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.