BVA–I CAN SEE CLEARLY NOW

Posted on January 23, 2022 by asknod

Once upon a time, we had the Legacy system of litigation. It worked fine from about 1960 on until some gomer decided it was broken around 2016. Enter Congress and the “Big Six” VSOs. Ruh-oh, Rorge. Any time somebody in the government says they can build it back better, put your wallet in your front pocket and sit at a corner table with your back to the wall. What’s more, the effrontery of those Bix Six jackwads to even think they could “re-envision the VBA” into a new more Veteran-complicated Rand McNally Road Atlas is a hoot. All they did was create job security for life by constructing seven different ways to get to a denial. Most of these guys couldn’t find their ass with a methane detector. 

But back to the golden age. There were 20 Boards of three judges each (60). Supposedly, one was going to be a MD with a JD. That’s a pretty tall order. They were perennially short of these fellows so your tribunal of three was more often than not whittled down to two without a doctor. How could you ever get justice? Well, the short story was you couldn’t until 1989 and the passage of the VJRA. This was when the VA got clotheslined by the Federal judiciary- the COVA- now the CAVC. Even then almost all the big names you read about like Gilbert and Layno all lost. The good news is they stepped into the punji pit so you wouldn’t have to.

In 1995, business had heated up so much, the BVA decided to revamp their Boards and reduce them to one VLJ each. This increased the adjudicator workforce by 66% just in time. They still attempt to fluff it up and make it sound plural with the term “Board Member” or Trier of Fact.

Once the stranglehold on justice with those early and inevitable “acute and resolved before separation” kangaroo courts were reined in, a slightly more refined form of VLJs began to arrive and dispense a much better, uniform decision process with heavy emphasis on the Purple Book. Denials were still rampant, don’t get me wrong. They just were interspersed more frequently with grants. And then along came Caluza. This COVA decision, in my mind, finally let the cat out of the bag for most Veterans. At least now we knew the three actual ingredients for baking VA claims and getting a win. VA had been hiding this gem since all the way back to the War of 1812.

The problem I bring to the table today is the inevitable aftermath of monkeying around with the Legacy process and litigating in the new world order of AMA. Quite simply, the old saw about delay and deny etc.  has inadvertently become the VA’s new AMA Logo. By “appealing” your denial to the BVA via a 10182, all you do in most cases is get a 2-year boomerang remand that comes back and whacks you upside the head. Your local Fort Fumble now goes back to the stable and brings out a new horse. The DRO hangman gets out a fine new waxed rope and they all lead you over to the old Oak tree…again. You are thanked for your service and get a warm 19- page denial with suggestions on how to Read the Rand McNally roadmap if you are confused. AMA is like a Mobius Loop with a seamless beginning and ending. You can keep filing forever but it’s like running in place. Well, that or a crude caricature of the Hotel California.

A well-traveled SP/4 and his peach can under the belt.

In my extended history of Legacy appeals with the BVA, I always got finality. A remand, if it was due, was for a rating and any inferred or late additions after the VA 8 had been issued. The VLJ would politely refer those back to the Agency (your VARO) for initial development. In the brave new world of AMA, a judge or their industrious JD wannabes, will purposely misconstrue a fine point and say something inane like ” While the Veteran presented a bitchin’ IMO, the Dr. didn’t discuss whether the Vet’s blindness might be due to DM II instead of the Malaria. This is a Duty to Assist error.  Thus the appeal must be remanded back so those pricks in Roanoke can deny you again. If you don’t get any satisfaction there, please return here with a new 10182 and we’ll start this shit show all over again.” What’s a poor Veteran to do? You don’t know whether to shit or go blind.

I guess the worst part of all this is that most rank and file VSO service officers are even more confused now than they were in 2015. It’s a perfect recipe for overwhelming the intake system…and it did. Then along comes Corona. I had Vets beating my door down begging for help. All-and I mean all- the urban and suburban VSO assets in Bremerton/Tacoma evaporated for two years. A telephone or a fax machine in this day and age are like green firewood and a wet blanket on a hilltop. You gotta be hard wired with high speed computer and scan/print/efax capability.

How many Vets would know that if they’d never filed before and they go online and pick a form to file with, that if they use a 20- 995 instead of a 21-526 that their claim will go into cold storage for a month before someone MAP-Ds a letter to the poor Vet and still doesn’t tell him the correct one to use. Worse, assuming you can take a number and wait, it’ll be even longer to get an audience with a VSO guy who probably knows squat about it and will make the same mistake, too.

When the VA made substantial changes back in 2015 with the introduction of the VA 21-0958  Notice of Disagreement, countless hundreds and thousands of VSOs continued to file NODs using the venerable 21-4138. They considered it to be a utilitarian form- good for anything. They even filed original claims on them and after a month or two, a VA gomer would send them back a letter  asking what it was they were trying to accomplish. That was back when the mail actually worked and the notices were timely sent.

Now, in the new, improved world of VA claims, we have the Centralized Mail Processing (CMP) center in charming Janesville, Cheesconsin. Around July 2021 of last year, they ran out of workers. It was too lucrative to stay home and claim the unemployment plus the Federal bonus. I heard folks claimed they had to take care of their kids because they couldn’t get any daycare. One enterprising TV reporter took camera in hand and hit the road to find out how bad it was. Turns out a lot of the “kids” needing daycare were 18- 22 stay-at-homes collecting it too. Every action has an equal and opposite reaction- even in employment. So, naturally, nobody knew if their evidence was received. Nobody knew if they won or lost. Just the Veterans with Attorneys or Agents with access to VBMS. We then had to go into business full time downloading the documents and contacting the clients.

The AMA created a tsunami of appeals to the Board.  The VA didn’t foresee this for some reason. I’m sure they thought they could deny and put paid to Vets using the new three-card Monte game they invented. Hey! Don’t like that denial? File a supplemental. Bummer- denied. Take one of these 996 HLRs and spin again, soldier. Oh drat. Another zero. Nowhere will you  see it written that they suggest Caluza. Never will you hear the word Hickson or Shedden pass their lips.  Seems weird when you think about it. The AMA grants us all a brief blurb of favorable findings at the end of a rating decision now and what we’re ostensibly still lacking to win our claims. I’ve found that a lot of the ROs haven’t even received that email yet and still neglect to explain it. Even ones that do don’t say “Sonny, what you need to do is go find a hired gun outfit that does Independent Medical Opinions and get one. Then we can grant, Get it? Until then you’re just pissing into the wind.”  Well shoot. You’re never going to hear that. VA ain’t ever gonna whisper the Pick Six Lotto numbers in your ear.

Even worse, if you go to the BVA, you stand a 70% chance of ending up in the old Chutes and Ladders game back to Baltimore/Houston/ St. Pete and a new c&p denying you yet again. How do you get off this merry-go-round? Well, I for one have finally figured it out. You’re better off with the new discovery of the language they found that Congress said once you’ve been denied and you file again, an attorney can be paid his 20% for helping you win. It used to be you had to get a fresh denial of a supplemental claim and we’d win it at the BVA. Thus, I research your records and can see your 1998 filing (and loss) for bent brain. I go get my wunderpsyche doctor to dx you with the MDD and presto- you win. No two-year wait for a remand back to Whacko, Texas asking for a c&p to determine what day of the week you were born on.

I love litigating. As fast as the VA chuckleheads can come up with a new denial trick, we sharpen the punji sticks and dig a new pit for them. Worse, you feel like your working with mental midgets and taking advantage of them. Kinda like fishing with hand grenades or having a company of gooks coming at you and you call in Air Support with Nape and CBUs. It’s not really a fair contest.

Posted in Appeals Modernization Act, BvA Decisions, VA Agents, VBMS, Veterans Law | Tagged , , , , , , , , , , | 6 Comments

LRRP HUMOR–PART II

Posted on January 11, 2022 by asknod

I love ol’ Ed. He’s from Winner, South Dakota. They must not have much to do there but collect jokes and send them to me. I get about 10 a day. Maybe it’s just a Corona thing and it’ll blow over. Be careful when they sound the all clear, Ed. Double mask, get your jabs. Avoid everyone. Don’t catch a case of the ‘cron. You don’t want to be marginalized by your neighbors… if you have any. This cancel thing is almost worse than the bug.

I even got this in the mail this morning from another contributor

Looks Like Consolidated International Airlines is branching out into a different area…

But I digress. From the LRRP comic library…

So an old Vietnam Vet goes in to see his ‘personal care physician’ at his VAMC. The waiting room, like all VAMCs, is packed to the rafters with guys who’s doctor (your doctor, too) is running hours behind. Sound familiar?

VA Nursey-nurse at the window asks ” Name and last four. Let’s see your Corona card.  Do you have an appointment? What for?”  The Vet  answers ” Johnny Vet-3940. Here’s my vax card. I’m all up to date. Yes, I have an appointment. There’s something wrong with my dick.”

Nursey nurse comes unglued, blows an assgasket and lectures the poor guy in a loud, stage whisper… “You’re not supposed to come in here and say that in front of all these folks. It embarrasses everyone and makes them uncomfortable.” Johnny Vet says, in an equally loud whisper, “Okay. What was I supposed to do?”

VA Nursey nurse motions him in closer, hiking up her mask back over her nose. She stands up, leans across the counter, turns toward the crowded room and announces to all in a normal voice…”You’re supposed to say something like ‘I have something wrong with my ear’ and then discuss it in private with your doctor. Try to remember that.”

Johnny Vet squints his right eye a bit and asks with a note of concern… “Are you touched in the head, ma’am? If so, I apologize. But if you aren’t then you’re really batshit crazy. You asked and I answered”. With that he storms out in a huff.

About five minutes later he returns subdued and meekly gets back in line. When his turn comes, Miz VA Nursey nurse hikes her nose up to 12 o’clock high and sniffs… “So. How, exactly, can I help you?”

Ol’ Johnny Vet rolls his eyes patiently and allows that, yes, he has something wrong with his ear. The Booth Bitch, unfazed, asks loudly “And what is wrong with your ear?”

Turning to the crowded waiting room, he opines “Seems I can’t piss out of it, ma’am.”

 

  

Posted in Corona pandemic, Corona virus, Humor, VA Health Care, Vietnam Disease Issues | Tagged , , , , , , , , , | 1 Comment

R1–DO YOU BELIEVE IN MAGIC

Posted on January 6, 2022 by asknod

Sometimes I feel as if I’ve been gifted a VA faery wand whereby I can just wave it and pumpkins turn into coaches and mice to steeds. Wait. Hold that. Wrong faerytale. Perhaps,  a truckload of silver iodide and a VA-issue Sandy with eight hardpoints to be a rainmaker. Nah. Poor analogies. I’ve been blessed to have had a fair share of VA R1/R2 wins but nothing megadramatic…until now. What are the odds of VA issuing two (2)(deux)(hai)(song) R1 ratings the same morning? Or winning the Powerball tax free? Or winning a “I double, double, double dog dare you” contest? I guess the only downside to VA wand waving is it takes soooooo damn long to win. You can actually watch trees grow doing this.

R1#1

#1 was one I’ve been working on for years. It goes back to 2012 in part for a SMC K and 2014 for the R1. My client, God bless her, has the patience of Job and silently suffered for almost a decade. Nothing could be finer than to pick up the long talker and tell her she won. She’s the poster child for how many things that can go wrong with a body. Hogan’s much maligned goat comes to mind instantly.

This dude is a FNG. He needs a c rats peach can under the belt.

The BVA decision came out on 12/17 but it’s never over until the fat Secretary sings in Act III at the local Veterans Service Center. Whoa. Sexism? How come we’ve never had a female (or another of the now-46 acknowledged genders) installed as the VASEC? Inquiring minds need to know. Boy howdy is that ever a Pandora’s box mistake. I don’t want to get cancelled in VBMS so I’d better observe radio silence. STFU.

The shit must have been contacting the rotary oscillator here. The dude had his selector on auto.

Here’s the first BVA  grant (but only back to 2019) with a biiiig typo.

redact r1 12.17.2021

I held my breath until the actual rating appeared on the fourth, two days prior to today.

redactR1 RD 1.4.2022

Check out the extra canteen pouch. You could soak them and stretch them enough to hold six 20-rd. mags.

What’s funny here is I had the effective date contention already framed in the CUE claim. The BVA insisted on bifurcating the CUE into two decisions.  VLJ Ames held off writing his CUE decision until he could “see” the Fort Fumble rating decision curing the R1 back to 2014. Collusion anyone? Seems there was some horsetrading in the back room up at the corner of Delay and Deny. What this did is relieve him of having to crank out about another 20 pages of discussion on how many wolves it takes to raise Roanoke Rating Coaches. VA hates to admit they are wrong.  This just saved them a shit ton more humiliation.

redact BVA SMC K win 1.6.22

The Pig hauler.

R1 #2

And right under it in my claims queue was R #2. My boy Danny is a fellow USAF Vietnam Vet and with him being on his last legs, I had to take over. I respect VSOs. They mean well for the most part but it’s a known fact someone tore their VA Bibles in half. They have no conception of the New Testament (SMC). It’s like trying to have a meaningful discussion at a Flat Earth society meeting. And, much like anti-vaxers, most deny its existence vehemently. They want to know what I’ve been smoking… or snorting.  Silver iodide, dude. VA faery dust. Breakfast of Champions, apparently.

Smart. A 30-rd. mag taped back to back with a 20-rd.

Quite differently from my gal above in R#1, Danny is an FNG. He came aboard in August of 2021. He was already SMC L for a&a due to the Parkinson’s. VA finished the project by granting him loss of use for the upper and lower extremities. Under my good friend §3.350(e)(1)(ii), he gets to utilize the Chutes and Ladders codicil  and advance to R1. I don’t doubt he’s an R2 candidate but we’ll explore that for both of them next directly.

SMC K

At the time my gal filed for a&a in 2012, her right foot crapped out. The Roanoke chowderheads even managed to mangle that one. SMC calculator quo vadis? They granted her the 80% for complete paralysis of her foot but managed to snatch error out of the jaws of an otherwise correct decision and forget the SMC K that goes with it. Ever wonder why you don’t get a 100% rating for one foot? Well, gee pilgrim. It’s because you have two feet. This same immutable principle affects one eye, one boob, two testicles, bilateral buttocks and a few other things. Ditto loss of use of only one hand at 90% (dominant)-not 100%.

So, when I filed this big CUE, I was sure to throw it in. It might only be a $3200 add on but I was taught to never leave any money on the VA poker table when I walk away. Bad form.

redact BVA SMC K win 1.6.22

The good news is I have reduced my caseload by two deserving Veterans. Maybe I can go out and do the winter trim on my fruit trees this weekend. Cupcake has a massive New Year’s honey-do list for me. Unfortunately, somebody has been monkeying around with the silver iodide. The snow has melted. Noah and his crew floated by this morning and the giraffes waved. Going down to the mailbox requires a Zodiac™ and a 5-horse Merc. Good thing I kept my poncho from Vietnam.

Thank you-all of you- who allow me to wave my VA wand. It’s good for Vets with bad karma like me. If the erudite Seattle VA employees had acknowledged I was a member of the Nehmer class in 1994, I would never have had this opportunity. Coulda, Woulda and Shoulda are what most say when they’re 70. I feel lucky to have had a midlife crisis that gave birth to all this. Do you believe in Magic? At LZ Grambo, we most certainly do.

P.S. One thing you will always see in the pictures of Vietnam. We all helped each other. There was no discord. We were colorblind. I long for those days.

Posted in Aid and Attendance, All about Veterans, AO, BvA and VARO CUE DECISIONS, BvA Decisions, CUE, Humor, R1/R2, SMC, Tips and Tricks, VA Agents, VA Attorneys, VBMS Tricks, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , , | 3 Comments

FORT FUMBLE, ANYWHERE USA–WHEN FIRST WE PRACTICE TO DECEIVE

Posted on January 2, 2022 by asknod

Happy New Year, pilgrims. I don’t ever want to come across as too bubbly and effervescent in these posts because I know there are many of you struggling to survive-both medically and financially. Concomitantly, I try to avoid giving false hope to those who need it knowing they are doomed. Rather, I like to remain upbeat, positive and glass-half-fullish about life. In my current profession, I’m blessed in that, for the most part, I can forecast the weather holds nothing but clouds with silver linings for my Veterans. 

The last week at LZ Grambo

Have you ever gone to Denny’s™ for dinner with the family and the waitress oops- waitperson (s/he, they) brought your youngsters paper placemats and crayons? Granted, the maze puzzle is not overly complicated but it still requires mentally tracing you way to the center with a few false starts. Comprende? Now, imagine giving it a cursory glance and being able to discern the path instantly. Or, equally, being able to see no path and know it was impossible instantly.

My front yard several weeks ago.

I don’t profess to be an idiot savant but I’ve kept a good diary of my successes and my failures. As most know, I take the impossibles, the improbables or the dying Vietnam Vets. I have a horrible soft spot for crying widows. But what is striking is that, with very few exceptions, I can foresee who are going to be the chicken dinner winners and who are most definitely not. I’m not some cherry picker who takes the mega-lucrative claims. They come to me unbidden. Usually, nobody else would take them.  I did a pro bono for the widow of a Vietnam eleven bravo this fall who was heading over the cliff with her VSO. He refused to file it for her. Said acute myeloblastic lymphoma wasn’t on the §3.309(e) presumptive list and to get lost. I won a R1 at the Little Rock RO last spring without a fight. You end up doing a lot of pro bono stuff and that’s a good thing.

I spend a lot of time talking or answering  emails from Vets who ask me questions about “what if…? Most of these are about Special Monthly Compensation at the higher/highest rates. As a one-man band, I’m time-challenged. It forces me to make snap decisions so I can get back to work. Being able to see the possibility of a rock-solid claim quickly saves me a two-day review of every page of  235 pages of 1970s handwritten SMRs.

Which brings me to today’s church service on SMC. This one will really roll your socks down. I’ve been working with a Vet and his wife/caregiver for three or four years trying desperately to get them SMC at the L rate for A&A. I took this one on shortly before the March NOVA in Nashville back in ’18. In fact, in the middle of a presentation, the Hartford Puzzle Palace calls me and informs me they tried like the devil to grant my boy that A&A but they just couldn’t find enough to pull the trigger. This guy is 100% for COPD and about 80% for DM II with PN in all four extremities… and sleep apnea… and sinusitis ad nauseum. I wisely gave up on the local yokels and beat feet to DC for a 10 182 Direct BVA review. It was a slam dunk but VA has recently rolled up the Welcome carpets at their 57 service centers across the fruited plains. If you thought it was difficult to win A&A before, it’s now even worse that trying to extract teeth out of a live, pissed off alligator. TDIU is equally as dicey.

In the meantime (August 2018), my boy got another 100% for his now major neurocognitive disorder with a side of incompetency. When my Vet’s PN in the lower extremities became so debilitating this year, I decided to go for the SMC L loss of use codicil to get him what he really needed-R1. Fort Sam Houston immediately pulled up the drawbridge. We got a denial back in 5 business days in spite of him being admitted to the VAMC for a really bad fall last March (2021). He thumped his melon on the sidewalk and got a concussion. This is where being able to ascertain the path through the maze pays off.

First, I’ll put the rating decision up. The obvious 800 lb. gorilla on the sofa was a new 100% mental rating which got an automatic ticket to a SMC L for A&A all by itself-but based on something six months after filing. Huh? VA glommed on to that as the predicate and ignored the 2008 100% for COPD w/ DM II. And, being ignorant of the ways of SMC, failed to infer that he got a bump up to SMC M for the extra COPD 100% -§3.350(f)(4). That began my second battle to get him up to M. The pukes ignored me and told me to engage in sex with rolling donuts. redact narrative A&A 3-4-20 reconsideration Bad idea.

After a year of no traction, I emailed our acting Under Secretary for Benefits and asked him for relief. Bingo. Seven days later, on August 27, we had the SMC M. VA fell on their sword and granted it but found CUE and moved the effective date for the SMC L back from August ’18 to February ’18… based on the same 100% neurocognitive disorder. No can do GI. My boy wasn’t 100% for the neurocognitive disorder on February 12. He was 50% and that, with another 20%, will get you little more than SMC S and some shitty VFW coffee at an Interstate rest stop. But the big error was the camouflage attempt to cover their asses. The DROs huddled and tried to braille their way out of it. Phonics© won’t save your ass at the RO if you can’t figure out how to read a Code sheet. The M 21 doesn’t go that far.

My Vet had asked for A&A in February 2018-not August of ’18. By using the neurocognitive disorder as need in the February earlier effective date, they couldn’t support A&A. Check out page 4 highlight. It read like someone high on Phonics©. The PTSD bone is connected to the… asthma bone and the asthma bone is connected to the …DM II bone… and the…okay-got it. Call CUE and grant EED for the M.

redact SMC M RD 8.27.2021

I called bullshit and asked for a Higher Level of Review and explained all this to the booth bitch.  I even grilled her as to whether she understood SMC law or had to take her shoes off to supersize her abacus. About six hours later, out comes the HLR. She tried to fix the anomaly of not having a 100% by simply waving her magic rating wand and changing the medical reason for the A&A. Boy howdy is that a Colvin violation unless she has a MD after her moniker. This framed the idea for the name of this post. Sir Walter Scott nailed it in 1808 when he inadvertently prognosticated on how VA would forever rate claims “Oh, what a tangled web we weave, when first we practice to deceive!” . The problem was her statement that the a&a  did not include any psychiatric disorders. See underlined in green on page 4. Kinda makes you wonder how they get their shirts on in the morning facing forward, huh?

Redact 9.28.2021 HLR RD

My Vet’s A&A now was predicated solely on the COPD as it should have been when the shit show began in March 2020. But by doing this, Ms. HLR reviewer freely vocalized the anomaly that they had already admitted the 100% neuro disorder was also an A&A in it’s own right… but was not being considered in this particular a&a determination. Shit. I can’t make this stuff up. After three bites of the apple, they admitted without saying as much that he has two needed separate and distinct 100% a&a entitlements to obtain R1.

This is easier than fishing with hand grenades. I admit it took me about an hour to follow the error back to February 2012 and realize this lipstick-on-a-pig gig wasn’t going to fly at the BVA. What the hey. I’d have a field day with this at the Court.  So here’s the prelim brief. If it seems redundant, remember it takes a lot of breadcrumbs to keep these folks on the reservation. Even staff attorneys at the BVA can’t follow the SMC Yellow Brick Road without going in the ditch. Which brings to mind the immortal revelation by Stephen Hawking…

“The greatest enemy of knowledge is not ignorance. It’s the illusion of knowledge.”

Imagine if they took the M 21 away from raters. They’d be lost. They suffer the illusion of being knowledgeable. They don’t know statute and regulation. They push X + Y and the M 21 magic 8 ball spits out the answer. If you file a NOD, they cobble together a bunch of cut -and-paste Adobe 2 Pro phrases which leave dangling participles and incorrect syntax scattered galley west. Who cares? Right? You’re denied.

redact10182 R1 Brief

That concludes this  teaching moment for VA raters. Be careful how you craft a CUE revision or you may find you inadvertently have created a bow wave into SMC R1.

P.S. PFC Princess Penelope (Padawan 1st Class) is practicing up for her gig with the Rebel Alliance.

Posted in Aid and Attendance, Appeals Modernization Act, CUE, R1/R2, SMC, Tips and Tricks, VA Agents, VBMS Tricks | Tagged , , , , , , , , , , , , , , | 2 Comments

No Bones About It: Dogs Have a Positive Impact on Our Health

Posted on December 23, 2021 by jamesaurora

If you’re a pet owner, you know that pets make you happy. But as a Veteran, did you know that owning a pet can be especially helpful? Having a companion animal is highly beneficial for veterans with PTSD, and lowers our blood pressure and increases our happy hormones, which can make our lives longer and better. 

If you’re on the fence about getting an animal, AskNod.org shares some more information on how our pets can make us healthy.

Physical Health

Research has shown that paying attention to animals gives us a feeling of calm and can lower blood pressure, cholesterol, heart rate and stress hormone levels. Recent studies show that our brains release dopamine and serotonin, nerve transmitters associated with calmness and happiness, when we’re interacting with animals. Not only do our moods improve more quickly than if we took drugs for stress, but also the effects last long after the animal has left our presence. Petting animals in a rhythmic manner releases oxytocin, the stress relief hormone, and comforts both you and the animal.

Staying Present

More importantly, pets make us focus on the present moment and keep us from feeling isolated. They don’t worry about the future or fret over the past, and they demand that we pay attention to them. When we are stressed about work, life or whatever, our animal companions can help us refocus on what is in front of us. They make us laugh, but they demand that we play with them RIGHT NOW. That has a way of making other concerns fall away if only we let them. As the Serenity Prayer says, let go of what you cannot control… (and then go play with your dog).

Of course, there are ways to get health benefits without actually owning a pet. If you can’t have animals in your home or cannot afford to care for one, you can help both them and you by volunteering at a pet shelter or becoming a dog walker. You will be getting good exercise and socialization, but you’ll also be helping the dogs you walk to learn social skills and be more likely to get adopted. That’s a win-win if ever there was one!

Mental Health

Animals can also help with our mental health. Dogs have been trained to provide focus for autistic patients, uplift people with depression, and be calming presences for those battling PTSD and anxiety. Therapy animals are pets who have been trained to visit people in need of comfort, such as in a hospital or nursing home (unlike service dogs which are trained to provide assistance to a person with a particular disability, like a seeing eye guide dog, and are not considered pets). 

Emotional Support Animals are pets that provide comfort but are not necessarily trained to do so, but they are considered companion animals to those in need of emotional assistance so they are allowed in certain housing and transportation venues where pets are not. Some doctors use animal assisted therapy, so you might be able to benefit from it even if you cannot afford to get a specially trained dog of your own. 

What You Need to Keep a Pet

When you’re ready to take the leap into pet ownership, there are certain supplies you’ll need to gather. Food, food and water dishes, toys, a collar, a leash or harness, and a comfortable bed. Depending on the level of activity you anticipate with your pet, a waterproof bed is a solid choice since the cover can repel moisture.

Your living environment will determine which size dog you get, but remember that a smaller dog will do better in an apartment than a larger dog. If you have a yard that’s unfenced, this is another consideration to keep in mind. To ensure your dog has room to roam, you need a fenced area that will keep them secure. You can remedy this situation by working with a local fencing company. They can help you choose the right materials to fit your budget, and can do a faster job than if you were to DIY.

Please know that adopting an animal is a commitment that should not be taken lightly. Your dog will depend on you for companionship. If you’re lonely or depressed to the point that you cannot care for another, please do not take in an animal that you might have to give away later. While animals can help you to feel better, you should not get one unless you can care for it as well as yourself. You want to create a good home for your pet so that you both benefit from being together. That’s paws-itively the best situation you can have.

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EXPOSED VET RADIO SHOW 12/23/2021

Posted on December 23, 2021 by asknod

Holy Macaroni. Sorry for the late announcement. I’ve been buried in the computer solving claims mysteries and completely forgot to put up a blurb to announce the show. John & Jerrel are doing a day-before-the day-before-Christmas show and asked me to come on and discuss my client’s recent SMC R1 win and the secondary CUE claim for R1 going back to June 2014. It’s been sitting in CASEFLOW since last Wednesday as “Ready for signature” by Veterans Law Judge (VLJ) D. Mantz Ames. Judge Ames has been kicking around the BVA as a staff attorney since the dawn of time (all the way back to 2005). He was awarded his wings in 2017 and seems to be a straight up Judge. Fingers crossed.

Some, as we know, are decidedly not the Veterans’ friend but life is full of prejudice. No use crying over that.

A nice Christmas present for any of you who served in Thailand, Laos or Cambodia would be to joint the TLC Brotherhood. You can find them at www.TLC-brotherhood.com. They’re a great outfit and we help unfortunate villages over there with donations and construction projects. Check them out.

Here’s the skinny on the Show:

(515) 605-9764

The show starts at 1900 Hrs on the easterly Area of Operations and 1600 Hrs in the Lefterly AO. Armor up w/ beer and pretzels before the show so as not to miss anything.

The www. link is:

https://www.blogtalkradio.com/jbasser/12041401/connect/6c0b625e6d658518e5ebf3028944c70985440b11

Dial one (1) (nung) (wən), (un) only if you wish to speak to the person you wish to speak to. Otherwise, refrain from dialing 1 so we do not get a lot of background noise. Merci.

Posted in Exposed Veteran Radio Show, Exposed Vets Radio Show, Humor, SMC | Tagged , , , , , , , , , , , | 1 Comment

BVA-SMC(r)(1)–YOU MAKE MY DREAMS COME TRUE

Posted on December 18, 2021 by asknod

Helio Courier

Last night, Cupcake announced she was watching a new series on the boobtube called Project Runway. The meaning of that phrase was indelibly planted in my brain in 1970 flying into a mountaintop Lima Site airstrip on top of a Karst for the first time. They didn’t make Depends® undergarments back then, either. Limestone Karsts in Laos looked like Madonna’s bras. The airpatch,  LS 32 Ban Bouam Long, elevation 1463 metres,  faced northeast, was uphill, bumpy, waaaay shorter than a football field and maybe 40 feet wide. Our aircraft, a well-worn AirAm  Helio Courier (Tail number XW-PGB if memory serves), was probably older than me (19).

When we came ‘left’ on final, or what approximated it in the PIC‘s mind, I asked where the runway was. He laughed so hard he had to wipe off the snot running down his face. He said I must be new around here. The cargo was 4 wooden cases of old .30 Cal. M1 Carbine ammo,  ditto the 60mm mortar rounds, a pig and a bunch of chickens. The return cargo were the pig/chicken shit all over the deck, two armed USAID agricultural specialists in full camo and three very dead tahanns (Hmong soldiers) whom we always returned to their birth villages for burial. They were usually wrapped in cargo parachutes which helped wipe up the pig shit but it did nothing to quench the stench. Which is why knowledgeable airmen upcountry always carried those small Vick’s Vaporub jars to mask unpleasant aromas. They sold a shit ton of them down at the Udorn BX.  Due to the solemnity of these occasions, everyone politely ignored the smell. It was de rigueur to share your Vick’s.

From the Man Cave wall

Project Runway in 1970 was twofold back then. Landing was relatively easy.  Taking off from Bouam Long -even in a VSTOL aircraft like a Porter or a Helio was an act of faith. Or a leap. Taking off with seven (7) passengers in a six-passenger craft was also not the smartest idea but Hmong were small of stature.  At the very bottom end of the downhill runway was… absolutely f—king nothing. You developed sustainable airspeed by expeditiously retracting your leading-edge slats and diving into the valley below full throttle. Which aptly describes that sinking feeling in my stomach in April 2018 when Lori asked me to take over her claim. She was an attorney and if she couldn’t win it, maybe I was in waaay over my head. Her VSO, Virginia Department of Veterans Affairs didn’t even know what R1 was- let alone how to spell it.  I was still wet behind the ears on SMC but had a rough enough grasp to know Lori was getting screwed. Besides, she was busy fighting (and losing) Multiple Sclerosis and hors de combat for this project. About all I knew on the subject of MS was you didn’t want to catch it. But if you did, you were in for a shitstorm and a lot of pain and misery. Add 25 years and stir. The end. I wrote about her here:

BVA-FORT FUMBLE, VIRGINIA–SMC=SMALL MENTAL CAPACITY

After a pretty thorough records review, it was obvious the  Handy Helpful Hampton VA folks knew absolutely nothing about how to maximize a SMC claim. But then, that’s what their M 21 manual is for. They’d granted SMC L for Aid and Attendance but when the extremities began to crap out, they tried to keep gluing on bits and pieces of L ½s and Ms and L-2s. Seemed like all roads led to SMC P with no off ramps to SMC O or R1.

We politely waited our turn. Because I’m gun-shy, I placed two bets on this game. Bet one was a CUE going back to 2014 for R1 instead of SMC M. Bet number two was a simple cold call supplemental refile for R1. I got what I expected- a dry hole. And like all of you pilgrims on the claims trail, we took a number and sat down on the Group W bench. I felt the two appeals were inextricably intertwined and convinced the hearing judge to entertain both of them. They promptly bifurcated the appeals and assigned them to two entirely different VLJs. Idiot’s delight.

redactfiled Brief 5.4.2021

We got the biggest  problem solved last night. It popped up in VBMS about 1659 Hrs EDT as a rushed publication. Check out the typo denying R1… right after the award of R1. Fortunately, reasonable minds can only conclude from the follow-on Conclusions of Law language that  VLJ Keith Allen is indeed granting R1 but denying R2. Shoo doggies. I can fix that faster than you can say Denis McDonough. The jump from SMC M to R1 was the original game plan. R1 pays out $8635/month vs. the SMC M at $4900/mo.  R2 is small potatoes and only gets you another $1200 per month.

I like to divide my battles into fights. Winning R2 is a simple, post-R1 affair. Getting an intelligent VA person to employ SMC Phonics™ and grant R1 involves appealing every time. I know. ‘Intelligent VA person’ sounds like a non sequitur. Even then, due to what some feel is the utter complexity of the regulation, these G-14 snowflakes will still manage to wander astray into SMC P and focus on stuff which doesn’t apply. Herding cats is tame in comparison and takes far less time. Too bad we couldn’t just use canned cat food to win VA shit. Heeeere, Kitty Kitty Kitty…

Anyway, here’s the shiny new rating for Lori. It’s being written up at the Office of Administrative Review, formerly the AMC, nee AMO (VBA397) in DC as we speak. I’m guessing that typo is going to throw them for a loop. It doesn’t take much to conflusticate these folks. Rumor has it that it takes them three signatures just to get permission to go to the loo at the VSC.

Merry Christmas, Lori. Thank you for choosing me to help make your R1 dreams come true. I apologize that it took me so long. That CUE appeal they mention is ready for the VLJ’s ( D. Marz Ames) signature so we hope to report back soon. Hopefully, the CUE is not going to be a catfight up to the Big House at 625 Indiana Ave. A $2500/month increase for 90 months is going to go over like screen doors in submarines. Oh well. Win or Die, right?

redact r1 12.17.2021

On behalf of Cupcake, Kona, Cooper, Ambush, Buddy, Pickles, Widget and myself, I hope we passed the audition this year. Merry Christmas to you all and best wishes for a new year devoid of this infernal bug.


P.S. Merry Christmas to those who couldn’t make it this year due to prior obligations.

Posted in Aid and Attendance, BvA Decisions, Humor, Inspirational Veterans, SMC, Tips and Tricks, VA Agents, Veterans Law, Vietnam War history | Tagged , , , , , , , , | 8 Comments

LORD, TELL ME IT’S NOT THAT MEDRANO

Posted on December 8, 2021 by asknod

Cupcake and I were having coffee yesterday morning and I was scrolling down through my Google® newsfeed when I inadvertently administered (again) a coffee enema to my nose. The article described a former Marine, now a Veterans Service Officer (soon to be former), of defrauding the VA out of  beaucoup de shekels for himself and his wife. Is this a Marine thing or did he just think nobody was going to pick up on the Faceplace™ posts? These cases seem to pop up periodically enough to make me wonder, too, as to whether they even bother to research the contemplated fraud and assign a probability of getting busted. 

Here’s the link to the article.  https://www.justice.gov/usao-sdca/pr/former-employee-sentenced-defrauding-veterans-administration

I’m sure today’s diatribe will be dissected for political correctness/awakeness and I will be found wanting (again). No sweat. I’m covered. Cupcake can, and will, insist (rightly) I suffer Tourette’s Syndrome and claim it’s par for the course. What the hey? I think it’s kinda neat when you have no idea what’s going to emanate from your pie hole next. Sometimes it’s actually hilarious. Sometimes….

Dad

Here goes nothing. When I was very young, my dad gave me some sage advice. The crux of the discussion was that cops are not exactly the sharpest tools in the shed. They mean well but the cop hierarchy doesn’t want a fleet of Sherlock Holmes-types running around ruminating on how a crime went down or who might be the perpetrator. That’s the Poohbahs’ job. Ergo, the list of suspects ends up being several pages long even though the most likely suspect appears guilty as Hell. In the cop world, Occam’s Razor is inapplicable. That’s cool. It makes for more cops on the street.  He further opined that there was a certain pecking order in the military that most of us know. It rarely is talked about at the O club unless  one has  ETOH disease. To wit, service members who scored rock bottom on the old AFQT tests in all four categories were pretty much doomed to be cooks. Above them were cops. The ladder continues upwards through the engineering corps to include carpenters etc. The top of the pile is Intelligence. Not your IQ, per se, but the actual work of interpreting reconnaissance data, photos and the like and prognosticating on the possibility of whether all those new construction sites that look like SAM emplacements are real or well-contrived fakes.  Or reviewing new post-strike RF-4 recon data showing they just repaired the Paul Doumer Bridge in downtown Hanoi (again).

In the same vein, Daddy pointed out that a large majority of Marines were gorillas- about 6 foot 4 and weighed about 235+. Their AFQT scores aside, the proclivity to be assigned an Infantryman MOS was not an incredible coincidence. Similarly, most Marine officers were lucky to make light colonel after 20 years of excellent, nay, exceptional accomplishments. No matter how many BSs, PHs and Air Medals w/ Vs they accrued, they rarely attained the higher O ratings above field grade officers. Strangely, even well-connected officers seemed to hit the wall about O-8.

By now, unless you are semantically challenged, you can see where I’m going with this. I certainly do not mean to denigrate Marines – or cops for that matter. I merely point out the fickle nature of coincidence. So, let’s take a gander here.

Voila la Pig

Fortunately, I was wrong. The Medrano in question is 42-year-old former Marine Anthony Medrano. I was mortified to think it might be the Medrano of Medrano fame in  Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007) holding the Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority. See 38 U.S.C. § 7261(a)(4). Here’s the skinny on Alphonso Medrano.

Alphonso filed for bent brain in August 2000. In the spring of ’01, right after passage of the new VCAA, they sent him a §5103 notice explaining the dog and pony show requirements. Good to go. They denied as expected in late July ’01. He dutifully filed his NOD. In their oh-so-inimical way( as only the VA can), they misconstrued his NOD for a brand new reopening of his recently denied bent brain claim.  They denied it again in October 2002 and Alphonso enlisted professional help. The problem was simple, really. This time they forgot to “reissue” a §5301 notice. The BVA Veterans Law Judge (VLJ) rightfully affirmed the denial because having received the initial §5103 in April 2001, ol’ Alphonso had been read in on how this poker game was played. In addition, when apprised of its error (failure to send out a new §5103), VA belatedly sent him a new one in April 2004. Through counsel, he (only then) stated he had nothing else to submit. The VA had “misplaced” his Milrecs and all he could possibly provide was Layno/Jandreau lay evidence swearing under oath he had a brain-bending experience in service and it affected him permanently.  From there it was off to CAVC to (re)determine what prejudicial error consists of… and in Alphonso’s case, what it most assuredly didn’t consist of.

A lot of folks just assume Medrano stands for a run of the mill §§3.344/3.105 case of an illegitimate or unsustainable reduction. No sir. While it (§3.344) certainly protects you, you can use Medrano for the proposition that once VA issues a favorable finding of fact, it usually metamorphoses into a conclusion of law. If you didn’t lie cheat or steal to get it, it’s yours. Once it’s been announced in a notification letter, the Board can’t take it away nor can the CAVC. While Medrano precedence sounds like it is only applicable to the Court, it’s not.

Notice our USAF-issue 16s didn’t have the bolt-assist and had the old roach clip barrel tip.

In VA litigation, you will see extensive development of a claim and, even once it is determined favorably, there will be a prolonged pause akin to an operating room where the surgeon calls a time out to make sure they’re cutting off the correct leg on the right patient. In medicine, this is the soul-searching Magic Marker Moment wherein they make sure they aren’t pulling a Bozo. As an aside, it’s too bad VA doesn’t invest this much time into determining if they got it wrong before issuing a denial. But I’d be out of a job if they ever changed their MO.

six actual

Once the Rating Decision and the Code sheet are complete, the issuance/mailing of the Notification letter makes it concrete. Assuming all is above board, the VLJ above on appeal can only rule on the propriety of the action (severance or reduction). S/he cannot arbitrarily reduce or sever an award or entitlement unilaterally. Ditto the CAVC.  That adjudicatory function (ratings) is the providence solely of the Agency of Original Jurisdiction (AOJ) below. This clearly and convincingly demonstrates that in a vacuum of lawyers, 74% of their adjudications will be wrong. In a final Clear and Unmistakable Error (CUE) claim, you attempt to prove error. The VLJ arbitrates that strict standard only. They don’t get to say “Yeah, you’re right. I see the CUE. Here’s 70% for bent brain. Sorry the gomers in Waco were so ignorant. Thank you for your service.”. Medrano’s bright line holding is more nuanced and hinges on the tenets of due process- i.e., you won and they cannot come back and take it away. When you were a kid, you’d call someone of this ilk an Indian giver. Boy howdy is that ever one of those third rail Tourette-tinged words now, huh? Mea Culpa. Not.

Thus, it was with dread that I feared I would read Mr. Medrano (Alphonso) had become embroiled in malfeasance in his new post-appellant role as a VSO. Thankfully, my fears were assuaged when I beat feet to my office and dug it up. I do find it amazing that the VA’s Office of Inspector General (VAOIG) only took 8 years to figure out he’d been granted A&A all the while being employed full time at the VA as a VSO claims guru. I guess that speaks volumes about the prowess of the VAOIG… but then we’re talking cops again here. I vote we give OIG another Turtle award w/OLC for their dogged, relentless pursuit of VA miscreants.

False alarm. Nothing to see here, folks. Move along. Wrong Medrano. I also want to confess to being biased toward VSOs in the past due to their treatment of me before I figured out how to win VA claims. Since then I’ve met a bunch and for the most part, they’re decent folk limited by their lack of training. Just like cops, the Veterans Service Organizations don’t want proficiency, they want warm bodies to complete .pdf-ready-to-fill-in forms, lick envelopes and affix postage. If they want any shit out of you, they’ll squeeze your head.

Ed the LRRP

Now, with all that said, my absolute BFF (best  f—ing friend) Ed, a Silver Star recipient and LRRP,  did his two years and separated to become an LA County sheriff. He retired after 20 years. To my knowledge, he isn’t exactly Mensa material -but then he’s a far, far cry from stupid.  And boy howdy does he ever have Tourette’s tongue like me. Hoo doggies. We’re like peas and carrots. We’d never last more than ten minutes in a Portland, Oregon restaurant in the present political atmosphere- but then again,  it would be a meal few would ever disremember.

To grasp Ed’s humor requires an open mind and a knowledge of boots on the ground. I received this gem for morning coffee. Cupcake still hasn’t grasped my humor yet… let alone Ed’s.

And that’s all I’m gonna say about Ed.

Posted in All about Veterans, CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, Lay testimony, PTSD, Reductions in rating, Tips and Tricks, VA Agents, Veterans Law, Vietnam War history, VSOs | Tagged , , , , , , , , , , , , | 6 Comments

2021-GIVING THANKS FOR MAKING IT HOME ALIVE

Posted on November 27, 2021 by asknod

Greetings from the Graham ménagerie-now only eight of us. Our pony, Big Shot (nee Buckshot) passed this fall from Diabetes Mellitus or what passes for pony diabetes. He’s buried out back next to Dude (another pony). Cupcake and I have had an uneventful year but made great inroads in the VA fisc by winning our clients’ claims. Come to think of it, we’re actually still batting .1000 if you can believe it. No, I’m not restatisticating à la VA. I don’t count a denial as a loss until it’s dead in the water. Since I have never given up on any of you, I claim the .1000 figure for the time being. 

Thinking back on Txgiving 1970, I had amassed a horde of turkey c rats for a veritable feast with my Tabasco I carried with me everywhere. While flying a mission that morning, someone snuck into our barracks and stole them all-even my peaches. I got Spammed-literally. That was all they left me. Well that and the sixteen year old Lucky Strikes. It’s always been a low point for me and destroyed my faith in humanity.

Sadly, as I posted last week, we lost Butch Long of LZ Cork fame. In addition, my Korean War Vet Charles passed on July 25. Leigh passed in April and lastly, my first Blue Water latecomer Doug passed September 7th. Each came pretty much completely out of the blue. I will miss them all. I couldn’t salvage Leigh’s DIC claim as her husband had passed away and the kids had already received their DEA Chapter 35 benefits.  I got her 100% for Hep C and a transplant years and years ago. I was working on the diabetes secondary to the Hep C and an SMC S rating when she passed.

I guess that’s one of the hardest parts about doing this work. You become very immersed in your clients’ lives and family. Then you start repping their kids. When I lose one, it creates a grave disturbance in my mental Force. I strive to keep my representation down to no more than 80 souls so as not to become as inaccessible as did my DAV rep. in 1989. That was the pits. He arrived at my DRO hearing in 1990 10 minutes early but had asked me to be there an hour before for the SITREP. Worse, he walked right by me and didn’t recognize me. I  had to give him a short brief on what he was hoping to accomplish. Boy howdy have we come a long way, baby.

 SMC- New Tricks

On the SMC frontlines, I’ve discovered an interesting phenomenon that bears inspection and sharing. After researching a Veteran’s claims file, I always catalog the actual ingredient that produced his or her 100% schedular/ TDIU. If it’s a combination to two or more disease/injury processes, you  don’t qualify for SMC S. Read it. It has to be a single disease entity at IU or a true 100% schedular. Nevertheless, TDIU is a 100% rating and the gateway to what’s beyond SMC S. If you have one disease process like Parkinson’s or DM II, VA permits combining them all to arrive at a 100% rating (via VA addition of course) to permit a pseudo- 100% combined rating- and thus, permission to advance to the higher SMCs of L and beyond.

The phenomenon occurs thusly. Example #1: Say you’re at 100% schedular P&T for COPD and have been since 2008. Secondary disabilities gradually take you up to a SMC S rating. Your situation deteriorates further. You have to go on 2 litres of O₂ daily and you need A&A.  Suddenly, in the middle of your A&A claim fight at the BVA, VA freely concedes your bent brain from all this trauma warrants a 100% scheduler. We all know that never happens.

Anyway, the next spring, the BVA grants a&a and remands it back to the Lokal Yokels. In a splendid display of ratings gerrymandering, they declare your 100% schedular for bent brain is the primary a&a factor -in conjunction with all the earlier ratings, of course- which led to the a&a.  But what about that 100% schedular you’ve had since 2008? Why did the advent of the new 100% schedular only now create your a&a entitlement? And why in Sam Hill didn’t any of this provoke the 1/2 step or full step bump we get from §3.350(f)(3) or (4)? You have to go back to the earlier discussion about surveying  the original predicate for your SMC S. This is how you spring the SMC punji pit trap on them.

I refiled to get the full step bump to M based on two separate and distinct 100% schedulars and caught them with their pants down. They did exactly what I expected and stampeded back six months to February 2020 and inferred entitlement due to the old 100% for COPD. This way they felt they could award the bump to SMC M for the 100% schedular bent brain without conceding their stupidity in the original rating a year earlier. Again, the punji pit comes into play. If the antique COPD, now, in 2021 is the declared predicate for a&a, why, then, would not the later award of 100% bent brain not provoke yet another SMC L for aid and attendance in its own right rather than the bump to M? What the hey? If bent brain was the predicate first, and now isn’t, somebody’s screwing the pooch. I call it VA three-card monte or “which walnut is the pea under?”

One common mistake most litigators make in SMC law is believing you cannot have two A&A ratings. Or, if the practitioner understands you can, they believe there cannot be any overlap in the criteria described in §3.352. Wrong. SMC is one of those unique situations in VA regulations that permits pyramiding. Here, the predicate for a&a is based on a “factual need” as defined in §3.351(c)(3). VA will try to tell you that Disabilities A, B, C, D and E are the predicate for your a&a needs. It really makes no difference what causes the factual need as long as you have one 100% (schedular or combined) service connected disease that prevents you from accomplishing the activities of everyday living – due to either physical or mental deficiencies. Period.

When, as I described above, a new 100% disease or injury arises that is separate and distinct from the 100% rating that provoked your entitlement to a&a initially, you are legally entitled to consideration to another SMC L rating under §3.350(b)(3). The factual need as described in §3.351(c)(3) allows you to hoist them on their own pétard as many times as you are granted a new, separate and distinct 100% schedular rating. Essentially, once you’ve proved you need a&a, any future 100% rating automatically comprehends you need the identical a&a. No pyramiding. No harm. No foul.

Of most interest in this VA SMC building contest, your early-on rating for TDIU under §4.16(a) can become the inviolate benchmark 100% rating. By law, that is a favorable finding of fact and protected under Medrano v. Nicholson. It’s a finding of fact that cannot be disregarded, modified or tampered with short of an act of commission or omission on your part. VA will almost always “convert” your TDIU later if your sum of ratings -when added up together- exceeds 100% combined. This is why most will never see SMC R1 for anything but loss of use of extremities or blindness combined with their a&a rating.

Example #2: So, you have a TDIU and an extra 60% in separate, distinctly different ratings having nothing to do with the TDIU. When you eventually get a later 100% rating, that, too, must be separate and distinct if you expect to get a&a. But here is where semantics kick in. A mental disorder, even if caused by Parkinson’s, is a separate and distinct (think mental versus physical) disease involving a different organ or bodily system. It is a stand alone 100% that is eligible for a&a. VA knows this but tries to bullshit you out of it with a not-so-generous full-step bump to M instead. When they rate you for Parkinson’s- or DM II for that matter- they add up the peripheral neuropathies in all four quadrants, all the difficulty swallowing, the cranial nerves that make you face muscles hang limp,, lost smell, constipation, ED-the whole shiteree. They almost invariably add up to about 100 +80% or more. Subtracting the usual 30% they give you for the anxiety disorder associated with Parkinson’s never reduces you below the magical 100% combined. Ditto the DM II scenario with peripheral arterial disease, PN, diabetic retinopathy, renal failure ad nauseum.

The perfect storm for a TDIU-based a&a rating is as I have explained. In most cases I appeal, I have to divorce the previous separate and distinct ratings from each other first.  I use the clear and unambiguous precedence of Buie v. Shinseki for this:

Buie v. Shinseki, 24 Vet.App. 242, 250 (2010).

In Buie, the Court held that [w]henever a veteran has a total disability rating, schedular or extraschedular [TDIU], based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA’s duty to maximize benefits requires VA to assess all of the claimant’s disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to [SMC] under section 1114(s). This duty to maximize encompasses all SMCs and requires VA render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.  See §3.103(a) (2021).

Buie is the fork you use to move this jumbo of ratings around into the most advantageous order to get the biggest bang for the buck. If you had TDIU granted in 2015, and you get a new 100% rating, VA can legally use it for the 60% bump to SMC S. But…they have to first consider entitlement to SMCs-all SMCs- not just SMC S.

So, last month I filed a Vet for loss of use of all four extremities due to Parkinson’s. He had an appeal for SMC S up at the BVA currently before he hired me. My battle plan is simple. I filed it all at once asking for SMC O and the bump up to R1. I purposely held my cards low so VA could read them. “Ned” went to the c&ps  for loss of use but… VA threw in a request for increase to his 30% rated anxiety disorder we most assuredly did not file for. Yesterday morning, after a 30 minute chat with a shrink, she wrote him up as totally bent brain at 100%. The DBQ was filed an hour later in VBMS. Their oh-so-subtle plan appears on its face to make an end run denial around the loss of use and munificently grant a&a in its stead solely based on the bent brain and try to throw all the other shit in on top.  But if he already had the ingredients to qualify and held a TDIU or combined 100%, isn’t that 100% for Parkinson’s a separate and distinct illness that qualifies for a&a in its own right? By virtue of Buie, they should keep the TDIU/100% combined as the predicate for an SMC L a&a and make the new 100% bent brain a separate a&a. And on to SMC O/R1. In your dreams, jellybean.

VA is predictable. You can stampede them into an a&a punji pit and then file for an extra a&a if you construct it properly. And trust me, it works. VA is so narrowly focused on trying to fence you out of the R1 corral that they often inadvertently create the perfect storm to get there. Pretty cool beans, huh? Even better, you can use Buie to separate and rearrange  all their mistakes in order to get to R1. There’s no business like this VA pétard business. Well, maybe fishing with hand grenades in the Mekong. Now that was a hoot.

On another note, please welcome my shirttail relative Don to the 100% club for blindness. I’m fine-tuning his a&a based on blindness but VA is insisting he’s not completely blind-just 90%. They did give him an automobile grant but $21,500 doesn’t go far toward one of them newfangled Tesla self-driving rigs. And you’ll never catch me riding shotgun with him. Hellllllllllllllllllllll no.

Have a happy, safe Thanksgiving and Holiday season and steer clear of the new omicron corona bugs. You might be free to move about the country right now (assuming you don’t beat up the stewardesses) but it’s ill- advised. I have to go to a Travel Board hearing in Houston RO on January 12th and I’m praying it doesn’t get cancelled again. It was scheduled for May 7, 2020.

P.S. If these pictures seem too graphic to the reader, I apologize. Imagine what it felt like to be there in living color. War is Hell. Combat is something entirety different.  I can’t tell you how many Vets I talk to who served in Germany that claim they wish they’d been sent to RVN. Be glad you didn’t get your wish. The above would be burned into your mind. The reruns start  every night shortly after bedtime. There’s a Black Wall in DC that  lists 59,494 reasons why you should be glad you missed it…or any war for that matter. I publish these pictures to remind me of my lost friends. I didn’t have the luxury of a camera and time to take my own pictures. The fact is, I didn’t have the time to mourn in ’70 and nobody was interested in talking about it when I came back two years later in ’72. And that’s all I’m gonna say about that.

Posted in 100% ratings, Aid and Attendance, Corona pandemic, LZ Cork, R1/R2, SMC, TDIU, Thanksgiving and war, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , | 3 Comments

LZ CORK–THE LAST ROUNDUP

Posted on November 19, 2021 by asknod

It is with great sorrow I announce the passing of Butch Long early Tuesday morning. He fought the good fight with VA but he succumbed to what we frequently chant- Delay, deny until we die. In the instant case, it is true. I took Butch all the way from his reopening in 2015 to the CAVC and lost due to my lack of knowledge on §3.156(c). It took years to synthesize every nuance of it. In the process, I “accidentally” forgot to include all the records we obtained from the 312th Air Evac Hospital at Chu Lai. Records that say Butch was still complaining about headaches 6 weeks after the concussion blast injuries. Neurologists generally agree that TBI symptoms resolve (if they’re ever going to) within 2 weeks of a concussion “event” be it a football injury or an MVA.

These heretofore lost records allowed us to use the AMA to our benefit and continue the claim in the supplemental claim mode. VA, of course, denied it and an HLR was even more bizarre. We filed the NOD to the Board with not one, but two IMOs proving, among other things, that bilateral field vision loss in a setting of only one eye impaired clearly demonstrated an organic brain injury. In conjunction with headaches and tinnitus originating at the same time, the field vision loss IMO was the crème de la crème needed to cement the deal.

Butch in black tshirt standing behind and to the left of Gypsy Lee Rose January 18th, 1969-12 hours before the attack.

Butch’s wife Barb will take over the claim via substitution so the VA delay/deny tactics will be to little avail. It saddens me to have to witness seven years of denials. Worse, it saddens me whenever I open an old claims file from the 60s-’70s and see the perfidy. Claims of now-dead Veterans were baldly gerrymandered into 0% even when the evidence was undebatable. It demonstrates the old adage that power corrupts. Give a group of three government raters (one being an M.D.) a claim for benefits for a combat Veteran and watch them denigrate the credibility, downplay the severity and lastly, eviscerate the thrust of the claim by diverting it into a completely different direction. You’re arguing for TBI and they’re saying you have partial deafness. You say your ears ring and they say Roger that but you don’t have TBI. You’re arguing for a perforated cornea (and the residuals of a traumatic cataract) and VA is saying it’s correctable to 20/40. Your eye is perpetually “blurry” with a “hole” in the middle but it’s 20/40. You have more retained metal in you than the exoskeleton of the Tin Man in Oz but you get 10% just for shits and grins. And this scenario was just Butch.

Butch lived hard, played GI Joe hard and had a good run. He raised four wonderful children and lived to see many of the grandkids. To be honest, at one time I figured I’d be the one to auger in first. Agent Orange took an immense toll on our bodies. As if that didn’t wreak havoc alone, Malaria and a host of other diseases like Hepatitis and jungle rot plagued us in the aftermath. Some of us have diseases that doctors really haven’t seen in decades. Liver flukes in the US are unheard of.

Butch’s right arm with pepper spot tattooing from SFWs

I owe Butch immense thanks for allowing me to represent him. He taught me more than just how to win his claims. I made it clear when he was alive that I’d be there for Barb. I consider that to be my prime directive now. I’m guessing the number of LZ Cork alumnae is now getting down to fewer than one hundred members. In another ten years, it’ll probably become the Last Man Standing Club.

Butch a month after he got out of Letterman General Hospital.

I have the honor of representing certain groups of Vietnam Veterans. I have several of the Vietnam Dustoff Association crew members and their offspring. I somehow also have the honor of repping a bunch of maniac Lurps from  F Co., 51st Infantry (Airborne). Somehow my name leaked out of someone’s drunken lips back in Memphis at a Lurp convention and it was all over. I assure you I do not advertise. When I say maniacs, I mean it. Every one of these fellows have  about five ARCOms (with a V or two) a couple of Bronze Stars with Vs and about 10 Air Medals from all the combat insertions and hot LZ emergency egresses. A few have Silver Stars. PTSD among them is more common than tinnitus and flat feet. Many had multiple Purple Hearts and they still strapped on a Huey the next day and went back into the bush.

Butch’s daughter Carol cut me my FRAG orders on Butch in 2013. She admonished me not to promise anything I could not produce ( a Purple Heart) for him. She had been to about 3 or 4 VSOs who all promised her the moon and didn’t do squat. The medals and the CIB turned out to be the easy part. Even the TDIU and SMC S was easy but the §3.156(c) hump seemed insurmountable. In retrospect, I see why now. It’s simply waaaaay too much money for VA to ever go quietly into the night. A spouse with four dependents on top of a 60-70% rating from April 1970 to maturation with no kids in 2015 is a bridge too far in VAland. No matter they screwed this up horribly in 1970; they were not about to come clean and make it right now. Butch died while being ignored for six years. VA got their wish. The delay and deny tactic worked well.

Barb fortunately has his appeal already firmly ensconced at the BVA awaiting a win. Let us pray this comes to pass. Butch’s TDIU kicked in March 30, 2015. He had to live until March 29, 2025 (ten years) at midnight in order for Barb to get her DIC. Sadly, he didn’t make it to the finish line. As insurance, I’ve ordered an autopsy in search of anything that might be AO-related that was a contributory cause of death. At this point, we’re not sure but it appears he was having problems with his left leg similar to what caused him to have the right one amputated in 2017. Peripheral artery disease in the extremities is often an indicator if it permeates the whole body-including the coronary artery (IHD).

Most of you know my motto of Win or Die. Butch lived it. I am honored to pick up his flag and bear it for his surviving spouse. Any of you would do the same if the shoe was on the other foot. We are Family. As my fellow VA advocate Theresa Aldrich of Hadit.com fame espouses- Leave no one behind- especially not on a paper trail let alone a jungle trail.

I never had the pleasure of serving with Butch. Nevertheless, we shared a bond no others can. We served in Vietnam and that binds us more strongly than anything else in life…or death.

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