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After 10 months of blah blah blah, it's showtime next week (I hope). Here's the email I sent back to my Voc Rehab counselor of five years:
Today at 11:44 AM
In your recent phone call you mentioned you had a brief (working paper)summation of what was being considered on the greenhouse parameters. Before we meet, I would appreciate a copy of it or an IILP you might be considering for my signature so we can accomplish this in one visit. If we are not in substantial agreement on the goals, the actual size and configuration of the greenhouse or what VA considers a "reasonable accommodation", your drive over would be a waste of time.
I have striven over time to be an active stakeholder in this but the lack of information is causing an irreparable breakdown in communications. This is what prompted my filing to the CAVC. The VA Secretary, as you probably know, has until July 24th, 2016 to respond to that current Extraordinary Writ petition before the Court. I was hoping I could file a Petitioner's reply brief afterwards saying we have reach a mutually agreed upon modus vivendi. Absent any input or a beginning dialogue until we meet face-to-face is counterproductive and will only lead to further delays.
The Farmtek ILP coordinator, Karen Meister, was given the full list of my disabilities and asked to craft a bid that hewed to the medical shortcomings and the ADA nature of my disabilities. A 24 foot by 48 foot greenhouse will encompass the same area I presently have under cultivation. ADA requirements also show a need for two entrance/exits at opposite ends. Due to my 6 ventral hernias and permanent lifting constraints of 10 lbs., using potting soil is sadly no longer an option. This was discussed in the opening colloquy with the Veterans Law Judge. We impressed upon him that 38 CFR § 21.160(a)'s "General" introductory statement encompasses all disabilities-both service and non-service connected. Any IILP must take all my disabilities into account. Simply providing a covered structure with a 120VAC outlet and a water spigot will not suffice to satisfy the BVA findings. I hope we are clear on that. As you may be aware, too, my rated disabilities have increased dramatically to 100%,100%,60%,40%,30% and 10% since my original filing in 2011. These percentages do not include my Crohn's disease, numerous hernias or balance issues. Merely trying to comply with the original 2011 greenhouse parameters is no longer a limited option left on the table now.
Obviously, if the The VR&E parameters fail to encompass the BVA findings and appeals language, we will shortly find ourselves at an impasse before we even sit down. VR&E already finds themselves on shaky ground and in violation 38 CFR § 21.192(a)(2). As of today's date, it has been ten months and two days since the BVA decision was released. As this is a matter of first impression before the Court, it is possible Judge Bartley may construe it as essentially an arbitrary refusal to act on the VA Secretary's part.
Additionally, as covered in 38 USC § 3107(a), the statute clearly states:
Such plan shall be developed with such veteran and shall include, but not be limited to
(1) a statement of long-range rehabilitation goals for such veteran and intermediate rehabilitation objectives related to achieving such goals,
(2) a statement of the specific services (which shall include counseling in all cases) and assistance to be provided under this chapter,
Court Of Veterans Appeals precedence unequivocally states that the usage of the verb "shall", as opposed to "may", clearly and unmistakably demands compliance with the regulation. 38 USC § 3107(c)(2) :
In any case in which a veteran does not agree to such plan as proposed, to such plan as redeveloped, or to the disapproval of redevelopment of such plan,
such veteran may submit to the person described in section 3106(f) of this title a written statement containing such veteran’s objections and request a review of such plan as proposed
or redeveloped, or a review of the disapproval of redevelopment of such plan, as the case may be.
See also § 21.92 Preparation of the plan.
(a) General. The plan will be jointly developed by Department of Veterans Affairs staff and the veteran.
It would be preferable to sit down with a preconceived idea of VA's intentions to avoid further discord or misconceptions. As I have no knowledge of hydroponics, I am hoping for some guidance or educational instruction along the lines of what was provided to me on the 2012 ILP computer services from Jim Moss. We all desire the same outcome-one free of dissention and disagreement. Towards that end, it might be time to begin our own colloquy towards a mutual agreement of what will be provided as opposed to a one-way, dictatorial statement of what VA is prepared to offer. As mutual stakeholders, it is imperative to communicate openly and frequently to accomplish this in a timely manner. Absent that, we are merely working at cross purposes and may never find common ground.
On another note, during your last visit, I asked you to submit a request for the Lexis Nexis Veterans Benefits Manual and supporting CD disc. I am sitting this month for the VA nonattorney practitioner's test and am desirous of having the materials to assist in my future preparations for helping Veterans. VA's laws and regulations, as well as the M 21 and M28 change frequently. Absent any updates, my pro bono work stands a chance of being incorrect or inaccurate. Since VA's VR&E program is increasingly shrinking in the number of Veterans helped, this should not impede or grossly impact other deserving seriously disabled Veterans as defined in 38 USC § 3120. I note for several years now that the VR&E has been unable to identify (only 1,426) and award the full compliment of 2,700 individuals authorized by law to entitlement to the IL Program. VA's own IL Case Reports show in FY 2004, Seattle had 41 successful rehabs versus the 7 recorded in FY 2015. Either the number of severely disabled Veterans is in decline or the program suffers gross underutilization. In any case, there appear to be ample funds available and waiting to be awarded. I would appreciate an update on that request when I see you on the 12th unless you have information on the status presently. Presuming an inevitable denial, I would respectfully request you send it back to VR&E VACO for Administrative Review as soon as possible.
Without a VR&E position paper on what is proposed, any potential agreement will be stymied and your valuable time wasted. I'm fairly sure we don't want that. In the event you cannot supply me with the documents, we should reschedule our meeting until we have a mutual understanding hammered out that will be productive and a viable IILP that encompasses what the BVA held in its findings.
I look forward to a timely response and the requested documents.
That is how I deal with VA pukes. Some of you may have a different idea how to go about it.
Nine months and counting for that elusive greenhouse promised. I'm launching a new Writ Monday morning and then turning off my phone and computer for a week. I like watching them blow coffee through their noses.
VA sent out their Voc Rehab counselor to present me with the Individualized Independent Living Plan (IILP). They chieu hoi'd and are not going to play keepaway. Seems someone in DC said "We don't want to see this at the CAVC." Full size and full hydroponics. He forbid growing pot in it though as its a federal grant. Two year plan and they pick up the propane and electricity bills during that time. All the hydroponic computer gear, 12 2000W halide lights, raised tables, storage tanks, pumps. Plumbing, wiring and propane gas utilities hooked up. Just add seeds (not included). It only took five years and a trip to the BVA.
rebabevets posted a question in VA Disability Compensation Benefits Claims Research Forum,I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently
Ddsr posted a question in VA Disability Compensation Benefits Claims Research Forum,The 5, 10, 20 year rules...
Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.
Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.
Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.
If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"
At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.
NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.
Example for 2020 using the same disability rating
1998 - Initially Service Connected @ 10%
RESULT: Service Connection Protected in 2008
RESULT: 10% Protected from reduction in 2018 (20 years)
2020 - Service Connection Increased @ 30%
RESULT: 30% is Protected from reduction in 2040 (20 years)
broncovet posted an answer to a question,While the BVA has some discretion here, often they "chop up claims". For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.
I hate that its that way. The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.
Ztmiller8 posted a question in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC,Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!
My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.
Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
Joey Ross posted an answer to a question,I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and nothing about stressor,
Picked ByJoey Ross,