Talk about injustice: No group has done more to protect American values and preserve democracy than the more than 25 million living veterans of the U.S. armed services. Yet as recently as a decade ago, military vets and their families were routinely shut out of the justice system when disagreements arose over the benefits to which they’re entitled.     - Excerpt from "Soldiers of Justice".     Legal Disclaimer

Note:   we do not receive book referral commissions for these suggestions. Amazon.com offers special discounts for group purchases. (Click on bookcover to go to Amazon.com for more information.) The Veteran's Survival Guide:   How to File and Collect on VA Claims Second Edition (Paperback) by John D. Roche (Author) Veterans's PTSD Handbook:   How to File and Collect on Claims for Post-Traumatic Stress Disorder (Paperback) by John D. Roche (Author) Claim Denied!:  How to Appeal a VA Denial of Benefits (Paperback) by John D. Roche (Author)     Coming this November, 2008

Veterans cry foul about
lost documents, and filed claims, but the V.A. always denies it.

Who's right, or wrong???

SHREDDING OUR TRUST IN THE VA -- VA investigators find entire claims and other critical documents in shredding bins at Detroit Regional Office. VA official will only say, "I can't talk about that."

- VA Watchdog   10/13/08

"Thanks to the current and former VA employees, and just plain old friends, who helped make the following story possible. You know who you are."

  VA Watchdog & Larry Scott


UPDATE:

WILL VA'S WALL OF SILENCE
QUASH
"SHREDDER" INVESTIGATION?
-- VA Secretary Peake's obligation to veterans is clear cut.     But, will he
"do the right thing" as he promised?

Yesterday we reported on documents found in shredder bins at the Detroit Regional Office (VARO) of the Department of Veterans' Affairs (VA.)     The documents included claims for disability benefits and other paperwork critical to the claim process.

While this may seem shocking to some, it isn't so shocking given the history of that office.     Veterans, Service Officers and attorneys will tell horror stories of "lost" documents or paperwork "not received."

The VA's Office of Inspector General (VAOIG) made this discovery.     We await their report.

- VA Watchdog & Larry Scott   10/14/08
 
VA Tightens Protections for Veterans Paperwork
VA Press Release

This week Secretary of Veterans Affairs Dr. James B. Peake vowed swift action after documents related to veterans' applications for financial benefits from the Department of Veterans Affairs (VA) were found among documents identified for shredding. The documents, which were not duplicated in government files, could have affected veterans' eligibility for benefits.

Peake said VA's Office of the Inspector General (IG) is investigating the misplaced documents, and anyone who violated Department policy on protecting documents will be held accountable.

Employees of VA’s IG office discovered the documents during an audit at three of VA's 56 regional benefits offices, which process applications for disability pay, VA pensions, educational assistance, home loans and similar financial benefits.

IG auditors found documents waiting to be shredded, which might have affected the fate of veterans' applications. The documents were returned to the proper offices for processing.

Retired Rear Adm. Patrick W. Dunne, VA's Under Secretary for Benefits, immediately directed all of VA's regional offices to suspend all document shredding while IG and VA officials determine whether the problem is more widespread. Directors of the regional offices will have to certify in writing that no original copies of key documents or records from veterans' cases under consideration are being destroyed.

VA has procedures for determining the disposition of paperwork. Original copies of discharge papers, marriage certificates and death certificates are returned to veterans or families when no longer needed. Duplicate copies of paperwork no longer needed are appropriately destroyed to protect the privacy of veterans and their families.

NAUS Note: We will continue to monitor the corrective actions of the VA and will report any new developments. Veterans have a right to expect their paperwork for disability claims to be processed properly. It appears that the “productivity” requirements that VA imposes upon its Regional Offices has had the unfortunate side-effect of leading to a complete disregard of quality control, at least in a few known instances. We now hope that quality processing will win out over the productivity quotas.   - NAUS 10/17/08

To follow this story from top to bottom, go to VA Watchdog !     VARO management can look forward to a nice weekend at the office dumpster diving.

 

TITLE 18 > PART I > CHAPTER 101 > § 2071 § 2071. Concealment, removal, or mutilation generally (a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both. (b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.   V.A. Secretary Obligations: TITLE 44 > CHAPTER 31 > § 3106 § 3106. Unlawful removal, destruction of records The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his legal custody. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.

Mark Olson's Claim Re-opened.     Mark relocated from Montana to Colorado; had a problem with changing his VSO and therefore, was given credit (so to speak) for re-opening his initial claim.     Unfortunately, Mark did not know about the "Scret" USAF CHECO Report "Base Degense in Thailand" at the time,but should either re-open or file another claim under "Use of herbicides in Thailand" and "Direct Causation," 38 USC 1110 versus "service in Vietnam, 38 USC 1116.

    Notice on Page 7 the explanation of "service in Vietnam" as it applies to visitation and length of stay.     Mark is not restricted from claiming "visitation in Vietnam" in a transit status via a Mac flight that stopped at Ton Son Knut International Airport.     Yes, the personnel file would never have reference to such instance and probably would not be found on the travel voucher for the PCS as an itinerary.     In any case, this issue is one for the BVA on appeal (as well as "Use of Herbicides in Thailand" and "Direct Cause.")

Duty to Assist under VCAA/2000 and notation(s) in Evidence





One Year to Respond

Sec. 5108. Reopening disallowed claims     38 USC 5108

    As long as you respond within one year from the last notice given you, you have rights to the original filing date.     If you wait, though, the decision becomes final and you will have to refile a claim.     Claimant Olson's case is a good one because it illustrates a claim that was allowed to be reopened based upon (a) change of address and (b) change in VSO of record.     Now, I have discussed Mark's case many times and I am still not clear as to the VSO issue, but do understand that one's life can go into turmoil in a major move.     This short 7-page decision is worth the read to learn more about the claim process.



    In any case, Mark should bring all his new evidence and forms in his file to his VSO for a critique and learn what his next step should be, ie, submitting evidence and statements.

38 CFR 4.25 Combined Rating Table

"The Rating Game"

    If you have been watching the new, documentarys like "Raging War against the V.A." on CNN, you know that you should review the rating decision in its entirety.     Below is the Part 4 on Rating Disabilities and the most common disease, 38 CFR 4.119 which contains 7913 for diabetes; republished here for your convenience:


    Mark was rated 20% meaning he takes insulin, or oral medication and restricted diet
in either case.

Related Topics    "Images of Soldiering"		Steps in Denial (and Appeal Index Intro - the Disgrace Notifications VCAA/2000 Denial Notice Fox guarding .. NOD Background SOC Appeal begins ..     Pending ..     RO Rebuttal
USC     United States Code (Laws)
CFR     Code of Federal Regulations (VA)
Filing your Claim     (Read me first)
Claim Supporting Documents     Filing
Thailand Vets     .. for equal treatment
Granted Ruling     .. VBA/WACO - Thailand
Granted Ruling     .. on testimony alone     Part 2 - Winston-Salem, NC
Granted Ruling     .. on testimony alone - Des Moines
Evidence of Service in Vietnam     .. stepping foot in       Mac Flight Data
Mac Flight Data Wanted     .. circumstantial evidence
Okinawa 1998 BVA Ruling Cover-Up - DOD has no records of Agent Orange
Anderson AFB/Guam Ruling - DOD has no records of Agent Orange
	Legal Counsel     Veterans Board of Appeal (VBA)
	"Soldiers of Justice"
	Haas Ruling     Vietnam Era Class Action
	Ruling Background
	Ribaudo Ruling     On Petition for Extraordinary Relief
	Ribaudo Order     On Petition plus VA Injunction
	Stay Instructions     Distributed to all Regional Offices
	VA Unlawful Stay     Distributed to all Regional Offices
	VA Unlawful Stay     Memorandum
	R&R in Thailand for Vietnam Personnel
	Mac Flight Data     .. sample sheet

A cursory scan of the above topics will prepare you
for this section on denial and appeal.
 
"How the veteran is treated by the VA
  is a complete disgrace."

    If you doubt my word, read on.     Read on, anyways.     As "numero uno," veteran, you are expected to file your disability claim without the rights to legal counsel.     That's the first disgrace.

    President Clinton signed into law the VCAA/2000 which was supposed to change how the VA adjudicated disability claims from a court of law "well-grounded evidence" doctrine to "benefit of the doubt" doctrine.     But, you see, "benefit of the doubt" is judgmental and more likely than not, you will end up in appeal because you will be disfavorably judged versus favorably.     Disgrace two.     See The Law.
 

"Before" VCAA/2000 End or the Era of Well-Grounded Claims, buddy statements, etc., etc. re:   Citation Nr: 9930538   Decision Date: 10/26/99     Sorry, before 11/09/00.     "Analysis -- A claimant for benefits under a law administered by the Secretary of the United States Department of Veteran Affairs (VA) shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.    The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is, a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the veteran's claim for service connection for lung cancer due to exposure to Agent Orange is considered to be a plausible claim and is therefore well grounded. The Board also notes that that all necessary evidentiary development has been undertaken by VA and the duty to assist has been complied with."

"After" VCAA/2000     No more K.M.A. Policy Citation Nr: 0515988   Decision Date: 06/14/05 REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).     The Act is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date.     The new law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims.     First, the VA has a duty to notify the claimant and representative, if represented, of any information and evidence needed to substantiate and complete a claim.   38 U.S.C.A. §§ 5102 and 5103 (West 2002).     Second, the VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim.   38 U.S.C.A. § 5103A (West 2002). The VA has promulgated revised regulations to implement these changes in the law.   See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004).     The intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. As this decision represents a grant of the benefit sought on appeal, any defects with regard to VCAA notice are found to constitute harmless error to the veteran. Either way, legal precedence or some form of denial, having done the research on BVA rulings system-wide is a very worthwhile exercise .. unless you plan to leave that all up to a lawyer familiar with V.A. regulations. The new law and regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West Supp. 2001); 66 Fed. Reg. 45620, 45630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159(b)). "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. §5107(b) (as amended); 38 C.F.R. § 3.102." Legal Precedence for Thailand Vets intransit     Background     See also MAC Flight Data. re: Citation Nr: 0210941   Decision Date: 08/30/02     Yes!   After 11/09/00. Please note that this case was remanded.     Background There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). The law and regulations eliminate the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)(to be codified as amended at 38 C.F.R. §§ 3.156, 3.159). Hereinafter known collectively as VCAA. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, VA's duties have been fulfilled. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to notify and to assist the appellant in this case. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

You can expect to be treated with great civility.     No one is going to threaten you or say something about "losing your files."     They don't have to.     The law, technically, is on their side until you push the issue in the only court the VA has and appeal.     Until then, you are at their mercy.     Disgrace three.     See Notice of Disagreement.


"The fox guarding the hen house .."

    See Las Vegas Town Hall Meeting   (6/27/07)

    In every claim, the Secretary is the deciding authority
and in every appeal, the appellee.

    I will be pointing out landmark rulings by the VA Court (Board of Veterans Appeal) where the Secretary took exception to the ruling, ignored its jurisdiction or authority and in effect, created an unlawful stay (without filing a motion in court.)     Disgrace four.

Vietnam Era Class Action Denial:   Secretary Nicholson should be proud of himself.     He has managed to deny the entire class of Vietnam Veterans their rights to disability benefits with, first, an unlawful stay of the Haas ruling, and then finally an injunction which will indefinitely hold things up in the Federal District Court, or at least, until the 832,000 veterans affected die.     Click here.

    Disgrace, period.
 
Background - Filing with AMVETS VSO *

    In a big way, it is probably good that just about every road block the VA (and the VSO) could throw at me, happened.     Otherwise, it would be a very good illustration -- now, would it?

Filing Date:   April 21, 2005       Retroactive to:   April 1, 2005 (for pay purposes)

* See "Discrepancies" in my representation.     Note:   The VA is under no obligation to pay interest or penalties (by Congress) for as long as they delay your disability compensation.     Premise one:   that you are rightfully due disability compensation.

Thailand veterans:   in order to have the provisions of exposure apply to your disability, you must have either served in Vietnam, ie, tour or TDY, or visited Vietnam which includes intransit enroute to Thailand, eg, stop on the ground, at Tan Son Knut Intl, Saigon.     See Granted Ruling     .. VBA/WACO - Thailand.     "Common Practice"

"[was] common practice at the time the veteran was being transferred to Thailand to allow for stopovers in Vietnam"

- M21-1 (Jul'04)     See Mac Flights Data Sheet that corroborates this too.

    See my photo @ Ton San Nhut '68.     Officer Billeting *   (A/C Optional)   <d>>>

* 100% Humidity included, no extra charge; Top Bunk @ Officers; Bottom @ VIP Enlisted **

** To qualify for VIP status, an enlisted man must have learned to survive on the Black Market, steal a general's jeep, or some other designated honor. ***

*** In today's (Iraqi) army, you would have to (a) canabalize a (disabled) Hummer, (b) put the extra armor plate on your (working) Hummer, and (c) don't get Court-martialed for it!

p.s.   I had the Bottom Bunk with a gold-plated Reserve Plaque that said:   "Supreme Commander"

Just call me "Dog," for short.     My close friends call me "Pretty Boy."     .. remember - close.

"Buddy Statements":   A form of affidavit in which another person substantiates your testimony.     This third party has no interest whatsoever in your claim, although, I have seen the testimony of a spouse given on behalf of the claimant which is totally 180 degrees from what is known as a "conflct of interest" as well as being considred in a court of law as hearsay, not present during the event(s).

Under the law of VCAA/2000, buddy statements should be history, or considered a well-grounded claim.     It isn't so much as the fact that it substantiates your claim, but the law has disavowed this requirement after some 30-40 years, depending on your personal claim.

I am looking for anyone in a position of authority either representing the VA or a VSO to tell this to my face, ie, the need for a buddy statement.     It is an out-dated, obsolete document and the claimant should not be expected to find someone to substantiate their testimony for an event that happened over 30 years ago.     Ridiculous.

"Challenge the decision in Court
  when RO basis is (obsolete) buddy statement."

    Tell them ".. to bring their policies into alignment with VCAA/2000 - not post Korean War."

    If they insist on wasting the Court's time and docket backlog, let your congressman know too!
 
Notifications - Need for Reply

During 2005, I received two notices needing evidence of service (or visitation) in Vietnam as well as some other minor medical records issues that were all resolved by January, 2006 .. seven (7) plus months.     This is a requirement of the new VCAA/2000 law where the VA must notify you of something required to substantiate your claim and provide suggestions and/or description of what they are seeking.     See 38 U.S.C. 5103.     This is an out-right duty of the VA to assist you, the claimant.     38 U.S.C. 5103A.

There are other rights in which I will not discuss here in order to keep the focus on the steps necessary to move forward with a denial decision and appeal.     Appeal!   Appeal!   Appeal!

You see, the VA has the "deck stacked against you."     They are betting on (a) you will feel intimidated by the legalese, (b) become frustrated and give up/quit, (c) or die.     If you as claimant die, well you can thank Congress because your retro pay and survivors get nothing.     The claim will die with you.

And, survivor benefits, ie, DIC -- does not kick in unless you are (a) 100% totally disabled and (b) were not such classified for less than 10 years (exception of 5 years for those disabled directly from active duty and discharge.)

How's that for "running the farm" and liabilities???     Congress has really helped the agency in staying out of the bankruptcy court.     No .. that would never happen .. at worse (scenerio,) the agency would have to ask Congress to appropriate more funds.

Dingess/Hartman v. Nicholson ..   (Ruling)     Legal Precedence (Policy)

A court ruling changed policy for administrative purposes and notifications enclosed in the following notice:   Cover Sheet     Action to take ..     Addresst

Election   In my case, I chose not to invoke this new right to a speedy decision, a decision based solely on the existing file content.     Why?     I would allowing the VA, the agency, to come to a decision on my disability or disabilities on less than everything that I could possibly add based upon notification provisions that serve in everyone's behalf.     The adjudicator would be given a legal right to base their decision on less than whole evidence to support the claim.
 
The Denial Notice

What did we decide..

Need Assistance..     Intro - Decision     Evidence - Reason for Decision

Service Connection for Secondary Conditions

First of all, these adjudicators or administrators or reviewers are not either lawyers or doctors and therefore, are not in a position to discount your secondary conditions, based in my case on diabetes when I provided a medical opinion from my (VA) primary care physician.     See 38 U.S.C. § 5109 Independent Medical Opinions.     If you have secondary conditions that have a direct dependency on your primary issue, then you should substantiate that medical relation to defend your position.

A word on secondary conditions ..

Your disability rating depends on the accumulative affect of your qualifying medical conditions.     Do not depend on the VA to review your medical records and give you credit for each and every ailment whether qualifying or simply related to old age.     I thought that that was how it worked.     I had a typical VA medical records file for here in Las Vegas and a decade before in Long Beach.     You would presume that these people that are evaluating you for a disability rating could read medical records.     They probably can, but not necessarily to assist you.

And, if you feel that your VSO should have known better and informed you of the need, this is the first reason that I became suspicious that my VSO did not have my best interest in mind and that there was a definite conflict of interest where the lower my (disability) rating, the better his relation with the VA authorities.     Paranoid?     May be, but let's face it, I will never be able to prove it.

For instance, circumstantial evidence is not grounds for exposing a less than equitable relation.     But, I can say this, I wasted an entire month when I had accidently added a authorization consent form for the kidney dialysis authorization which was to a private firm in town.     The VA responded for more information and if there was a claim of secondary condition.     It puzzled me at first because I knew that my medical files had all the kidney or urinalysis tests and just assumed that they could figure out the obvious.

Never take anything for granted ..

If you assume, you will make a mistake.     I left several messages of a month to my VSO for his take on the secondary condtions requirements.     He never really helped my with it and therefore, I became very suspicious when coupled with other verbal comments as to low-ball ratings.     It is a very serious matter and in recent times what has been uncovered with the Iraqi combat injuries at Walter Reed, the extended stays and harrassment before final rating and discharge, imho, was a form of duress.     It's not right.     Document it with a 2142.

Secondary Condition - Continued

What lessons should I have learned so far ..

To be thorough in your initial filing, the way a lawyer would be if you could have adequate legal representation.     Never assume and make sure that your medical records confirm your statements in support of the claim.     If you wait, then you will be protracting your claim and possibly remanded in appeal court.
 
Notice of Disagreement
  and do you want to retain a lawyer ..

If your VSO did not do a good job for you leading up to your claim denial, you may want to consider obtaining the services of a true professional attorney and say adios to your VSO.     I didn't because he spoke well of this track record and the administrative review would be almost a sure thing.     Again, in my case, it was a waste of time.

"Boots on the Ground"

It looked like a sure thing.     Research showed me that you could be considered boots on the ground, or "stepped foot in Vietnam," ie, visitation based upon a driver's license stamped in DaNang and related story by my VSO (that I thought was his own personal account) on a vaccination record in a clinic in Saigon.     Right.     I had something a little more official, an army pay voucher (DA Form 2139) with annotation for combat zone tax exemption, "CZ."     Wrong.     Later, I will "zero in" on the evidence submitted and how it was described.     Simply.     It was described without reference to "CZ" tax exemption.

Why?     Why didn't they describe it (properly) with "CZ", OR "EM CZ JAN 68" found in the Remarks section of the voucher?     Why not?     It is not a court of law; you are at the mercy of the adjudicators (and reviewers, in my case) and you will see later in the DRO defense that I cited several pertinent court rulings that should provide the same fair treatment to me and my claim.

Casual Pay:   Everyone knows what that is -- an advance in your pay!

"Boots on the ground" or "visitation to Vietnam"     In this regard the Board notes that it was common practice at the time the veteran was being transferred to Thailand to allow for stopovers in Vietnam so military personnel could avail themselves of facilities and supplies that were not available to them in more remote postings such as Thailand.     In addition, the Board finds the veteran's statements with regard to his travel at that time credible, particularly when viewed in conjunction with the statement from the retired Air Force Colonel who noted that his route to Thailand, in January 1967, took him through Vietnam. Accordingly, the Board finds that there is a tenable basis to find that the veteran did have a brief period of service in Vietnam in February 1967. See Veterans Benefits Administration Manual M21-1, Part III, Chapter 5, Par. 5.10(c) (July 1, 2004). Re:   WACO VBA Ruling   6/21/05

"Tenable bais:"   Let's address (specifically) this conclusion.     And, keep in mind that the "Air Force Colonel" statement is not a "buddy statement," but his account of stopping in Vietnam the month before the appellant, or what may be thought of as a corroboration of the facts related to Mac Flights.

    Note also that the above quote is from the VA Adjudication Manual M21-1 (July, 2004 Edition) which was a key (legal) issue in the Haas decision where the Secretary removed such favorable passages in concession to exposure to herbicides for S.E.A. veterans holding the VSM without proper announcement publishing in the Federal Register, a requirement by law (and intent of Congress.)

Notice:   do not confuse the laws (Congress) with the regs (agency) that follows ..

Furthermore, unless they have some clerk going up and down the isles of the aircraft to dispense casual pay, that happens on the ground, period.

See Pay Stub Debacle, and Pay Stub Citings.

Note in the "Related Topics" at the top of this page, three (3) rulings for intransit personnel that stopped in Vietnam based solely (or supported only on) testimony of the claimant.     The claims were limited to only a few hours to "the doors of the aircraft opened."     For your convenience, that are listed here again:

  Thailand vet,   Phillipine vet   (Continued,)   Air Force retiree   (and testified that he was told not to claim "CZ" for some sort of hassle with finance...)

In the official VA database for court rulings are many that illustrate the introduction of evidence in the form of financial records adequate to make a favorable claim decision.

DRO Review Conference ..

After you file your NOD (Notice of Disagreement) with the initial decision on your claim, you will ask for an administrative review held with your local VA office along with your representative.     Here is the notice my AMVETS VSO sent to me regarding the 5/24/06 review conference, 13 months after filing my initial claim.     Cover Letter,   Summary of Discussion,   and   VA Notice

What happens next ..

Without representation ..
 
Statement of Case (SOC)

Issues - Evidence ..       Decisions - Actions ..

SMR service dates (1966) - Clerks make mistake ..


 
 

    As a Company Clerk for roughly two years, special assignment for auditing battalion morning reports for several more months, Assistant Team Leader at the Overseas Repo Depot in Ft Lewis, Washington where we processed between 300-500 personnel a day, and then in the National Guard a staff sergeant (SP/6) as a Finance Specialist, I can tell you that clerks make mistakes (daily.)     It is the best example of "because it is in writing, doesn't make it true."     You may have to dispute some things, for instance, my services dates would be easy to confirm, but there may be other instances where it will become your word only.

Date of Marriage

    To advance this discussion on clerical errors, I was married to my first wife 11/6/68 in Korat, Thailand and my current wife 2/8/03 in Las Vegas, Nevada.     Some how, the VA clerk transposed my first marriage date to December (1968) and totally ignored the marriage certificate filed with my claim in April, 2005.     I'll find it!     I'm a good clerk and if I was any of these guys supervisors, they could start looking for another job.

    (DD Form 149, Application for Correction of Military Records)



    Can anyone tell me why these two entries (a) do not have any service dates and (b) the DD214(s) do not have any annotation for VSM award?     Simple.     Such (additional) information is favorable to the claimant.     See the dialysis clinic form reference below with the title "Pre."

"[consisting] of documents entitled "Pre-ESRD Information""



    (a)   The DRO does not indicate "CZ" for my pay voucher evidence, but go out of the way to describe the "Dialysis Orientation" at Gambro, a private company that I was sent to with (already) progressive ESRD.     Oh, you don't know what ESRD is?     I know what the "ESR" is and I'll take a (wild) guess at the "D" .. end stage renal disease (or disorder.)

"Disease" wins ..


    (b)   You see, the important element of the description is the "Pre-."     That's right.     Becoming a little paranoid, I concluded that the DRO, pending disability rating and retro pay date, would like to pin down the onset of this disability.     Like any other clerical error, it is your responsibility (and yours alone) to identify same and dispute it.

Congresional Inquiry ..



    First of all, I hope that no one reading this is intimidated by the VA, its people, or something else you feel is beyond your control.

    The story behind this matter is that half a year later, after filing my claim, the VA is asking for my DD214.     I immediately contact my VSO and he shows me his ("certified") stamped "received" copy of the DD214 back in April, 2005.     I decide to confront the staff at the Las Vegas VA "Assistance" Office myself.     They had absolutely no excuse.

    Like soldiers on active duty that can seek the aid of the Inspector General Office, you should not be afraid to request assistance from your congressmen.     In laying the foundation for my formal complaint, I sent both the Las Vegas and the Regional Office certified mail containing 10+ pages of documents asking for answers.     I never got a response.     The only real evidence that I have that they received them is that entry abov.     And, ironically, note the entry below same that reflects the VA does send me letters; this one for the secondary condition of ESRD (evidence.)

CFR promulgation of Benefit of Doubt Law

What is a promulgation (action)?     Under a statue of law, 38 USC 501, the Secretary of the VA is authorized to publish agency regulations, CFR (Code of Federal Regulations) and to interpret the law per say.

[and] consistent with those laws ..

There's the gilch.     If the agency regulation is not properly promulgated, the court can rule against the interpretation and therefore, nullify the regulation as something without the intent of Congress (in the laws.)

The doctrine the agency regulation is referring to is "benefit of the doubt" doctrine versus as the reg states:   "reasonable doubt doctrine."     What's up?     A promulgation.

Technically speaking, is it a proper promulgation or translation or interpretation of the law?

Many would argue "No" because "[to] give the benefit [of]" could be interpretted quite differently than "[reasonable]."

"particularly if the basic incident allegedly arose under combat, or similar strenuous conditions, and is consistent with the probable results of such known hardships."

' What is the agency (Secretary) saying?     ".. under combat"     Where does the law say that?   .. specifically?     Or, "similar strenuous conditions," it has to be strenuous [condition]?     I don't think so.     It is a non-lawyer types effort to make the agency regulation seem "authoritative" versus accurate.

"[with] the probable results of such known hardships."

What?!     There's a hardship or set of hardships [that apply]?     ".. probable results"     This is where the agency regulation becomes ambiguous and stretches the authority of promulgation.

But, Franco -- I know you are trying to be well-meaning, but how can you come to that conclusion?     Simple.     If it is not specifically (consistently) in the law, then it can be interpretted as an exception to the law (interpretation) and therefore, be discounted in a court of law.     The above definition is more appropriate for valor awards in combat.

    The last (minor) point is the authority given in the agency regulation, 501(a) which, although, true is the authority for the agency to promulgate the law of the land provided by Congress.     If you wanted to say that for every regulation, well, hell -- you might as well not say anything.     Specifying the law statue, in this case, 5107, Benefit of the Doubt could be a tad confusing too, ie, "reasonable" versus "benefit" -- an attorney could have a field day with that.

It's a darn shame those "book smart" types * haven't learn what to promulgate and what to leave well alone...     See the panel of judge's ruling in Haas, if you don't believe me.

* Versus "common sense."     A donkey has common sense.     They know when someone wants to put them to work when they see it.     "Book smarts" folks, well, hell -- they need a good nudge to get off the dime.     Helluva a way to go through life...

"Word to the wise .."

    Because you see it in writing (agency regulation,) doesn't make it (always) right.

    Always find the source, the law from Congress, that represents the foundation.

Lawyers make a living off of such malaligned interpretations and win cases for their clients.
 
The Appeal begins ..

After the DRO Conference and receipt of the Statement of Case (SOC,) you have 60 days to indicate that you (further) do not agree and wish to proceed with the formal appeal.

Review     Response to Supplemental Statement of Cause

You filed your disability claim, it was denied and you indicated your disagreement with that (initial) decision and filed a Notice of Disagreement (NOD) where you or your representative will then meet with a VA Decision Review Officer in a conference referred to the same.     As a result of that conference review, a SOC is published and you have the right to proceed with a formal appeal in the Board of Veterans Appeal (Court) when, again, you are denied your claim.

Pg-22, Synopsis of the Claim by you, the Claimant

Note that the initial denial decision is referred to as the "rating decision."     In this synopsis, you will find a little more information on the claim analysis.     Please note that this is page 22 of the SOC.     We actually jumpted from page 3 to page 21 because in between is a very intimidating publishing of the rules of law and agency regulations that you can review with our Guide to the USC and the CFR Reference.

"The cited Court decisions are not considered precedential
for the purpose of adjudication"



The only respect the agency DRO gives the Court is capitalizing the noun reference to the Court, as "Court."     What are they talking about?     The claim has been adjudicated already?     We are in some sort of administrative review where errors and additional evidence is presented.     Is the agency, in its perceived authority, saying that you can not present legal precedence that applies to your circumstances without being in an actual court of law?

re:   Need for agency reform; purge of agents and the VSO system

That being the (obvious) case then, the DRO conference is a complete waste of time.     It is a regurgchitation of the rating decision and therefore, not productive.     In fact, the entire adjudication system, to which the DRO states the review conference is a part, is flawed with discrepancies that put an inordinate case load on the Court.

This agency; Secretary have shown themselves to act above the law with unlawful stays and poor management of claims processing at all levels, but this last remark by an official DRO regarding policy and the disregard for rulings (legal precedence) at all levels is preposterous.     The Court has said that the agency does not have the authority to disregard its rulings, common law, that should be integrated in the agency manuals for policy and adjudication.

Instead, they are covering up their "discrepancies," publishing low-ball claim processing data, patting themselves on the back, and giving themselves annual bonuses inordinate to any federal agency.

Results - veterans' claims are "bottle-necking" at the Court, generating a demand for judges, and if you were to walk through the halls of the Board in Washington, D.C., you would see (what I call) the rooms of "excuse stacks" where you will see a disorganized (they may say different) stacks of veterans' claims.     How they can find anything is beyond me.

Solution - get off their f$%#@ (retired military) butts, and reform policy accordingly. *

* I'm available (for audit,) and I promise not to charge more than a GS-15, plus per diem/cola,
of course.     Warning, though, the most "hard core" military retirees will be (permanently) retired in favor of civil servants that want a job and want to help veterans.

The Big Disconnect ..     Examining any business system, you have to lay out the facts in a cronological order and this process for a disability claim unveils several discrepancies that I am sure the VA does not want to acknowledge.     Especially when they are saying the opposite; that everything is improving and claims are being resolved in less time.     re:   Software     I am going to show you how, like any other word processing application that has been customized to do what the ROs need (my job for three decades,) is the regurchitation of data on file (a) for a claimant and (b) reference guide to law and regulations.     This tends to impress the shit out of most folks when they see the print-outs generated by this application system.     Let's get started, outlining the claim dates as we go along (or, key dates.) Filing 4/21/05 - For AO exposure; diabetes and secondary conditions Rating Decision 1/23/06 - denied after 9 months DRO Conference 5/24/06 - review 4 months later SOC 7/26/06 - 2 months simply to receive the DRO decision Stay on Appeal 2/28/07 - 7 months from appeal notice What has happened .. When you filed your claim, the basic information was input to the system database, ready for printing.     Next, the Rating Decision, like the SOC, regurchitates the Evidence.     See Rating and SOC.     Only difference is with the SOC, they want you to marvel at the power of their system by printing out reams of regulations and associated laws that govern your claim.     Sample:   see Pg-3 and Pg-21     How difficult is that to do?     A snap -- pick the menu option, print. Manual or Human Intervention Requirements .. Of course, the claim is purely based upon the exposure presumptive; no presumption, no primary or secondary medical conditions granted.     Simple. The DRO chose to ignore my hard evidence, or well-grounded evidence.     Why?     Because they do not understand either benefit of the doubt and a personal explanation of an intransit situation and (b) do not find such things in one's military file, it didn't happen.     Wrong. From 1/23/06 to 7/26/06, six months were wasted. Agency Reform Couple that with the fact that the DRO ignores rulings/legal precedence applicable to my claim, citings, and the claimant is expected to be put on hold again until there claim can be heard in the Court, that is one of the major reasons (as a Systems Analyst,) I can see the entire system needs to be audited and significant policy changes and procedures introduced. 4th of July -- after waiting for a response on 3/14/07 from my incompetent VSO, I finally take action to rebutt the entire hold up on my appeal myself.   (5 more months; over 2 years since this whole fiasco started for a simple exposure application claim.)     I knew I should have done something different when the RO asked for "Service in Vietnam" information the first time.     I let my VSO handle it.     Nothing in my C-File indicates that he did anything.     I only know subsequently that I prepared two (2) supporting statements, with the first one my army pay voucher for "CZ" along with my official government passport (thinking that there may be some tracking mechanism that would confirm my movement.) Summary - (a) Claim Filed, (b) Rating Decision, (c) NOD, (d) DRO, (e) SOC, and (f) Appeal.

Pending Appeal

    That is where I am right now.

    Actually, a few things have happened since that DRO and the issuing of the SOC a year ago:   (a) solicit the aid of Senator Harry Reid, D-NV, a coincidental VA Stay Notice a week later, and some 90 days hence a response to my inquiry as to the status of the Haas v. Nicholson injunction by someone in Washington, DC from the General Counsel office for the VA.

The Investigation


2/21/07, an email to Senator Harry Reid's office ..

A response letter from Senator Reid is sent the next day.

Coincidently, or was it -- I receive a Stay Notice per the Haas injunction.

3/14/07, Mr. Foger, representing VA Affairs caseworker in Las Vegas office of Senator Reid contacts me and suggest a rebuttal to the Haas Stay Notice. 90 days later, a response from Washington based upon my email to Senator Reid.     It is a quasi-form letter that does not answer any of my questions except how to purchase a copy of the VA legal brief.     Note that the letter author refers to a May 15th date.     This may be from an internal communication passed along to his office.

    I am sure I could waste another 90-120 days to get some answers, but I believe I made my point.     That is, the VA has no justification for a stay on Haas-class claims.     The agency intent is to deny, delay and insure that claimants do not receive their just disability compensation based upon this landmark Court decision.
 

Write your Congressman; town newspaper
-- get the word out ..

    It seems that the only thing the VA understands is "bad press."

    Congress has protected the VA against insorbitant penalties and interest and any liability where the claimant is deceased.

    You couldn't ask for a better deal unless you were God.

The Time is right ..

    There will never be a better time.     "He who hestitates is lost."     These words of wisdom could never be more accurate than the adversarial confrontation with the VA.

    If you are easily intimidated, you already have a "strike" against you.     If you need a person to talk to .. here, my phone no. is (702) 363-3290.     Don't have a lot of money for phone calls .. I'll call you back.

    "We veterans are our own worst enemy. We bitch and piss and moan about all the injustice but we refuse to participate."

- Jim Strikland

    See the quote in the right column?     What are you (not your neighbor) going to do about it?!


To wit Ribaudo Order of 4/13/07:

The Court granted Mr. Ribaudo's petition for extraordinary relief in an opinion issued on January 9, 2007.     Ribaudo v. Nicholson, 20 Vet.App. 552 (2007) (en banc), appeal filed (Fed. Cir. Apr. 2, 2007) [hereinafter Ribaudo].     Therein, the Court (1) held unlawful and ordered rescinded the Board of Veterans' Appeals (Board) Chairman's Memorandum 01-06-24; and (2) ordered that "[t]he Secretary will proceed to process the appeals that were stayed in accordance with that unlawful memorandum 'in regular order according to [their] place on the docket'" and will apply this Court's decision in Haas v. Nicholson, 20 Vet.App. 257 (2006), appeal docketed, No. 07 7037 (Fed. Cir. Nov. 8, 2006) to those appeals. Ribaudo, 20 Vet.App. at 561 (quoting 38 U.S.C. § 7107(a)(1)).     The Court also outlined a procedure by which the Secretary could file a motion to stay the precedential effect of Haas.   Id. at 560-61.

Emphasis of ..

(a)   .. "[and] will apply this Court's decision in Haas"

(b)   "[t]he Secretary will proceed to process the appeals that were stayed"

If you are denied your right to hearing and appeal, then you should move forward with the class-action lawsuit for "boots on the ground" with NVLSP in Washington, DC.

Per Ribaudo rulings, Agency in Contempt of Court - for details

RO Rebuttal (on the 4th) @ Haas Stay Notice ..

    HTML Version

 

Chapter 2 - USAF CHECO Report
substantiating Direct Cause Claims
for Use of Herbicides in Thailand

    This chapter to my claim is added with total disgust for the V.A., the VARO/Reno, and of course, our U.S. government.

    This is April 14, 2008 and one more week, it will be 3 years without due process in a court of laws, ie, Board of Veterans Appeal.     First of all, I want to thank the office of Senator Ensign of Nevada for his assistance in getting some response out of the VARO/Reno -- even if it was negative.     That will be discussed later in my NOD to this rating decision based upon the use of herbicides in Thailand.

    Right now, to set the background for this chapter, you must have read everything from the top of this page because it would be cumbersome and not right for those that have done so in the past before giving a brief review of this decision.     Of course, I assume that I must file a NOD and VA Form 9 for the appeal process to begin.     What I want to safeguard is the integrity of my original claim filing date and not some bullshit about this new evidence to substantiate my claim late last year (November 13, 2007.)

Fraudulent Representation


Wrong:   "It represents all claims we understood to be specifically made, implied, or inferred
in this claim."

    In fact, instead of treating the inquiry and assistance requested from Senator Ensign, the VARO/Reno is attempting to make it seem that this is not simply additional evidence discovered, but a new (and separate) claim.     Very sneaky, but within the expectations of an agency adversarial to the veterans they are entrusted to and to provide assistance, ie, duty to assist.     Ignoring all communication from October, 2005 until now in 2008 is hardly what you could refer to as proper assistance.     Instead, there seems to be an attempt to renig on the original filing date to save retro pay due when this claim is inevitably settled in my favor.

    You will learn quite a bit from this review exercise and who you are dealing with.     References to the actual USAF CHECO Report, "Base Defense in Thailand," is absent as is the acknowledgement of the notice to the DOD List subcontractor on 11 October 2007.     See Article from Agent Orange Review, July 2006 and the confrontation.



    For your reading pleasure, the two page cover letter:     Page 1     Page 2    

    Decision (3 Pages):     Page 1     Page 2     Page 3

    Rights to Appeal (2 Pages):     Page 1     Page 2

The Decision Review

    The decision by the VARO/Reno was made without my opportunity to submit additional evidence, have my questions of December 7, 2007 responded to, ie, duty to assist.



    Now, look closely at the description of the CHECO report.     Where does in mention the report title, "Base Defense in Thailand"?     Well, it doesn't.     Probably for the same reason that the evidence listing my army pay voucher has no reference to the "EM CZ JAN 68" or "CZ" for tax exemption.

Base Defense in Thailand [from 1968 thru 1972]   .. versus the ambiguous inference to SEA ...

For more details.

    Now, several statements are purposely made in the decision that I construe to be both misleading and adversarial.     For instance the general statement to Title 38 in the C.F.R.:



    Well, the agency may have the authority granted under 38 U.S.C. 501 to publish its own Code of Federal Regulations, but the law takes any precedence over such agency regulations first of all and second, the rulings of the BVA (court) become common law, or an extension of the law interpretation for the purpose of adjudication decisions, as found in the rulling for a 1961 Okinawan Veteran granted exposure to herbicides in Okinawa in 1961 which is another instance of the V.A. and DOD both blatantly denying use of herbicides.



    There are many "half truths," as I initially said, with a slant to mislead or state a fact [of record.]     Note in the above clause the very first line:   "There is no basis in the available evidence of record to establish service connection on a direct cause"

    That is so true, but why?     Why is the evidence, to date submitted, evidence of record, incomplete?     It is incomplete because the VARO/Reno did not respond to my inquiry of December 7, 2007 above.     Of course, the initial notice initiating for me by Senator Ensign's office was a horrible miscarriage of justice in so much as the response I prepared was designed to answer key questions of evidence such as "Why the DOD List has not been properly updated."     You will see later, the excerpts to the decision that quote specifically the DOD List and shamelessly so.

Service Dates and Thailand Assignments Admission:





    FYI, the clauses above are key to resolving my claim because they made these admissions (1) I was in the army and (2) my assignments in Thailand.     What they go on to say is also factual.     That is the VARO/Reno asked for date(s) for exposure and I intentionally ignored such overtures until such time that the VARO/Reno answered my questions!     Line 2, second statement:   "Specifically, you stated that you want the "presumptive application of exposure to herbicides for service in Thailand."     This statement is inaccurate as the part that should be considered "presumptive" is the disease, primary, diabetes.     Furthermore, like the laws governing Vietnam veterans, there is absolutely no time limit from discharge from the service and the VARO/Reno goes over and over about the standard one year limit.     When you take "direct cause" exposure for use of herbicides in Thailand (dates) from 17 January 1968 to 10 January 1970 (and locations) Korat and Satahip and the BVA (court) ruling that gave the same "presumptive application to the herbicide exposure diseases in Vietnam to any other location, quote:

As the Law applies ...       Okinawa Case     More Details

THE ISSUE      

Entitlement to service connection for prostate cancer
due to Agent Orange exposure.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Criteria (last paragraph)

In a case that coincidentally also provides significant supportive data regarding claims with regard to Agent Orange and the legislative and other machinations associated therewith, the United States Court of Veterans Appeals (the Court) recently found that plausible medical evidence of the existence of a current presumptively service-connected disease with an open-ended presumption period is sufficient to present a well-grounded service connection claim as to that disease.     The case also holds that the presence of the disease would carry with it the presumption of nexus to service as well. See Brock v. Brown, 10 Vet. App. 155, 162 (1996).

RONALD R. BOSCH
Member, Board of Veterans' Appeals

In the above passage, the apeal court judge gave as succinct a statement as to "direct causation" for service connection under the law as possible, 38 U.S.C.A. § 1110, and 38 C.F.R. § 3.303.

The "analysis" leans towards the fact that the disease is one that is found in the provisions of the presumptive exposure laws and with simply evidence as we now have today in the classified "Secret" USAF CHECO Report, you have the direct connection between your medical condition, service exposure and service connection.



    Finally, service medical records (SMR) apply to direct cause diseases claimed service connection when the disease is not the result of exposure to herbicides, in or outside of Vietnam.     Reading the second portion of the Rights to Appeal for an informal hearing, guess what Franco is going to request next?     At that time, I will have a list of "hard" questions that need answers to.

Stay tuned ...



    This is where you want to respond asap as the V.A. takes its time, and I would say that if Senator Ensign was not involved in the ("quick") decision entered, that the rating decision would have taken much longer.

What goes into the NOD (Notice of Disagreement)

    You should state your position on this new evidence representation, hard questions as to "SECRET" classification of a report that affects all Thailand veterans, and why the V.A./DOD continue to deny the use of herbicides in Thailand, on U.S. military installations?

DOD List??? .. ambiguous reference ...



    You should take note on the above statement which is a reference to the so-called DOD List that the V.A. and the (BVA) court has used to deny compensation benefits to Thailand veterans.

    See USC Guide and CFR Reference

    USC Title 38 Sections:

    § 1110 Basic entitlement Presumptive Diseases and "direct cause"

    And, Presumptive provisions in the law for "boots on the ground" in Vietnam

    § 1116 Presumptions of service connection for diseases Chart See § 1110 above too.

    Citation of the ruling granting those exposed to herbicides with the same rights as Vietnam veterans as to the presumptive nature:   1961 Okinawan Veteran granted exposure to herbicides;       Okinawa 1998 BVA Ruling Cover-Up - DOD has no records of Agent Orange

    Understand the difference between Direct Cause and Presumptive (Application.

Legal Disclaimer:   all key passages, quotes are taken directly from their official source
with my brand of editorial bull shit identified separately.

Always look for the Superman logo for genuine Franco Brand Bull.

In comes the conclusions ...

    Service connection is for direct cause as it applies to service connection and the primary disease, diabetes, was as a result of the exposure to herbicides in Thailand and as the (BVA) court ruled to the above quotation regarding "presumptive diseases."

    Everything else that may be in the decision report, cover letter is of little importance.     If you did not open a window on the "Rights to Appeal" standard VA form, you should and read the section regarding "Additional Evidence" (submitted.     Alright, here it is: