2021-GIVING THANKS FOR MAKING IT HOME ALIVE

Greetings from the Graham ménagerie-all eight of us now. 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. 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 already 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 so immersed in your clients’ lives and family. 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 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 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 about 10 when you go to bed. 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 and nobody was interested in talking about it when I came back in 1972. 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 , , , , , , , , , , | 2 Comments

LZ CORK–THE LAST ROUNDUP

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.

Posted in All about Veterans, KP Veterans, LZ Cork, VA Agents, Veterans Law, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , | 8 Comments

2021 VETERANS DAY–OUR DAY

I’d add our day “in the sun” but it’s pouring down rain here and probably will be until next June. That’s our secret weapon against all those hoards of Californites who contemplate moving here but don’t… due to the weather blues. Ain’t cabin fever a great dissuader of geographic relocation? We don’t tan in the Northwest, baby. We rust. Regardless of weather, it’s a great day for living Vets everywhere to celebrate somehow surviving the experience. Think about it. If you were going deer hunting for 8 weeks (basic training) in the wild away from the comforts of civilization, would you purchase a brand new pair of boots that weren’t broken in? It’s a recipe for more blisters than you count. About week six they turn into nice hard pes planus hammertoes…for life. And folks wonder why Vets get a host of foot problems. Well, shit. Imagine shopping at Tom McAn’s Shoe Store and discovering days later that the fitter of your fine new footwear was hired last week and has no clue what he’s about. Oh, and no returns permitted. Suck it up.

Military life was different. I’ve done a lot of investigating over the years and see that statistically, 20% of my brethren who served during the little boundary dispute down on the Indochinese peninsula in the 60’s-70’s seem to have bent brain syndrome. That seems about right. 88% of personnel “supported” the 12% who were busy getting PTSD. 2.3 million served on or adjacent to the theatre. That statistic is skewed as it encompassed a broad age group. My father served there from June ’66 to May ’68. He was 48 when he arrived. I was 19 when I got there in ’70.  PTSD wasn’t invented until 1981. Before that it went by a lot of names.

Hue. February 1968

When a fellow airman or soldier around us went bugfucky, we couldn’t handle it. Who wanted that label? It was like a disease. You prayed you didn’t catch it too. I’ve seen a guy demand his 6 to shoot him on the spot because he was flaaaat  aaass done. He didn’t feel like waiting any longer. He wanted to see it coming. I’ve heard tales of folks curled up in a ball and shaking for 4 hours after a firefight. And they got up and began it again all over the next day. A client told me his buddy had a can of peaches shot out of his hand and that queered him to eating c rations- period. They hauled him out about 12 days later when he keeled over from starvation. Nothing to see here. Move along.

Being a Veteran could last a week or 2 years. Or four years. Or twenty… or kill you. My dad did 33 but never got his fourth star. It appears nowadays, getting that 4th star isn’t a guarantee of ability or intelligence. History will be the judge.

I have, and still do, rep several Vets who were damaged in basic or AIT. They never got past more than about 90-100 days in before they got the ax. Actual time served is no measure of suffering or injury. I admit I had a little disdain for these Veterans until I read their c files and STRs. The ones that break my heart are the MST survivors. It’s difficult to think back on my years in service and conceive of any man who would brutally beat a fellow servicewoman senseless and rape her. Or spike her drink ad nauseum.

Veterans comprise about 2% of the American population. We were promised much at enlistment and are now promised much still. Actual “gifts” are nebulous and often come in the form of parades and attaboys. For the homeless Vets, an endless supply of used clothing and toiletries are there for the asking. Jobs? Well, not exactly. Job fairs though. The prospective employers want to view the wares. Housing for homeless Vets? You mean, like, nationwide, dude? Well, pilgrim, that’s a work in progress since you came home from Saigon. We’re still in the formative stages of firming it up for our first homeless housing project in west L.A. We’re breaking ground in the next few years.

I wonder how many of you decided one day to file a claim with VA. They sent you down to the VA Medical Center/Hospital for your c&p fully well knowing you were going to see the worst of the worst casualties outside the front door taking a smoke break. VA outlawed it indoors in 1989. So you show up for your hearing c&p and here’s two wheelchair-bound former 11 Bravos mokin’ a Marb out front with no legs down below their knees. They’re happy but they just pissed on your parade. Tinnitus seemed like pretty small potatoes compared to their predicament. So you turned and left-embarrassed as hell. That would be me in June 1989 at the Seattle VAMC. I did go to my back exam later but lost. It would take me another 18 years and a medical death sentence to swallow my pride and seek a claim again.

I’m proud of what I did. No, not strafing gray jeeps or arranging introductions to God for Pathet Lao in contact. I think my reservations about the Vietnam War are retrospective. We were like Hessians in the Revolutionary War. We didn’t have a dog in the fight. The term mercenary almost rises to the lips. I’m sure our motives were pure but you have to admit it sure seems like one hell of a coincidence that we had all those brand new Hueys and Chinooks, untested 16s and Pigs-even newer versions of the venerable CBU 26 with 45 minute time-delayed bombees. You’d think the Poobahs might learn from a couple of world wars and a policing action in Korea, but no. With the latest end to Afstan, we will hopefully enter a new period of peace. Keep your fingers crossed because America becomes tone deaf about every 50 years a la George Santayana.

Veterans are an integral part of the backbone of America. Our skills, for the most part, are convertible into civilian pursuits. We enjoy a special place in our communities- or should. But… no Veteran deserves to be homeless. It should be against the law to permit that. I see the glimmerings of hope at the West LA campus where the VA has been shamed into finally allocating space for the homeless Vet on their sprawling 26 acres gifted to them for this very purpose almost 100 years ago. To think it would take this long to induce them to act in our interests is disturbing to say the least.

Happy Veterans Day to you all. Live long and prosper. And while you’re at it, if you see a Vet in less than ideal circumstances, help him out. If the shoe were on the other foot, you’d appreciate it. Happy 246th Birthday to our Marine Vets.  Wetback 26 standing by on frequency.

Posted in VA Agents, Veterans Day, Vietnam War history | Tagged , , , , , , , , , | 7 Comments

VETERANS ADMINISTRATION 2021–BOLDLY GOING NOWHERE

Sunday Morning in America…Overstated? Undue alarm? A bestial scream in the afternoon for more readership? Naw. Nothing like that, I assure you. In fact, this is meant to be one person’s subjective, Sunday Morning Quartertback, personal view of the VBA Compensation Poker Game from a litigator’s  perspective. Others who ply this trade may have a different experience but mine is tempered by 32 years of VA rodeos and a bookshelf full of VA How-to Cliff Notes™.

The .45 G3- too bad it shot from the bolt open position. Lottsa fun in a firefight close up.

First, from the perspective of the Jane or Joe Average Veteran of any war, how have things changed in your lifetime on -say- Veteran suicides? Better? Worse? The same? Now look at the data. How much baksheesh has been thrown at this intractable problem and for how many years? How many new “programs” have been employed that were going to positively, fer sure reduce the bloodshed and help repair all the bent brains out there? How many thousands of new slots at VAMCs across our purple mountains’ majesties have been created for new psychologists and mental health munchkins? I can remember when this all first came up on my radar in 2006-7. The number was staggering- 20 Vets per day were driving into freeway bridge abutments at 80 mph. They were sucking on lead lollipops or OD’ing on drugs.

All the VA’s men and all the VA’s horses seem to have encountered some unforeseen circumstances if I’m writing today that the number has increased to 22 per day. If the people in charge of these things spend millions, nay, possibly billions, in pursuit of the dry socks and toothbrushes at Standowns over fifteen years with such abysmal results, I think it’s safe to say the time has come to piss on that fire and call in the dogs. A new perspective is needed. More importantly, if  the Grand Poobahs in the VHA hierarchy have flogged the dog this long with nothing to show for it, perhaps a new paradigm is in order. Having walked in those boots once upon a time, I have no panacea to offer. I have a hard time myself distinguishing the forest from the trees.  Offering advice to anyone with MDD would be rank tomfoolery. I don’t think I’d ever feel comfortable at a VA Kumbaya circle jerk for Vietnam Vets on Tuesday evenings down at the Vet Center. Considering the moderators are renowned for taking notes on the whole thing for inclusion in your VistA/CAPRI records, you’re giving them the ammo to deny your PTSD claims later. Whoa, Leroy. Says here you admitted at the meetings to being a a heroin junkie and self-medicating. But you denied using any drugs at the c&p. What gives? Our VA shrink says your heroin habit is the cause of your major mental disorder. Denied. Next?

Let’s look at another of my pet peeves-Veterans Service Organizations. True, a lot of my anger stems from that jackwad at the Lancaster, California VFW in 1972 telling me to go over to the AmLeg (American Legion) to apply for membership because VFW only extended membership to folks who’d served in a war. Ergo, since Vietnam was a conflict, get lost.

I’ve had many encounters in the last ten years with VSO mini-poohbahs and to a man, they are mini-power trippers. Power corrupts ad nauseum. The high point of my career so far was being called a VA ambulance chaser by the AmLeg guy in Tacoma. With that aside, why on earth don’t they (VSOs) teach their service representatives VA law? Why not make them every bit as astute as a VA agent like myself? What, pray tell, is the impediment? An openminded person learns a lot every day. Just being immersed in this business means you encounter tons of new things that will help you win existing claims. Better yet, in the NOVA organization to which I belong, there are hundreds of attorneys willing to freely convey a winning strategy to any of us who ask. Most  have walked point on it already. With that Encyclopedia Britannica of knowledge at our fingertips, it seems incongruous that VFW et al would not have hundreds of attorneys on their staffs well-versed in VA law and available to dispense it. But noooooooooooo. They have National Commanders ($538 K/Yr) nattily dressed up in thousand dollar threads along with all their entourage bouncing around our fruited plains in their Gulfstream Vs vying with each other to get everyone to buy address labels and Christmas cards. Oh, and a membership. Donate is the watchword. The last exhortation arrived in the mail last week with a shiny new nickel visible in the window. Here’ one for you. Now, send in the other nineteen for me. And be quick about it.

Veterans expect a designated Agency of the Executive branch, one created solely to deal with us, to be streamlined and able to adapt to any circumstance. True, we’ve been at war in SWA for nigh on to 21 years. Vietnam wasn’t too terribly different plus or minus five years. So why is it that each successive reinvention of the VA, each innovative technological “breakthrough” and the entire electronification of the claims files has not resulted in an equally wonderful reduction in the time needed to adjudicate a claim? Remember USB Allison Hickey’s repeated assurances that success was just around the next corner? Why, what I remember was her explaining to a Congressmen one day that they were just “using up all the old DBQs before printing the new ones for distribution” and that was the delay in revamping the forms. Okay. So the problem here is elementary- the forms were (and still are) electronic, not paper. If you insist on letting the folks who perpetrated the problem provide the solution, you’re just buying more of the same problem. To that I would add VA’s entire “IT” department-or what passes for one. VAMC Hospital planning is another problem area. Has anyone in Congress ever considered cutting our losses and privatizing this gig? If we can’t even entice a lot of altruistic, high-minded liberal/progressive psychologists to come work for VA, there’s something wrong with the formula. I expect it has less to do with dental benefits than it does strictures on helping Veterans. If you recall, in 2010, the VBA unilaterally commanded the VHA to stop the annoying habit of writing nexus letters for Veterans seeking compensation benefits. That is the bailiwick of the VBA so keep out. Nonadversarial, indeed.

Considering you can listen to the fart of a mosquito .0009 seconds after it was recorded (and simultaneously uploaded) by someone on Instaglam® in Nigeria, why can’t we have a drive thru lane at our local Veterans Service Center? Really, in this day and age of vaccine passports, RFIDs and credit card chips, why not a VA ID card to prove your identity, a simple video touchscreen TV with menu for category and Diagnostic code, and a thumbdrive with your IMO by a subject matter expert? Insert ID card and remove on prompt. Choose your malady. Plug the thumbdrive into the USB port and upload it. Remove when prompted. Proceed to pull around the corner to the pickup window. Collect the rating decision and enter your bank account and tracking number.  Since VA has your entire medical hx in STRs, this should be a thirty-second piece of cake.

But something is amiss in Unicornland. The perils of coronavirus aside, we’ve been inundated in Blue Water Navy claims. And the new Agent Orange Presumptives. And the new chronic MUCMI presumptives. And more Vets filing. And more more more. Pardon me, but I thought all these new electronic jewjaws were to be the cat’s pajamas. Remember when some Rocket boy at VACO dreamed up the Central Mail Processing (CMP) Unit? Let’s set up one gigantic printing press shop up in Janesville WI and send all the RDs and other mail out from one place. Seems they, along with about half of America, ran out of employees around July 2021 and that was all they wrote (pun intended). After a few bitches,  in September they discovered the outgoing mail…wasn’t. I’m still getting mail dated early September, But for my computer access to VBMS and my clients’ files, I’d have no idea what was afoot. Considering a Vet has 30 days to answer a proposed reduction and abate the process, this can be lethal to due process. VA could care less.

I won’t even discuss the myopic chokepoint of having two (2) Decision Review Operating Centers (DROCs) at opposite ends of the country. Two. Two centers for decyphering BVA’s grants to Veterans. 6 Actual. Say all after backlog, over.

The VA process is broken once again. No one is to blame. No one is ever to blame. Our woes are merely the aftermath of a new unforeseen event-or the reincarnation of an old problem come back to haunt them. Who woulda thunk the Fed Circus would ever throw out Haas v. Peake? Why, the effrontery of those jerks. As for including SC for bladder cancer due to AO, that’s pure conjecture. Ditto hypothyroidism. The one phrase that makes me want to blow chunks is the threadbare saw: ” The important thing to note is that the mistake was a valuable teaching experience and prepares VA for the future. We’ll never pull that boner again.” So why do we have 200,000 appeals in backlog after streamlining the claims process two years ago? Why do we even have any Legacy claims still awaiting hearings?  Back that up. Why do we even have any Legacy claims awaiting anything?  6 Actual. Say all after backlog, over.

I don’t want to be an Influencer. I have no desire to try to fix VA’s myriad problems. I want to be a litigator. I want to fix dying Vietnam Veterans’ claims and prepare their spouses for what’s over the Hill. Each and every one of you deserves a skilled advocate to win your claims. VA is making it infinitely more difficult and harder each day. But why? To what purpose? The lack of a Veteran’s signature on a 526 is now grounds to legally reject it or simply close out the claim. Poof. Gone with the wind. Welcome to End Product Code EP 000. But… at the bottom of the 526, it says a rep. can sign if he has a POA on file. But…the M 21 says you can’t. Who’s running this circus? Who’s right? Sadly, a lot of attorneys are beginning to become disenchanted with VA’s obstructive, untenable litigating postures. They rationalize bailing out on being able to make money with half the work in, say, social security law. This doesn’t bode well for Veterans.

The BVA has assured us they now have secured financing and  are hiring 10 (ten) new Veterans Law Judges and training them up to speed. Shut the front door. Why weren’t these VLJs in the pipeline two years ago when February 19th, 2019, dawned? How about another 40?  We are drowning in administrative mediocrity and legal shortsightedness. It is jokingly said that it now takes three signatures to get permission to go to the bathroom for VSRs. A claimed DROC specialist in SMC couldn’t even enter the correct parameters into the VA SMC ratings calculator which reputedly will spit out the correct rating. Seriously, she didn’t understand it.  Two (2) SMC Ls for two different 100% disabilities = SMC O= R1. Result? Deny. No such thing as two A&A ratings. Go away. Go up to the BVA and sort it out. That’s what a 10182 is for, silly. The BVA is getting equally as obnoxious and remanding them back to the local Fort Fumbles and telling them to fix it before it gets kited back up to the BVA.

The VA has finally descended into the maelstrom of “I don’t give a shit”ism. If it’s complicated (and virtually all my Vets’ claims are) the default setting is to study it like Rubik’s Cube© for about 6 months and try to find the perfect denial phrase using three double negatives and dangling participles. I’ve even had IMOs denied by their doctors or nurses. Where art thou, Norman Gilbert? Equipoise quo vadis?

Here’s a recent verbatim wording from a rating decision.

“The BVA decision found that all service connected disabilities, and not necessarily just on the respiratory [sic] so there wouldn’t be entitlement to separate and distinct 50% or more at that time. In reference to the 9/7/2018 PTSD exam, the 8/23/2018 increase to PTSD (which had the wrong effective date and is a clear and unmistakable error, CUE) would warrant A/A for mental all by itself and then the COPD/Asthma/sleep apnea is separate and distinct 100% so the full P-step to M would be warranted.”

Next paragraph…

“Although only your respiratory disorder was 100% at this time, it is not clearly and unmistakably erroneous that the decision of August 27, 2021, found that the respiratory disorder and diabetes mellitus with residual complications excluding erectile dysfunction required the regular aid and attendance with activities of daily living without consideration of the psychiatric disorder rated as 100% disabling from 8/23/2018.”

Didja follow that one? We’re CUEing ourselves and giving you SMC M but our 3/04/2020 decision wasn’t CUE because we are telling you so even though we got the effective date wrong. As for the 100% you’ve had for COPD since 2008? Well, that didn’t warrant SMC L until we noticed it did. But you had to use up all your ratings to get to that SMC L so we couldn’t give you the bump to SMC L 1/2. Well, until we gave you the SMC to M but you can’t have both. Got it? The HLR got even more outlandish. I can’t make this stuff up.

VA is in denial. It’s time to roll up their collective sleeves and quit making excuses for their inability to get their underwear on correctly in the morning. “Yellow in Front and brown in back” can no longer be the operable phrase. Promoting stupid people based on longevity has always been a deciding factor coupled with a reward for loyalty regardless how outrageous the outcome. VA should get back to focusing on their “framework” as folks are fond of bandying back and forth these days. I beg the President to fix this “paralyzed from the neck up” mentality dilemma and cease concentrating on teaching pigs to fly- with or without lipstick. Our Veterans are sick and tired of this lip service. I have a Legacy Vet from 2017 finally getting his Travel Board Hearing before a VLJ on January 12, 2021.  6 Actual. Say all after backlog, over.

Currently, it takes a village of VA employees to decide a claim. I think it’s called the Chinese water torture technique. One to do intake supervision and reroute FLASH’d Veterans claims.  About 5 Senior Adjudicators to handle it and pass it on to an untermenschen. 5-10 to “develop” it and make sure you’re eligible for a presumptive. A ratings team to rate it. A supervisor to check the rater’s work. If it’s over $25 K, a third supervisor to sign it. If over $100 K, the VACO Director or VSCM to sign it.  And if it’s ginormous, it’s off to VACO and three more peeks. When finished, there are a bunch of paper pushers who write it, do a code sheet,  enter it into a number of  computer processes and begin the payments. All in all, one hundred people will “touch” a claim in some way. In the military, that would be 100 opportunities for something to get screwed up. Whoa. I thought your folks arranged for air support… In the old world of pre-2008, one rater would take your file and get to know you literally. He was usually a Veteran himself. It was no guarantee you would win, but it was a far more nuanced hands-on experience. Hell, you could actually call them and they answered their phone.

In today’s world, I contact my CMA here in Seattle and she antiseptically sends me back a reply saying “We have received your query. We’ll get back to you when we get an answer”. Sometimes I see the problem resolved and in most cases, that’s the only evidence I can see that she did something. And then the prolonged email obfuscation game. Me: Where is Mrs. ___’s DIC claim at?  Her: Her claim is at the BVA. Me: You are correct. My query is where is she in the DIC process?  Her: Did she file for that? Me: Yes. Look in VBMS. Her: Oh, yeah. I see it. I’ll look into it. Whatever became of  inductive logic? Transactional Analysis was invented. Probably by VA.

And that’s all I’m gonna say about that. Alpha 6 out.

Posted in All about Veterans, Appeals Modernization Act, Complaints Department, Food for thought, PTSD, VA Agents, VA Attorneys, vA news, VARO Misfeasance | Tagged , , , , , , , , , , | 7 Comments

EXPOSED VET RADIO SHOW–THURSDAY 11/4/2021

Jerrel flashed the Bat Signal in the sky this PM and indicated a desire to discuss all matters VA at my soonest. Pursuant to us conversating, I allowed as how I was available for a Thursday night show two days hence. I’m sure we’ll find something to talk about. We always do. SMC being one of my pet peeves, I’ll dangle a piece of Thursday night here to predigest. 

First the Radio show-Thursday 11/04/2021  at 1900 Hrs on the East, or,  1600 Hrs Antifa Savings Time. The link is here:

https://www.blogtalkradio.com/jbasser/12022243/connect/7f1567a0aed5c298be920fcd95ae3da70ef2816c

Or, should you desire, call in at

(515) 605-9764

Dial one (1) to speak to the hosts; otherwise do not and keep the show quieter.

Imagine, if you will, being a 68Juliet20 D-8 Heavy Equipment operator keeping the road open between Long Binh and Quan Loi.  You have welded plates around the cab with slits for sightlines to protect you against the gook snipers. A 7.62 by 39 will really ring your bell in there. Or two… or three… an hour. Earplugs and hearing protection was pretty skinny in fall ’68 after the big spring Tet Jam. So you tore the butts off  Marb Reds and cranked them waaaay in  and they kinda sorta cut down on the noise. Or so we all thought. Ain’t no cure for the acoustic trauma.

Moving along, the Donmeister gets a bodacious case of malaria and ends up at the Cam Ranh Bay USAF Hospital for an all-expenses-paid, 21-day vacation with the Round Eyes. He said he was pretty feverish and doesn’t remember. Don was really sick. So sick, in fact, that he still had active live virus when he arrived home in 70. They granted him 10% for a year and then demoted him to the VA Zeros for Heroes™ Program a year later.

Suddenly, in 2008, his right eye retina detached. He had it surgically reattached and everyone said it was really a weird thing, huh? Until 2017, when it re-detached. And then when it re-re-detatched yet again in 2018-this time with devastating consequences. Don’s my shirttail relative by marriage (my daughter). It goes without saying I stepped forward to rep him.

First thing was VA was saying a fasting glucose of 126 is not DM II-even with diabetic retinopathy, hypertension and PN in all four quadrants. Just a fluke, Don. You don’t have DM. Except his private doctor was saying Metoprolol and hold the McDonald’s. I got them to finally grant that as an agent orange presumptive. But, as I teach as loudly as possible, the big shit is where you go for the money. Don’s loss of sight from the retinal detachment was now total in the right eye. He could tell you whether it was day or night with it (<5/200). Then the left eye retina detached in 2019. That kind of put a fork in in it to say the very least. Don no longer drives.

Don had half-heartedly filed this as “residuals of malaria” based on an Internet article back in 3/2017. VA confirmed and continued the 0% for Malaria and that was that. I refiled  o/a Halloween 2018-this time with a very specific claim. VA denied and we produced a killer IMO from Mednick Associates. The BVA remanded it and said what about the DM II as the cause, too?

The DROC could see the writing on the wall and ran up the White Flag… sort of. In this day and age, they just couldn’t bring themselves to throw in the TDIU and the SMC for being blind. I’m gonna have to work for it.

redact 10.29.21 RD

But, due to the magic of VBMS, I can “see” the above preliminary 10/29/2021 decision. They gave Don a 90% combo for field contraction of vision in OS and 5/200 daylight in the OD. It’s rated but is not cast in concrete YET because they have not closed out the EP 040 Duty to Assist BVA remand yet. They have to complete the bitchslap by officially announcing the decision and officially rolling up the AMA claims carpet. Having been taught no manners whatsoever in this adjudications business, I reacted like any seasoned combat Veteran would. Attack I did. Yesssss. On Saturday, the 30th of Glocktober, I filed an 8940 for TDIU and an ancillary SMC request for A&A due to blindness. So, now these ingredients have been introduced prior to the completion of the claim. This makes them inextricably intertwined and they must be considered today-not next June.

This is an art form. If Don had asked for TDIU back in 2018 when he was 30%, it would have been denied and dead in the water. But, by bringing it up during the pendency of a claim where his new combined is 94% (90+20+10), it puts down Don’s marker on a desire for the highest and best rating even if they would prefer to disremember the TDIU/A&A entitlement at the present time. Kinda like them trying to whistle past the SMC graveyard.

Let’s talk about the new CAR. The Claims Accuracy Review that has replaced the old 3-day review for accuracy we were  always allowed to assert. There was a little box you could check off on in the VBMS Queue for the client saying you agreed. The disagreement button is the CMA (change management agent ).Many pro se Vets had heard of of this ploy and felt all Veterans should have the right to throw out the red flag and ask for this review. Technically, back in the day it was only available to VSOs. In 2007, when we VA attorneys and agents were allowed into the adjudications game, VA became annoyed at being called out on every decision because, well, they were flawed. The easy way to fix it was to stifle dissent. They merely did away with it in 2019. Enough Congressmen complained and the new CAR quickly replaced it. So, we have the red flag back. It’s a pocket “Motion for Reconsideration”. If it’s something minor, I complain. Mostly, if it’s complicated, I shrug and file the 10182. The reason is simple.  Donbo didn’t get a TDIU because the local yokels in the DROCs are stupid. It’s because they have been told not to grant TDIUs below. Everything has to go to the Director of Comp. and Pen for their imprimatur. If you’re 70% and 43, you’re screwed. They’ll milk you and defer for a decade. In order to cut to the chase, when this TDIU denial comes out, it’s more logical to take it to the BVA and an independent do over once and for all. I got lucky this time and shoved it down their throat before they could close the claim out. You, Joe average Veteran, are not going to have these cards to play without real time access to your claims file. Using their track record so far on just the new Cerner© Electronic Health Records EHR computer, universal VBMS access should begin in 2035. I heard the new Tag Line for EHR is the old Mattel® Toys one: “You can tell it’s a smash ’cause it’s always crashed!”

Hepatitis C claims are universally coming back from BVA grants with 0% ratings. Why? Well, duh, pilgrim. You’re cured. You don’t have the C anymore so we cannot grant your claim for $. Don’t buy it. The regulation DC 7354 says “With serologic evidence of the Hep c virus…” Try changing those Zebra stripes. Folks. An HCV antibodies test is always going to show the antigens of a prior infection. So, what about all the secondaries? The trick is to file for everything up front-including the TDIU at the outset. Keep hammering them with new supplemental claims for all the DM II, the fibromyalgia, RA, etc. I recommend getting it all done up front with one IMO. Throw in each and every secondary and connect it to the Hep C. Document it with degree of disability.

Playing VA poker is getting to be an evolving game. As quickly as we counter their ploys, they spring new ones. Fortunately, it’s like playing hide-n-seek with your 4 year-old granddaughter. You always win.

 

Sometimes you wanna go where everybody knows your name….

Posted in Exposed Vets Radio Show, VA Agents, Veterans Law | Tagged , , , , , , , , , | 2 Comments

SMC–YOU CAN’T GET THERE FROM HERE

I’ve got a wicked case of RA in the R hand from too many legal briefs at an interim desk. I’ve already lost R ring and pinkie to it and now, temporarily the whole hand. It looks like an over inflated balloon. This is one-handed but I have to. I spotted this comment from one N Shari and it breaks my heart. VA has constructed an SMC system taken from Congress’ 38 USC §1114 to prescribe what you get for what and when it’s applicable. No one ever said it was equitable. We litigators have learned to work around the impediments and obtain the highest SMCs because of the flaws in VA’s logic. As many times as they say Auer/Chevron deference should be granted to the Secretary’s cockamamie interpretations, the Court has often held in the obverse when presented at the CAFC. Thank you, Howard.

But first, a hard charger advocate, Jim Perciavalle, contacted me yesterday morning and informed me of a CAVC oral brief being argued that morning before Allen, Jacquith and Falvey on SMC. It’s a daisy. It’s the first time I’ve ever seen an OGC law dog totally bushwhacked with a question who kept trying to blow it off with M 21 logic. Finally, 11 minutes into her brief, she had to beg for a pregnant 4-minute pause to consult with the big boys and get a new legal authority answer. Rots-a-ruck, lady. I’m guessing those judges were all fixated on why her left nostril was 6 times larger than the right. Hell, I was!

This pretty much demonstrates that not only do the local yokels have any idea how this SMC poker game works, but that they are forced to resort to saying some of the damned funniest things to blow off the question. In this case, Ms. Mellissa Willis, hopefully no relation to Bruce, whips out the Mobius loop of illogic and says, no, we’re not asking for Chevron deference for our interpretation of §1114 and contradicts herself less that 3 minutes later. Then says her authority flows from the M 21. Here’s the utube link. It’s hilarious-like watching a deer standing in the road pinned by your headlights. Clueless.

Watch Judge Allen ask her if multiple 1/2 step awards under §3.350(f)(3) can be awarded. Or if (f)(3) and (f) (4) can be awarded simultaneously. Silence…then the obfuscation begins. It’s hilarious tragicomedy and should be required viewing for any who venture into this field to litigate.

Now for Ms. N Shari’s query:

Good morning sir,

I have a question in need of your expertise advice for additional SMCs. Like the previous question, I am still puzzled about the ½ and full steps on the SMC chart.

Injury Snapshot:

I am currently 100% P&T, Car Grant recipient, HISA approved, SAH approved, Chap 31 ILP client for SEH rehab concerns, SSDI recipient, Medically Retired from work, and now SMC L ½ rated, effective 09/29/2021 due to all of my injuries. I just recently won a CUE for not rating my surgically repaired left hip replacement due to reevaluation of 90% after 1 year. They had to back date my CUE to 7/29/2019, which was the day that I was originally awarded the Aid & Attendance for the Left Drop Foot, along with the standard verbiage was, “In need of A&A of being so helplessness….”

I have gone through the Pain Clinic, Spinal Cord Stimulator patient, RFA patient, Left Ankle surgery (2018), Botched VA Left Hip Replacement (2015), and 2 revision hip surgeries (2018). Diagnosed with Restless Leg Syndrome. And cannot performed a few of ADLs too.

I have a chair lift in my home for stairs, ramp accessible, grab bars in shower and near toilet, ADA raised toilet with toilevator installed, about to get adaptable auto attachments, VA approved motor scooter, right ½ inch-built shoe due to left leg longer due to botched surgery, left shoe modified with AFO inserted into the shoe, due to I cannot put on myself

I strongly feel that I have been short changed on my proper rating! I have listed my injuries below for a better visual.

Current Disabilities:

Left hip replacement: 90% (additional 2 resurface hip surgeries)
Depression: 70%
Radiculopathy of left lower extremity with drop foot: 60%
Lower Back: 40%
Radiculopathy of the lower extremity (femoral) with left drop foot : 30%
DJD right ankle: 20%
residuals of fracture of left medial malleolus: 20%
Radiculopathy of the right extremity: 20%
R knee: 10%
R hip flexion: 10%
R hip extension: 10%
R hip abduction: 10%
R wrist sprain: 10%

L hernia scar repair: 10%
L ankle scar repair: 10%
L thigh myositis ossification: 10%
L thigh ext: 10%
L Ostemacia (soft bone): 10%
Nonservice connected for Flat Feet: 0%

Questions:

1.) Do you think I am due the ½/ or full step in SMC lineage? The recent Decision Letter only showed rating rationale for the previous 2 (hip and right sciatica) injuries, but failed to mentioned their selected injuries and not mentioned of the other (right hip, knees, atrophy, and drop foot), It seems like they were just to make me go away?

2.) I thought I should have been SMC N or at least M for loss of hips or loss of legs, which was not afforded to myself?

3.) Should they have evaluated all of my mentioned injuries, since they were not the same/repeats?

5.) Should I get a separate evaluation for calf atrophy for muscle injury? The DC code is 8520, but should be in the Muscle Injury DC range?

thx in advance

Here’s my response. First, no offense intended N Shari, but I abhor being called sir. I enlisted. The only thing that gets my goat worse is “Welcome Home” from someone who was probably protesting the war when I did actually return to the world in ’72. You folks are 50 years too late, so stop it. Don’t waste your breath. I doubt any of us boots on the ground folks will ever forget that bitchslap. No amount of apologizing can erase it.

So… the envelope, please.

First, you are not 100% rated. From your list of disabilities provided, you are TDIU or, I suppose, in the VA vernacular, 100% combined. When you go down the combined road, VA will pile up every single thing you are rated for and use it as the predicate for the A&A. The only way to improve the SMC rating is to get something new that is independently ratable and not part of that A&A rating. Well, that or artfully find the way to divorce the needed element from the conglomerate and develop it as a standalone SMC L. This VA “everything but the kitchen sink” technique often screws you out of SMC S in the period before you got to SMC L for the A&A. It’s useful though to prove you have separate and distinct rated disabilities to prevent the kitchen sink scenario. Once VA declares a disease/injury the predicate for a standalone 100% and some others as the 60% separate and distinct rationale, they have made a decision that is protected. Use Medrano v. Nicholson,  21 Vet. App. 165, 170 (2007) (The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board.). Thus, they cannot come back and insist all the SMC S ingredients are the reason for the A&A. The reason is simple. If they grant you SMC S, there must be a subgroup of ratings 60% or higher that comprises the “independently ratable”  quantity to qualify. It would be injustice to later say it’s all one “disease entity” or “physical injury”. This is how you begin to prepare your defense-waaaay before you get to SMC L for anything.

By rights, your 90% for the hips should be your TDIU. The PTSD should have pushed you to SMC S. Then, the aggregate stuff could be used later to butress an A&A with the  70% PTSD used to grant your half-step to the intermediate rate between L and M (L 1/2). If you look at your most recent Code Rating sheet, you will see how they break it down. The actual description of the A&A should list all the things they use(d) to grant it.

By operation of law, §3.103 admonishes the Secretary to grant every benefit they (pronoun?) can come up with. Buie precedence instructs that there is no law saying the disabilities have to be arranged chronologically- or in any particular order at all- for that matter. Failure to perform this step produces absurd results which is forbidden under Sambonis v. Brown 1994.

VA groups similar maladies in subsets. If you had multiple SFWs, they would be rated separately ( see §4.25(b). But… if you got one more new one at 50% it would not be separate and distinct and independently ratable for a half-step bump if the predicate for the A&A was all the other muscle group disabilities. It would just be added to the A&A mix.

§3.350(f)(3), excluding TB which you did not mention you have, says:

(3) Additional independent 50 percent disabilities.

In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above.

Similarly, §3.350(f)(4), in pertinent part, states:

(4) Additional independent 100 percent ratings.

In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability[singular] independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. So, we now look at your L & 1/2 which under VA law is

(i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114 (l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use.

So, let’s examine the SMC L and ½ half rating you have. First, it’s really couched in SMC  as SMC P (L 1/2 + K for LOU of the one foot). VA is giving you TDIU for either the 70% PTSD or the hip(s) at 90%. They are the only two that qualify as a single standalone rating of 60% or more under §4.16(a). Radiculopathy of left lower extremity with drop foot at  60% has to be the 1/2 step kicker under §3.350(f)(3). You should have a single rating under DC 8520 at 80%- not 60% if they have held loss of use. But §3.350(f)(3) permits combinations of disabilities to add up to 50% to qualify to whereas (f)(4) has to be a true schedular 100%.

The Oral Briefing utube link above to Barry v. Denis the Menace argues whether multiple awards of (f)(3) -or (f)(4)- can be awarded. I personally think so but you don’t see a JD after my name nor a Judge in front of it.. I do not see anything in the language of either reg subsection specifically limiting it. Logic dictates that VA is not overly generous so they would never set up a merry-go-round where you could keep collecting 1/2 step gold rings each time you passed the dispenser. I do think personally that both bumps could, and should, be awarded at least once though. F3 and F4 are sure ambiguous and the default setting should be the interpretation which grants the greater benefit to us.

I just had a recent shootdown on a L 1/2 bump and here’s why I lost and am appealing it.

VA’s M 21, which is not law or even germane most of the time, says (distilled)

The M21 suggests that SMC(l) has a schedular/extraschedular requirement. Specifically, the M21 indicates that a single disability evaluated at 100 percent disabling may be required for a grant of aid and attendance, and that without such a total disability, referral to the Director of Compensation may be warranted for extraschedular consideration of aid and attendance.

In addition to the above, the VA ADJUDICATION MANUAL, M21-1MR, Part IV(ii), Ch. 2, § I(58)(e) notes “veterans entitled to SMC at the [(o) rate or (r) rate] are, by definition, very seriously disabled” and the rater should “apply a liberal interpretation of the law in determining the need for A&A”.

Boy howdy is that ever a lot of permissive ‘mays’ and purely subjective language to arrive at a requirement for a 100% schedular or combo interpretation. I’m not buying it.

Breniser v Shinseki 2011 is your North Star to get over the hump of trying to assemble all your disabilities using 3.350(f)(3)(4) to get to N or higher. VA calls SMC O the maximum rate. It is, technically. Anything above that has to be a need for a higher level of A&A as in R1, R2 or T. There are 4, and only 4 ways to get to O. You need any two of the four  conditions in §3.350(b)(1-4)-i.e., LOU of the upper or lower extremities or a hand and a foot, blindness, the need for A&A or being Bedridden. Period. Think back to your old Chutes and Ladders game.

You are suggesting you should be able to endlessly get bumped up using all the existing ratings you have. Check out SMC N. You’d need to physically have your legs removed at the hip in order to employ it as a kicker bump to SMC O.

So, how do you get to a higher rating? Based on what you present, I don’t see a path. The recent HLR review I got on 9/28 says:

“Note: a 100% disability and a need for regular assistance with the activities of daily living is required to meet requirements for entitlement to special monthly compensation based on Aid and Attendance. However, the 100% disability can be a single SC disability or multiple SC disabilities of a single disease entity such as Parkinson’s disease or multiple sclerosis. The 100% disability can be the sole factual basis for the need or it can be a combination of need for aid and attendance due to the 100% disability or other SC disabilities to qualify. The actual need for Aid and Attendance (A&A) must be wholly or partially due to service-connected (SC) disability evaluated as 100-percent disabling. This means that we must have evidence the 100% condition has at least a small part in the need for aid and attendance. (§3.352, §3,351(c)(3), 38 CFR 3.350)[sic]”

But note the clear  and uncomplicated language used in §3.351(c)3) cited as their authority…”(3) Establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a). Then look in §3.352(a) and tell me where it says you need that 100% or combo of shit equaling 100%. I’ll wait. The closest thing is the postscript catchall at the end of the laundry list for  inability to accomplish the daily activities of living says ” or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.”

This is why the BVA and the higher Courts refuse to consider the M 21 as the authority. The VA makes this shit up out of whole cloth and then tries to pawn it off on you like you just graduated from turnip wagon driving school and are educationally challenged.

I will never use M 21 in my legal briefs to support my argument. It will get you laughed out of the BVA or the CAVC. You’re relying on what? The M 21? Gidouttahere. They change that on average 135 times a year depending on how much new CAFC/CAVC precedence overturns the established parameters in the current version of M 21.

A possible scenario exists for you, N Shari, to say your PTSD creates, in its own right, a need for A&A independent of all the other stuff used to grant A&A #1. It appears most of your disabilities revolve around your musculoskeletal disabilities-ergo, the need based solely on that huge subset of neuropathies. If your PTSD can be shown-alone- to cause inability to remember to take medications, or protect you from the hazards of life, then try that avenue. You simply do not have multiple Breniser conditions which can advance you.

Lastly, I will tell you I had a guy come to me who amassed 22 10% ratings to reach a combo 100%. VA kept reducing him on one or another back to 0% claiming improvements. He had a hard time going to work because he was always at QTC c&ps attempting to protect his precarious 100% from reduction. You never get anywhere trying to glue 10%s and 20s together to get to 100% and, by extension, the higher SMCs. It wasn’t built that way. SMC is a quality of life booster for after you get to 100%. It’s designed to help you out with the exorbitant costs of becoming severely disabled. VA purposefully designed it with a gazillion Catch 22s to make it sound richly rewarding but with no means to advance to the higher levels.   Whoa there, buddy. You weren’t born on a Thursday. You don’t qualify for SMC. I can’t impress on Veterans how long it takes to develop any level of mastery to be able to gerrymander your SMC into the highest and best rating. Each Veteran’s combo of disabilities has to be studied, analyzed and parsed to figure out how to assemble them to yield the best outcome.

I wish I had better news in this regard, sir.  I also apologize if I lost you or others after about three paragraphs. SMC is like trying to turn water into wine.  It tasks me but I love it. It’s akin to advanced Alchemy 401.

P.S. Cupcake took this picture in Alabama somewhere when we were back there in 1990 on vacation. I can’t find the one we took of Dottie’s Beauty Salon and Taxidermy.

Posted in 100% ratings, Aid and Attendance, BVA Hearings, SMC, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , , | 9 Comments

How Does the Home-Buying Process Differ for Veterans?

Buying a home is often stressful and exciting at the same time. Understanding the process is key to a successful experience. Presented today by Ask Nod, and myself as a staff writer, the following are the primary aspects of home buying I feel that everyone should be familiar with, as well as a few details that are specific to Veterans.

Financing

Before you begin looking for a home, it is important to get your finances in order so that you can get pre-approved for a loan. This pre-approval ensures you know how much you are able to borrow and lets real estate agents know that you are serious. As a Veteran, you have the option of applying for a VA loan. This is a loan partially backed by the Department of Veterans Affairs. Because of this backing, lenders feel secure offering the loan with no down payment. Before applying, familiarize yourself with current VA mortgage rates

After you are pre-approved for a loan, it is important to consider how much you can afford. The loan amount you qualify for may not be affordable. Consider all your bills in relation to your income. Make sure to account for repairs and maintenance on the home. A good rule of thumb is that no more than 28% of your total monthly income should go toward a mortgage payment, which generally includes homeowner’s insurance and taxes.

When preparing your finances to buy a home, keep in mind that there may be hidden costs associated with the purchase. These costs include an inspection, appraisal and the VA funding fee for those using a VA loan.

Shopping

As a Veteran, you may be accustomed to military housing, rentals and frequent moves. Choosing a home to purchase is exciting but may be overwhelming. Even though research shows that over half of all homebuyers find their homes online, real estate agents can be invaluable in your search for the ideal home. They know the area and nuances of the local market. If you are new to the area, they can help you choose a neighborhood that works for you. Pay attention to crime rates, amenities and the school district. Even if you don’t have children, the quality of local schools will affect your home’s resale value.

The best season to buy a home depends on your individual needs. If you have kids, it may be better to move during the summer to avoid disrupting their schooling. More houses are on the market in the spring and summer, but the cooler months tend to offer lower prices. These are generalities, however, and the market may be different in your local area. If you are also selling your home, remember that the best seasons to buy and sell may be different, requiring you to time accordingly.

Closing

Once you have found your ideal home, it is time to make it official by closing. This is a paperwork-heavy meeting that finalizes all the details of the purchase. Keep in mind that you should not open any new lines of credit before closing day because this can delay the process.   

Watch out for closing scams. Do not transfer money without first speaking to a trusted individual. Do not send sensitive information via email.

A home is often the largest purchase an individual or family ever makes, and it can be one of the most exciting. Understanding the steps involved before getting started helps make the process less stressful and more enjoyable.

Posted in All about Veterans, Future Veterans, Guest authors, Public Service Announcements, Veterans Law | Tagged , , , , , , , , , , , | 2 Comments

LZ CORK–I’LL SEE YOU AND RAISE

How shall I start this article? It began in 2014 in a little bar in Key Center Washington over a scotch (neat, with a water back). Butch’s daughter, born shortly after he arrived in country in late 68, had been pestering anyone who would sit still long enough to listen that she was not going to let her pa die before he got his Purple Heart. Eventually her pester made its way to my front door. I’d belatedly received my medals about Memorial Day 2013 which should have been awarded in 1972 when I got home from SEA. Due to my hasty departure following an Article 15 removing a stripe and a speedy General Discharge, the awards ceremony was overlooked. Butch never got any of his because they air-evac’d him back to the World. And, due to his numerous TBI injuries, he met the same fate-busted to E1 and 3 months in the brig after his Court Martial for missing formations left and right. He at least got an Honorable-but, like me- no medals. As St. Rodney Dangerfield  correctly observed  “We don’t get no respect.”

I wrote about Butch a few times and poof!– out of the woodwork came a host of LZ Cork Alumni. Read their comments below these articles. It’s a minor miracle this all came to pass. The VA, however, has not been very very nice to Butch. They never obtained all the dustoff records to the 312th at Chu Lai,  the 95th at Da Nang, or the recovery at Camp Zama. His history began when they grabbed his stretcher out of the meat wagon at Letterman General on February 28 1969-40 days after he got clobbered. They never continued the debridements. They let it all scar over and heal. Butch would be shitting little metal slivers of shrapnel for the next 53 years- as he still is to this day.

VA’s attitude was the standard Zeroes for Heroes Program© they have been administering ever since Vietnam. The reason was simple. Nobody in govt. or the VA had ever experienced the volume of severely disabled Vets who came home from Vietnam alive. They had never survived in WW II or Korea in these numbers. There was no bed space; not enough in the way of medical assets to even remotely stem this tsunami of wounded folks. The larger problem of no money was the 800-pound gorilla sitting on the VA sofa. Butch got 10% and that’s more than most got. $17 a month.

When I climbed into the cockpit for the NOD, the NPRC provided the big mystery of the missing documents-VA never came and got ’em. Even when I reopened the claim in 2015. Zip. They just started granting everything as fast as we filed it- and a few we didn’t claim. They even threw in TDIU and Chapter 35 DEA without our asking. All this over a couple of new DD 215s showing he got the PH, the CIB and an ARCOM?  It’s evident in retrospect why they did this. The only problem is that they didn’t use §3.156(c)(1),(3),(4) and pay him back to 1970. In fact, they refused to even mention it for over three years.

As many times as we brought up the subject of a formal reconsideration and kept reminding them, VA continued to write up rating decisions that said “Roger that. The effective date is the date of your March 2015 filing but hey, we’re going to raise your Bent Brain rating from 50 to 70%, grant the TBI and give you 30% for headaches, hear? Why, we’re feeling so good about all this, we’ll even give  you an extra year of tinnitus to the year before you filed in 2015. How ’bout them apples? It won’t change your paycheck but we want you to know we’re doing the equity thing.” Pretty soon, they gave him SMC S for 100% plus 60% but again refused to even discuss reconsideration until the May 2018 SOC.

Have you ever felt someone was funning you but was eventually going to come clean? VA didn’t. The SOC insisted a reconsideration had taken place at some point but nothing in the old records convinced them to think they would have granted any of this shit in 1970. And besides, Butch didn’t file for tinnitus in ’70. He filed for perforated eardrums. Unfortunately for VA, that isn’t the legal standard of review. §3.156(c) records do not have to be conclusory. They just have to support an award today-now- in the present. If you do grant a claim after the introduction of the old records from 1970, you have to revisit the 1970 filing to see if you should have, or would have, granted back then. If so, then 1970 is your effective date for all the stuff you filed for in 1970.

Given the hindsight of Clemons v. Shinseki, you are no longer required to hang that stethoscope around your neck and say you have diagnosed yourself with TBI as opposed to Bipolar disease. If you say your ears were perforated while wearing your Purple Heart, VA has to believe you. They’re also supposed to infer all the other things that might be related to your concussion blast injury. You, yourself, are not required to provide a detailed list with a Power Point Presentation like a guided safari through the M 21 for them.

Shit happens in War. Things go boom. B 40s don’t feel like Nerf™ Rockets. When a 60 mike mike goes off on the roof of your bunker 2 feet over your head while you’re sleeping, bad ju-ju is going to follow you around for a long time. But when someone finally gets it sorted fifty years later, VA should at least make good on it instead of trying to blow you off. I’ve studied the Rubik’s Cube® of §3.156(c) longer than I’ve contemplated the intricacies of SMC and I can tell you it’s horribly subjective in VA’s eyes. Truth is, they’ve never ever seen it unless it arrives back from the CAVC or BVA on remand with instructions to “Make it so, Numbah 1.” There simply haven’t been a lot of these antique claims that are this blatant and well-supported by the evidence-both old and new.

The long and the short of §3.156(c) is almost -but not always- dependent on using the JSCRURR (Joint Services Center for the Uniform Research of Records)- those eleven VA munchkins slaving away in their DC cave who research things like if Dong Ha (LZ Cork) got hit the night of January 18, 1969. This outfit is used by VA to keep us honest and prove the PTSD stressors filed as evidence by many Vets and  attorneys are legitimate. VA uses it to research to within 6 months  before and after your claim as to when the shit went sideways on Route 1. If you pass that test, then the next is “did you have a diagnosis of PTSD back in January 1969? No? Well, then we can’t pay your claim. Next? Used to be they demanded a date range of 30 days before or after the “alleged enemy action”.  Most Vets have a hard time remembering and just used the monsoon theory. Was it raining or dry season? Dry was February to August. Everything else was wet.

Now, don’t get me wrong. There are an ungodly number of Vets who manned IBM® Selectrics or Olivettis while flying their desks who discovered they were nascent Eleven Bravo Tens when the gooks got inside the wire at 0230. I don’t think I’ll ever be able to convey in words what it feels like when a trip flare goes off and you realize the guy that just ran past you is wearing a funny hat and carrying what definitely appears to be an SKS with a bayonet. Your 214 will never say you deserve an ARCOM. No CIB for you, GI. You were there shooting but the VA pukes will never accord you the combat presumption. I don’t care how well you write your VAF 21-0781. It won’t help. JSCRURR fills that gap. In Butch’s case, we don’t need that form of proof. We have two new 215s-one for the PH and another for the CIB and the ARCOM. We have over 75 pages of  medrecs showing SFWs to not one but 7 MGs(muscle groups). We have proof of not one but bilateral eye injuries that night. We have the records showing a confirmed diagnosis of tinnitus and traumatic cataract at Butch’s c&p exam less than three months after discharge. VA would have us believe that filing for perforated cornea is not the same as filing for a bilateral field vision defect caused by a traumatic brain injury. But, in the next breath granting a claim for 20/40 for refractive error that he did not file for. The best was the sudden recharacterization of a concussion blast injury into an “acoustic event” like a loud rock concert. Only a VA puke who’s never heard a shot fired in anger could confuse the two.

Nevertheless, none of that-not so much as a word of it- convinced them to grant SC for SFWs to, say, his left hand. Or his right thigh-but only from March 2015. The best was a new tranche about two months before they conceded TBI with migraines occurred on January 18, 1969-but compensable from 2016 only, mind you. VA did “give the dog a bone” when they magnanimously acknowledged a 1970 CUE and retro’d a 10% for a second muscle group. The reason? Why, you didn’t file a claim for all those other muscles in 1970, honeychild. But now you have so we’re gonna pay you for them. The reason they didn’t get any nicer on the old stuff was the break point for dependency is 30%. If they had granted a 20% back to ’70, it would get into dependency at 30% or over. Somebody must have noticed he had a wife and four kids so that was right out.

I’m seriously wondering in this new world of equity whether the Veterans Law Judge I draw will notice the major flaw in the Secretary’s logic when he said “you didn’t file for tinnitus so we didn’t know you wanted us to consider that.” Of course, Butch did file for perforated eardrums but they didn’t infer that either-or even bother to rate him for it. What they inferred was “deafness bilateral” for what’s behind door # 1- oh bummer- $0. VA’s take, as most know is  “if you ever get more deaf, come back and see us. We have hearing aids for free, too. Did we mention that?”

Winning a VA claim often requires you to find that loose thread on the sweater and keep putting on it to see where it leads. Winning one with a Las Vegas payout for your neighbor after eight years requires a lot of navel-gazing and thought. What am I missing? What are they trying so valiantly to hide? They screwed up and fell into our punji pit. We gave them §3.156(c) evidence a month before we reopened by filing. §3.156(c), however has a compulsive clause-

at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim,

Will equals shall in law. This is not a permissive thing where if VA feels like getting off their dead asses and developing the 1970 claim, why, they might. But odds are heavy they won’t. Clemons greatly expands the legal universe of what a “claim” encompasses in layman’s terms. The Secretary attempts to use successive post hoc rationalizations for what has transpired-both in 1970 and now in the intercurrent 2018-2021 period. They’re all over the map. This will be their undoing. I just won one back to 2002 because VA did the same thing. The Vet filed for DM and they granted but also included PN of the extremities for which he didn’t file. I pointed out he’d also filed for MDD in 2002 and they denied but failed to grant when we won in 2020. BVA said pay the man for 50% back to 2002 and be quick about it. The rationale was that if the VA raters were intuitive enough to infer and grant for PN in 2020 back to 2002, they should have been equally as astute in doing the same for the MDD.

I’ve never devoted 24 pages and two IMOs to a claim or appeal. I was taught not to be redundant but this whole concept of  §3.156(c) seems to be just as incomprehensible to the VA hierarchy as SMC law is. As for the inclusion of the IMOs, how else can you rebut some (alleged) candlelight ceremony was held  at midnight in the bowels of the VARO that found your reconsideration was reviewed and “it did not prove or disprove your contention.” WTF, over? Did you, by chance grant any claims after reviewing them? Uh-oh… §3.156(c)(3) and (4) are now in play… I merely asked a couple of Board certified experts what they thought. We’ll see how that compares to a  VA-hired gun ARPN with a major in Family medicine practiced at midnight. Remember folks. Equity. Benefit of the watchamacallit.

Some will say I’m betting the ranch on this with two IMOs. Have any of you ever been to the race track and bet $200 across on a six-year-old nag going off at 60-1?  I don’t cotton to spending 8 years on anything just to leave it to chance. In my war, we preferred a three-to-one numerical advantage over our enemy. We rarely attained it and substituted the assurance of air support but you sure depend on good weather to give you that airpower. Murphy’s Law exposed that myth. You reduce the risk factors to as low a number as possible in any endeavor. Mostly, you’ll find you can’t pack enough grenades. To me, IMO’s are my hand grenades. They’re getting easier to procure and harder for VA pukes to defeat. The reason? Elementary. They’re too cheap to hire anything more than FNG ARPNs and 85 yr.-old shrinks who mix up the Veterans’ circumstances… or lie.

Butch has testified until he’s blue in the face to no avail. He’s provided a wealth of really good non-JSCRUR evidence to support his claim. VA foolishly granted it all out the wazoo without considering the implications of §3.156(c). Now they are trying to backpaddle and come up with plausible explanations for all this where they never have before. The problem is obvious. VA cannot bring itself to just admit they didn’t handle this one well and rewrite the M 21 to put guardrails on this kind of thing to prevent it from ever happening in the future.

Truth is, I built this like a Punji Pit from hell. VA fell into it when they granted in 2015. They fell in about three more times since by granting even more after a second and third tranche of records. It’s impossible for them to change what they did. It’s like catching your kid in a lie and he just digs a deeper hole with more and more lies. Shoo doggies. This is more fun than fishing with dynamite.  Or marrying a woman with a liquor store. Or bagging a Boone and Crockett 26 X 25 (irregular) Elk. Or… winning a VA claim for your fellow Vietnam Veteran friend.

Here’s the Gutenberg bible of legal briefs. Let’s hope it’s the last one on this subject.

redact bva ex pgs original – Copy

Posted in Agent Orange, All about Veterans, §3.156(c) claims, BvA Decisions, Earlier Effective dates, KP Veterans, LZ Cork, Obtaining a C-file, PTSD, SMC, Tips and Tricks, VA Agents, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , | 2 Comments

EXPOSED VET RADIO SHOW WITH JOHN AND JERREL

Hoo, doggies. I love to talk to Veterans and teach them how to spank the VA legally. Since I began this gig, I’m dumbfounded at the tsunami of Veterans who have sent me emails and thanked me for being a ”ghost Sherpa” for them. No. I’m not blowing my own horn. I just mention it to rub salt in VA’s metaphorical wounds. If you remember, VA insisted from 1989 to about 2008 that I never served in sunny Vietnam and was not entitled to the AO herbicide presumption. That’s pretty hard to swallow. Not only did I serve, I did two tours back to back. I lost some good friends whose bodies were never recovered.

That hurts. And, as Sir William vocalized so eloquently, revenge, with a side of a pound of flesh, is a dish best served chilled which suits me just fine.  Supersize me, baby. Being able to teach other how to fish instead of feeding them fish is enough for me. For those unteachable or too disabled, there are attorneys and Agents like myself who can sub in. I will include VSOs because they fill a niche-albeit sketchy in terms of  their legal knowledge. But even if they were Perry Masons all,  it wouldn’t help. VSOs work for VA. They are beholden to them for their existence in the compensation arena. They’re not allowed to go off the reservation and actually help at the risk of being fired.

But that’s not why I called you here. I shine the Bat signal into the sky tonight to alert you to another evening with John and Jerrel and a few choice remarks about some of my cases and how that may help you-the Veteran- get the upper hand with VA on your claims/appeals. Tomorrow night, October 7, 2021, at 1900 Hrs East and 1600 on the left, I have the honor of teaching even more of you about Special Monthly Compensation and its incredible inverted barrel rolls of logic.

You’re going to get to see an actual bushwhack job that screwed a Vet out of R2 for the last seven years. Take a gander below.

Redact Narrative 6-19-2015

This is equitable estoppel. The VA puke is attempting to talk my client out of her R1/R2 entitlement by scaring her into believing she’s going to lose her right to free medical or hospital inpatient status. Shut the front door. We’ll be talking about that and more. Hope to see you there.

The call in number  is

(515) 605-9764

 

Or, you can log in via the link below. Press one (1) to talk after you connect and hear the greeting. Otherwise do not press one (1), remain silent and help us keep all the dogs barking (except mine) down  to a dull roar or muted entirely…

https://www.blogtalkradio.com/jbasser/12010035/connect/a8cbe17437ef3dcc2e6153bbcee3c9ff3e75ec6b

P.S. Here’s the latest blurb from BVA Board Chairman Cheryl Mason on the BVA backlog for appeals adjudications:

September 2021 BVA report

Posted in Exposed Vets Radio Show, Lawyering Up, SMC, VA Agents | Tagged , , , , , , , , , | 1 Comment

SMC BVA HEARING–WHEN THE MUSIC’S OVER, TURN OUT THE LIGHTS

When Jim Morrison punched out, it left a hole in my psyche. Ditto Janis and Jimmy. The man’s talent was unmistakable. What a waste. Fortunately, in the short time he was here on earth, he left us with a plethora of wonderful music. My client Lori reminds me in many respects of his talents now lost to all of us. She had such wonderful prospects and looked forward to representing Veterans and it all came to naught.

Lori served in the Navy as an O-2 and came down with Multiple Sclerosis several years into it. Not to be thwarted, she went to law school and got her juris doctorate. Her disabilities continued to multiply and effectively prevented her from a meaningful career. Yeah. Think of that. A wonderful future ahead of you and it all came crashing down with a diagnosis of terminal MS. She tried vainly to practice law following school but was forced to face reality. How sad to think of all the potential Veterans she might have helped navigate the maze of VA benefits.

Lori was somewhat adept at representing herself for her benefits up until 2012 when she entered the Special Monthly Compensation arena. Suddenly, up was down and no one would give her the same answer on what she was entitled to. The Roanoke regional office, pursuant to a Hampton VAMC CAPRI note, granted an 80% rating for DC 8520-complete loss of the right lower extremity. They neglected one thing- SMC K under §3.350(a)(2)(ii) which goes with it. That was the very least of their errors and the beginning of nine years of obfuscation and worse- lies.

In 2012, Lori filed for aid and attendance due to a subset of disabilities which did not include loss of use of her right foot. VA granted her SMC L for aid and attendance but ignored the SMC K for loss of use. they also glossed over the ½-step bump for independently ratable 50% disabilities under §3.350(f)(3). Surprise, surprise, surprise as Pvt. Gomer Pyle, USMC was fond of saying.

By 2014, she had lost the use of her right hand as well. VA (finally) dutifully awarded  loss of use of the foot under DC 8520 and (magnanimously) added loss of use of  a hand under §4.71a DC 5111-i.e., entitlement under SMC L (§3.350(b)(1). All well and good-so far. A week later she got her rating decision and a note from the SMC gurus at Fort Roanoke saying she should reconsider this largesse and perhaps choose whether she wanted to keep her Aid and Attendance (and lose her hospital benefits) or accept the loss of use of the hand and foot and “keep” her free hospitalization benefits. In law, we call this estoppel. Estoppel is simply a big word for giving you shitty advice that harms your bottom line and your choosing to rely (to your detriment) on their defective legal reading.

 

Well, shoot. Lori was going down the tubes. This MS gig was a death sentence. It wasn’t going to get better or become static. She couldn’t exist unaided and had already spent days-sometimes weeks- at a stretch in VA hospitals totaling months in recent years. The thought of suddenly having to pay for all these inpatient stays out of pocket mortified her. She called the (800) 827-1000 Prize Redemption Center pronto and begged the VA to please award only the LOU of the extremities and to rescind the previous aid and attendance award. Aruuuuuu? SMC is not a “hold the pickles, hold the lettuce” arrangement. You get what’s behind Door #1-not what’s in Monty’s Cookie Jar behind door #3.  In this case, Lori became entitled to SMC O. With one of her SMC L awards being for aid and attendance, she should rightfully have been promoted to SMC R1 at a minimum and probably R2. VA had no more authority to suggest and/or employ this insane suggestion than they did to underrate her in 2012. This illustrates just how ignorant these chuckleheads really are when it comes to SMC. I don’t mean Virginia’s Fort Fumble exclusively. I mean all the Puzzle Palaces across our fruited plains. Houston is the absolute worst.

Lori continued to fight and file but all she garnered was SMC M for loss of use above the right knee. If VA was going to use this defective metric, by rights they should have at least given her the bump up to M 1/2. Being an attorney, she felt she could fight this and win it with one hand tied behind her back. Never underestimate VA. While you are arguing for SMC M 1/2, VA is laughing their asses off because you don’t even realize you should be at R1 or R2. And trust me when I say they are not going to CUE themselves and have that “Come to Jesus meeting” to make it right.

 

Pickles the pillow pincher

So she came to me, a lowly VA agent with no juris doctorate and still wet behind the ears with one year of “legal” representation under my belt.  Go figure. Sadly, I, too, fought these dicks on their level for years and tried to reason with them logically and explain it using §3.350. My dog Pickles is more astute. She I can reason with over who gets the pillow at night (her). As many times as I tried to CUE this error with logic, the more entrenched VA became in their denials. I even refiled it as a brand new claim for SMC R1 and tried to point out the extensive subset of all her disabilities and how none were duplicative or pyramiding. A brick wall would have been a far more sympathetic ear.

I had to sit down and sadly explain to Lori the arduous process ahead of us to obtain a hearing before a knowledgable VLJ at the BVA and the long wait inevitably ahead of us. Finally, that day occurred-May 4, 2021. Attached below is the Hearing transcript before an “acting” Veterans law judge (or AVLJ)- Judge (pro tem) Martin Peters. The hearing illustrates that even legally trained Veterans law judges are not up to speed on SMC any more so than the goombahs below at the regional level. I’m not suggesting that Judge Peters is a mental midget in this arena. Perish the thought. I merely point out how complicated this subject is and how it seems I end up at the BVA each and every time I file a client for the highest levels of SMC. The only good news is that I have all the regulations memorized now and don’t have to look down at my notes to quote the correct cite to 38 CFR Part 3 (or 4).

redact BVA hg. 5.4.21

As an aside, let me discuss the difference between “acting” VLJs and  true VLJs. Both have the same authority but an acting VLJ is essentially a staff attorney who has not yet been awarded his Command Pilot’s Wings. If you were AirCav, think Peter Pilot. When the backlog becomes so egregious as to piss off Congress, VA relents and lets the hired help dress up in black robes and pretend to be judges for 90-day stints.  Some AVLJs are outstanding. Some are morons. I had one AVLJ who granted two SMC Ks for loss of use of each foot but couldn’t follow the Hansel and Gretel breadcrumbs to SMC L for loss of use of BOTH feet and grant SMC L. Many of these folks labor for years before they get the big promotion. Some arrive well-connected with excellent resumes and are awarded VLJ status right out of the box. Many staff attorneys give up waiting and move into other areas of legal employment like VA attorney extraordinaire Robert P. Walsh did. After slaving away for a few years at VA, he realized he was morally on the wrong side of the legal fence and transferred his flag to private representation. Many Veterans, too numerous to count have benefited-myself included. Of course, in my case, he hornswoggled me into doing this VA representation gig afterwards. In retrospect, I can’t thank him enough.

Lori’s Hearing transcript popped up in VBMS the other day which signals her appeal is in the preparatory stages of imminent adjudication. By rights, she should have been SMC P (SMC L ½ plus K) from 2012 to 2014. From 2014, she should have been R1. And from 2016, she should have been R2. I prefer to throw the book at them and let them sort out when R2 began.

Getting an audience with a VLJ is only a beginning. You have to be able to cogently explain to them why you’re entitled to each step of SMC.  This means reducing your argument down to DickandJanespeak like the books we read in 3rd grade. Wait, let me put that in historical perspective-the books we used to read in 3rd grade in the 1950s. Nowadays, 3rd graders  probably read about how Jane learns the proper method of correctly donning Jack’s prophylactic using a banana to represent a reproductive organ-or worse. I reckon they call that Critical Sex Training these days. But I digress from Lori. Incongruously, to me time-wise, I was serving my first tour in Vietnam when she was born in 1971. Weird, huh? I guess if my religious beliefs were stronger, I might find this to be concrete proof of a Higher Being keeping me alive long enough to get her across the finish line. Unfortunately, we don’t do religion or politics here so that discussion will not occur. Karens forbid that.

I eagerly await Judge Peters’ reasoned analysis of when, and how disabled, Lori was and the end of her insane Alice in Wonderland trip through the looking glass into SMC. This article gives you a inside glimpse of just one Veteran’s travails and the futility of arguing 38 CFR SMC law with room-temperature IQ folks who only know they’re right because their M 21 Bible tells them so. If I didn’t know any better, I’d think that VA took a page out of the Flat Earth Society’s logic argument book- “I’ll see it… but not a moment before I believe it. And since believing it is never going to happen, so, too, will they never see it.

The reason that day will never arrive is simple. VA uses an SMC Calculator device which purports to be able to discern the proper rating. So far they’re batting .000 but you’ll never be able to convince them of their error. This is why they invented VA attorneys and Agents. I think the funniest part will be when the BVA decision is returned to the Jamestown Memorial Regional Office in Roanoke, the “VA ratings gurus” will concede nothing more than that the BVA has spoken. There will be no mea culpas or the donning of sackcloth and the anointing of ashes on foreheads. A brief admission of error would be nice but you’ll never get that from anyone who works at VA. Get over it.

More anon when the decision is promulgated. I sure look forward to turning out the lights when Lori’s song is over. And yes, I’m crushed. They misspelled my first name.

P.S. I couldn’t resist this. Apparently, it’s all the rage with the younger Millennial generation. I think it’s called butt printing. Think the way hospitals recorded our right foot print on our birth certificate. Anyway, meet my son Buckwheat, my lovely daughter in law Kaylynn and our newest granddaughter Penelope. She peed on Matt when that paint brush hit the buttocks which explains the premature cessation of the butt printing.

And one of her masterpieces to rival anything Hunter might have painted.

 

Posted in Aid and Attendance, BVA Hearings, Equitable Estoppel, Pickles, R1/R2, SMC, VA Agents | Tagged , , , , , , , , , , , | 3 Comments