WELCOME TO ASKNOD.COM

Posted on October 1, 2022 by asknod

Yeppers. You read that correctly. For over a decade, I’ve tried to hornswoggle that German domain squatter into coughing up asknod.com. He finally relented after an extended bargaining session. I’ll tell you he drove a hard bargain. GoDaddy© locked it in yesterday. Cupcake says I have to tune up my landing page and make ask nod one word up on the header logo. We’ll be working on that here directly. It may seem inconsequential but we always ran the risk of someone else grabbing the site and stealing my readership or diverting them to another place.

I was talking to a VA gal on the BVA’s help line (800) 923-8387) the other day and all of a sudden out of the blue she says “Wait a minute. Did you say you’re Alex Graham?” I said yeah. She came back with “The POA says Gordon Graham on it, sir.” I said Roger that. I go by my middle name of Alex. She pauses for about 5 seconds and asks if I’m “the Alex Graham” who does radio shows on Exposed Vet. I confirmed it and she says “Shut the front door. I can’t believe I’m talking to you. You are famous, mister.” I disagree. I prefer to be no more than the ‘A’ in ICARE. Famous people, to me are the 59,494 folks on a long black wall in Washington, D.C. I don’t do parades and I dang sure am not famous.

As any of you who know me can testify, I’m mindlessly driven to win my Vets’ claims-within the confines of the law, mind you. No cheating. No stretching the truth. I’ve been hoodwinked a few times by Vets trying to do nefarious things and I freely admit it. I’ve dumped each one and dutifully notified the VA  in each case. My congressman even handed me one back in 2018. Turns out, the Vet had two 214s and the second one was OTH and pretty much sandbagged his chances of winning anything at VA. I’d allow as he might have disremembered the second 214 with the problem. VA didn’t, however.

When I began the website with help from Patricia Lupole of HCVets.com fame, it was a sideshow to help dying Vets with HCV get a win. I’d just won using the Caluza triangle method we all know now. It was nouveau knowledge back in 2008, however. Everybody was caught up in submitting basic training pictures showing Vets getting blasted by jetguns. Unfortunately, the black and white pictures didn’t show the virus on the nose of the gun. Vets used to run into this very same problem attempting to show Agent Orange use at bases in Thailand before they passed the PACT Act last month. A black and white photo of you standing in front of your hootch with a vast dirt expanse behind you doesn’t reveal any 2,4-D, 2,4,5-T dioxin on the ground. Dead vegetation could mean lack of water in the dry season or that they mowed it. I’m not trying to play Devil’s advocate but you always have to consider the VA’s side of the argument. It helps you to win if you know what your VA adversary’s holding in his poker hand. I hear Vets say they could smell AO. Fat chance, gentleman. If you smelled it at all, you smelled some form of petroleum distillate used to thin it 1:1.

By 2011, it was apparent that HCV, as an incurable disease, was soon to be conquered. I succeeded in killing it after a six-month treatment in 2014. That’s cutting it too close. I didn’t have much longer to go and kept coming down with other problems-some related to AO and some to the residuals of having HCV for 44 years. You don’t magically get well after a long viral infection. It attacks everything in your body. Luckily, I made it. Between that and Agent Orange, Blue, White, Green, Pink and Purple, they can really make life difficult. Here’s surgeries #3 (3/21/2010)and #4 (3/28/2010 after surgery #3 failed). Pretty skanky, huh? Well, we’re talking VA doctors so that explains a lot.

The name asknod was born in 2008. It’s a contraction of ‘ask’ (about your) ‘Notice of Disagreement’ (abbreviated by VA as NOD). I was hellbent on WWVD or ‘What Would a Veteran Do?’ Patricia was lukewarm on that moniker and since it was her website, I obliged. Cupcake wasn’t too hot on it either. I was trying to reach out to Vets and help them rather than pull a Gen. George Custer and die on an acronym hill so I relented. Regretfully, WWVD will never grace the top of my blog. I thought it had a nice ring to it. Of course, having been born on April Fools Day, it drastically affects my common sense chromosome. An example would be teaching your 8 year-old son about the many constructive uses for gunpowder beyond just reloading ammo. Bad idea.

When it came time to choosing a name for the legal arm of my accreditation game, I was leery of using asknod. I didn’t want to tip my cards and expose myself. Cupcake disagreed. So what if I dished on the VA Secretary and the rest of his Agency on a daily basis? So what if I’m the one who spilled the beans on the Purple Book or any other of a long list of “inwards-facing documents” VA publishes for their employees? It reminds me of all the confidential documents we saw in the Vietnam ‘conflict’ stamped with “NOFORN” (no foreign nationals) to inform the reader the documents were restricted reading. Why they’d try to keep Vang Pao in the dark was illogical. We were supposed to be helping the Hmong Army fight the Pathet Lao.

I’m not the only accredited Veterans Representative with a website either. Ben Krause, my fellow VA litigator friend and Air Force Vet publishes Disabledveterans.org. Ditto Chris Attig (U.S. Army Vet) and his Veterans Law Blog.  I guess the only thing that separates our endeavors is technique. I don’t have a log in and a membership procedure. What you see at asknod.com is what you get. No dancing emojis. No advertisements for Viagra or Russian wives. No advertisements that uncannily mirror your Google® searches for dog beds or patio furniture. No sir. All that advertising is a distraction. You can go somewhere else to get that info.

Asknod.com will outlive me. At 71, my only hope is that it will help Vets win and remain free. Knowledge shouldn’t be monetized in this business. You shouldn’t have to pay anyone to figure out how to win a claim. Granted, there are those who are too busy to do it or too lazy. I think I speak for tens of thousands of Vets when I say that we (most Vets) no longer can find our way through the VA’s jungle of regulations-especially in light of the ever-changing legal landscape. Between the new (2019) AMA and the new PACT Act, most Vets are clueless about how different this is from back in the old days.

Asknod.com might be a new name but it still stands for the dissemination of free knowledge on how to spank VA’s derriere. It’s a free translation of the VA Rosetta Stone of claims adjudications. Why on earth would anyone keep this information proprietary and charge for same? I guess I get about 100 calls a month from Veterans. I get at least that many emails. Each and every one asks for help via representation. I wish I could but I will always take the time to tell them what they need if they are confused or need advice.

My trademark phrase, besides “Win or Die”, has always been my standard rejoinder whenever someone thanks me for my help. By that, I mean “If the shoe were on the other foot, I’m sure you would do the same for me.” I earnestly believe that as much as I earnestly hew to the practice of never censoring anyone who comes here.  I’ve been 86’d from every Veterans Help site out there. Why is that? Remember that old granny that used to pull up to the Drive thru window asking “Where’s the beef?”  Seems the moment I share the fact that someone’s advice collides with 38 CFR, I discover I’ve been cut off by the moderators. I won’t ever shade the truth or try to imply there is a secret technique to this and you can’t get there without my killer ju-ju.

In closing here today, I wish to thank my readership for their interest in Veterans claims and being allowed to teach about all the intricacies of the process. It’s a pretty neat soapbox to be allowed to even stand on. A lot goes on behind the VBMS curtain that many of you will never see. I feel honored to have the ability to walk point and see the trip wires VA erects in hopes of defeating your efforts.

In addition, I want to let you know I’ve noticed that some Vets help sites will ask for donations or charge entry fees to do this. They claim it takes money to keep these operations running. Teaching is expensive , they say. Websites cost money, they say. Newsflash. I pay about $100 or so a year  to keep asknod.com afloat at WordPress. How I do that escapes me. Everyone tells me I need this and that and google ranking experts to make sure everyone can find me. My blog subjects cost $0 dollars to research. I just plagiarize the VA rating decisions and publish them redacted. How is that expensive?  Beats me. The only thing that costs me money is going to legal conferences and learning  new ways to win. That’s a bargain at twice the price.

One thing Veterans can always take to the bank (besides their comp. check) around here is that I will always have your back. If you disagree with me, that is your right. If you don’t like my attitude, I apologize. This isn’t a popularity contest or a who has the best Dear Abbey™ advice column. We don’t blow smoke up your ass nor do we tolerate those who do. Sadly, there is a wealth of ignorance afoot about the subject of VA law. Letting Veterans offer advice on the subject willy nilly who have no training or experience scares the bejesus out of me. My only hope is that they will luck out and eventually get a highly qualified VSO or VA attorney/Agent to be their representative. VA has created too many pitfalls in the last 30 years such that a Veteran has a 12% chance of winning right out of the box and even less the longer he or she delays in pursuing it.

And that’s all I’m going to say about that.

P.S. Check out this Glock™ horn. Man, I just gotta get one. This is too cool for school.

 

 

Posted in Agent Orange, All about Veterans, ASKNOD BOOK, General Messages, The Vietnam Wall, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , , | 6 Comments

FED CIRCUS-NOVA vs DENIS THE MENACE–POST HOC CREATION OF “GUIDANCE” FOR THE COURT

Posted on September 24, 2022 by asknod

I get a big bang out of the rare occasions when the Federal Circuit (CAFC) really stretches their collective brain musculature and actually arrives at a decision that is meaningful for Veterans and not merely window dressing. And ones which are impeccably argued in Veterans’ favor. Here’s a real daisy. 

Granted, Judge Prost was a bit long winded in his ten-page dissent in search of a way to defeat the pro-Veteran canon of law established in Henderson v. Shinseki, 562 U.S. 428,441 (2011); (“We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.”). But leaning into the Chevron/Auer wind on this one is a dead end. And you’ll read why if you dive in. This decision has more side-cites worth bookmarking for future arguments than you can believe. And changing the rules while the game is in play was going to be noticed eventually in a higher Court.

§4.71a DC 5055

So, to understand this, I’ll briefly lay out the parameters. I don’t do musculoskeletal law if I can possibly pawn it off on another attorney. It just isn’t my bag. I have X brain cells left and have devoted most of them to SMC and §3.156(c). Nevertheless, I’ll point out the good one-liners for you if you’re lazy.

 

This decision all hinges directly on how the CAFC  previously ruled in Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016). It involves §4.71a DC 5055 and 5257. Back in 2015, VA attempted to clarify what they meant to say, and forgot to, in DC 5055  about what constituted a knee replacement- i.e., a partial or a total one. The problem only arose when this appeal reached the Fed. Cir. Hudgens argued that there was no Chevron deference established with prior agency action re the diagnostic code. 17 out of 21 decisions at the Board were in favor of just such a partial replacement to grant a 100% disability. ‘Call me Bob’ McDonald insisted it had to be a total makeover.

 

But, as VA is wont to step on their collective neckties, they tried to offer guidance to raters, VLJs et cetera that the correct interpretation was being misunderstood rather than fix the diagnostic code language.

On July 16, 2015, twelve days before the Secretary’s final brief in Hudgens was due with this court, the VA published the Knee Replacement Guidance.  The Guidance stated that the VA was providing notice of the agency’s “longstanding interpretation of DCs 5051 to 5056” as providing for a 100-percent evaluation “when the total joint, rather than the partial joint, has been replaced by a prosthetic implant.” 80 Fed. Reg. at 42,040. The VA also announced in the Guidance that an “explanatory note” would be added to 38 C.F.R. § 4.71a stating that the “term ‘prosthetic replacement’ in diagnostic codes 5051 through 5056 means a total replacement of the named joint.”1 Id. at 42,041.

But you can’t then drag this “guidance” into the Court and say ‘see- this is our considered opinion and it proves it’. The Federales  (O’MALLEY, PLAGER, and WALLACH) rightfully saw it as highway robbery and reversed and remanded. So lets call this the Knee Replacement Guidance or KRG and move on. We (as of 2016) have Mike Hudgens’ precedence going for us. Fast forward to now.

NOVA has three members who challenged VA’s technique of just issuing ‘manuals” or ‘guidance reminders’ on how they’ll be denying you without incorporating it into the actual Diagnostic Code. That requires publishing the proposed changes or clarifying language in notes at the bottom of ratings in the Federal Register for comment. If VA had published a change to DC 5055 to say specifically that “knee replacement” meant total knee replacement, I wouldn’t be sitting here grinning from ear to ear. They just added notes to the M 21 and said from now on, deny if it’s partial. But DC 5055 still didn’t say total. In fact, there were notes in the M 21 that indicated there were two ways to do it- pre and post 2015. So the NOVA boys said okay, let’s take the Secretary to Court and object to his gerrymandering DC 5055 post-1978. You can’t just publish guidance to repair your grammatical error.

As the Big Boys said it in Legal Beaglespeak…

We reject this circular argument. We are evaluating whether the Guidance constitutes a valid interpretation of DC 5055. The Guidance itself inserted the explanatory note into DC 5055.  The Secretary would have us hold that the Guidance articulates the only reasonable reading of DC 5055 because the Guidance itself says so. See generally Resp’t’s Br. 29–31. That cannot be correct. Indeed, the Secretary’s argument contravenes a basic tenet of administrative law. Agencies must “use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.” Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 101, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015); see 5 U.S.C. § 551(5). The VA promulgated DC 5055 following notice-and-comment rulemaking procedures in 1978. Updating the Schedule for Rating Disabilities, 43 Fed. Reg. 45,348, 45,348–50 (Oct. 2, 1978). Therefore, the Secretary cannot have amended DC 5055 without going through notice-and-comment.

Ruh-oh, Rorge. That pesky Federal Register rigmarole gig again. Quick, somebody get that written up and published. We need to plug the loophole pronto. But before this latest decision is complete, the Judges feel compelled to address the Auer/Chevron deference argument that the Feds should shut up and believe Denis when he says he and all his forebears always meant it to mean a total replacement and somehow a few VLJs or ignorant RVSRs didn’t get the email back in ’78, right? And what the hey, VLJs are just single judge memorandum -type decisions and not precedential so get off your high horse. You Feds are making mountains out of molehills. I can almost imagine Denis singing the old Beatles song “We can work it out”. No dice. (Try to see it my way-Do I have to keep on talking till I can’t go on?)

In Hudgens, we gave two reasons for why the Secretary’s interpretation of DC 5055—excluding partial knee replacements—was not entitled to Auer deference. 823 F.3d at 638–39. First, “the agency’s interpretation conflict[ed] with a prior [agency] interpretation”—namely, “numerous inconsistent rulings by the Board.” Id. at 638 (second brackets in original) (quoting Christopher v. Smith Kline Beecham Corp., 567 U.S. 142, 155, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012)). Second, the Secretary’s interpretation was a “post hoc rationalization” “adopted to support the Veterans Court’s interpretation.” Id. at 639.

[ In addition to Christopher v Smith Kline Beecham, I like to use Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (explaining that “it is the Board that is required to provide a complete statement of reasons or bases” for its decision and “the Secretary cannot make up for [the Board’s] failure to do so” by providing his own reasons or bases on appeal). Here’s another daisy: Smith v. Nicholson, 19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary to rewrite the Board’s decision through his pleadings filed in this Court.”).

The second reason regarding post hoc rationalization is not relevant here as we are addressing only the interpretation put forward in the Knee Replacement Guidance, not a previous agency interpretation that the Secretary is justifying with the Knee Replacement Guidance.

See how slick Judge Cunningham slid that subtle underlined 2nd reason jab in at the end above? One thing I enjoy about litigating is that everyone is so dang polite. The Judges don’t rub Denis’ nose in his blatant attempts at post hoc rationalizations yet again nor his predecessors thinly -disguised attempts to wallpaper over defects in agency regulatory diagnostic codes with new revisions to the M 21. They blithely gloss over his pathetic attempts to screw Veterans and go on about their business telling him to go back to his desk  and crayons. Color inside the Fed. Register lines from now on, Denis. You hear? Sure. You can do it. Go ahead and give it a try.

A wonderful piece of advice once proffered me was “If you find yourself in a hole, quit digging.” How à propos.

The Secretary contends that we should not characterize Board interpretations “as representing the agency’s official position.” Resp’t’s Br. 33–35. The Secretary notes that “to receive Auer deference, ‘the interpretation must at least emanate from those actors, using those vehicles, understood to make authoritative policy in the relevant context.’ ” Id. at 34 (internal brackets omitted) (quoting Kisor, 139 S. Ct. at 2416). The Board is not such an authoritative actor, the Secretary asserts, because it issues more than 100,000 non-precedential decisions a year where the judges act individually rather than in panels. Id. at 35 (citing Board of Veterans’ Appeals Annual Report to Congress (FY 2020), https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2020AR.pdf). In the Secretary’s view, these facts, together with our statement in NOVA 2020 that Board decisions “appear not to be entitled to Auer deference,” 981 F.3d at 1382 n.14, “erodes the foundation” of our holding in Hudgens, Oral Arg. at 29:50–52.

I probably ought to go back and look up the utube™ oral argument to see who drew the short straw at  the Commercial Litigation Branch and was sent up to be slaughtered at the lectern on oral. Might be better than a Laugh In rerun. I’ve seen some poorly prepared OGC folks up there on the CAVC orals who hit that point where they don’t have any viable answer so they revert back to Plan A and re-recite some statistic that isn’t logical in the Veterans Benefits scheme.

What Kisor Brings to the Table for Us

But, while we’re on the subject of agency deference or statutory deference, let’s examine, in the Court’s own words, the new legal standard of review à la Kisor… Read Kisor here. 

Since our decision in Hudgens, the Supreme Court has addressed Auer deference in Kisor. In Kisor, the Court found “it worth reinforcing some of the limits inherent in the Auer doctrine.” 139 S. Ct. at 2415.

First, the Supreme Court held that before applying Auer deference, courts must “carefully consider the text, structure, history, and purpose of a regulation” and conclude that “the regulation is genuinely ambiguous.” Id.

Second, the agency’s interpretation must also be “reasonable” and “come within the zone of ambiguity the court has identified after employing all its interpretive tools.” Id. at 2415–16.

Third, “a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight.” Id. at 2416. This third part of the Auer inquiry is relevant here. The Supreme Court gave a list of several “especially important markers for identifying when Auer deference is and is not appropriate” given the character and context of the interpretation. Id.

Or this blurb below. I think it will give Veterans a lot of new tools in the pouch to point to prior agency action at the BVA that supports their hypotheses of service connection. Certainty, if the facts are identical, the same result should ensue to ensure uniformity. Well, everywhere but at the VA where you can win the Lotto and walk away emptyhanded.

 And although Board decisions are non-precedential and issued by single judges, they are—as we held in Hudgens—“the final decision[s] for the Secretary on all questions in matters affecting the provision of benefits” and provide persuasive authority to the Veterans Court on the interpretation of regulations. Hudgens, 823 F.3d at 638 (quoting Gibson, 26 Vet. App. at 566 (Kasold, C.J., dissenting) (citing 38 U.S.C. § 7104(c))).

So, the teaching moment here is for the VASEC-not you Veterans. If you want to repair a regulation or diagnostic code to make it easier to conduct a VA Texas Necktie Party, you have to follow the rules, sir. Considering it took them six years to fix this regulatory fustercluck, and they still don’t have it right, I wonder how long it ‘ll take to get the repair order in to the Fed. Reg. I also wonder how many Vets got the shaft between Hudgens and September 20, 2022. And will VA go back and fix ’em. All these queshuns.

In all fairness, I should mention that the Secretary got around to fixing it four years after Hudgens won his claim. Or so he thought. Until this, anyway. The Fed. Register bondo  set up on February 7, 2021 and they rescinded the KRG (remember that?) the following day on February 8th. I won’t go into the Knee Replacement Manual (M 21) Provision (KRMP) as it applies to DC 5257. Suffice it to say this is more or less a regurgitation of more vivid post hoc reimaginings of what Congress really wanted to say. The Feds lay it out thusly. The KRG preexisted the KRMP so it’s (KRMP) immaterial. But the KRG was never properly situated into the regulation because it revised 5055 waaaaay too much so it’s arbitrary and capricious, an abuse of discretion and not in accordance with law. In short, it doesn’t even resemble DC 5055 anymore as it was envisioned back in 1978. So it also gets thrown out. Back to the drawing board, Denis.

Posted in CAFC Rulings, Fed. Cir. & Supreme Ct., VA Secretaries, Veterans Law | Tagged , , , , , , , , , , | 2 Comments

OPEN DISSENTION AT THE BVA

Posted on September 8, 2022 by asknod

I received this email over a month ago via a fellow litigator. I didn’t publish it then because it was still undisseminated information. Since then, it has been openly shared and discussed. Having met and befriended several VLJs who always remember me when we cross paths again at a later date, I feel I owe them (and you) the right to have the BVA chairman’s dirty laundry aired. It’s no fun being made the scapegoat or whipping boy for the hierarchy’s stupidity. We all wear big boy pants in this litigation business. There’s no room for sabotage when adjudicative assets are in such high demand. 

The advent of the new AMA essentially provoked a compendium of two versions of VA law. By rights, anyone in Legacy must have waited longer to arrive at this point. Ergo, logic dictates that the BVA chairman(woman) in charge clean up and close out the old baggage before addressing the new- advancements on the docket excepted.

Likewise, it would follow that if you could hire within the ranks of experienced staff attorneys who could begin as VLJs without a year’s training to become proficient, that it would greatly benefit our Nation’s Veterans and help greatly in decreasing the backlog. But noooooooooooooo. The chairman elected to hire 45 new VLJs.  Of that number, we now have 37 sitting VLJs who have to have their VA underwear color-coded (yellow in front, brown in back) in order to get them on right. In fact, lowly VSO service officers probably know more than these VLJs with no JD whatsoever.

Who’s the rocket boy or girl who dreamed up this fustercluck? Does it even matter once they clicked send? I speak as a Veteran when I say that I’m appalled but not the least surprised. I’ve been playing VA poker since 1989 and this is just more of the same eternal ineptitude we have come to expect. No matter how advanced VA becomes via computers, there are ample ways Government can invent roadblocks to logic and sanity. The idea that anyone could authorize this without oversight or three signatures is even more evidence that the inmates have taken over the asylum.

So, if you’re wondering why you’ve been waiting 1059 days for a hearing, The VLJs in DC want to let you know they’re even more disgruntled than you are.

Concerned-Judges-Letter_final1_stripped

Posted in BvA and VARO CUE DECISIONS, BvA Decisions, BVA Hearings, VA Agents, VA AMA appeals knowledge, VA BACKLOG, VA Conspiracies, vA news, VA statistics | Tagged , , , , , , , , , , | 6 Comments

SMC N– NEVER HEARD OF IT. GIVE HIM AN S

Posted on September 5, 2022 by asknod

You won’t see me write very much about SMC N because it’s the “hump” rating. To get there you need to have- at a bare minimum, loss of use of the lower extremities with one extremity useless above the knee (M) plus a 100% separate and distinct disability, or, loss of use of a hand and a foot with loss above the knee (M) plus the above 100% disability, or loss of use of the upper extremities (M) plus that extra 100% schedular, or… being so blind as to need the aid and attendance of another plus an additional 100% for another separate and distinct disability in nature. The separate and distinct disability could be Parkinson’s (neurological) or IHD (cardiovascular) or COPD (pulmonary). If VA has already given you A&A for the blindness because it isn’t total blindness, this still works (M). The key point is you have to arrive at M via the degree of your disability in order to get the 100% schedular full-step bump under §3.350(f)(4) described under SMC P.   

Most folks don’t get to SMC N for a multitude of reasons. First, If you’re using VA’s guide to the Galaxy (Part IV), you’ll notice it somehow omits discussion on the above. Some of these scenarios can certainly be found in SMC P which would require investigation. I mostly recite from my memory of past cases but I don’t remember every possible one listed in P. For intensive study of the why and how of SMC. I strongly suggest reading Breniser vs. Shinseki about five or six times until you have dreams about it.

(d) Ratings under 38 U.S.C. 1114(n). The special monthly compensation provided by 38 U.S.C. 1114(n) is payable for any of the conditions which follow: Amputation is a prerequisite except for loss of use of both arms and blindness without light perception in both eyes. If a prosthesis cannot be worn at the present level of amputation but could be applied if there were a reamputation at a higher level, the requirements of this paragraph are not met; instead, consideration will be given to loss of natural elbow or knee action.

(1) Anatomical loss or loss of use of both arms at a level or with complications, preventing natural elbow action with prosthesis in place;

(2) Anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance;

(3) Anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance;

(4) Anatomical loss of both eyes or blindness without light perception in both eyes.

That’s a pretty tough menu to order from so you can see most, if not all Veterans, are going to have to build this carefully in order not to arouse suspicion. Mark my words. I have a professional reputation and would never resort to illegal methods or chicanery to win my client’s claims. I proffer a good example in the Buie vs. Shinseki case. Jim Buie just happened to do what I do quite by accident. Or  vice versa.  I’ll swear I’m not bogarting his patented, proprietary technique but my actions probably do mimic what he set out to do. The major difference is I always aspire to R 1, not S.

If any of you read my most recent post on boosting the Donmeister up from L to M at his HLR, you’ll recall I filed him for MDD secondary to his blindness. Again, I’m not stretching the truth. I read his CAPRI/ VistA records and spotted the diagnosed disability. Don has 10% for tinnitus and 20% for DM II=30%- a wee bit short of the 60% I needed to get his SMC S. MDD was fair game so I took my best shot. I’ve had Donbo flashed for hardship ever since he went blind and the wife had to quit work and come home to take care of him. It’s still in the corporate flash file but I always seem to disremember to mention it to my CMA. It speeds things up like getting c&p exams expedited. So does being 85 or older.

Well, shut the front door. We got an honest QTC psychologist who didn’t mince words on the subject. She came up with some daisies of cites to psychological peer reviewed articles on the subject of horrible, life-altering injuries provoking deep depression. Whereupon she pronounced the Donster 100% damaged. I figured we’d end up doing a raise-and-call VA poker game over the next year from 30 to 50 to 70% but here they’ve handed Don the golden egg. Cool beans, huh?

If Don is 100% for his MDD alone, it’s a cakewalk to turn this into an additional A&A under  a SMC L because the depression is a mental disorder whereas the blindness is a Malaria-induced disease. Being totally zeroed out on the brainbox almost always implies a need for help- the aid and attendance of another. Basically, all this boils down to is you’re now about a VAF 21-2680 away from your private psychologist saying you cannot accomplish one or more of the activities of everyday living listed in §3.352(a). Who cares if the boxes checked on the 2680 duplicate  the same disabilities you claimed due to your blindness? In SMC land, you’re free to pyramid. The need is aid and attendance. Just because two separate disabilities provoke the need is immaterial. Take one away and you’d still need aid and attendance.

You can say ( or perhaps your psychologist can say) that your depression has destroyed your will to live. If your wife wasn’t shoving food down your gullet like a French goose soon to be pâté de fois gras, why, you’d dry up and die. Or you can’t see to eat your Thorazine or Metformin. Whatever. The point is, if you need aid and attendance, you get it if you get the magic 2680. 100% isn’t always the kicker either but it certainly will be instrumental if you have to appeal. If you got a 3 METS reading on your IHD under DC 7005, you’d need A&A for that too. Ditto a whopping big rating of Parkinson’s disabilities.

Now, in the instant case, because Don has been awarded SMC M for being so blind as to need A&A under §3.350(c)(1)(v), the additional award of 100% for the MDD allows the bump up of one full step from M to N. But here the party ends if you didn’t know any better. He can’t get a half step bump for anything and he’d still need to get a K in order to get the next bump following this path to get to SMC O. There, too. the party would end unless… well, unless we stir some more A&A into the mix.

The way to come at this is not get fixated on SMC N. As I said, it’s a hump rating. You’d never get there via amputations. It’s an anomaly. Go around it. Most of us who do this for a living (SMC law) get two A&As or one a&a and a loss of use of extremities. Here, in Don’s case, they’ve gift-wrapped a 100% rating for MDD without four years worth of theatrics. We can proceed apace to an amenable psychologist who will write a lovely IMO saying Don is irretrievably broken. And, just as Don’s SMC L magically transformed into a M and now an N, so too, will it metamorphose into an O and on to R1. That’s why I compare this to the Chutes and Ladders game. The master of this game once called it “the art of the possible”.

So here are the rating and the code sheet. But get this, the SMC calculator seems to have gone off the reservation again. Instead of the bump under §3.350(f)(4) up to SMC N, those silly raters have awarded him SMC S for having a 100% rating and now and an additional 60% or more. I can’t make this shit up. It’s worse than the blind leading the deaf. I was going to call it in or email the rater and point out the error as a CAR but I’ll wait and do it with an HLR next week. I wonder if they think SMC S is a greater award than N because it’s alphabetically higher…. Say it ain’t so, Denis.

redact MDD 100% 8.30.2022

redact Code Sheet 8.30.2022

And now you see that you can get to SMC N without cutting off a single thing. Look Ma. No prostheses. Who woulda thunk it? Today’s blog is brought to you by the letter N.

P.S. Happy Labor Day to you all. Let us all pray for the health of our Nation on this august occasion.

Posted in Independent Medical Opinions, KP Veterans, Nexus Information, SMC, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , | Leave a comment

FORT FUGETABOUTIT (HOUSTON)–A PAIR OF JEANS THAT FIT JUST RIGHT

Posted on September 2, 2022 by asknod

In 1973, I was unceremoniously evicted from the ranks of active military personnel. My crime? Why, being antisocial with passive aggressive tendencies. Since then, it’s metastasized. I have become social with active aggressive tendencies. This personality disorder pays off in winning VA claims for yourself and your buds. Good thing it didn’t mushroom into a full-blown psychosis like PTSD or something. Huh? Be that as it may, I will say having the VA rolodex of employees’ email comes in mighty handy when you can see the VA goombahs are ponydogging you.

The definition of ‘ponydog’ is a dog and pony show put on for your benefit to make it look like the VA’s busy little elves are hard at work on your claim(s). You receive oodles of mail telling you how busy they are. They send you VAF 21-4142s that ask you-  Johnny Vet – to give them permission to ask for your records. They will refuse to pay your provider for taking the time to reproduce them. If your provider wants a fee for this work, they’re done and out of there. No records and you think that box is checked. The form also instructs that filling it out and submitting it may add a year or more to your claim. So men, take heed. Reading the instructions on VA forms is de rigueur. I’ve walked point on this one already back in ’94. Bad idea. Go get the records yourself and send them in to Janesville, Cheeseconsin.

I’ve litigated a lot of claims with the Boys at the Puzzle Palace in Houston. Seems like virtually every time I get a client down in that neck of the woods, and file the POA, somebody from Fort What in the Name of Sam Houston reaches into the National Work Queue (NWQ) inbasket and grabs it out and starts working it themselves. They camp out on it. And boy howdy you don’t want that to happen to you unless… well, unless you have a VA rep with active aggressive tendencies that dwarf even theirs. I’m about as sociable as a Mary Kaye© cosmetics lady…with a black belt.

 

I suppress that rude, crude, unattractive, socially boorish part of my persona and put on the Johnny VSO hat. Remember? This is all about the Veteran, guys. It isn’t meant to be a trap for the unwary. The Boys in Houston just nod politely and deny with some of the craziest M 21 quotes. Well, that and a handful of 38 CFRs with no follow on. §3.350 can be a lot of different things depending on what subsection follows. It could be the difference between SMC S or T. VA ain’t telling.

Filing anything at Fort 362 to me is an act of faith. I bow my head and ask the Big Guy to grant me the patience not to use bad words or embarrass my fellow VA litigators. Golly gee, we don’t want to get a bad name and be called VA ambulance chasers by the DAV (again). So grab an IPA and some Do-ritos™ and listen to this one.

I wrote about Andy and his travails. Andy was Navy and had even reenlisted for the second 4 and was on his way when he came down with serious COPD. Asbestos anyone? They 86’d him with an honorable and he found himself unemployed. By 2008, he was 100% P&T for it. Then things really started going south medically. By the time he found me he was SMC S and Houston seemed awful bound and determined to keep him right there. No amount of reasoning with them worked. It was like Andy was a goldbrick, a malingerer, a charter member of the Food Giant© Slip-on-the-floor Club. In a word, trailer trash seeking a VA welfare handout.

I gave up and took him up to the BVA. In the meantime, I whipped out my patented attack operation. I filed him for  everything wrong with him. I filed him for increases to everything he was already rated for at less than 100%. The VLJ could see all this because it was back in Legacy times. Now, don’t get me wrong. Andy was no welfare queen. He was a legitimately entitled Vet who couldn’t get any traction in Houston. Just like most every other Vet I rep out of that VARO.

Winning at the BVA would be the end for most claims if the raters are intelligent and knowledgeable. But what do you do when you explain that they just gave your boy SMC L and overlooked his entitlement to M and they tell you to piss off and cancel the claim? And when you finally give up and CUE them by sticking their faces in it, you think they’ll finally get it. But nooooooooooooooo. They still screw it up and this time it backfired from SMC M into R1. That’s about a $4,000.00 dollar difference per month. I guess they were hoping maybe ol’ Andy might not be all that bright and see he got the brown end of the VA punji stick.

 

The biggest problem I see here right now-fully 28 days after the BVA decision- is that from reviewing the VBMS folder, a body can see they’re searching desperately through the old STRs and military personnel records looking for some UCMJ violation or willful misconduct like huffing spray paint propellant they can pin the COPD on and toss it for fraud. What the hell, over? Andy was clean as the driven snow. He didn’t even go on report for a messy bunk in 4 years. They searched from August 6th until August 29 and came up emptyhanded. The rater begrudgingly cut the paper and promptly decided that VA’s  Fiduciary Service needs to take a gander.

Holy shit Batman. Just imagine if you hand his wife that kind of folding money.  That’s a pretty tempting wad of baksheesh. Why, she might just toss being her husband’s caregiver and leave town with all the Moola and her new 21-year old personal fitness trainer. Seriously. Only in Houston, folks. When we finally got the last two snafus cleared up and all the retro in the bank, there was no talk of giving Mrs. Andy a Criminal Background Investigation. So why now, at the very end of our five-year tête à tête? R1 is the answer. Even though they’ve lost the battle, they can’t concede the error without inflicting more suffering. Keep looking for willful misconduct, fools.

redact R1 rating 8.30.22

Winning the R1 banana is not all its cracked up to be. Usually you are mega ill and, to put it mildly, not at the top of your game. The tradeoff is you finally don’t have to liquidate or give away all your possessions to go on the dole and Medicaid. Or (shudder) go to VA for “free” medical. It gives you more options.

I find it unconscionable how the delay actually can cost some Veterans another month’s 20% agent fee for the month beyond the BVA’s decision once entitlement to a claim is granted. Here, Andy “lucked out” inasmuch as the decision was cut on August 30th but he won’t see the check clear the bank for at least ten days from today. Maybe more when you consider Houston is ponydogging with all these holds.

 

I reckon there’s a special place in the inner rings of hell for scalawags who go out of their way to delay the inevitable or simply stall out of spite. I darn sure pray it isn’t because of me and my evil reputation as a litigator. At any rate, whatever the case, it’s the only VA poker game in town and I feel like I’m a card counter. It comes in handy.

Anyway, congratulations go out to Andy for finally winning the R1. He joins a rather rare club of other Veterans in the upper ranks of SMC. Considering how hard VA fights to fence us out of this entitlement, I’m surprised I haven’t gotten my ass kicked doing it yet. Win or Die, folks. As old Janis sang, “Freedom’s just another word for nothing left to lose.” Andy and his wife now have a pair of jeans that fits just right as the song goes.

 

Y’all come back now, hear? I’ll have another yarn here for you directly.

P.S. I was just apprised of the news that Ms. Jane Fonda has revealed she has non-Hodgkin’s lymphoma. I think I speak sincerely for all Vietnam Veterans when I say that we wish her a speedy recovery and complete remission. No hard feelings.

Posted in Aid and Attendance, SMC, Tips and Tricks, VA Agents, vARO Decisions, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , | 7 Comments

LINCOLN LOG SMC UPDATE

Posted on August 22, 2022 by asknod

Cupcake and I attended a soirée for a politician wannabe recently. A rude, pushy woman we know got in my face and asked my opinion á-propos  Roe versus Wade. Hoooooo, doggies. I thought for a few seconds and finally came up with what I was sure was not the correct, woke, transparent answer she sought. I said “Rowing is certainly faster assuming you’re talking about the Rio Grande- although global warming has certainly made wading possible judging from watching CBS.” I was rewarded with getting to witness  gin and tonic spilling all over her blouse and a few loud words of disagreement. Turns out she’s a teacher. I plumb disremembered that.

Being diagnosed with an antisocial personality disorder allows one to be opinionated in the New World Disorder without fear of recrimination. I recall a cocktail party back in 1983 at a very high end affair in Medina WA. After having been “outed” as a Vietnam Veteran inadvertently by an acquaintance, a similarly opinionated woman started spraying me with ETOH-laced spittle asking me how I could live with myself after  having killed all those poor women and children.  My rejoinder then was equally appalling- “Well, it’s actually quite simple. Since they can’t run as fast as men, you don’t have to lead them by as much.” Call it what you will, being passive aggressive serves its purpose. In sum, VA folks find me irritating.

I love to argue and Higher Level of Review (HLR) informal conferences give me a wonderful opportunity to quote real VA law -not made up M 21 drivel. There’s probably nothing more refreshing than demolishing  a poorly crafted denial based on defective legal reasoning. The latest foray is an example.

What disturbs me most is that all these rules are there for all to see. How you can misinterpret a regulation like §3.351(c)(3), which specifies that aid and attendance is available based solely on a factual need, but nevertheless in the same breath demand a Veteran have a 100% schedular rating/TDIU or a compendium of Parkinson’s conditions adding up to 100%  before meeting the M 21 super  requirement for aid and attendance?  HLR guardians of the VA fisc love to drag out their pet copy-and-paste phrases like…

“Also, Parkinson’s complications independently combine to a 100% evaluation. Therefore, veteran meets minimum requirement for aid and attendance per M 21-1 IV.ii 2.H.8.b.”

When I interrupt and ask what the supportive authority in CFR or USC is, I get the venerable 1000-yard deer in the headlights stare and a “Huh? Whadyamean? I’m not following you.” Thus, it’s rewarding to have a reviewer actually look up your reference to CFR and say ” Wow, I didn’t know that was in there. When did they add that?”

The truth is appalling. VA raters have no clue what they are about. They’re entirely dependent on a computer manual to instruct them on what (or how) they are to accomplish the simplest task. Worse, the manual changes about 135 times a year so it’s out of date in three, two one… Bingo. Why even waste your time printing it up if the next CAVC decision or OGC Precedential opinion will render it incorrect? It’s rumored in VA hallways that it takes three signatures to get clearance to go to the loo.

Now, let’s take it up a notch and talk about SMC. Before every HLR informal conference I hold with a reviewer, I ask them point blank if they consider themselves well-versed in the “art” of SMC. I’m not trying to embarrass them ahead of time. Perish the thought. I’m merely trying to gauge their level of knowledge. Considering it confused the bejesus out of me for 4 years, I can only imagine a VA rater’s comprehension skills if all they do is type in the diagnostic code and rely on what they see pop up. Besides, their ignorance becomes all too apparent once you get into the discussion. Most Reviewers are silent and and would have you believe they are there to absorb. Make them commit. Make them comment. Force them by baiting the hook… “Well, the Examiner denied and said it was because ____ but the rules are thus and so… based on §3.352. I didn’t write this. You guys demand Chevron deference so which is it? Does he have to have a total rating or can he simply demonstrate a factual need as the regulation requires? There simply can’t be two correct answers to this question. ”

Which brings us to the VA’s fabled “SMC Calculator Computer”. In VBMS, the document type is defined as “Rating Calculator worksheet”-e.g., a product of simple mechanical input.  Below is the attached calculator result on August 10 generated by the rating decision. Now, assuming it’s somehow tied into 38 CFR or 38 USC, the result should be an automatic SMC at the M rate under §3.350(c)(1)(v)-“Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance.” I mean, they’ve now granted the SMC at the L rate under §3.350(b)(3) for a&a. Because SMC is so convoluted, Akles precedence demands  investigation of ancillary entitlements.  Seems it would just require pushing “print” to get the correct answer. So how could it give you an incorrect lowball of SMC L unless… unless… it’s rigged.

The reason we know this is when Don’s original RD came out granting only 90% with that patented Get Smart Agent 86 phrase “Missed it (a&a for blindness) by that much, Don.”, That same SMC Calculator gave him an automobile allowance of $20,773.00 but no SAH (Specially Adapted Housing) grant for $101,800.00-but it did when I reminded them they forgot it at the first HLR for a&a. This ‘computer’ is nothing more than a fig newton of the imagination. It’s on a par with the one the Wizard of Oz was operating behind the curtain. Fool’s gold. Three-card Monte. Or, I reckon if it really is a VA computer, then it’s to be expected that it’s going to lowball you and have an error rate around 74% as the CAVC observed over a decade ago. Move along folks. This isn’t the droid you’re looking for.

But somehow, the calculator above chose to lowball the Donbo and only granted SMC L. Only after I filed the 996 HLR and accosted the booth lady a second time, did the magic SMC calculator change and disgorge a SMC M. Seems to me it required a subtle nudge by a warm living being’s digits to get it to do that. The question remains why if it’s all automatic. Obviously, there’s nothing automatic about SMC. You get the correct rating using the AMA HLR cattle prod.

What’s even more amazing is that they went dumpster diving into §3.350(f)(2)(i) and excavated a rating for SMC L 1/2 (LB-2) and attempt to say the Donster is also entitled to it as well. It’s still lower than M so why even go there? Even they must be able to gather it might be pyramiding to offer it.

Now, let me say I’m not a misogynist nor do I hold women in low regard (with the possible exception of my ex-wife). Quite the contrary, I was taught to walk on the outside when escorting women to protect them from errant vehicles. I was taught to open doors, allowing them to go first and help  seat them at supper. I’m sure there are about another gazillion rules but I wish to convey that I was raised properly. With all that said, I find it interesting that I’ve had a mess of HLRs and every last one was held by a woman. Whoa. I guess I better back that boat back up to the dock and say that it appeared, based on my auditory input, that the HLR conferences were conducted by folks who had a higher vocal tone that led me to believe they were of the female persuasion. It could be that they weren’t. Could be they metamorphosed. I didn’t check or ask for their pronouns. Most all of them give me their first names only. I have to go into VBMS notes to find out their name rank and airspeed.

But… wait for it. If you so choose, you can ask to have your pronouns listed with your VA Outlook email address in VBMS. Boy howdy we sure wouldn’t want anyone using the wrong pronouns once they’ve been put on notice. We don’t even want to go there.

So, without creating further uproar, here’s the latest financial upgrade for the Donmeister to SMC M. It’s temporary as I’ve already filed him for MDD secondary to his blindness. I’m determined to get him to R1 and the way I see it, he needs help taking his meds because a) he can’t see them and b) his depression causes him to forget to take them. Bingo. That’s the factual need for a&a all over again. SMC Lincoln logs, folks. Easy to assemble. We call it VA Poker. Read ’em and weep.

redact SMC M RD 8.22.2022

SMC is an art form. You have to think in color rather than rely on black and white. You have to have vision to “see” the entitlement. You have to have never been taught law and be a country bumpkin like me with no JD to even think you can attempt this-let alone hornswoggle them into giving it to your clients. A large dose of antisocial personality helps, too. Remember, back in 1994, VA told me I’d never been in Vietnam and to go engage in flying intercourse at a rolling donut. A Veteran doesn’t forget combat. A Veteran doesn’t forget those he left behind. I don’t get mad anymore. I get even. Hence my Win or  Die™ sentiments about VA claims and appeals. VA law tends to separate the ribbon clerks from the poker players.

To those of you who litigate for a living, I strongly suggest utilizing the HLR platform more frequently. I know some, if not most of you, feel it’s akin to pissing on a flat rock and getting your shoes wet. Might I suggest filing 996s with no legal brief to illuminate the error you hope to reverse or revise? Keep them in the dark about why it is you object and on what grounds. Don’t even allow them to do their homework and assemble a punch list of M 21 cites to defeat your argument beforehand. I’m batting .1000 using this new ploy.

Welcome to the SMC club, Don. It’s a very small club and I aim to increase the membership rolls with many many more of you-the good Lord willing and the creeks don’t rise…

 

 

Posted in Aid and Attendance, All about Veterans, Higher Level of Review (HLR), KP Veterans, SMC, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , | 5 Comments

LINCOLN LOG SMC-PREPARE THE PUNJI PIT

Posted on August 16, 2022 by asknod

Some litigators are recalcitrant to reveal their techniques for getting from A to B. I don’t feel that way. This is a true Do-It-Yourself (DIY) site. I don’t have time to do every claim that comes through the door. If I find a better path or a superior shortcut, I don’t mind sharing it. No pay walls to get to see what’s behind Door #3. It’s Monty’s Cookie Jar every day of the week here at asknod. What’s better, we use live ammunition. I show you the latest successes for a reason. If I, a chucklehead who graduated 59th in a class of 64, can win these, imagine what you could do. 

But before I dive in, I want to share a failure. Sadly, today, I had to refuse to represent a Vet who really needs it. That hurts. It’s a rare thing to leave a fellow Vet behind. I wish it could be fixed. I had referred him to another Agent whom I trust and respect only to find out he didn’t feel the other Agent was “committed” enough to measure up. So he ‘let him go’ and came back asking me to rep him. I understand that MDD and it’s many iterations can wreak havoc in a body’s mind. Boy howdy, I’m no stranger to that. The problem begins when you let that little guy upstairs in your noggin run the show and destroy what others are doing to improve your financial future. Finding a high-calibre rainmaker is often 80% of winning. The only remaining task is patience, a shit ton of electrons, some VA forms and a private IMO. Stir, fold in the supplemental IMO after the denial, bake in a slow VA oven at 300° for 125 days and serve with champagne. My concern is I would be the next casualty of this and have wasted my time trying.

Firing said rainmaker just as he gets your file set up and begins to dumpster dive into your VBMS e folder all the way back to 2003 is counterproductive to winning. The whole idea is that you’ve spent X long years trying to accomplish this and failed.  If you’ve actually found a law firm willing to rep you, statistically you are already a chicken dinner winner.  Why wouldn’t you let an expert fix it with a proven technique? Sadly, that little man gets in the way and tells you your lawdog isn’t on it 9-5 M-F and he isn’t earning his paycheck.

This isn’t the first time I’ve seen this  self-destructive rep-shopping phenomenon. The horrible downside is that if you’re lucky enough the lasso a new rep, he’s going to see the trail of lawyer detritus in the efolder. Every rep you fire leaves documents in the file-be it a DAV VSO or a big outfit like Bergmann and Moore etc. When your FNG law dog gains access, he’s going to get skittish and most will pull the plug right then and there and say thanks but no thanks.

What’s worse, if you manage to win, you may have three law offices arguing over the 20% winnings. The VA’s OGC will wrap that puppy up tighter than a tinfoil ball and it may take four years or more to get it sorted. Why tie up resources for years and only get a 1/3 of the pie? Law dogs have bills to pay. If you show up with a Hansel and Gretel trail of 22a breadcrumbs, you’re gonna get treated like a leper.

But let’s talk Lincoln Log claims for SMC. I started fresh with Don. A clean slate is the best. The water isn’t all muddy and stirred up with confusion. I filed a brand new 526 pre-AMA even though he’d filed back in ’08 for detached retina due to Malaria. He was on the right track but his DAV rep had never gotten the email on Caluza/Hickson/Shedden. And, like millions of Vets before him, he got the bum’s rush. I planned for this and promptly obtained an IMO. Sensing another denial at the local Fort Forgetaboutit, I filed it at  the BVA. Just about that time the AMA kicked in and everything was in a state of confusion. The BVA, now in AMA mode, promptly found a ‘duty to assist’ violation and remanded  him back here to Seattle for another c&p… with an uncontested IMO.

This time, the optometrist saw the ophthalmologist’s IMO and the white wall of doctors kicked in. We won. Not to be defeated, VA got a bogus c&p nurse to opine that he wasn’t totally blind-just 90%. Boom. There went SMC L for A&A. Or so the raters thought. I ordered up a HLR and pointed out nobody had even discussed sending this back for extraschedular consideration to the Director of Comp and Pen. Whoosh. Off  to DC for a 3 month summer  delay.

Since it’s pretty hard to see your eyedrops bottle-let alone the eye dropper to put them in, or fry bacon and eggs in the morning without burning the house down, the Poohbahs agreed the Donbo deserved A&A. But… here’s the SMC trick. I’d simply asked for A&A under §3.350(b)(3) based on the need for A&A-not on §3.350(b)(2) for being so blind you can only figure out if it’s AM or PM. And here’s why. As most know, in order to get a bump up from L to M, you normally need a spare 100% rating for a separate and distinct disability. But read §3.350(c)(1)(v) more closely et voilà-

(c) Ratings under 38 U.S.C. 1114(m).

(1) The special monthly compensation provided by 38 U.S.C. 1114(m) is payable for any of the following conditions:

(v) Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance.

You’d never be able to hornswoggle the ratings pukes to cough up the SMC M right off the bat. They’re too niggardly to even consider it. No way. You lead them into the ol’ asknod punji pit and let them step in.

You ask for a&a because it’s their next logical step. Since they can’t figure out SMC any better than Homer’s monkey Mojo, they auto default to §3.350(b)(3) for a&a because that’s what you asked for. Once it’s granted, it’s a finding of fact. The Donmeister needs a&a. Give that man an L. Nobody bothers to read the small print under M. They only think of that as a possible bump under §3.350(f)(4) or based on one of these scenarios:

(i) Anatomical loss or loss of use of both hands;

(ii) Anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place;

(iii) Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place;

(iv) Blindness in both eyes having only light perception

Remember our good friend §3.103–it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3. And that includes SMC.

VA’s SMC Calculator is a hoot. You virtually have to enter all the parameters into it and even then it “autocorrects” to ignore 38 CFR. It only obeys the dictates of the M 21. Therein lies the 85% error rate in VA SMC adjudications.

So, here’s the extraschedular rating for SMC L a&a all the way back to the original 526 filing. Below it is my shiny new HLR claim for SMC M. I can’t wait to see how they’ll try to squirm out of it. I expect some inane logic like “Well, Mr. Graham. Obviously you’re not very well acquainted with SMC or you would have known the Donster is only 90% and you’d have to be 100% schedular to qualify for SMC M. Mr. Don only has a 20% for DM II and a 10 for golden ear ring so he doesn’t qualify even if you added them all up together. We oh-so-wished we could give him the M but our hands are tied.” Bullshit. The truth is they don’t even know the reg exists. They just make this shit up as they go along.

redact10.29.21 RD

Redact a&a denial

Redact SMC L RD 8.10.22

redact HLR M filed

Never tip your hand and show your cards to VA. Litigate in bits and pieces. That’s the new AMA technique. Everything must be digestible and cut into little claims pieces. Seems at present, it requires ten c&ps just to make sure. If it’s a shit ton of money, it’ll take 20 c&ps in a desperate effort to make an end run around Mariano v Principi and deny.

I look forward to sharing the SMC M award with the readership. Now, here’s another sparring technique. I just filed him for MDD secondary to his blindness. I’m not poking holes in the dark. It’s in his records. I just plan on building a new SMC separate and distinct for another a&a and his eventual increase to SMC O and R1. Lincoln Logs, folks. Think SMC Lincoln Logs all the time.

P.S. A wonderful Higher Level  of Review Officer called me this morning and asked to schedule an Informal conference. Since my argument for SMC M rests on law and not the facts of the case, I asked to conduct the Informal conference right then and there. She readily conceded error and agreed to get it revised to comport with law. And just like that, ol’ Donbo became entitled to SMC at the M rate all the way back to 10/2018… for the moment. This is how the system should work in a more perfect world.

a

Posted in Aid and Attendance, All about Veterans, HISA Grants, KP Veterans, SMC, VA Agents, VBMS Tricks | Tagged , , , , , , , , , , , , , | 3 Comments

PREGNANCY AND EXERCISE

Posted on August 8, 2022 by asknod

So, a Vet and his preggers wife go in for the pre-birth briefing on staying healthy and getting ready for the big day. The room is full of other husbands who have accompanied their wives….

Instructor: ” Good morning.  First, I’d like to share this with you soon-to-be mothers. Remember that exercise is good for you. Walking is especially beneficial. It strengthens the pelvic muscles and will make delivery that much easier. Be sure to pace yourself. I’d suggest making plenty of stops and trying, if possible, to stay on a soft surface like grass or a path.”

Gentlemen, remember -you’re a big part of this, too. You’re in this together. It probably  wouldn’t hurt you to go walking with her. In fact, that shared experience can be very emotionally rewarding for the two of you.”

The room suddenly became very quiet as the men absorbed this information. After a few moments, the Vet at the back of the room, slowly raised his hand.

“Yes?” said the instructor.

“I was just wondering if it would be all right if she carries a golf bag while we walk?”

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

BVA–(I CAN’T GET NO) SATISFACTON

Posted on August 5, 2022 by asknod

Have you ever had a claim go sideways over and over again ad nauseum? Hell, of course you have if it was the VA. Remember how they get to ‘construe’ what they think it is you’re asking for? Now imagine the intricate, convoluted rules of Special Monthly Compensation (SMC) that Johnny Vet tries to digest to no avail. Most use a VSO and file for SMC with little or no knowledge of what it is and the VSO promptly says “you can’t get there from here. You’re already 100% dummy.” He refiles on his own and they say “You’re not eligible.” They don’t explain what it is you need or what they would do in your shoes. You just get the wave off, go around again and keep turning left on final over and over until you hit Bingo and crash. And then you find me. 

I’m not one for blowing smoke. I don’t promise miracles. I promise justice. And most times, I eventually prevail without going up to the CAVC. Oddly, I’m still batting .1000 on everything I’ve ever touched. This is a case that exemplifies the old adage of ‘If at first you don’t succeed, try, try, again.’ I’d have to count how many times I tried to beat 38 CFR §3.350(e)(1)(ii) into some Houston RO Coach’s noggin to no avail. Trust me when I say this one took from late Fall 2017 until this morning.

Nasty, racist Veterans

Andy came to me via Hadit.com. I used to post advice on SMC there but that ol’ VA IMO shitlist I published cast a pall on their favorite go-to Doctor for IMOs. You know the one. His initials are CB and you’d remember him if you ever hired him. Apparently he’s on the bad boy list. From talking to BVA VLJs over the years at conferences, he’s considered suspect as to his “independent” opinions. Hadit used to be a red hot Forum back in the day but unfortunately the inmates have taken over the asylum and frequently offer atrocious advice to the detriment of those who seek it. But this isn’t about Hadit or casting aspersions on folks.

Andy was unique. He had a longstanding 100% schedular for  COPD (2008) and enough secondaries to run on to 8 sheets of paper on his Code rating sheet. Seriously. Talk about  a frequent filer. He wasn’t throwing claims spaghetti at the wall hoping something would stick. He was sinking slowly like the Titanic and VA wasn’t even listening. All those extra 10%s  they threw at him were merely to placate him. Eventually they toted up to enough to get to SMC S but it was obvious he deserved far more. SMC L would have been the very least award he was entitled to but Houston drives a hard bargain. No matter what he had wrong, he was stuck. And then they began lying about SMC. So he called me.

I immediately filed him specifically for the A&A due solely to all the stuff he was already rated for-the COPD being the ‘anchor’ for his A&A entitlement. VA contended all his ratings were being “used” to obtain SMC S so no dice. Huh? Seeing the spaghetti sliding off the wall and sinking down to the floor, I went up to the BVA and won it there. When it came back for the rating in Houston, they again dumped everything into one basket and said the BVA ordered them to do it that way. No bump up from SMC L to L 1/2 (or M) was available because the 60% for diabetes was being “used” to support the SMC L. But what they neglected to say was that his COPD was part and parcel of the A&A-just the DM II, the major neurocognitive disorder and the PN in all four extremities. That was the biggest financial mistake they’ll probably ever make. Shoot. Maybe not.

Now, if any of you have ever heard of Turco v. Brown or Prejean v. West, you’d know you only need one (1) item in the §3.352(a) laundry list to win A&A. Additionally, you don’t even need a solid 100% schedular rating to queue up in the A&A line for it. VA’s M 21 argues otherwise- especially at the Houston Puzzle Palace. More importantly, if a Doctor fills out a VAF 21-2680 saying you can’t accomplish one of those items in §3.352(a), and you demonstrate a factual need for A&A under the auspices of §3.351(c)(3), then you get it. Well, everywhere except Houston (or St. Pete or Seattle) or any of the other Fort Fumbles across the VA’s fruity plains for that matter.

The actual truth is scary. You can get A&A for a Vet with only a 40% rating and TDIU. I know. I’ve done it. It’s called an extraschedular consideration and requires sending it back to the Director of Comp and Pen for his personal imprimatur. That admittedly is the hardest way but a stellar example of the fact that what VA spews out as regulation is a bunch of hooey. They just make this shit up and insert it into rating decisions as far as I can tell.

So, try as I might, I couldn’t get Houston to budge on the §3.350(f)(4) bump from SMC L to M based on Andy’s extra 100% for COPD. They went sideways and said it was … wait for it… being used to support the A&A. But that’s not what the rating decision said after the BVA win for A&A. So I filed a CUE in August 2021 after failing to get any traction. Bingo! On Aug. 27, ’21, almost a full seventeen months after the SMC L win, the Houston overlords agreed with me and said by golly wolly they were wrong. Here’s your SMC M. And, because we stepped on our necktie, we’re even going to grant the SMC L for the A&A  back six months to February 2018 because that’s the day you filed your ITF (intent to file).

Unfortunately, some folks don’t examine their handiwork before they push print. Andy was only 50% for bent brain on February 12, `18. He would not get a 100% schedular until August 23, ’18 and VA had just  awarded the A&A back to a date where he couldn’t qualify unless… well, unless they substituted the 100% COPD as the ‘hook’ for A&A. But they didn’t. They incorrectly insisted he was 100% for bent brain on February 12th.  I filed a VAF 20-0996 HLR a week later and pointed out this impossibility to the HLR reviewer.

It didn’t faze her one iota. Let me give you an idea how stupid she was. She revised the rationale for the A&A from the bent brain disability and blithely substituted the COPD. And just for shits and grins, threw in the DM II on top to fat it up. But, being paralyzed from the neck up, she decided to throw in a phrase that wrecked all her illicit handiwork. She stated that now the COPD with DMII-without even considering the bent brain– was the predicate for A&A. Ruh oh Rorge. All of a sudden we had two A&As on the table. Houston, however, couldn’t ‘see’ it. I reckon they’re gonna have 20/20 vision here directly. Somebody there has to write up the New Testament according to St. VLJ.

When VA grants something, it’s akin to pulling the pin on a M 26 and hucking it. You can’t run out there, grab it, stick the bail back on it and reinsert the pin. Prussic acid is very corrosive along about that time. Sure, VA can call CUE on themselves and revise a decision. What they can’t do is rearrange it and change it over and over until they get it right. It’s cast in stone. They gave him A&A on March 4, 2020 because “the BVA said to”. When I called them on the error to award the SMC M, all they had to do was grant it. By going back and granting a new effective date unsupported by a total rating for bent brain, they were “re-CUEing” themselves without calling a CUE. That’s a Bozo no-no in forty nine states. Once you grant something, it’s a done deal-assuming arguendo you didn’t lie, cheat or steal to get it.

Silence is golden

Try as I might, I could not pound that rationale into the Houston raters’ noggins. They just kept coming back with that inane argument that all the shit had been used up – ergo there weren’t two A&As. Besides, in VA land 2 A&As is an impossibility- kinda like pots of gold at the ends of rainbows and unicorns.

 

By now, I had two BVA appeals in the pipeline. One was for the L 1/2 because by moving back the award date, it pushed him into §3.350(f)(3) for a half step bump. But no, the extra 50% disability was being used for… yep… the A&A. It was like arguing the Earth was flat as far as they were concerned. Besides, by now they were laughing their asses off and just kept denying each filing attempt I made at logic and reading the regulation correctly faster than I could get them CEST’d (CEST is a VA acronym for Claim Established) in VBMS. Their personal best was a filing on 12/10/’21 denied on 12/15/’21.

What’s a litigator to do? Why, write a Gutenberg Bible explaining it to the BVA Veterans Law Judge (VLJ). We’re taught to write as short a legal brief as we can to argue our case. Loquacious, redundant briefs are frowned upon. Nevertheless, it took me no less than 16 pages just to convey how ignorant these folks were. Apparently it worked. Check it out.

Redact NOD legal brief

redact R1

Last night I discovered that the BVA had shitcanned one of my NODs. This morning I discovered they’d rolled it all into the other one. I disagree that they were duplicative but why protest. I had already begun typing up  a revised NOD last night and was about 8 pages into it. But it was all wasted effort. After I got my ears lowered at the local beauty salon this AM, I came home, sat down and pulled up VBMS. There, in all its splendor was Andy’s shiny new R1 in his e file. Much ado about nothing. Andy and his wife were tickled pink, too, by the way. Check out the last paragraph on page 4 where the VLJ informs the reader that Houston’s finest are laboring under an M 21 misconception. Say it ain’t so, Denis.

Crew Chief Down!

I don’t reckon I can convey how much I enjoy fixing broken claims. I consider it an honor to bring justice to a Vet. With SMC at the higher levels, the monetary remuneration after 4 years is often over six figures. That’s a mega life game changer for virtually every Vet I represent. Oddly, I’ve never met any filthy rich clients. Virtually every one is in danger of having a mobile zip code under an overpass or  knocking on Heaven’s door.  Thank you Andy for entrusting your legal woes to me. I’m just pissed that VA caused you to wait four years for justice. That was uncalled for. And that’s all I’m going to say about that.

Posted in Aid and Attendance, All about Veterans, BvA Decisions, Earlier Effective dates, R1/R2, SMC, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , | 3 Comments

OUR NEW VA PACT ACT AND THAT PESKY PROBLEM AT THE BVA

Posted on August 4, 2022 by asknod

Wowser. Congress finally got it sorted. I’m not completely impressed or floored just yet. What’s certain is that, as usual, in a few short years, we’ll find out what was left out, deliberately ignored or never contemplated when mapping out this juggernaut. Just as we’ve discovered the magic AMA isn’t even touching the backlog problem as promised, we always discover some boneheaded “assumption” upon which billions were bet. Kinda like that intractable Oracle/Millennium Cerner EHR medical computer at $16 Bil and counting. I’m betting Congress will shoot out the tires along about when it hits $25 Bil and they can’t figure out why it’s still killing Vets. Please, Congressman Tarkano. Just another $10 bil. We’re almost there. 

 

What’s in this pork barrel? Lots of stuff I don’t think belongs and lots that’s way overdue. Vietnam Vets got Hypertension (HTN) and monoclonal gammopathy (MGUS). That’s a nightmare in its own right brewing. VA will now have to go back and find every one of us Vietnam Vets who put in for HTN secondary to DM II or IHD. Believe me. They’ll take about 15% or the raters off the normal flow of intake for new claims and devote them to this alone. Expect one-year delays as in the days of old when there was one line VA examiner for every 200 ready for decision claims. If it’s one for a 0%, add a year. Chances are most of the HTN and MGUS stuff will come back as a 0% and require a new supplemental to get a legitimate rating. Many trees will be cut down and pulped to feed this endeavor.

To me, the big win is for us Thailand/Laos/ Cambodian/Anderson Island/ Johnston Atoll folks. Again, the number of claims denied which , incidentally can fall under the auspices of §3.816(c) assuming the Vet is savvy, is also staggering to even consider. On top of that will be the tsunami of follow on Vets queuing up to file tomorrow thus ensuring an earlier effective date.

Once again, they are going to somehow phase this entitlement in gradually so as not to bankrupt the US treasury. Whoops. Too late. That happened when they started shoving IOUs in the Social Security lockbox. Veterans of all war eras are going to get more compensation for legitimate diseases. The wonder of all this is why it took so long. No wonder, this. It’s all about money. Your tax dollars are needed for the National Institutes of Health to send to China to support research into bioweapons like COVID. We have to install ecotoilets in Yosemite that are earth friendly… but have no $ for Veterans.

I have a theory on how to ensure world peace. Henceforth, when we opt to go to war anywhere, we should be forced to set aside X $ for VA to fix the injured folks. I’m guessing no one in Congress would have the stomach for erasing a $52 billion initial outlay on some boondoggle in East Bumfork Egypt and penciling in $350-$? billion in the appropriations guestimate blank. Well, it might give them pause. Maybe not considering Speaker Pelosi just landed in Taipei after flipping off the Mig 29 pilots flying off her right wing. Gotta hand it to her. That takes balls.

But now I wish to address what’s afoot at the BVA. The advent of the AMA was promised to cure the backlog at all venues – be it the AOJ (Agency of Original Jurisdiction) aka the VARO or our friendly Veterans Service Center (VSC) or the Board of Veterans Appeals (BVA). Misjudged they did. Yesssssssss. No pun intended.  When it became apparent that an inordinate number of Veterans were not going to piss on the fire and go home, they were dumbfounded. Apparently, the new AMA maze wasn’t confusing enough. More and more Vets opted in and appealed to the BVA in spite of what the BVA Poohbahs were told. This stampede toward justice meant they needed more Veterans Law Judges (VLJs). Finding attorneys who understand or practice VA law is dicey. Most potential candidates come from within the pool of VA’s staff attorneys at the BVA itself. Some (very few) come from the ranks of us who do this for a living. Regardless, you have to know that VA law is to Law as Military music is to Music. It’s two entirely different venues. Having a shiny Juris Doctorate and applying for a VA attorney job means a solid year of grueling indoctrination in just the basics without dwelling on the intricacies of CUE, SMC and §3.156(c).

So, without mentioning any actual names, the BVA chairman of the Board opted to hire unschooled, FNG JDs with nary an ounce of VA legal knowledge. Well, as anyone can tell you, when this happens at the XYZ Mousetrap company, you have to teach the FNG the proper way to build one and how to operate the machinery. After about six months, he graduates from Padewan to Moustrap Journeyman and can work unsupervised. Nevertheless, it requires taking someone out of production to teach him. In a nutshell, that’s is what has transpired at the BVA. They’re so busy training new VLJs, they have fewer warm bodies to operate the production line. Prying a decision out of them is becoming more and more time consuming to put it politely.

Chisholm, Chisholm and Kilpatrick (CCK) recently filed a petition in U.S. District Court to complain about this and argue the AMA never legislated permission to do what they’re doing at the BVA re Legacy versus the newer AMA appeals. The backlog of Legacy appeals was supposed to have been done by now yet they still remain embedded at the BVA like cockroaches. The AMA work seems to have taken precedence. Worse, these are two different systems with two different sets of regulations. Imagine training judges on a system that will soon be obsolete. You or I could come up with a better game plan. Hell, Homer’s monkey Mojo could, too.

Last night I received a copy of a letter an unknown number of VLJs penned to enlighten Mr. Chisholm on just why there’s such a problem at the BVA. Since I know very few VLJs both past and present and rarely meet new ones now, I can only venture a guess as to how many signed it.  Probably every one of the overworked, underpaid and ignored VLJs is my guess. Take a gander:

Concerned-Judges-Letter_final1_stripped

That’s the latest roundup of the VA News. You may discover I take a different slant on reporting it compared to other Vets help sites. That’s because I don’t have a filter. I’m sorry if it conflicts with your reality in doing VA claims. I litigate to win and I don’t settle for the 10% lowballs VA hands out. Since no one taught me how to do this, I get to stumble around and act uncouth. It works.

Posted in BvA Decisions, BVA Hearings, vA news, Veterans Law | Tagged , , , , , , , , , | 14 Comments