In spite of our attempted April Intervention in San Francisco at the NOVA conference, good friend and budding attorney Ben Krause tied the knot with Gretchen Prater. We will hold a minute of silence for Ben this coming Sunday 11659436_10153482663034973_5318678764856405721_nat 1200 hrs (L) on the Left Coast in mourning. Everyone please face towards Minneapolis during the tribute. Candles are optional.

Having now consumed the most poisonous substance on earth (wedding cake), we collectively wonder if Ben will be hyphenating his name to celebrate this momentous event. While I abhor the practice of conjoining names with a hyphen, it is becoming all the rage. Benjamin Krause-Prater. That ought to look good on a CAVC brief. You can see his new nickname from afar even now.

No, in all seriousness, we wish Ben and Gretchen the very best. Since he’ll soon be needing a lot more money to operate his larger household, we hope to soon be sending him lots of disgruntled Veterans with a VA axe to grind. If you or someone you know has been irreparably harmed by the VA Justice system (pun intended), we’ll be handing you his name, rank, airspeed, tail number and last known heading.

Ben also owns and operates the website and is an invaluable resource for beleaguered Veterans.  I have a special place in my heart for fellow Air Force Veterans. Why walk (or parachute, march or sail) when you can just fly there? Some Vets failed to think that through before they signed up.

Posted in 2015 NOVA Conference, KP Veterans, Lawyering Up | Tagged , , , , , , , , , , , , , , , | 3 Comments

HCV–SUNRISE 9/17/1970–SUNSET 6/25/2015–RIP

Alternate today.PNG1

The funny airpatch

Once upon a time long ago in a mountainous Kingdom north of Thailand, nestled in a small valley was a funny airpatch but that is another story. I was the “chieu hoi boy” on Tuesdays and Thursdays unless I had another assignment. We’d fly a Porter PC-6 up Route 7 all the way to Khang Khay telling Pathet Lao or Neutralist troops to surrender to VP (General Vang Pao’s troops). I broadcast in French and occasionally in pidgin Hmong to small bands if they were wearing black PJs. Thursday, September 17th, 1970 dawned with a little overcast and  occasional rain squalls. Visibility was five miles.  Somewhere near Muong Soui L-108 just a bit southeast of the Plain des Jarres, we started picking up groundfire.

green footballs

7.62mm X 39mm Green footballs

Porters are mega-loud but the little green footballs of 7.62 tracer coming up at us were a dead giveaway. Somewhere along there a 7.62 bit my leg and I somehow missed it until I reached down to my cargo pocket for my Marlboros  10 minutes later. It came back all sticky and wet. I honestly thought it was hydraulic fluid from an engine strike.  About an hour later we landed at the Air America Hospital in Ban Sam Thong (LS-20). They had a 12-bed “hospital”/chalet for flight crews and ailing airmen. I remember the autoclave was the same sauce pan they boiled afternoon tea in on the propane stove. Glass syringes were de rigueur and if the needles got dull, they sharpened them up with the flint strikers on match packs. Brand new sterile match packs, mind you.

Several Hmong Tahann (soldiers) with O Pos were rounded up and I got a quick transfusion of two pints. Sunrise. 1745 HRS Bangkok Time. Eighty nine days later I came down with ‘hepatitis NOS’ (Jan. 11th, 1971) and was hospitalized for six weeks.

In 1992, I finally got a diagnosis of Porphyrea Cutanea Tarda after suffering it since June of 1971 when I began coughing up blood. Our Flight Surgeon back then had suggested I switch to the new Marlboro Lights. I did. It didn’t help my skin.

In 1995, they discovered the C and said I was very, very unique and might hold the key to the cure since I had the rare antibodies for it.

In 1998, the same doctors were begging me to go on the Interferon because I had too many of those rare antibodies. I smelled more money thinking I had lots of antibodies to sell. It didn’t pan out and I passed on the Interferon.

In 2006, my old buddy Doc Kevin allowed it was time to bite the bullet and do the dirty deed. I did. One blast almost killed me. Funny how all them doctors and nurses look at you and say “you’ll be, ahhh, feeling some flu-like symptoms so you may want to ahhh, do it Thursday about noon. That way, you’ll be chipper by ahhh Monday morning for work.” They’ve never taken it or I assure you they would never ahhh, say any such thing.

I finally got my bite of the Sovaldi apple last June. Six months-168 days- ending Pearl Harbor Day 2014.  It appeared I had won. I still had the three and six month tests to pass.

Thursday marked the six month anniversary ( or close to it in ACA time) which Minder Tobi said would be the acid test. I came up zero so I’m officially cured and it will never come back. Of course, I called Cupcake to tell her the bad news in case she was out husband shopping. Sunset. June 25th, 2015. RIP HCV

HCV svr

To say that I am overwhelmed is hard to vocalize. So I did what every man does when he finds out he’s once again bulletproof -buy another horse. You can never be too rich, too thin or have enough horses. Shoot, maybe I’ll go transgender, too.

Super Duper Cooper

Kona and Cooper

The next hurtle appears to be the Hepatocellular Carcinoma or HCC. Liver Cancer in Vetspeak. HCV tends to do that to you. Of course, so does Agent Orange, Blue or White. Porphyria increases the odds to 67% more likely. Some of you may not realize I am incredibly lucky and worry. Hey, I’m sure I’m in that rarefied 33% who get a bye so relax. I’ve got this.

Posted in HCV Health, HCV Risks (documented), KP Veterans, Medical News, Sofosbuvir, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , , , , , , | 6 Comments


Battle Flag of the Army of  Northern Virginia.

Battle Flag of the Army of Northern Virginia

Lost in all the kerfluffle over Charleston’s atrocious racial shooting recently, the insidious mindset of politicians (both stripes) came to life and determined something-anything- needed to be done to prevent this from ever happening again. Our President trotted out a long diatribe about how guns were at fault and, had the proposed law after Sandy Hook been implemented, this would not have occurred. That Bill was a “long gun ” bill as in Assault rifle. Dingbat used a .45 ACP pistol so that dog won’t hunt in Charleston. For those of you from St. Paulsburg or inside the Beltway, a pistol is a “short gun”. 

And then we come to the real reason this chowderhead did it. The Confederate flag. Here lay the culprit all these years moldering in the grave. What an easy repair order. Simply rid ourselves of this racist throwback to an earlier era of slavery and white supremacy will go into decline. Whoda thunk it?

Flag Identification Day

Original combination govt. and battle flag in 1861.

Original combination govt. and battle flag in 1861.

Let’s take a gander at the original Battle flag first. As I was born and raised in Virginia, I’m more than familiar with it and all its iterations. I did a book report on this in Fourth grade (Williston Elementary -Seven Corners in Falls Church). I didn’t wear a KKK suit when I read it to my class. The “Stars and Bars” was never the official government flag of the Confederacy. In fact, it didn’t surface until later in the war when the original Battle Flag was determined to be too similar to the Stars and Stripes. General Beauregard had his Aide de Camp, William Porcher Miles fetch something that was not so confusing to his troops as the above. His choice was the famous emblem at the top of the article that is now causing so much angst and heartburn to millions… including Gov. Nicky Haley. Funny how this flag thing has been around for over a century and some bright fellow finally ascertained it as the root cause of all this dissention. Amazing.

Note that in 1863 they decided to change it yet again from the above to accessorize it, I guess. Either that or they were having an identity crisis and wanted to rebrand with something that made a fashion statement. Thus  there were three follow on flags below that overlapped or were in dual usage from 1863-early 1865.

Capture 1


Also used as the Navy ensign on ships


The earlier ones had too much white for southerners and military commanders felt it might resemble a flag of surrender. For the record, the last one was the official flag at the surrender at Appomattox Courthouse in 1865. By rights, it is the one that should be flying over the Confederate Memorial in Columbia. Therein lies the error-if indeed there is one at all.

Touchstone or Incendiary Device?

I can speak succinctly about this as I was born and raised south of the Mason Dixon Line and spent my formative years between Fort Five Sides in DC all the way to Turner AFB in Albany, Georgia. I can remember going to see Cinderella and the twelve Dwarves when very young and getting the shush from Momma on why there were two water fountains. Things like this do not escape little people or at least it didn’t in 1955.

I have witnessed the Stars and Bars throughout the south and never had occasion to note its use to incite white folks to loot and burn or commit racist acts. On the other hand, I’ve seen it predominantly displayed in Idaho at White Supremacist parades in Coeur d’Alene. Of course they’re big on the Swastika too but when you think back, the Southerners didn’t gas their Jewish population during the war. Why so much opprobrium over the Battle flag? Nowadays, no entity can legitimately lay claim to the Battle Flag other than the Sons (and Daughters) of Confederate Veterans who, bless their hearts, merely wish to honor their relatives who fought and died for a lost cause. I severely doubt they harbor the idea that the South Will Rise Again, and with it, slavery.

Capture4America went to great lengths to reincorporate Confederates back into the fold. They did not preclude them from being buried in Arlington National Cemetery as over two hundred that we know of are ensconced there. Hell, they even threw up a memorial for them down in the SE corner. There was some friction right after the war but the Spanish American War soon saw North and South fighting shoulder to shoulder against the Spanish. Boy howdy-nothing like a little war to turn old enemies into friends again. Maybe that’s why my Orbit® sprinkler timer says Made in Vietnam. War must be good for reconciling our differences.

Now we reach this new crossroads of relegating a symbol of loyalty and valor to the ash heap of history simply to appease a very small minority (most of whom don’t live there or have no roots) who suddenly claim to be offended. The offendees have no history with this flag and thus no grievance other than a vague feeling that it is politically incorrect. Relegating the Battle Flag to museums and striking the symbol from any flags still sporting it like Mississippi’s seems to be the order of the day. This brand of politics of exclusion is  employed by the gun ban crowd, sadly. They have no constructive proposal to reduce gun violence and instead advocate for the complete ban on firearms period. Screw the Second Amendment. It was written for muskets. Muskets didn’t have thirty round clips. Now, about that flag…

Similarly, doing away with the Battle Flag simply because the Ku Klux Klan embraced it over a century ago is asinine. The same argument could be said for the White Supremacists. One thing we all know about America, and relish even if it makes us uncomfortable sometimes, is the right to remain stupid. You can’t fix stupid. The government foolishly outlawed prefrontal lobotomies so that one is off the table.

Rather than engage in the rhetoric of exclusion, I propose we engage in glastnost and embrace inclusive politics. What about putting up the last official flag of the Confederacy over the Confederate Memorial In Columbia?  With all that white, it implies purity of soul and atonement for sins past. Why not have a broad conversation about racial harmony in 2015 without dragging the past into it? I’m surprised the Most Rev. Al Sharpton didn’t fly in for this (and simultaneously relieved he didn’t). Charlestonians seem to be handling their grief quite well without him and his Rainbow Coalition cheerleader squad.

The Stars and Bars is recognized at the Arlington National Cemetery without being flown. The dead of both sides were accidentally interred together early on and are inseparable to this day. We can no more divorce ourselves from the cataclysmic events that engulfed our country for five years than we can the imbroglio of Vietnam. For those of us born and raised in the south, the similarity between the two wars is eerie.  While roaming around in Vietnam and Laos during the Boundary misunderstanding, I had occasion to see this symbol painted on aircraft, helmet liners, affixed as a decal to the butts of M-16s, thousands of tattoos-and more. To a man, not one of the gentlemen pointed to it as a symbol of white pride or racism. It was merely a talisman for good luck by some of our Sons of the South who were (and still are) extremely proud of their heritage. Why is that so hard to fathom or digest?

Politically Correcting the English Language

I wonder how many remember a certain politician uttering the word “niggardly” in reference to the paucity of spending on Veterans Affairs several decades ago. I also defy you to name him. You’d be hard pressed to as he is no longer a politician. But for that one error in speech, he might have gone far. Similarly, I fear the day when the wordsmiths will venture forth, emboldened by their successes in ridding us of obnoxious, racially divisive flags, to declare that the word ‘Confederacy’ is now verbatim non grata because  it, too, evinces racism and drips with (old) thoughts of enslaving others. If the Confederate Battle Flag is such an incendiary visual statement as accused, it would seem that Chicago would be immune to racism-and thus gun violence. But how to explain 43 shootings (with short and long guns)and seven deaths in the last week in the virtual absence of any Confederate Flags of any stripe flying in the Windy City atop any edifice? Moreover, that was a good week for the populace. For the record, the only ‘racial aspect’ of this violence was black-on-black killings which makes the tenuous argument about the Flag fall rather flat.  None were waving any flags (let alone Confederate ones) according to the press.

A flag elicits many emotions. The American Flag makes my heart swell and a lump to form in my throat after seeing so many draped over the coffins of my brothers. Had the South persevered and won at Gettysburg, that flag bedraped coffin would have been, in all probability, the one with the large red border- but not the Battle Flag. It would still provoke the same emotion in my breast nevertheless. Valor. Loyalty to a cause-however misguided. A touchstone to a distant relative who fell beneath it.  In a word- a brotherhood born of arms on the field of battle. And if for even one moment, if I thought that removing a flag of any type would result in the saving of one life or the reduction of one racist organization anywhere in America, I would personally lead the fight to have it removed.

Sometimes it’s difficult to accept that there are warped minds in the world. They inhabit all walks of life, profess all manner of religion, and appear normal in all outward respects. To try to envision every possible permutation of insanity and pass laws against them all after the fact merely creates a tapestry of laws where there are no freedoms. You cannot legislate sanity. The politics of inclusion have always proven to be the most formidable and lasting when Americans gather to create law and vote on it. Chicago’s woes are a classic example of throwing more and more restrictions (read exclusion) at the populace and making no headway. In Illinois’ case, they compounded the carnage by depriving most of innocent the ability to defend themselves whatsoever.

In South Carolina, and all over the south, the wise politicians are preparing to emulate Chicago. If the Flag removal/restriction doesn’t quite work out as expected, well, then it’s time to have a conversation about doing away with guns. If it continues, then removal of all Battle Flags from museums should be the next logical step. The dictionary will be the inevitable last victim if that fails. I love politicians. They can fix anything…again and again and again.

I was born about two miles from ANC and I’ve already got a nice plot picked out there. What’s one more Confederate cum American Veteran in ANC? And that’s all I’m gonna say about that.

Posted in Food for thought, General Messages, History, KP Veterans, Military Madness | Tagged , , , , , , , , , , , , , , , | 1 Comment


news_vetbeneVeteran spouse Shirley L. Schwartz has the fire in her belly. Husband David fought the VA delay/deny until you die machine from 2003 to 2012- to the death. Mrs. Schwartz took his place and trusted VA to do the right thing with a Joint Motion for Partial Remand (JPMR). After discovering she’d been hornswoggled, she got a good law dog and a sympathetic ear at the Court in the person of St. Mary Schoelen. Herein lies a tale of “and for his widow and his orphan child…”

David Schwartz was a peacetimer in 1956-57. I’m just guessing but I’ll bet they had him loaded up with that 60 lb. backpack and an old Garand when he ate it in the foxhole on maneuvers. You can imagine falling into a void unexpectedly. That sinking sensation is like no other.  It’s like that feeling when the chopper ceases pulling pitch.  Try to imagine it running full tilt with a 80 lb. bag of beet pulp. The miracle would be if you didn’t injure something. Apparently, David did. He suffered silently for years until one of his buds clued him in. I’d bet it was his wife. They have quite the network on these things.

In 2003, he finally put in his marker based on being unable to make a living. From the get go you can see the legitimacy of the claim. Unless old David was a prime time huckster, he had immense foresight to begin building a disability folder all the way back to 1994 in preparation for a VA claim filed in ought three. He did it by the book with excellent evidence and VA still denied. He had all the Caluza ingredients for the recipe. He had a doctor opining that it was very disabling. An actual nexus/IMO was perhaps vague but nonetheless conclusive that the injury in service, the four month recuperation in the hospital and subsequent medical discharge were pretty compelling evidence in his favor.

The Portland RO  held the Schwartzenmeister  hostage from  November 2003 to June 2009 before they gave him his service connection. With no less than three doctors attesting to this, a wealth of medical evidence in his court and a nexus, VA still stonewalled him for six long years- and then they screwed him by only giving him 40% for thoracic syrinx. Note that David had medical records clearly showing he was driving the morphine bus and hopelessly addicted to Demerol in 1994. Hell, he even “retired” to get SSI early to put food on the table. Note also that VA was careful not to let David anywhere near TDIU.

Here’s the December 2014 BVA folly with VLJ Larkin behind the wheel.

schwartz BVA

As most know this is an incremental “Mother, may I? ” game. Each succeeding paltry grant came with narrow parameters and surprisingly, the wrong effective date that took much time to correct. Not just once or twice either. Whoever was handling this claim had Max ADHD. First, a reaffirmation that the original date and rating were correct, then an additional 10% (to 50%) from the 2010 DRO review effective in 2010. Then another 10% each for each lower extremity but still not within striking distance of the 70% and TDIU. All the while, Mr. Schwartz was gradually going down to the tubes. The race was on for TDIU back to 2003 and a hopeful Dependents Indemnity Compensation (DIC) of about $1200 a month. VA staunchly refused. In the interim David became room temperature and this pissing contest began in earnest.

VA finally sent it up to Tom Murphy’s Comp. and Pen. office in late 2012 and Mrs. Schwartz got a late Christmas present in January 2013. TDIU from 2009 but the April Fool’s joke was that it wouldn’t help one whit with the DIC. For that she needed the IU back to Novenber 2003. VA was well aware of that and played innocent. Using an impossible standard of being “totally incapacitated”, the BVA affirmed the RO’s bogus logic and off to the races Shirley went.

The CAVC could see the problem instantly and remanded it back to correct the TDIU from 2003 as a viable claim rather than just consider it from 2009. Shirley and her shield bearer Mary Anne Royale signed off on the JMPR and probably breathed a collective sigh of relief-far too soon, it turned out.  Veterans Law Judge M.E. Larkin wasn’t going to go down without a valiant effort to save VA $150-250 K. This is where he reiterated his utter lack of comprehensive knowledge about the very laws and regulations he is foresworn to uphold. He didn’t create the new ” totally incapacitated ” standard that the RO demanded but he reiterated it in his December 2014 affirmation on the second JPMR. Most would get the subtle hint that there was a problem with this or reread 38 CFR 4.16 for guidance.

VA is fond of their ‘credibility ‘ talisman. If you so much as contradict yourself on which way you parted your hair in 1959, you are not credible. If you cannot remember who the Secretary of State was under President Roosevelt, you are not credible. And if your doctor cannot say with certainty what year he began treating you, then he is unreliable too. It makes no difference if you introduce medical records clearly showing him as your treating physician  dating back to 1994. The doctor’s testimony, and hence his IMO, are held to be worthless and some inane statement by a Veteran taken out of context,  while drugged out of his mind on Oxycontin, is substituted as being the only probative statement of record concerning this  disability. Fentanyl wins out over a medical degree for probity. That’s what this all boils down to.

This is why St. Mary reversed. As held in Gilbert v. Derwinski, if the facts just don’t line up with the argument, then you have CUE. The repair order for CUE is the grant of the claim to its inception and then a reasoned Fenderson approach. Since it was clear to everyone except VA, St, Mary sounded it in Dick and Jane speak just for them. Mary Anne Royale is a member of NOVA so she didn’t need it explained in pidgin English.

Schwartz reversal

Mary Anne Royale , Esq.

Mary Anne Royale , Esq.

Veterans Law Judge Larkin gets to fall on his sword and rewrite his decision incorporating the TDIU grant to 2003. The Portland, Oregon Regional office gets to rewrite the awards sheet on ratings to incorporate the newer effective date and contact the US Treasury to cut Miz Shirley about a $250 K retro check of which Mary Anne will get her walk about money for faithful services. Henceforth, Mrs. Schwartz will collect her DIC check monthly and live happily ever after.

But why the delay? Why did Mr. Schwartz hit the wall for all those years with the evidence right in front of them? It is a teaching moment of great import. VA doesn’t look at the evidence. They get a “feel” for it by topsheeting it. In this case, the rater glommed onto the fact that David had retired at or near 65. That derailed the train for seven long years. Even after service connection was granted, they still were not willing to give Mrs. Schwartz her due. This vindictiveness is the very heart of the problem. Until VA can engage in a truly honest adjudication based on real, on-the-ground facts, we are condemned to this insane loony tunes justice. My apologies for dragging the cartoon outfit through the mud, too.


Posted in CAVC Knowledge, CAVC/COVA Decision, CUE, Earlier Effective dates, TDIU | Tagged , , , , , , , , , , , , , , , | 2 Comments


CaptureIn keeping with a friendly, nonadversarial venue where the wishes of all are considered, I am officially posting this NOTAM for neighbors and aerial flight operations around Hill 305. 4 July commencing at 2205 HRS (L), heavy artillery and mortar fire will be in effect. Small arms fire, tracer, illumination and H&I fire will be ongoing for approximately ninety (90) minutes. Any neighborhood PTSD sufferers should heavily medicate in advance and don hearing protection to avoid adverse complications. 

I also put up my sign today out front asking my neighbors to be considerate and bring their fireworks over to my place.  Seems we can all enjoy each others’ together and do a Kumbaya thing. Maybe a Block Party or something. BYOB (bring your own booms).

While I was out shopping after a medical appt. this AM, I called Surplus Arms and Ammo in Tacoma after hearing their radio advertisement. I’ve been meaning to buy some 7.62 X39 mm green tracer like they used in my war but the fellow on the phone said he’d never heard of any 7.62 tracer in any color in his time. He must be really young or he doesn’t get out much.  I smell a market for it. Maybe an initial run at one or two million rounds at a buck a pop and donate the 80¢ ea  profit to Fisher House? Hell, put me in for a thou. They could probably gear up a factory in Cam Ranh Bay in about two weeks if they can batch the green phosphorus quickly. The thing I like about tracer (other than you could scare the bejesus out of the gooks at 600 feet of altitude on full auto back in 1970) was you can really get the UFO Druids salivating when you get a group going in formation. With all the racket, nobody can tell where they were launched from- only that they are all alike and suspiciously on the same flight path.

Cupcake now goes to all the gala events up in Silverdale now because her office is located up there. We attended a fundraiser/silent auction/fermented grape tasting last month for the United Kitsap Food Bank. Her real estate co. won the bid (outlandish) for this fireworks display (per my expert advice/astute knowledge of gunpowder). It all went to a good cause so we’re multitasking in my book-Feed the hungry and celebrate our Freedom long and loudly. Check it out. Yep. Sixty  40 mike mikes. I’m gonna get mortar elbow. I wonder if I could file for that. I think I got fibromyalgia of the shoulder from that old Thumper I packed around, too. One thing you can say about Washingtonians is they like their fireworks and Native Americans are more than willing to ensure that right.


They even threw in a warm and fuzzy quiet visual package for Cupcake. Needless to say, the only casualties here are my dogs and my immediate next door neighbor. Fortunately for Widgit and Shadow, there’s Ace Promazine Happy dog pills.


Min Pin Widget and Standard Shadow

Posted in Humor, KP Veterans, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , | 2 Comments


back-to-the-future-delorean-for-sale-lightsDon’t you wish you owned one of those cute little stainless steel DeLoreans -you know- the ones with those 1.2 Gigawatt flux capacitor time bangers and a 4 speed with reverse? Fortunately, VA has one and employs it on a fairly regular basis to do forensic sleuthing on reductions. In fact, Timothy S. Haviland had the misfortune to discover the St. Louis, Missouri VARO had one on loan from VACO in their parking garage. Use it they did, yessssssssssssssss. Reduced him they did, hmmmm. 

Meet Mr. Timothy S. Haviland, one unlucky Vet of the First Gulf War.

Haviland reversal

He had a mixed bag of problems and a very vindictive rater who was adamant that he would not let this one go over 5 years without an intense reduction review. What is interesting, as Judge Greenberg’s little people ferreted out, was that the original proposal to reduce his PTSD rating from 70% to 30%arrived in the mail in August 2009 after a cut and paste C&P. The problem is that you must always make a decision on the evidence based on that moment in time. Any further ruminations or post C&P postulations must cease and only look at where he was at the August 2009 C&P. You are not permitted to continue this witch hunt all the way up to a week before pushing print at the BVA. This, in essence, is what VLJ David S. Wight did by signing off on it. Here’s his mysoginistic attempt at Veteran friendly, nonadversarial justice where every benefit of the doubt is accorded the Vet.

Haviland BVA hanging

Make no mistake about it. This reductions charade is somewhat like CUE in that the record must stand solely based on what  the VA examiner discovered in August 2009. Bringing in newer evidence conflusticates the old and you have no starting point to ascertain what ‘white’ truly is (or was) compared to ‘grey’… or ‘black’.  VA is famous for this and astute leagle beagles would be smart to learn their trick early on.

Timbo also filed for a connection between his PTSD and his obstructive sleep apnea (OSA). This one’s priceless. You can almost see the Rater stuck in a quandary. He types up a grandiose statement that

In that regard,the examiner explained nightmares and sleeplessness as a result of the appellant’s PTSD  “may work in conjunction with sleep disturbance associated with sleep apnea to produce more fatigue but it does not worsen the severity of his sleep apnea.”

Then Einstein rereads it and is too lazy to revamp it so it doesn’t actually say that it is secondary to the bent brain. Here’ he further muddied the water with:

“[I]n that sense, one could make a case that there is an aggravation of the sleep apnea.”

Which, of course he  surreptitiously proceeds not to make a case of. Instead, he’ retreats to the subjective ” I can’t decide” corner. When in doubt, punt on fourth and long. Somebody else can fix it.

If I was a FNG to this, I’d remark on the relative rarity of reversals at the CAVC. What noted legal scholars and anyone with a penchant for graphing these statistics is aware of is the same Judges reversing day in and day out-to wit, Bartley, Schoelen and Greenberg. Wong seems to be headed down that road but more slowly. I give her a B+ because she’s actually from the JAG side of the sheets and they are notorious for coming down religiously anti-Vet in most cases. Schoelen and Bartley are from the NVLSP stable and thus impervious to  CAVC illogical hogwash. This is why they always find themselves in the minority writing a dissent on panels with the deconstructionists like Kasold and Davis.

John S. Berry, Esq.

John S. Berry, Esq.

John S.Berry gets to burnish his image and his cell phone minutes will soon have to be increased to compensate for his new popularity. Not many can notch a reversal on their gun butt at the CAVC. That is a rare honor- or used to be. With the new VBMS comes an interesting real-time scenario where information populates the c-file during a claim instead of magically surfacing about a month after the denial. I know that’s an alien concept for many to digest. VBMS, as yet, is not time sensitive. Inasmuch as it is word-searchable, by not putting in a time-sensitive parameter, it contaminates the file causing word-searchable .pdf engines to regurgitate newer evidence which is inadmissible. In the rough and tumble world of overworked raters on overtime forced to produce two cogent decisions a day,  it is beginning to provoke a new type of error unforeseen heretofore.

This is the inherent beauty of creating a time line of events and how you can eliminate false and misleading evidence from insinuating itself into the file. Remember, evidence is always going to trump argument. What is, or sometimes more importantly, what isn’t in the c-file before January 10th, 2010 can be crucial to obtaining justice. It was for Mr. Haviland and it’s fortunate he hired a law dog who could sound it out. Here’s Mr. Berry’s name, rank and airspeed. Hell, He’s even an 11 Bravo according to his bio.



Posted in CAVC Knowledge, CAVC ruling, IMOs/IMEs, Lawyering Up, PTSD | Tagged , , , , , , , , , , , , , , , , , , , , | Leave a comment


Here’s a great photo of my dad. He would have been 97 this year. Great fighter pilot. Great man

SLUG: OB-GRAHAM12OB-GRAHAM12 DATE: Downloaded E-mail 4/11/2008 CREDIT: Courtesy of Air Force  Air Force CAPTION: Lt. Gen. Gordon M. Graham, USAF ret.  StaffPhoto imported to Merlin on  Fri Apr 11 18:16:01 2008

DATE: Downloaded E-mail 4/11/2008
CREDIT: Courtesy of Air Force Air Force
CAPTION: Lt. Gen. Gordon M. Graham, USAF ret.
StaffPhoto imported to Merlin on Fri Apr 11 18:16:01 2008

Posted in From the footlocker, Inspirational Veterans, Vietnam War history | Tagged , , , , , , , , , | 1 Comment