Imagine suffering from Diabetes with severe peripheral neuropathy. Now, supersize that with advanced Parkinson’s and a full load out of the symptomatology. You’re not a doctor so you file for loss of use of your upper and lower extremities. Does it really matter which of these disease processes (or both) is/are responsible for the loss of use of all four extremities if you’re service-connected for both? Well, I sure wouldn’t have thought so up to now. VA has, despite my best efforts, tried their damnedest to put a fork in this ol’ boy but this ain’t my first rodeo. Most Veterans, acting pro se, would either give up or seriously contemplate sucking on a lead lollipop. Shoot. I might.
The only problem with that would be screwing the better half out of her DIC- which isn’t even an option. So you’re caught in this Orwellian Mobius loop of being so disabled with diseases that are rated using the same diagnostic code simply because they are analogous to the “disease process”. I speak of the conundrum of 38 CFR § 4.119 DC 7913 using the same peripheral nerve impairment ratings listed in §4.124a- to wit: usually 8515 (upper) and 8520 (lower) for Parkinson’s Disease under DC 8004.
Just for shits and grins, what do you think VA would do in this predicament? Why, give him SC under DC 8514 for the upper extremities with a 70% bilaterally at first before I began talking loss of use. Suddenly he got better and they tried their new ‘nothing is everything” bait and switch ratings game. They gave him 100 for bent brain but began chipping away at the extremities to make them appear better. They reduced him to a paltry 30% bilaterally and reduced the Parkinson’s balance issue under DC 6204 from 70% to 30%. Then bump up the DM II from 10 to 20%, increase the incontinence and constipation a dime each, and make it look like you’re only moderately screwed up physically and actually getting better. Loss of use? Not hardly.
Lastly, since you’re 40% for diabetic neuropathy under DC 8520 bilaterally, and that might make it look like you’re losing your use of your lower extremities, they reduce each to 20% because everyone knows PN gets better. In fact, so does Parkinson’s according to these guys. Oh yeah, and to cover their naked asses – they have the balls to invite a new claim for diabetes increase which they just reduced.
Of course, you’re not any closer to getting to what you filed for-the loss of use of the extremities (either upper or lower) because it would be pyramiding to grant both ratings reflecting the inability to ambulate or button a sweater. So what’s a Veteran to do? Well, keep going to a c&p until you hit the chicken dinner winner. Actually, this was the last straw. I’d planned to go get an IMO saying Dave was hors de combat based on the medical evidence of record but we decided to cross the T’s and dot the I’s by asking for an HLR for one last stab at it. It looks better when you go up to the BVA and show you at least tried to get them to see reason. This can actually be a moneysaver in some cases. Not all Vets are well-heeled and could be they don’t have a couple spare Grover Cleveland coupons lying around.
What concerned me on this case was the obvious pushback after I began talking about loss of use. My backup plan on this one after I got the first SMC L-any SMC L- was another a&a for his mental decline. That fills out two SMC Ls and creates the entitlement to SMC O and thence automatically to R1. Since Parkinson’s is a neurological disease, it is separate and distinct from a mental disease secondary to it. MDD is rated under §4.130 DCs 9201-9440 which is a mental disease. Yep. 31 flavors just like an ice creme parlor. But here again, VA gets the willies and starts calling it pyramiding. Or better yet, they say it’s impossible to separate the neuro stuff from the psychiatric symptomatology. That’s just hogwash and VA’s way of lowballing you.
In the world of VA medicine, they get first shot at deciding whether you actually get to make the jump from DC 8514 up to DC 5109 (loss of use of hands) or, increase from DC 8520 to 5110 (loss of use of feet). Once they deny, you’re free to obtain an IMO saying you have loss of use-but not before. You’ll see this same phenomenon for PTSD or MDD. You cannot just file a claim with your own independent medical opinion (IMO) that you’re bugf*cky in the head. You file and go to a VA c&p where they diagnose you with PTSD or MDD… but then say it has nothing to do with the night the OPFOR (Operational Forces in wokespeak) overran the ammo dump at An Khe and bayoneted your BFF right beside you. Only then after the bitchslap denial can you go get your own magic paper and file your 995 supplemental.
Filing claims at VA is not an art form but filing them in the correct order is. That’s why we call this VA poker. You ante up, VA raises with a denial, you get an IMO and they deny again. You go up to the BVA on appeal and win. You win and it comes back down to the local Fort Fumble where they give you a 0% rating. Then you start all over. Lather, rinse. repeat. Smart Vets will get their IMO doctor to list just exactly how bugf*cky they are from the git go so they don’t have to keep making the pilgrimage back up to Washington DC.
I recognize time is our enemy. I want to get my Vets a win as fast as I can. With the new AMA, it actually is faster to get all these wins down at the local level whenever possible. Save the BVA appeal for the really difficult ones like OSA secondary to PTSD. In Dave’s case, the fact that he is obviously impaired in walking is obvious. And when you have to bend a spoon in a circle and wear it like a ring to keep your peas or corn onboard, then chances are the tremors have created loss of use of the uppers, too.
I filed a CUE claim on this conundrum shit where VA says ‘Sorry. Take your pick. Either you have loss of use of the extremities due solely to Parkinson’s or you have loss of use due to the Diabetes residuals. You can’t have both because that would be pyramiding.’ It may go to the BVA on appeal but I went down for double and also continued to fight the original claim with an HLR review. This way you can have two fishing poles in the water at the same time. If they don’t get that subtle reminder that the chances of you going away empty-handed are about the same as winning the Powerball lotto, then they never will. Most cases I work are for the highest ratings of SMC. Newsflash. I don’t go away. I’m like a bad habit and just keep punching paper at them until they scream ‘Uncle’.
In the new AMA venue, winning often comes down to how earnest you are. I’m discovering that VA personnel are beginning to recognize my name popping up at the DROCs weekly on new HLRs. I know this flies in the face of established advice on how to litigate. If I’d been namby pamby on my own claims and followed my VSO’s advice in ’94, I’d probably still be at 10%. By going on the offensive over and over and inundating them with incessant claims for everything you can imagine, it seems to make them more receptive to trying to grant and getting me out of their inboxes.
I’m beginning to see a clear phenomenon of a grant for a&a but a denial of the bigger R1 or SMC T awards. Kinda like 2nd or third Prize. They know they’ll lose eventually so why not do the knick knack paddy whack- give the Vet a bone. What is this crap of seeing if you can roll him on the big shit. At that point, I piss on the fire and call in the dogs.
Here’s a classic example. I filed Dave for loss of use of upper and lower. VA denies. I come back around and file him for every little Parkinson’s secondary you can dream up. They won’t even consider SMC S. They feel we need to have a 100% or TDIU rating in order to grant a&a. So they bump up Dave to 100 just for the mental and give him SMC L for a&a. But they give him the most bodaceous haircut for all his Pakinson’s and DM II ratings. Bam. We go get more ammo from the neurodoc he sees and get a prescription for ankle foot orthotics (AFOs)- those gomer devices to keep you feet from dragging when you walk. We double down and refile for increase on constipation and alien abduction causing incontinence. Aphonia. sagging face muscles. Ad nauseum.
Then we do the HLR and point out the obvious-Parkinson’s doesn’t get better. Neither does DM II unless you forever cease and desist from dining at Micky D’s and go on a mega-serious diet to get your BMI down to 26. About this time the hired c&p clinician(s) can’t help but notice some of these VA shenanigans where they say you’re cleared in hot for the Boston Marathon with your AFOs. At some point, they have to man up and get a case of the morals and acknowledge you are not long for this world.
David will win. I know that. He knows that. No less than 30 Coaches, Asst. Coaches, Senior Quality Control RVSRs, DRO reviewers and a few hundred VSRs have gotten writer’s cramp asking for clarification opinions, supplemental medical opinions and requests to discern how much of which disease actually caused this “condition” of loss of use and when did it begin. This claim is more well-traveled than Voyager I. They miss the point. It’s immaterial which one causes it. The consideration is always ‘does he have loss of use?’ There simply is no follow on of “due to his SC diabetes or Parkinsson’s” in that question.
This all began in 2017. Here’s what Dave came to me with in 2020. They’d just taken away his SMC S for housebound because he was ‘getting better’. His pals at DAV sent him up to the BVA on a direct review instead of going on the warpath below for a&a.
I cut to the chase and filed him for everything but the kitchen sink and they came back with this one as I’d predicted. I left the DM II subject alone for the moment and developed the Parkinson’s only. I accomplished the first (and most important) task-SMC L for a&a. But note well, the 100% for the MDD creates a separate, distinct pathway to another a&a all by itself. Sometimes you wonder who they have down there driving the VA ratings bus. Somewhere, a village is sorely missing their resident idiot but I’ll be damned if I’m gonna spill the beans. Look at the last page of the ratings code sheet next and see they’re actually luring me into filing for DM II increases. I don’t have to make this shit up. VA does it for me.
In the meantime, the HLR came back after I pitched a bitch about Dave redact II above . I know. This sounds complicated but it’s a bit like juggling six balls. As long as you can keep it straight, it’s no more difficult than riding a tricycle. It gets more dicey if you have 80 clients though.
After thirty years of this, I’ve discovered the idea is to drive them to the point where they don’t know whether to shit or go blind. I hit them with a CUE claim for reducing Dave from 70 to 30% bilaterally for his upper extremities. Once they give you the shekels and the rating, they can’t reduce it without as thorough a c&p exam as the one they started with. Yep. VA tried to do the cheapo depot Covid ACE (Acceptable Clinical Evidence) c&p instead of crossing their T’s and dotting the I’s. This is world class dum – a higher level than even dumb.
But remember that chicken dinner winner of a ARNP I was praying for above? Bingo. Our ship came in so we won’t have to buy one. Granted, Dave has been going downhill since he filed in 2017 and this is an ongoing project but it’s still the same claim to get entitlement to the things he filed for in 2017. When we get to R1, we’ll sort out that effective date business.
But, noooooooooooooooooo (the way Steve Martin says it). They couldn’t just grant the LOU of the uppers and lowers. As you can see, our VES angel ARPN has ADHD or atrocious English and apparently left off in midsentence the complete phrase of ‘loss of use’. Thus, VA, being more anally retentive than a frog’s anal sphincter, demanded clarification. Was this to say he’d lost his hands and feet? Which ones? Were they totally toast? What caused it-the diabetes or the paralysis agitans? All these queshuns. Nurse Angel came back with an equally clarified IMO “revision” in spades…
So here we are six months later and all of sudden VA is unclear as to what our contention was for the CUE. This feigned (concocted?) ignorance doesn’t pencil out. In order to create this note, the rater would have to have read the legal brief attached to the CUE filing. He plagiarized the sentence right off the first paragraph. That’s the only place where the mention of “Movant” appears. Gotta love that “council”, too. Obviously this ol’ boy missed the Phonics™ email.
Or, looking at the actual VBMS entry, you can see some industrious admin weenie actually listed the contentions of the CUE right there in the subject line when they uploaded it.
I don’t think VA actually reads their own work or this “subsequent development letter” would never have been launched. As it is, I can only reckon they’re trying to buy more time to come up with a viable legal argument to deny it. Gez, the best they could come up with was ‘Movant isn’t his name’? You can tell this VA employee is waaaaay ripe for promotion.
Shoo doggies. You know me. I just couldn’t let this one go by without at least launching one right back telling them they were braindead. But, in VA land we’re all civilized. No name calling. No questioning whether anyone was raised by wolves. We’ve been taught (and instructed) to employ the Hansel and Gretel technique leaving a virtual electronic trail of bread crumbs. Bless their pointed little heads.