the sign pointed out to me, I promised never to violate their Holy Rules again. Only then did Cop #1 insert his Magic Kingdom key into the wall receptacle and turned off the flashing red light and silence the alarm.  I walked back out into the sunny morning escorted by Disney’s finest (sans handcuffs) to greet Cupcake and Buckwheat in paroxysms of laughter. For the next five years, they would look at each other occasionally and murmur “cigarette police” and begin laughing all over. This grows old in a hurry but gives them pleasure to this day.

Consequently, life has been hell for me since 1996. Each and every time I voice any sarcastic, offhand remark that might imply there can’t possibly be a first responder waiting in the wings to arrest me for some minor infraction, I am reminded anew of the Disney malapropism. This often happens when I’m 13 mph over the speed limit and get a friendly admonition from Cupcake about it. Getting the ticket isn’t so hard to swallow. Listening to the “I thought that experience with the cigarette police in Florida would have cured you of this but I was sadly mistaken” wears on my nerves. From my worldly travels, I know it is illegal to kill your spouse in all 50 states. We also know the other side of this equation. My wife can be going 95 in a 25 MPH school zone when a cop pulls her over. With nothing more than a smile, long eyelashes and cleavage, she can, with a straight face, say ” Why no, officer. I had nooooo idea I was speeding. I’m so sorry. Lock me up. I’m guilty.” And they never do. I am not allowed to discuss the rare times she has received tickets.

I hate that when that happens. What’s more, I blame it all on the military. If cigarettes hadn’t been priced at the ridiculously low price of 17¢ a pack when I arrived in Southeast Asia for the War Games, I never would have suffered this indignity. It’s not my fault.

Posted in Humor | Tagged , , , , , , , , | 3 Comments

CAVC–BIRTH OF A WRIT-ACT III SCENE 9-WELCOME TO THE HOTEL CALIFORNIA (AGAIN).

vetcourtappealspromoAs some pointed out, going down for double can be a dicey enterprise. Splitting up the cards into two bets isn’t the best way to do it either.  It also appears this is Judge Davis’ way of saying get lost. We knew that the moment we drew the short judge straw. I’m 0-2 with him (see also CAVC #10-300). This case has been banging around that long. God forbid I draw him if I have to go up yet again. Yep. The dreaded hamster wheel is still my nemesis.

 

UPDATED——————-March 23, 2015—————————————–

Hotel California

Well, pilgrims. Let’s do an inventory of what was asked for and what was granted. It could be that already having a 100% schedular rating  inured Davis to my request for another. Here’s the inventory.

Grahambo’s Exraordinary Denial

1) Topping the wish list was a 100% schedular rating for Porphyria Cutanea Tarda analogous to dialysis as the two processes (phlebotomy and dialysis) are similar in that they involve needles, veins and purifying the blood. In any event, the aim was to get into the SMC S zone. I was 40%+10%= 50%. I needed a 20% kicker to get there.

-Outcome- VA met me halfway and upped the 40% rating to 60% and restored the 10% (CUE) clawback of the skin rating. 60% +10% = 60%. My combined total is now 170% (100% + 60% + 10% +10%).

download (2)2) entitlement to SMC-S from filing date of Porphyria on 3/31/1994

-Outcome- Granted in full. This was where the moneybags were hidden and the primary financial reason LawBob Squarepants liked this vehicle. He’s remodeling his new hacienda and needed two new furnaces and heat pumps. I needed closure. Problem solved.

3) Finish my claims for Cryoglobulinemia and Fibromyalgia filed October 1, 2012 which were accidentally closed out or disremembered for the last two years.

-Outcome- claims decided in my favor and C&P was accomplished March 6th, 2015. Awaiting ratings decision. This was my back door plan for SMC S. I don’t need it now but VA is stuck on stupid and continues to pursue rating it. That will add to the 170% which is asinine and meaningless towards getting SMC S now.

4) Certify claim for ILP greenhouse which has grown roots at Seattle’s VR&E office since November 2012 NOD. Advancement on the docket was asked for as well.

-Outcome- Claim certified, Form 8 issued and Travel Board Hearing is in the slot awaiting a date. Advancement is doubtful. I might win before I die if they advance it. They simply can’t have that.

VA 8

Actual photo of a real Form 8 which we so frequently talk about. Rarer than hen’s teeth. Handle with care. Evaporates when exposed to light.

5) Convert my 12 volume c-file into VBMS electronic word-searchable .PDF  pronto so I can fight my  ILP claims.

download-Outcome- We’ll convert your files when we’re good and ready to. Can you hear this, dude?>>>>

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<<<<<<< If you can’t hear, let me turn it up for you, bud. Your c-file isn’t “ripe” yet. From now on, it’s “okay” for VA to tell Veterans that they are no longer allowed to have the one document that might help them win their claims! Did I just hear due process being strangled? We at asknod call this the “Marie Antoinette” syndrome VA always deploys (using the Court as their mouthpiece) i.e. “Let them eat cake until we get around to making a copy of the file”. The Court takes the view that it isn’t really denial so much as delay. Once we talk about delay, two and one half to three years would be the expected  “edge of outside parameters” of good taste.

6) Make sure VLJ Hindin never touches my claims file ever again.

-Outcome- Go piss up a rope. Just to spite you, we’re gonna make you appeal both the 60% for the Porphyria and the ILP greenhouse. We may even assign Hindin to your appeal again- because  Davis didn’t say we couldn’t. Therefore we can. Ah ha ha ha ha.

In sum, for a $50 filing fee and some heavy duty postage, I was able to accomplish in two months and two weeks what had heretofore taken me 21 years, 11 months and 21 days to accomplish. I think that is the best investment in my life short of hornswoggling Cupcake into marrying me and producing my firstborn (and only) male child.

On the other hand, two disturbing specters have now raised their heads. I speak of the above Cushman violation-but worse. We don’t have to alter the records. In fact, we don’t even have to allow discovery and let you poor Vets in on what we have. Blatant, overt adversarial displays of temper, cast in stone in a BVA decision that sarcastically opined but that for lack of a shoe, the battle was lost. The Vet won by chicanery and bending VA’s lenient rules into tortured meanings never before elicited. Indeed, the VA Secretary’s regulations often segue into interpretations the Congress never intended. Where else but at the VA would it behoove you to saw off a leg to obtain SMC L by chicanery? Fortunately, alert raters at VAROs steadfastly stand guard against this Veteran proclivity.

I will have to appeal the 60% Porphyria rating up to the BVA. Childsplay. I feel confident this will win. If VA gave away the whole farm in one fell swoop every time we bitched, the rest of you might get the idea they’re getting soft. They can’t have that. The resultant rush to the benefits trough would be financially catastrophic for bonuses. Thus, some time in 2017 or so, a VLJ will state the obvious that a doctor saying totally disabled is… gosh…just that. Duh? Or ten days before the VLJ rules, VA will grant the 100%. Either way, they will make me wait. I”m pretty sure I have now officially been declared persona non grata and taken off Secretary Bob’s Christmas Card list.

The centerpiece jewel in all this is the ILP claim. All the rest was just window dressing. I know some of you choke at the thought of $70,000.00 being window dressing but let’s be frank. The Independent Living Program is dying. It’s very important and worthy of a strong defense. There is no good case law on it of mention at the BVA. If it’s denied at the Board, we get to go up to the Big House at 625 Native American Avenue NW and open up the biggest coverup in VA’s storied history of same. ILP is going to become the next scandal if I have my way. Nobody in Wyoming has ever heard of it let alone been granted an ILP. Same for the folks in Manila. White River Junction has been AWOL on it since 2005. Check it out:

VR-E ILP states

vre2vr3vr4

 

vr6

VA continues to remodel these numbers in the totals above. Congress authorized 2,700 lotto tickets to this but unfortunately the people giving the tickets away appear to be unable to find any of us and ignore the ones like me who try to redeem our tickets. Your odds of winning in Wyoming are 0 in 1,000,000,000,000,000,000.00 as you can see.

 

 

VR&E Officers consider ILP to be a giveaway of valuable vocational assets to a bunch of undeserving whiners who just happen to have a shit ton of severe disabilities like PTSD, missing arms, legs or liverboxes. VA’s take on all this is to do intake all spring and summer and wait for September. That is the cutoff date for allocation of ILP spending. If they didn’t use it by then, it reverts back to the general fund for use “elsewhere”. Elsewhere has been discovered to include Kareoke parties in Orlando with their sidekicks in the HR crew. Oddly, it happens every year ( the misapplication of the funds-I think the party locations change though). A $25,000.00 allocation available for each one of you who applies is withheld, reviewed or artifically denied until it can be redirected. This authority emanates not from DC’s Central Office of VR&E but at the local level. Yeppers. The local offices have no oversight from DC. Each are mini-fiefdoms and the whims of the Head VR&E Officer are dictum. That is the battle we hope to enjoin. Seems if you’re going to deceive and deny Vets this valuable asset, you probably shouldn’t be keeping a record of it that clearly demonstrates it’s being “downsized”. Can it be our paraplegic/severely disabled Veteran numbers have dramatically dropped after a 15-year war? Statistics like those above do not lie.

Davis was not expected to become Solomon and make weighty decisions on PCT ratings. We certainly hoped he would but the Force is weak in that one. Likewise, I don’t see where he could have thrown his weight around on the ILP either. VA chieu hoi’d too quickly before he could answer that. The matter of getting a slot for the Travel Board hearing sooner, rather than later, is also “iffy” and VA mentions it in passing. Often, that is the same as not mentioning it at all. We shall see.

The battle lines will be drawn around the Presumption of Regularity on the ILP. VA took an interesting path to denial at each stage of the process heading to appeal. The first error was to blatantly declare in writing that there is no “avocational” in VR&E. Every grant is aimed toward restoring the Vet to work. The boys at VR&E 346 (Seattle) forgot to read §21.160 or consult VAOPGCPREC 34-97. The next mistake was to say I had three greenhouses. I don’t.  Next was the “He’s trying to avoid buying veggies by growing them”. The last was the crowning touch. They simply waited for the regulation to change last March 31, 2014 and issued the SSOC May 14th incorporating the brand new regs. Boy Howdy, that’s against the law in 38 states and all 58 VAROs. This provokes the thought of just how tightly wrapped these folk are. If they don’t even know their own regulations and are incapable of interpreting the M 28, do they have a checklist to get their underwear on facing front every morning (yellow in front/brown in back ⇒ check ⇐)? The Presumption of Regularity says they know what they are doing and do it well. If you rebut that by saying what appears irregular-is indeed irregular, then the decisions at the RO were fatally flawed.

§19.29 says a SOC or SSOC has to clearly and unequivocally evince reasons and bases for a denial. It must be clear to the claimant what is afoot and why. Merely saying “Mon, we be castin’ dem bones and you be losin’.” isn’t a valid reason to appeal from. If there is no nuanced discussion at the VARO of the severity of the disabilities, how is the Vet to know how to proceed with a denial? Absent a real C&P for ILP, your decision is based on whether the VR&E guy is having a bad hair day. Unfortunately, there are no good hair days at Seattle so their ILP numbers are sinking much like their sister ROs across the fruited plain.

By signing the waiver of review in the first instance and avoiding a remand to readjudicate, the rebuttal of the Presumption that Seattle knows what they are doing is complete i.e. they don’t. Whether s/he wants to, the VLJ is going to have an ILP Tarbaby stuck to her/him and have to rule up or down. My ILP is a case study in how not to do one. They have variously denied on it using four different arguments-each distinctly different from the one before. It’s beginning to resemble a “whack a mole” game at the county fair. Even worse, there is no supporting rationale for the denials from which to appeal. Bald assertions with no supporting rationale are not probative evidence and therefore not entitled to deference in a rating decision. Absent any mention of disabilities and having considered them, the decision is fatally flawed.

We aim to fix this. ILP is a valuable asset that looks like it got a  crew-cut with a weedeater over the years.  Very little of substance is left there now and any benefits at all hinge on the whims of the local VR&E Officer at your RO. Some are amenable to reality. Others consider it an extinct dinosaur but occasionally grant grab bars and shoe horns. We know some in the R1/R2 crowd are getting HISA and other grants but they are few and far between, too.  Little, if any, entail avocational pursuits such as an Ipad or similar items. Considering the enormity of severe disability and the prevalence these days of social media, Ianythings should be being granted wholesale to help our Vets unwind from the Afraq hostilities. This niggardly approach to ILP grants with Mardi Gras beads must be halted. A rollback to the eighties back to true avocational pursuits for those of us less abled but still desirous of accomplishing something of substance is what is called for. Congress appropriates the funds. VA surreptitiously diverts them.

I, for one, look forward to having fellow disabled Veterans gather here to engage in horticultural pursuits should I win. If it gets you off your ass and gives you the will to be more than a mushroom in Fort Livingroom, why try to curtail the behaviour? Why not encourage it? Unless they simply don’t give a hoot about us. Perish the thought.

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Posted in ASKNOD BOOK, CAvC HCV Ruling, Earlier Effective dates, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans, Porphyria Cutanea Tarda, Presumption of Regularity, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , | 4 Comments

VIETNAM–WHERE WERE YOU?

CaptureHere’s a lovely Google Interactive showing all the locations where we had military assets in the former Republic of South Vietnam. I note that it doesn’t show our assets in the adjoining countries but I suppose that will befall some of us to supply when our nondisclosure agreements start expiring soon. Mine are up in 2020. Tell us where you were. 

Posted in Vietnam War history | Tagged , , , , , , , , , , , , , , , | 3 Comments

JETGUNS- WHEN THEY REALLY FOUND OUT THE TRUTH

sylvia Price

Sylvia Price, RN

In what may probably be the biggest scoop for us on jetguns, we owe member Sylvia Price a debt of gratitude that can never be repaid. She spent thousands of dollars of her own money over the last decade in a desperate search for the Holy Grail of Jetgun Knowledge- What did they know and when did they know it?

Why- or better yet how- did such a filthy, unsanitary, non sterilizable inoculation device survive so many decades of military use in the face of this inexorable truth? Quite simply, it was speed, efficiency and a No deposit, No return mentality on the usage of human beings as an unending supply of disposable employees. That certainly should not come as a surprise to any of you Vets-especially combat ones. Freshly drafted 11 Bravo grunts for the new war in Vietnam were going to be cannon fodder all too soon. What difference did it make if they contracted a lethal, incurable disease or two in the process beforehand? Besides, if they survived and needed medical attention after service, there was always the VA as a last resort.

Sylvia Price, R.N  is a fellow member of the Old Guard of HCVets. Once upon a time we lived on a small chat board called Delphi. The site still exists but is growing cobwebs. Harry Hooks, Patricia Lupole and a few others have been holding down the fort and providing support at HCVets.com as well as on various Facebook sites. I was the newbie in 2008.  Her dogged pursuit of the magic nexus to the sure knowledge something was amiss is legendary. It should come as no surprise that she has finally unearthed the Rosetta stone.

THE HISTORY OF THE JETGUN

downloadThe CDC finally threw in the towel in 1997 and said the jetguns were unsanitary. The US Government, by and large, had ceased by 1998 and reverted (at great cost) to one-shot disposable syringes and begrudgingly accepted  rational thinking on sanitary protocol. But let’s go back to the fifties and the Elvis era when this all began. Medical personnel   could be excused for being ignorant on this when jetguns first made their appearance, right? Wrong by a country mile.

Here’s some of the now-released literature that shows the lack of training on this device. I doubt anyone ever  saw a pecker checker grab the backside of their arm, pull the flesh back tight and administer the jetgun blast at a perfect 90° angle after carefully seating it against the flesh. All the ones I had were “hit on the move” or a half-hearted attempt to at least nudge the nozzle tip against the skin. Obviously, had the “technicians” used their off hand to hold the arm securely while tightening the flesh, the incidence of flinching would have been controlled for the most part and bloodshed would have been extremely rare.

FullSizeRender (4)FullSizeRenderFullSizeRender (1)FullSizeRender (3)FullSizeRender (2)Pretty damning so far. But wait. It gets worse. Lest we forget, many of us died. We must never allow this to happen again.

jetgun 2

Think back on your jetgun experience, ladies and gentlemen. Do you recall hearing “1001, 1001, 1003″? Do you recall the technician gently swabbing the site with a clean cotton or gauze material to remove any excess vaccine? I recall “Keep moving! Stand perfectly still when shot. Do not flinch or jerk. Next?” There were forty four men in my Flight. It took less than five minutes for us to get our first round of immunizations on about Day six. The second round went even faster because we were smarter.

NOD DOES BASIC

Chapter 6 page 6-20 begins the discussion on jetguns. You will find the Army Manual has a completely different idea on how all this was done. References to “sterile procedures” pepper the chapter. Everything written would indicate your experience was sanitary, sterile and risk-free if the procedures were followed.

HOW TO USE THE KNOWLEDGE IN A JETGUN CLAIM

The reason you can contradict what actually happened via your lay testimony is you can describe this in non-medical jargon. You do not have to say it was unsanitary. You merely have to recite what actually happened-the “wham-bam! thank you ma’m!” nature of it with the occasional twit who jerked and got blood everywhere. You can recite that, contrary to the accepted procedure in the book (below), your arm was not wiped following administration of the vaccine. The presumption of regularity that The Army was proficient in what they were doing is now rebutted. Sanitariness was no longer guaranteed because the operating protocols were not followed. You do not need to be a doctor to state this. Layno versus Brown (1994) tells us we can report what comes to us via our five senses. If we did not visually observe Bozo wipe our arm after the shot, what else did he forget to do? How about holding your arm with his non-jetgun hand?

The manual is not just a font of info for rebutting jetgun sanitariness. The manual also demonstrates many non-sterile techniques of the era and shows other potential paths to infection.

Here’s the manual. I want each of you to think how many died without getting service connected because the VA and the military went out of their way to prevent it’s disclosure for a long, long time. It holds the recipe for success. It’s in .pdf and easy to download to your computer.  Whisper “Thank you, Sylvia” when you do. It is she that made this possible. I almost can foresee HCV becoming a presumptive if enough of you get this into your c-files and before the BVA and the CAVC.

Army_Medical_Department_Handbook_of_Basi

Posted in Army Medical Manual, Guest authors, HCV Health, HCV Risks (documented), IMOs/IMEs, Jetgun BvA Decisions, Jetgun Claims evidence, Nexus Information, research, Tips and Tricks, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , , , | 11 Comments

CAVC–PHIL AND VICKI’S WIN UP AT THE BIG HOUSE

vetcourtappealspromoFebruary and March have been fortuitous months for wins, apparently. I haven’t been on a roll of this magnitude in years. We began with Leigh’s win and Kelly’s was right on it’s heels. My Writ compounded it with interest and almost immediately I heard from Miz  Vicki telling me of hers and her husband’s long battle to the Big House for justice. Writing that book is beginning to have a financial impact on VA. Concepts like nexus letters and credibility determinations are now becoming household terms in Veterans’ lexicons.

We can only wonder how it is that our VSOs disremembered these important ingredients all these decades we have fought for service connection. I read a DAV honcho had stated he had 16 (sixteen) months of training in the field of 38 CFR and considered himself an expert yet he was unaware of any bump in the SMC if you had an additional 100% rating above and beyond the first one. Sixteen months, ladies and gentlemen. I want to see their chapter on providing IMO/IME/nexus letters and a careful briefing admonishing the Vet filing to make sure he obtains one. Seems that chapter is AWOL and always has been. One quick look at recent BVA decisions reveals they’re still holding that knowledge captive like the ILP entitlement. Here’s a recent example:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files7/1455784.txt

Anyway, let’s rejoice for Vicki and Phil. A long journey into the night has finally concluded. It’s all over except for the rating. That will take some time as the BVA hates to be the loser. After they finish pouting for a few months, they’ll get to work.

Vicki and Phil have been fighting this as long as I fought my claim for hepatitis and AO-1994. Twenty one years of denials and obfuscation. So much for the CAVC and BVA’s admonition of RFN. VA most assuredly marches to the beat of their own deaf drummer boy.

Here’s another claim to put away in the win file cabinet. By now they are  too numerous to count. Strangely, that is satisfying. I do know we have only had three that lost outright and I still hold out hope for a win on Malcolm “in the Middle” Melancon. He has an excellent shot at a CUE claim for VA’s and Navy’s mismanagement  of his separation while still jaundiced with active HCV (misdiagnosed as HBV) in 1990. All in good time.

Vicki and Phil’s big remand win.

David E. Boelzner Esq.

For your reading pleasure. Curl up with an ice cold IPA and read of Miz Vicki’s adventures in VALand. They had an able law dog in the person of David E. Boelzner, Esq. We hope his phone will be ringing off the hook with breathless Vets in search of his expertise. You can reach him at:

PHONE

(804) 565-5973

EMAIL

dboelzner@goodmanallen.com

Win or Die VA

Posted in CAVC ruling, Earlier Effective dates, Medical News, Remanded claims, Tips and Tricks, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , , , , | 4 Comments

VARO PHOENIX–HCV WIN FOR KELLY AND JAY

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Hurricane Katrina

Hurricane Katrina has struck again and this time outside of New Orleans. We look forward to wins in this arena as being long overdue. When denied, which invariably occurs, we are left with few avenues to prove it. This is where having a good law dog to carry the water is essential. In Kelly and Jay’s case, it was imperative that they seek professional help as soon as possible to speed this along. Jay has come down with Hepatocellular Carcinoma or HCC as we know it. That’s the inevitable outcome in many cases for us. With Vietnam Veterans, the incidence elevates to 66% of the participants who consumed Agent Tang. I, too, worry about it.

While Jay served in peacetime in the 80s, he was still exposed to the jetgun risk and I had given them as much ammo and help as possible. Absent any good legal help at the local level (i.e. VSOs) until you lose, it was no surprise to get the waveoff. VA honestly believed Kelly would just buzz off. You do not have any idea how committed she was. I  rarely meet Veterans’ wives more determined to get their husband service connected.  Lori Molzan was one but there are many, many more. My email folder of Kelly’s queries doth runneth over.

Here’s the decision in .pdf.  Kelly and Jay’s most excellent win

EagleIt came as no surprise to hear of a win after the NOD at the Phoenix RO. Ms. Eagle was certainly a determining factor but Kelly had carefully crafted the claim using the advice I proffered in my book. They had several nexus letters including one from Dr. Ben Cecil. They had all the ammo needed for the win, but, as we normally suspect, the RO seems to imply they lack the needed permission to grant locally. Katrina whacked them in a DRO review on the same record. Perhaps she convinced them to actually read it or sound it out.

We are seeing this local denial metric turned on its head more and more frequently. No more is it absolutely necessary to fight for 8 years to eke out win at the BVA. Jay’s dire straits allowed him the 38 CFR §20.900 (c) advancement on the docket.  He is now 100% +100% +10% or what I consider to be 210% disabled. He will get his SMC L (or SMC S with Aid and Attendance) due to his precarious health. As he is not a post-9/11 Veteran, Kelly is not entitled to a Caregiver rating of SMC T. She could surely use that. Hopefully Congress will come to it’s senses soon and realize the dichotomy they have constructed.

I would point out that I received an email from Bruce Almighty illustrating the judicial inequality of this is legal terms.  Try this on for size:

 Wonder if any of these stalwart defenders of Vets [NOVA/ NVLSP] would volunteer to take on the guber-ment of the good ole USofA.  Specifically a discrimination suit originating in the halls of congress.

 

Best I can figure when the good ole boys passed without opposition the Care Giver Act of 2010 they broke at least 2 laws:

 Excerpt of letter to several senators…still unanswered.  “When your legislation to correct the discriminatory practices of providing care giver assistance only to post 9/11 Veterans was rebuffed, Congress broke specific discrimination laws that body earlier enacted,  to wit;

 Title VII of the Civil Rights Act of 1964 –

“An Act…to prevent discrimination in federally assisted programs…”

 Title I of the Americans with Disabilities Act of 1990 –

SEC. 12101. [Section 2]

(a) Findings. – The Congress finds that-…

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

 (b) Purpose. – It is the purpose of this chapter-

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

Hope one or more of these [VA] law dogs will put on the cape of ‘truth, justice, and the American way’.

 ‘Hovering to POL for hot refuel’

Let us hope this will come to pass in the near term so Kelly and Jay can partake of it. The inequity is glaring and blatant. As I so often implore: What’s the difference between a Grunt who survived a Bouncing Betty in 68 and a post- 9/11 Vet who ate an IED?  The injuries can be identical but the remuneration is far different. SMC “T” is currently awarded at the R2 rate or an additional $2,983.00 per month.

(t) Subject to section 5503 (c) of this title, if any veteran, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under subsection (r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care, the veteran shall be paid, in addition to any other compensation under this section, a monthly aid and attendance allowance equal to the rate described in subsection (r)(2), which for purposes of section 1134 of this title shall be considered as additional compensation payable for disability. An allowance authorized under this subsection shall be paid in lieu of any allowance authorized by subsection (r)(1).

That’s a hefty increase in compensation.

P.S. Kelly writes me this AM ( 3/15) to clarify that Jay did serve in Desert Storm in 1991. I apologize for shortchanging his deployment to a war zone. Us gomers from the Vietnam Boundary dispute just automatically assumed everyone who came after May 7th, 1975 served in the Peacetime Army until the next political uproar in the 90s.

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