Hug 2015 2

Opening ceremonies-The Hugfest Pajama Party

Having only four bedrooms, I had to abbreviate how we did Hugfest 2015. Try as I might, I could not seem to connect at a fest with Brad or Sam. We fixed that by making it required attendance rather than optional. Sam’s wife Kathi decided to play hooky from school and came as well. All in all, a good time was had by all. This year’s theme was Veterans.

Hugfest, for those of you unaware, is a gathering of souls who have (or had) Hepatitis C. Many souls died while waiting for the cure. With the advent of the new Gilead Sciences miracle drug known as Harvoni, or, as in my case, its  earlier precursor Sovaldi, we are all healed. Emma is the dilemma. She is the last one left to be healed.

Getting everyone here from across the country was a miracle of orchestration and it went off flawlessly. Participants this year were Mark, Lori, Tom, Brad, Sam, Kathi, Emma, Cupcake et moi. I tried to immortalize it in electrons here as best I could.

Hug 2015 1

Sam and Mark

Hug 2015 3

Alex, Kathi and Brad


Hug 2015 4

Emma, Brad and Kathi

Hug 2015 5

Emma clamming in 14 inches of water wearing her 12-inch tall boots

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Sam doing the clam damage assessment (CDA) pass

Hug 2015 7

Breakfast at LZ Grambo

HUG 2015 8

Brad cleaning clams at natural spring near the beach

HUG 2015 9

11 Bravo Clam gunners

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Mark playing pin the jetgun on the Vet (Sam)

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The Pumpkin perp walk following the harvest

Hug 2015 12

Clam prisoners

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clam holding cells

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The Great Big Salmon Expedition

Hug 2015 15

Renowned Salmon Hunters Emma, Brad and Kathi

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The winner (her first salmon)

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Nightly s’mores competition on back deck

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Suspects (Lineup #1)

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Clam Poaching suspects lineup #2

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#3 in full Battle Rattle.

On behalf of myself and the rest of the Huggers, I hope we passed the audition. We also fervently hope Emma’s dilemma ends soon. We leave no one behind. Ever.

Posted in 2015 Hugfest Gig Harbor Wash | Tagged , , , , , , , , , , , , , , , , , , , , , , | 5 Comments


Breakfast with Cupcake

Breakfast on the bay.

I apologize for my tardy posting of this magnificent event. Cupcake and I had to rush home and prepare for the Hugfest 2015 event which we’d scheduled way back in June-long before Bruce invited me to speak in San Diego. Hence, we were hard-pressed to get home and clean up the hacienda for the deluge of HCVeterans that happened two days later.

Attached here are a few of the memorable events we attended but by no means all of them. I’m hoping others in the VDA can send me some of their pictures to include in a future post. I don’t do selfies or Veterans parades so you usually do not find pictures of me here on the blog.

Deb and I did the USS Midway, anchored several blocks from the hotel. The 0-1, Huey and Spad (A-1 D) brought back old memories. Many are the years I have tried to explain what a MK 82 was to Cupcake and some of the possible versions of it. Here, it was all in glorious color and a veritable show and tell.

0-1 with bogus markings

Navy’s version of a 0-1 Birddog.

Cupcake with Aim 9 Sidewinders

Cupcake leaning on AIM-9 Sidewinder missiles

Huey gunship

Huey Gunship. I don’t think the Navy owned any but they look good with Navy insignia.

H-34 chopper just like AirAm's

Sikorsky H-34 just like AirAm’s

F-4 with MK 82 prox fuses

F-4 D with MK 82 proximity fused

And last but not least, the Great Big Dinner with the Winners.

The great big Dinner

More Big Dinner

The Big Dinner Party (2)

I’d like to thank Mike, Steve and Richard for making our welcome a warm one. If they do it in Florida next year, we’ll be there.

Posted in Vietnam War history | Tagged , , , , , , , , , , , , , , | 2 Comments


345_Dustoff_Patch_tshirtPreparing to leave tomorrow for San Diego, I think back 45 years to the times we looked up at flying meat wagons and tipped our warm beers towards them. Everyone but the dinks would promptly chime in “Our Father who art in Heaven, Howard be Thy name…”.  A few nervous laughs and we’d all become silent and look down at our own bodies which were still in one piece back then.

Looking back on that , it amazes me I never got to know any combat medics until long after the war. It does make sense considering they were in the business of saving lives while my friends and I were just as busy trying to organize beer summits between the Pathet Lao and Howard. Being an ambulance service, they had to take patients regardless of their political beliefs.

dustoffOur defining commonality was that we all flew towards the sound of gunfire and bombs. In fact, when I got up country, it amazed me you could actually hear small arms fire below over the roar of the engine. 7th Air Force TACC frag orders called it trolling. I nicknamed it Airicide after about a week. How dustoff pilots ever got used to doing pickups in hot LZs flatass escapes me. How they managed to keep doing it is the bigger mystery.  In a Huey of all things. Here, in this day and age, the REMF weenies would demand about $350 K worth of ordnance and  an hour of A-10 strafing passes before they’d let medics land and extract.

I sat on a flak jacket wrapped around my balls. I smoked about ten Marbs a minute. When those lazy green tracers started ascending, your skin tingled in anticipation. Just imagine landing in the middle of it. Day after day.

The Air Force had the same mentality back in 1970. They’d call in the Udorn rapid response F-4s with the 45 minute on-site guarantee and a few Sandys from NKP. After about an hour and a half of CBUs and twenty Snake eyes later, the BUFF would go in with another one hovering a couple hundred yards astern at his six.

The funny thing is, if it was out on the Plain of Jars in the open, an Air America rotorhead would often zoom in without waiting and snatch them with no air support whatsoever. PICs had that ingrained Dustoff mentality that no bullet would dare strike anything important enough to prevent flying the mission. That gene must be acquired by birth. No one over 20 in their right mind had enough testosterone to do things like that. And no. We did not get paid a $1200 bonus for grabbing downed pilots. The effort was spontaneous and purely altruistic.

I look forward to being in the august presence of some of the most unsung heroes of the entire ten year Boundary dispute.  Consider that there are only 850-odd thousand of us left alive. The fact there are any Dustoff personnel left to have a reunion at all  speaks volumes on my theory about luck. If you don’t have luck, then it must be Karma. Maybe Howard had a special place in His heart for them back then.

Another shortcoming of being a Dustoff, be it a pilot, crew chief or medic, was that you were promised medals for every big action but somehow they just never got a chance to write it up. Of course, the same fellows doing the writing always found time for theirs. I take solace, gentlemen, in the fact that it still costs them the same for a White Chocolate Mocha Vende with extra creme on top at Starbuck’s® as it does us unmedaled peons. Medals don’t make the man- insane bravery seems to.

downloadI heard the other day that (Colonel) Senator Lindsey Graham of So. Carolina was recently awarded a Bronze Star for his service above and beyond as an attorney in the AF during Iraqistan. When you hear things like that, the whole medal idea sours a bit in your mouth. Go figure. A lawyer. He probably threatened to sue or cut off appropriations if they didn’t give him one.


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


Capture 22Several Veterans’ advocates whose names slip my mind, have theorized that head Chairman Laura ‘Rocket Docket’ Eskinazi, who also just happens to be the Vice-Chairman of the Board of Veterans Appeals as well, must be pulling down both salaries. There doesn’t seem to be any stampede to the HR corner of 810 Varmint Ave. NW to find a suitable candidate. Since the VA has such an unblemished, stellar reputation among Govt. agencies, I feel loathe to cast the first stone.

Big Mac is too busy firing,  er, demoting, er, investigating possible whistleblowers, er, VISN directors for boorish, insensitive behaviour that calls for a bonus, er, reprimand. That’s 177,000 for the record. Er, 17,700. Er, three? That’s beside the point. He’s going through his ‘early Shinseki phase’ where everyone just tells him what he wants to hear.

Big Mac: So did we fire whatzisbutt in Phoen-er Philadelphia?

Aide de Camp: Roger that, sir,

BM: What about that gomer witch doctor up in Tomah who got ‘hold of the keys to the pharmacy?

ADC: Yep. You sure sent him packing, sir.

BM: I don’t get it. I keep firing all these guys and the Drive by Press isn’t reporting it. Are we holding press conferences and getting this out to the public?

ADC: Roger that, sir. They took out a two page spread in the Pocono Tribune for a week. The Goldsboro, North Carolina News Argus did a huge front page write up for us. Gipe’s brother in law is the editor in chief. We’re unable to ascertain where this constant drumroll of discontent is emanating from. We’ve got the OIG on it trying to stem the lea-, er, tide as it were.

BM: Well, you be sure and let me know if any more whistleblowers come forward , son. They’re our greatest asset in this. Seems there would be more than the six we’ve seen so far. If every employee blew the whistle when they saw something amiss, we’d be out of a job in a year or two because it was working.

ADC: Truer words were never spoken, sir.


Here’s some confusing statistics that, when compared, make for some shaky future statistics.

The OVLJ consists of two Deputy Vice Chairmen (DVC) (SES/VLJ), 10 Chief VLJs, up to 78 VLJs, and approximately 410 attorneys who prepare tentative written decisions for review and signature by a VLJ.

Count the judges:

Capture 23

I see 48. They are authorized 78. They are up to their assholes in VA appeals, are twenty VLJs short of a load and lacking a Vice Chairman to boot. 410 of the senior staff attorneys are drafted for 90-day stints as “Acting” VLJs and they are publishing the statistics on success. This is like the Supervisor of the Titanic’s bilge pump reporting to the Captain that due to the superior characteristics and volume capabilities of the bilge pump, the ship won’t go down for several more days- a tremendous improvement from the prior forecast of one to two hours.


  1. In FY 2014, the Board proudly served over 55,000 Veterans and beneficiaries by issuing 55,532 decisions
  2. [h]olding 10,879 hearings
  3. The Board’s cycle time, which measures the average time from the date an appeal is physically received at the Board until a decision is dispatched (excluding the time the case is with a Veterans Service Organization (VSO) representative for review and preparation of written argument) was 202 days in FY 2014.
  4. The Board’s total time for FY 2014 was 357 days, which includes the time the case is with a VSO representative for review and preparation of written argument
  5. The Board received 47,048 appeals in FY 2014.
  6. The Board anticipates receiving 74,072 appeals in FY 2015,
  7. the Board’s call center in Wilkes-Barre, Pennsylvania, answered 105,384 inquiries from Veterans or their representatives by phone, email, and written correspondence.
  8. The Board’s Correspondence Unit issued 2,626 responses to Congressional inquiries
  9. the Board requested 117 independent medical examination opinions and 1,087 VHA medical opinions to facilitate adjudication of these Appellant’s cases.
  10. The Board also continued to maintain its presence on eBenefits – a joint venture between VA and the Department of Defense, which provides Veterans the opportunity to check the status of their claims and appeals securely online or from their mobile device.

I love statistics. Once uttered, they dry like concrete and, much like Pandora, are inexorable. Factoid number one is bragging. Perhaps 55,000 or more decisions were made. Most were cut-and-dried stupidity- cured after several RO “lather, rinse, repeat remand cycles.

#2 is interesting but it means VSOs managed to talk Johnny Vet out of a hearing in 4 out every five cases heard.

#3 and #4 are more important. I have told you of my travails at the Board in 1991-1992. A triumvirate of three trolls from DAV, VFW and PVA held my appeal for over six months and finally begged for nothing more than benefit of the doubt. Six months for that cogent legal advice. The good news is nowadays, it only costs the Vet 155 days instead of my 180. That looks impressive until I mention the six months encompassed three national holidays and weekends.

#5 sounds encouraging in light of the patented new Eskinazi Rocket Docket method that produced more decisions than the incoming mail did. #6 puts a fork into the brief joy. If 20,000 more appeals arrive in FY 2015, all the VBMS’ horses and men cannot stem the tide. I don’t care how big a smiley face you print on the shirts, how many bonuses you hand out for service above and beyond the call of duty or Eskinazi Attaboys you hang on your trophy wall. Statistics don’t lie. Success is a chimera.

#7 tells us the BVA doesn’t widely advertise their complaints number. #8 shows that all 535 members of Congress, on average, got 4 .22 calls from constituents regarding the delay of their appeal-hardly something to crow about unless you’re proud it wasn’t higher.

#9 is probably the most appalling of all. It shows the General George Armstrong Custer gene is strong in the VLJ ranks. So utterly sure are the majority of VLJs in the collation and independent review/decision making process at the Union of Soviet Regional Offices across our great nation, that they only request outside corroboration in less than 20% of VA appeals.  This just before they mount up to ride into Medicine Tail Coulee.This smacks of a total disregard for the holdings in Shafrath and Colvin.

#10 tells us the BVA is still swallowing 2010 pablum from the VBA. The eBenefits site has been capable of far more than merely keeping a finger on the pulse of your claim to the point of being able to submit evidence via their electronic pieholes in Wisconsin and Georgia. This occurred several years ago. The BVA’s addition to this is just as they describe. What use is a ten-day old newspaper? BVA lists that feat under “Technology”.

Vet: Hey sugar, the eBenefits just posted something that says my appeal has been decided. Yahoo! I wonder how soon they’ll mail out the decision? It doesn’t say if I won or not. The excitement is killing me.

Wife: It came yesterday. I forgot to tell you. You lost.


The BVA touts:

In FY 2014, the Board continued to challenge employees to maintain high levels of quality, and through these efforts, achieved an accuracy rating of 94.7 percent in the decisions issued, up 0.5 percent from FY 2013. The Board’s accuracy rate (i.e., the Board’s deficiency‑free rate) quantifies substantive factual and legal deficiencies in all decisions, whether an allowance, a remand, or a denial. To determine its accuracy rate, the Board uses a weighted formula that was created in collaboration with the Government Accountability Office (GAO). Specifically, 5 percent (1 out of 20) of all original appeals and 10 percent (1 out of 10) of all cases returning from remand by the CAVC are selected at random by the Veterans Appeals Control and Locator System (VACOLS) for an accuracy review by the Board’s Quality Review Staff.

VA Weeble regulations

VA Weeble regulations

Again, statistics cast in concrete that are immobile are fun to dissect. VA statistics remind me of two things. Rule #1 :VA appeals are correct 94.7% of the time- up .5% from FY 2013. Rule #2: If the CAVC, vacates and remands, sets aside and remands or outrightly reverses BVA decisions 75% of the time (i.e. 25% success rate), refer back to Rule #1.  The second thing that comes to mind are Weebles-the inflatable kind for kids. Weebles, like VA statistics, wobble but they don’t fall down.

When we think of random, we think of Lotto. Balls bouncing around in a Plexiglas ball and a well-endowed bikini’ed blonde grabbing the ping pong balls out one by one. VA’s technique is an unidentified employee in a back room with one black ball in a sea of 20 white ones and his hand just accidentally lands on it. That’s inserted into VACOLS and it appears magically as if speared by a unicorn. Ever since the admission in the Gene Groves Extraordinary Writ that there was a back door into VACOLS that could “correct prior incorrect data to keep the record straight” and make it appear as if no tampering occurred, VA’s Presumption of Evidentiary Soundness has been substantially rebutted.

The problem with the accuracy statistic’s 94.7%  number is and has been rebutted year in and year out by the almost constant 70%+ set aside/vacate/reversal metric emanating from the CAVC itself. The Supreme Court even knows that. Seems a statistic of that import might have percolated down to the Starbucks at 810 Verboten Ave. NW.  by now. VA poohbahs need to break down CAVC remands into VLJspeak: “Tie the Vet’s feet to the stirrups next time so the rope breaks his neck before he comes off the horse.”

Further, with regard to those appeals that must be remanded, the Board continued to closely track the reasons for remand for management and training purposes, and the Board’s Quality Review Office continued to engage in extensive liaison efforts with VBA’s AMC to address and resolve issues pertaining to the proper processing of remands.

Which brings us to an impasse. Is the rest of the report worth the time or the paper it’s printed on or is  it a cheap attempt at brainwashing?


Notably, although the Board’s increase in staff at the beginning of FY 2014 represented a 20‑percent increase above staff levels at the beginning of the previous fiscal year, the Board’s productivity in FY 2014 rose 32.5 percent.


[]improve bilateral communication at the Board by providing mandatory communication training for all staff on tactful, effective communication; and continue to enhance psychological safety and trust relationships by providing an anonymous forum (i.e., the Board’s Suggestion Boxes) for staff to ask questions of leadership on items of interest.

Those would be the suggestion boxes with the surveillance camera aimed at them and the time/date stamp machine inside.


Additionally, during FY 2014, the Board began sending counsel on Travel Board trips to provide VBA adjudicators with a training presentation that was jointly prepared by the Board and VBA. This presentation targets current changes in the law and areas of weakness in the adjudication process that were identified through VBA and Board collaboration and seeks to ensure that full development of an appeal is completed by VBA prior to that appeal reaching the Board.


The BVA constipation is just beginning. If they think they’re going to get 74,000 remands by the end of 2015, I think they better rethink. Here’s what’s stacking up at the 56 Puzzle Palace inbaskets:

Capture 44

See that first one? Add them up. That’s 95,000 claims that haven’t been acted upon. A deck of cards is 52 tall. Dealing them out to poker players doesn’t decrease the number of cards-merely how tall the deck is when you make several piles. When you refuse to count the piles at the ROs that have not gone through the magical “VA 8 certification and purification ceremony”, it gets downright interesting. One thing I’ve noticed about VA. Every year or three, they come out and say they just didn’t see “it” coming. It metamorphoses from claims to medical needs to finicky hospital blueprints in Denver. The only commonality is that no one predicted it. Old statistical charts predicted it in theory but who woulda thunk it woulda come to pass? Apparently not VA.


A four-thousand claim increase (estimate) over 2014. I doubt the ink was dry on this graph before it was obsolete.

Here’s the current reality of one claim in the real world. I’d say it represents Waco or Oakland but Seattle wouldn’t be far off.


Where’s the winner’s circle?


Looks like VR&E is taking a spanking. I sure wish we could get them up to the CAVC on appeal. The silver lining I see is that where once we had a 22% win rate at the BVA, it has now crept up to over 29%. That is truly a metric of note due in no small part to the greater participation of our NOVA attorneys in the process.

Success by Representation


No comment, folks. Yes, that’s blood dripping off my tongue from biting it.  I’ll let you be the judge.

Posted in BvA Decisions, VA statistics, VR&E | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , | 1 Comment


CaptureRarely do we find a commercial that embodies our emotions.

Thank you Brownwater Jim.

Posted in Food for the soul, Future Veterans | Tagged , , , , , , , , , , , , , , , , , | 3 Comments


small-farmers.inferior correct jpgNotwithstanding the horrendous writeup on the VBMS, the Office of the Inspector General is correct in their assessment that this gooney bird is not going to get airborne in 2015. Even if you threw another 750 million dollars at it, the Veterans Benefits Management System could not perform as Brigadier General Allison Hickey promised. It’s very simple and requires little or no explanation but for those who demand an accounting of why not, it boils down to one metric-it’s not a hands-free system. You cannot force an electronic program to be dishonest.

Imagine computerizing an automobile assembly line right down to the insertion of the nuts and bolts, engine, steering and AM/FM radio with absolutely no human intervention. Tires? Check. Bucket seats? Roger that. All systems go and then one last check-the human check. VBMS is similarly presented as a completely computerized process.  The VA examiner is only there as a Quality Control verifier. Or is s/he? Increasingly, it is patently obvious that VA cannot allow this to be hands-free because it yields too many wins.

An old-fashioned claim, via the analogue paper method, was 85% predictable for the last eighty or ninety years . The denial door slamming shut was guaranteed because that was the game. With the advent of Shinseki’s paperless edict in 2010, The AFGE union pukes began to quail in their shoes. A truly computerized system of approval/denial would, by its very high speed and ability to ferret out key words, eliminate hundreds-if not thousands- of their jobs across the fruited RO plain. Equally, the SES types up at 810 Yellow Brick Lane Northwest, were quaking in their shoes because the whole sacred ratings process would be exposed for what it really is- a sham.

Only one thing stood between them and forced retirement. One person is essentially the fulcrum where win or lose is decided. The VA examiner is the one with plenipotentiary powers to deny an otherwise valid claim. Or, in the alternate, they are the  one person who can throw sand in the gears by their inattention, inability to deduce basic logic and purposefully developing a claim for denial. Et voilà- VBMS. Now nobody is to blame. It’s all decided by an electronic program that can’t cheat. Right?

I have often pointed out that denial statistics support a theory of a goldbrick Veterans population who are mimicking welfare fraud. Specifically, 85% of claims are denied- both before and after the advent of VBMS. In addition, to meet the deadline, the percentage is actually going up and the resultant overflow is merely accruing on the BVA’s books. BVA’s numbers of reversals/vacate and remands and return to VARO sender are also climbing exponentially. Whereas before we saw a steady 22% overturned on appeal, the number is growing dramatically. I’d like to believe our Veterans Law Judges are of a higher calibre but I know better. The RO denials are becoming more error-prone.  Equally, the number of  appeals to the CAVC are also climbing dramatically and the true measure of perfidy is the 78% vacate or reversal rate.

CAVC statistics haven’t changed much over the years and their reversal numbers versus affirmation are a clear indicator of the slipshod, brutal justice handed out below. The repetitive mistakes of law that continue to plague Veterans Law Judges’ jurisprudence simply confirm VLJs are operating from their own M21 denial manual. True justice, blind and impartial, would dictate a far different outcome were this a truly balanced, nonadversarial judicial platform. For 85% of us to be denied would be akin to 85% of GEICO  or Allstate auto claims being fraudulent.  As we know, most citizens are basically honest-Veterans perhaps even more so. When they file a claim for a fender bender, there may be some inflation of damage but the essential minutiae of the accident is true.  Claims adjusters know this and build it into the formula. A grossly suspect claim has certain hallmarks that make it stand out. In the VA system, 85% of your claims fail to pass the smell test. Can it be we are that venal and dishonest? Of course not. What is afoot?

With GEICO and Allstate, the claim is basically believed-absent any glaring errors. With VA claims, everything is suspect and each fact has to be crosschecked. VBMS was designed to eliminate all this hands -on nonsense and allow raters to load up the evidence in the magic 8 ball, shake and bake it and walk around to the ‘finish’ tray to extract the answer. If that truly happened, the win rate would climb to about 50% the first time out. Of the 40% who were denied, further development to ascertain incorrect or incomplete information would probably exonerate another 25% without so much as an appeal. Since this doesn’t happen, we know their truly computerized model is not truly computerized. Somewhere there is an override switch that creates a fault which induces the denial algorithm.

A claim that is purely analytical and which removes any human error is the object. Thus, if the parameters of the program are well-tested for accuracy, the have/have not measuring devices are all well-tuned, and the presumptive deductive logic circuits are all operational, there can be no appreciable error.  The exception is the standard Garbage in/Grabage out metric. We’d like to believe it’s automated to the point of a Rube Goldberg machine that only requires oiling to keep it running smoothly. Human intervention is supposed to be a thing of the past with VBMS. But what if the metrics that determine correct or incorrect have been tampered with and a decision which reasonable minds can agree is bogus is the norm rather than the exception? VA cannot continue to maintain that the system is working as planned and soon there won’t be a backlog. If everything decided requires appeal, then it doesn’t work. Error in/ Error out.

A recent example that resonates with me was the CUE claim I’ve had bouncing around since 2011. I maintained that a VA doctor, in a C&P exam stated I was ‘totally disabled”- his exact words. After contacting the Big Mac and declining to call him Bob, I pointed this out. His minions promptly notified Fort Fumble in Seattle to ‘fix’ it pronto. This they did. They quickly typed up a Statement of the Case that redefined the meaning of 38 CFR §4.15. Skipping over the obvious definition, they were forced to quote the second half of it to avoid having to admit error. This is not a computer generated, hands-free decision. It has the fingerprints of an active Decision Review Officer with one thing in mind-denial based on anything that sounds vaguely legal. Had it been a true VBMS product, the decision would have been impartial and granted based on the Joint MOtion for Partial Remand mutually agreed upon in CAVC #12-1980. This, then, is the problem-the heavy hand of the AFGE and RO hierarchy and their fear of becoming an anachronism.

VBMS, were it handed to 3M or Xerox, would have been written in about half the time, with half the algorithms and twice the crosschecks for accuracy. The program could have been written by functional idiots for about $125 million and perhaps a few million dollar fixes for unforeseen metrics that were not specified by VA initially. One thing it would not have was a reject slot for virtually all the the claims based on some impossible measurement to attain. In simple terms, it’s the perfect three-card Monte game that cannot be won unless your claim is indisputable. Examples of indisputable would be healed through and through GSW/SFW wounds with documented accompanying Purple Hearts. Further examples would be missing legs and arms where the Presumption of Soundness affirmed you actually had them when you enlisted. VA can rate these without error because they cannot deny them.

The “Human” VBMS

All too often, we see the service medical records show that a particular condition or injury “resolved”. This assessment is arrived at via VA’s reading of the chicken bones. If you didn’t pitch a bitch and mention it in the SF 88 or SF 91 at separation, then it was healed and gone with the wind. This is the VA examiner you are dealing with- not an impartial assessment of the record by a VBMS computer program. SF 88 and 91 records rarely use the “acute and resolved” language which means the VA raters have manually entered the c-file and ascertained this determination. Regardless of what VA tells you, what VA touts as a purely computer -driven program is not- nor will it ever be one. It will always require a rater to interject him/herself into the process, search diligently for the nuanced phrase that can be seized upon and used to deny with. Trust me, this method is not arrived at by a word-searchable .PDF. It requires a sleuth with a ‘develop to deny’ stealth technique to search the SF 88 to see if you complained about your back at separation. Absence of evidence has now become the smoking gun to refute your claim.  If you didn’t complain, you were healed. Period. No claim. Denied. Go home. Oddly, many of you do just that. And that my friend, is a correct decision on VA’s part if you fail to appeal.

Failure to appeal is certainly the biggest reason we see the 85 percentile of denials but it cannot explain it entirely. Most of us use Microsoft Word in one iteration or another. For those of you trained in the arts of Adobe, the ability to be functionally illiterate and still write is stupendous. Pray tell, then, why many a denial looks as if it were authored by someone from India unfamiliar with the written English language. The explanation is someone forced to use Adobe whose conversational skills are slim to none. VA Adobe programs are old and use choice phrases strung together like pearls on a necklace. VA raters, in their haste, fail to read the finished product or they would notice the dangling participles, incorrect use of tense or incorrect pronouns.  Either that or they flunked English Literature and basic sentence construction.

My VR&E Counselor claims to have a degree in social something which makes him an expert on Independent Living matters. He must have cut classes on English 101 in his freshman year. Consider this sentence.

Also, in the development of your Individualized Independent Living plan, we had discussed your request for a Greenhouse but were denied. (sic)

I have hundreds more but that is a representative sample. If you were to send that in to VA as evidence, do you see where they might have a problem segregating out the subject and the object from one another? Also is an adverb, and while not specifically incorrect in its usage here, an adverb is most often used to modify or intensify a verb. As for why Greenhouse is capitalized, your guess is as good as mine. Psychologists march to different drummers.

Summing this up, anyone in the claims adjudication business would instantly find themselves standing in quicksand were they to depend solely on the precepts of VBMS. It, too, incorporates “virtual” dangling participles and run-on sentences that can only be made whole with some hands-on guidance and manipulation. Add to that the apparent inability to keep VBMS up and running on any given day without rebooting and signing in repeatedly, it makes for a mighty shaky platform to rate with. Narrow bandwidth combines with programs that constantly argue with one another. In order to arrive at a rating, right or wrong, it virtually demands you enter in manually and tamper with the answer to get it to reflect what you are required to do by your superiors(deny).

In a recent test with no human intervention, the ratings results using VBMS nomenclature were deemed unreliable due to the high rate of granted claims.

The flights of fancy and the inartful misapplications of law are glaring. I once received a pre-VBMS SOC that said my claim was final for failure to file a Form 9. I objected and said I’d submitted new evidence. The rater said that was immaterial.  In order to obtain my SSOC (which would imply a fresh new denial), I would have had to file the Form 9. No Form 9 equaled no SSOC from which to appeal. This is what you are up against even now in the brave new world of VBMS. In essence, you are required to give them the material  from which they can fashion your denial.

As for the Fully Developed Claims (FDC) process, it is a cruel joke. If every little thing isn’t perfect, you’re denied and it reverts back to a normal, slow boat claim to China. Unless the process is redeveloped as an independent process that doesn’t entail human intervention, the results will always be contaminated and unreliable. We’ll be able to tell when that happens because we’ll win the first time out.

At my two recent BVA adjudications with Judge Vito Clemente, I noted two things. Both decisions had one new facet in common.

  1. The decisions reflected the usage of the new VBMS system
  2. I won




Posted in VBMS Tricks | Tagged , , , , , , , , , , , , , , , , , , | 1 Comment


VeteransAdministration.12755109_stdIn an important ruling which can be used by other Vets, Veterans Law Judge Vito Clemente made a finding of fact that Porphyria Cutanea Tarda (PCT) can be rated at 100%. The argument is universal and can readily be fashioned to fit other Veterans’ circumstances. All cites are ready for cut and paste. In fact, 38 CFR § 4.20 could not be enunciated more clearly had a panel been convened at the Dead Circus for the subject. You’re going to  like this. I guarantee it.

Here’s the decision and then we’ll bisect and dissect it for useful content. To begin, the problem was VA’s refusal to honor a  Compensation and Pension exam doctor’s statement that clearly and unequivocally stated in no uncertain terms that I was totally disabled. He pointed to the PCT- above and beyond my total disability for Hepatitis C alone- as a total disability in and of itself. This is why VA decided to fight it.

BVA decision on PCT

Over the years, porphyria jurisprudence, be it secondary to Hepatitis C or from the presumptive exposure to Agent Orange, has been spotty and unevenly applied. I’ve even seen a convoluted decision in the obverse where a Vet got service connection for Porphyria within the first year following separation and then Hep C as a secondary decades later. It’s in the Blogs by Subject under porphryia cutanea tarda. For the most part, jurisprudence has corralled it under  38 CFR §4.118 (skin) Diagnostic Code (DC) 7815. VA knows this Diagnostic Code doesn’t encompass the mandatory phlebotomies to control it but regularly assigns a 10% rating based on the amount of exposed skin involved. In my case, the rater said  I didn’t qualify via percentage of skin involved at 10% but they were granting it for the phlebotomies. In essence, they made no effort to find an analogous rating whatsoever. 10% does not incorporate the total disability diagnosed.

Should you appeal, as I did, the raters tend to jump into 38 CFR 4.117 (hemic and  lymphatic systems) and DC 7704 for polycythemia vera. Under 40%, it simply lists phlebotomies.  There is no discussion on frequency. What is missing from the equation is the resultant anemia. In addition, VA views dual ratings for porphyria as pyramiding and took back my 10% for my skin involvement and issued a 0% in its stead. That was CUE. Once issued, a rating cannot be revoked except for fraud or the components of CUE-the correct facts were not before the rater or the laws, as they were at the time, were not followed. Even if one or the other were present, it would also have to manifestly change the outcome. VA ignored all that.

The 10% was restored quietly after I filed my writ, as was an increase from 40% to 60% for  the phlebotomies based on an old 1994 anemia diagnostic code but the elusive 100% was not to be. This is what I sought on appeal. If a doctor, not a rater, mind you, says you are totally disabled, it stands to reason he knows what he’s talking about. For a lowly rater (read VA examiner) to upstage the MD is chutzpah only the VA could orchestrate.

I searched the diagnostic codes throughout Part 4 and strove to find an analogous rating that best described what a phlebotomy accomplished for my PCT. Since the object is to rid the body of heme (iron) that results from the liver failing to filter out the dead red blood cells, the phlebotomy has to throw out the baby with the bath water. There is no way to filter out the heme and return cleansed blood to the body. Dialysis is similar in that it does this to the blood and accomplishes what the kidneys are no longer capable of-filtering out the impurities and returning the blood to the subject. VA stated that analogy was right out. It only allows a 100% rating and they simply refused to even consider it.

The obvious analogy is the removal, by venous access, to the blood. Since there is no perfect analogy to be found, dialysis under 38 CFR §4.115 is the closest diagnostic code available. I have been shouting this from the rooftops since I spotted the doctor’s observation that the PCT was totally disabling several years ago. VA raters in Seattle have been just as adamant that it was only permissible to rate the PCT under one DC to avoid the pyramiding of 38 CFR §4.14.

Obviously, they were wrong and they surreptitiously tried to correct it without drawing any overt attention to it following the filing of the Writ. No mention of CUE was detected-just a ho-hum restoration of the clawback and a 10% rating back on the books. That they can do this with no explanation or Monday morning quarterbacking is disingenuous to say the least. To me, it’s merely part and parcel of the whole sordid, surreal experience. Surely another Veteran has encountered this scenario and been subjected to the same treatment. It may be I was the only one who decided to throw down and call them out. Most Vets haven’t spent a third of their life fighting VA and learning the ropes.

Judge Clemente was more that open-minded on this. Quite obviously, he and his staff attorneys did some true, in-depth analysis of my arguments and concluded they were persuasive. The overarching principle of PCT abatement is one of reducing the heme. To do that entails removing blood-lots of it and frequently. The cure works at the expense of severe anemia. VA raters were unwilling to call it “frequent” phlebotomies, preferring instead to classify it as “intermittent”. As I have mentioned in my book and these blogs, semantics is everything with VA. Therein lies their eventual downfall and defeat on appeal. Read any denial decision and parse the words carefully. Eventually you will run into the conundrum that reveals the word game shenanigans. Trust me when I say there is nothing intermittent about trotting down to the hospital every month for a 1-pint bloodletting. Considering you only have ten pints, it’s only a matter of time before the downloadcheck engine light comes on. Similarly, when you bend over to tie a shoelace and see little black spots clouding your vision and feel like you’re on LSD, you discover there is more afoot than a little anemia. The Seattle VA examiners and the DRO simply would not, or could not, bring themselves to see that and grant what the doctor had stated. Many fellow attorneys have commented that once you attain a 100% rating, be it scheduler or TDIU, the impetus to give you another is blunted. The philosophy is that you’ve been remunerated. It’s time to move on and let others have their shot at VA’s misogynistic justice.

This decision will help innumerable others to attain the same. It’s ability to persuade should be elementary. While it doesn’t have the same cachet of a panel decision at the CAVC, it still enunciates a precept of VA law and regulation. The C&P doctor is presumed competent to understand the instructions to render a valid diagnosis (Sickles v Shinseki). Likewise, §4.20 is clear enough in its language to deter tenuous analogous ratings.

The whizbangs at Fort Fumble in Seattle are hidebound in their devotion to stupidity. For years they have mangled the PCT ratings by relegating them to the the wrong standard. If this were simply an oversight, Veterans could swallow their logic. Once put on notice that the regulations were open to more and different interpretations, they resisted with all they had. Only an Extraordinary Writ that drew the VA Secretary’s attention to it sufficed to move them into new pastures. Moreover, my taking advantage of the offer by our new VA secretary, Big Mac (Call me Bob), was unavailing. Four days later, my DRO, Cheryll Anne Mackey-Rivas merely listened to my theory and issued a Statement of the Case iterating a wholly new concept of the definition incorporated in §4.15 regarding total disability. Ingenuous? Yes, but outlandishly so. That’s the hallmark of the VA. Her answer was probably not what Big Mac envisioned. It was the darnedest denial I’ve yet received. Cherylann Mackey-Rivas’ SOC was a semantic sleight of hand  and she probably got a promotion for this one.



Posted in AO, Blood info, BvA HCV decisions, CUE, Nexus Information, Porphyria Cutanea Tarda, Presumption of Regularity, research, Tips and Tricks, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , , , , , , , | Leave a comment