SMC–THE NEW REDUCTION GAME

Posted on April 12, 2026 by asknod

Ever since the Fed. Circus determined (in Barry v. Denis the Menace) VA had been funning us and purposefully disremembering how many times you can be awarded half-step “bumps”, we’ve been hitting them up like Mormons on a broken one-armed bandit in West Wendover. The regulation was written originally in 1946 and hasn’t changed remarkably since. The part of this that’s putting a hole in the financial bucket is that it’s retroactive. Retroactive like back to 1946 gentlemen…

If you’re rated at SMC L for aid and attendance, blindness, loss of use of a hand and foot/ both feet or bedridden, and you have any other disabilities that are not related to the aforementioned conditions that add up to 50% or more (using VA math of course), then you’d get that $250 per month kicker for L 1/2. Lather, rinse and repeat for each and every 50% rating separate and distinct from the L.

So just imagine Johnny Vet with the misfortune of having a 60 mikemike gook mortar land right in the middle of a gaggle of guys in a listening post.  He’s lucky. He’s still alive… but he has a few more chips and dents than the average Eleven Bravo.  He’s getting an L for loss of use of the legs. Actually, he can “walk” after a fashion if his wife holds on to him but his Parkie’s tremors combine with really bad DM 2 neuropathy to make him unstable.

So right after Johnnie gets  the brand new 100% rating for Ischemic Heart disease, I put him in for the Barry bumps while I began the fight for a&a for the DM2, kidney failure and peripheral neuropathies. VA denied and I foolishly allowed them to suck me into an HLR to “fix” it quicker than going to the Board. Fix it they did. They ordered up a few c&ps and determined lo and behold, he didn’t actually have loss of use at all. But just to show they were fair and balanced and wanted to make it right, they said it’s a simple fix. Turned out it was a need for a&a all along since back to 2019. The c&p babe just didn’t know how to read the regulation was all.

But…but… but you say. Right, once they hand you LOU (loss of use), that’s a finding of fact. What we call a conclusion of law. You have to declare a CUE to overturn it. VA didn’t. They just changed it from one L to another L. The problem is they already gave my Johnnie an Auto allowance and a Specially Adapted House based on his… yup… LOU. You don’t get those bennies for aid and attendance. The finding of fact rule in §3.104 also just attached to that shiny new Aid and Attendance rating, too. So now they’ve stepped in it and the two Ls make an O and then a R 1.

So the most obvious way to unravel this paradox after the BVA bolloxed it up and affirmed was to take it to the Court and get a reading on it there. My wingman Wes McCauley of United Veterans Disability wrote a stellar legal brief that noticed about 6 errors in their thinking and end result. This one’s up at the Court if anyone likes to read the docket entries.  Go to CAVC  25-5399 Appellant’s brief to get a grasp of the argument. It’s a daisy.

But that’s not the end of the matter as we like to say. I have another Vet with a similar set of circumstances. The VA is beginning to pursue the same identical “disassembly and reassembly” of his entire ratings architecture. In Johnnie Vet #2’s case they began this process with a benign nothing burger. Johnnie #2 just got a second SMC L to go with his first one from back in 2021 for LOU of the foot and hand. This one was for a&a of the upper extremities and other musculoskeletal disease residuals combined.

Obviously, the two Ls make the O and then metamorphose to R1 but the VA brought in one of their Aluminum siding salesmen who mansplained it away thusly. ” Dude, stay with me now, hear? You’re getting L 1/2 for the hand/leg gig from ’22. But, you just got an L for the a&a, right? So… you get paid more for the L 1/2 than you would for the L so there’s no retro. It’s a push is all. Got it?” Since Johnnie #2 isn’t in the habit of smokin’ the Devil’s lettuce or munching disco biscuits, this didn’t just sail over his head. He called me. From Mexico where he lives. He said this didn’t sound right and wanted a second opinion.

I filed with a Supplemental to nudge the VA to put down the bong and cut the paper right. I also threw in a herring- a request for a SMC 1/2-step kicker from his L 1/2 (under §3.350(f)(1)(ii)) up to M under §3.350(f)(3). And what should happen? Yep. Just to be sure that Johnnie #2 wasn’t funning the VA and really did have a need for a&a, and just to be sure he still was suffering that nasty LOU of foot and hand, they threw in a request for ol’ Johnnie to saddle up the Electric wheelchair and motor on down to the lokal VES store and present himself for a couple 3 c&p exams.

Now, the same kicker applies here. A ministerial award of a&a to a Veteran does not require a new c&p at your local Fort Fumble to make sure the BVA Veterans Law Judge (VLJ) “got it right”. In fact, it would be illegal- not to mentioned unnecessary. Once you get that award for the LOU, it’s a permanent determination. That’s why they call it  “Permanent and Total”.

So, because I’m fond of torturing these chowderheads, I sometimes like to play ’em like a smallmouth bass for a while. Johnnie #2 has already been waiting since June of last year for the R1 to hit and he’s not starving. Besides, it’s accruing bucks like a bad payday loan outside the main gate. So I sent in a letter saying “Pretty Please with a cherry on top. This is purely an administrative rating snafu”. And some feller in Pittsburgh said Roger that. They cut the paper Friday morning the 13th of March and then… it disappeared while I was over at Arlington National burying my mom that afternoon. Poof. Gone with the Wind.

In it’s place was the request for his august presence Wednesday next at VES @ 0900. The request said ‘we want to make sure you get every benefit coming to you. Boy howdy is that a word salad loaded with strychnine.  So, to trim it down to just the purely administrative aspect of the a&a, I sent in a withdrawal of the Barry bump which technically would erase any possible rationale (read excuse) for a c&p. But the way the Pittsburgh crew was approaching this had all the hallmarks of the Waco fiasco with Johnnie #1. Step into my den said the spider to the fly…

So, the upshot of all of this is to apply my favorite tried-and-true technique of SOGB (make them shit or go blind). At this point, it’s like watching a bipolar guy who’s just run dry on lithium and begun firing erratically on 5 cylinders. He’s undecided on whether to go NASDAQ or Casper Milquetoast. Or buy a Lamborghini.

And if that wasn’t enough, I set up an account with VES to get the c&p feed live to my phone. Since Johnnie #2 is a bit spotty on his phone answering, I’m stepping in to help out. After getting approved, they called to schedule the c&p again. Did I mention they’d been having the Devil’s own time trying to get hold of him? It may have had something to do with me telling his wife in my broken Spanish not to take any calls- he’s bedridden and indisposed.

So this time I had to sadly let the schedular gal down emotionally and explain why the c&p was never going to happen-nor was it needed or required by law. She dutifully transcribed all that into the notes section of VBMS and I can almost see the Coach’s consternation rising daily down in the VSC Mosh Pit. Can he do that? This ain’t in the M 21. DEFCON 1. So what’s the worst that can happen? Are they going to deny the O and R1? If so, how? Are they going to deny the Barry bumps and ignore the withdrawal and camaoflage the R1  with an implicit denial? Can’t do that anymore.  Hamill v Collins just came back from the Fed. Circus and made the Three Stooges (Toth, Laurer and Jaquith) look pretty stupid. AMA says ‘tell me why I lost and what I need to provide you to get it’.  No more of that Legacy Cogburn v. Shinseki crap.

This phenomenon is not just cropping up in my claims. Wes says he’s seeing this same thing in his practice, too. It’s basically a redux of the old Extraordinary Awards Program (EAP) from back in the 2006-08 era where a VARO head Poohbah would “refer” a decision back to the VA Central Office (VACO) for a haircut in the back room. If you were due some extensive folding money- in Johnnie #2’s case about $220 K back to 2022- VACO would reinvent a reason why you were only going to get $22 K. In Johnnie #1’s case it was to avoid me building the inevitable O to R1 bridge with the coronary artery disease. In Johnnie#2’s case it was going to be a revelation that Johnnie #2, just like Johnnie #1, had one of them Holy Rollers Revival-in-a-Tent moments where the foot was miraculously healed.

It used to be back in the 80’s and 90’s, we could work with VA raters. Most were Veterans and decent folk. Nowadays, it’s like herding cats. They rely entirely on the M 21 like it’s the Koran and cannot speak mistruth. But what they ignore at their peril is 38 CFR. and there ain’t no rule saying the VA can CUE you and pawn it off as a difference of opinion 7 years later. Perhaps the best thing we have going for us as Veterans is that if the VA decides to CUE you, they have to have just as strong a case as you would against them.

VA is well-known for speaking with forked tongue. Hell, for that matter they’re well-known for speaking in Tongue and pretending it was handed down from Mount Arafat on tablets. Don’t be fooled. I’m guessing the majority of them overpaid Coaches are graduates of the GEICO Auto Claims Academy. I’ll report back at the end of this latest Long Range Recon Patrol into Indian Country.

 

Posted in Barry Bumps in SMC, BvA Decisions, CAFC Rulings, CUE, How to Qualify for VA SMC, SMC, SMC School, Special Monthly Compensation, Tips and Tricks, VA special monthly compensation, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , | 3 Comments

CONTINUING LEGAL EDUCATION IN SAN DIEGO

Posted on April 11, 2026 by asknod

Every six months, we of the VA legal persuasion (legally accredited), descend on some unwitting city in sufficient numbers to accomplish absolutely nothing financially. Sure, the hotel will be filled to the gills but it probably would be anyway with a VFW convention or the like if we weren’t there. The only noticeable financial difference would be how much Bud Light™ was sold at the hotel watering hole that week versus Tanqueray or Johnny Walker.  

Anyway, the choice this spring by our conference committee is a chicken dinner winner. I commend them. The last time we were in San Diego, it was in some out-of-the-way hole in the wall No Tell Motel on the other side of the bridge. If you didn’t arrive in a car or have an Uber app, you weren’t going anywhere for dinner. It would have been perfect for a Chinese-American Women’s Professional Yoga Association getaway as long as you had A Fannie Mae Chocolate Confectioner’s store in the lobby and an endless supply of Dom or Perrier Jouet.

The last time we had a nice place to learn about VA’s transgressions like this was in Orlando. It was a veritable estate with a gated entry and rent-a-cops.  Balmy. Adjacent to Disney World and gazillions of killer restaurants. And warm. Unless it’s about 78 outside, I’m cold.

The Manchester Grand Hyatt is like supersizing a regular hotel and planting it alongside a town rich in military history with  a bonus of building it on the waterfront or close to. I came down in 2013 to give a speech to the Vietnam Dustoff Association. They’d taken over a Hampton Suites right across from the train tracks. We got woke up about three times a night but we did get a pretty good dose of all the waterfront. Imagine my surprise when I entered the below deck hangers of the Aircraft carrier and looked up to see an old O 1 Birddog hanging overhead. Shucks, they even had a Navy Huey Gunship topside all tricked out with quad pigs. on both sides. Sweet.

I was packing my bathing suit after I saw this and Cupcake informed me that was right out. One look at my gut and they’d probably run screaming for the exits. Besides, my pool noodles wouldn’t fit in the suitcase…

Truth be told, I expect more is accomplished at the evening meet-and greets after a day’s book learning than what’s being taught during the day. The main purpose for all that scotch and gin is to lubricate the brain after harvesting those continuing legal education (CLE) credits needed to keep our accreditation status afloat. Well, that and to renew old friendships over a good dinner. 

And, to be fair to all those who hail from the South, I would be remiss if I didn’t concede there are a few Bourbon drinkers among us who have yet to acquire a cultured tongue for the taste of Kingsford charcoal briquets. But there’s hope for them. It’s said one leads by example. I acquired the taste up in Laos because warm beer just didn’t cut it. Occasionally you landed someplace civilized like L 54 (Luang Prabang) where the Air Am hostel had everything- including ice. Granted, the Kaffir limes were those weird ones that took about five to get a  ¼ teaspoon of liquid out of but hey- it was war. We suffered in silence.

So it follows Cupcake and I will be out of the office for about five days. If you have any emergencies, who ya gonna call? Right. Ghostbusters. Or VA’s Dial-A-Prayer 800 number. It may be listed as the Prize Redemption line.

 

Posted in Continuing Legal Education (CLEs), Humor, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , , | 2 Comments

ANOTHER SATURDAY NIGHT AND I AIN’T GOT NOBODY

Posted on March 29, 2026 by asknod

Several Veteran have emailed me with the eternal quandary of how, or why, exactly, March 29th  somehow became the “last day” of the geographical disagreement between the Republic of Viet Nam (RVN) and the Democratic Republic of Viet Nam (DRV). Well, it didn’t. At best it marked the end of America’s and the DRV’s disagreement and the return of our POWs. From where I stand, we might have officially rolled up  and sheathed the ceremonial banners and flown the POWs out of Hanoi, but it was quite a spell after that MACV, SOG and a few other alphabet outfits  etc. “officially” rolled up their tents and antenna farms and called it a day. MACV was just absorbed into JUSMAAGTHAI as far as I’m concerned.

As most know, I’ve been known to represent an inordinate number of former employees of in-theatre civilian airlines which had several names. I need not enumerate to say more than AirAm, CASI, Bird and Sons etc. Oddly enough, these former pilots, air cargo “kickers” and REMF facilitators at Air Operations Centers (AOC) across Laos, Thailand and RVN are all under the disability compensation umbrella of Secretary Doug and his merry band of adjudicators (DVA). They compete just like all you Veterans of various wars and expeditions for scarce compensation bucks.

It’s a long story but I know some of these former pilots- especially a few kickers I met up at Sam Thong in my day… and of course their surviving spouses. Those who are still alive might vehemently disagree that America’s combat assets and personnel were PCS by March 29th. If you buy that hooey, then I have some absolutely stunning bridges I’d like to sell you at a greatly reduced rate.

One gentleman I encountered and worked with on his claims was on one of the last 123s that bugged out before the new landlords of Tan Son Nhut Airpatch  rolled a few tanks onto the active runway at about the red V2 sign. He was busy  down on the flightline disassembling and crating PC 6s as fast as he could when the bell rang.  A handful of AirAm Bell 206s, a few Porters and even some Caribous also escaped and either flew out to the waiting A/C carriers at Dixie Station, ditched nearby, beat feet to Don Muang or flew on to Clark if they had the legs. That was April 30, 1975-not March 29, 1973.

President Ford, for whatever reason chose the magic May 7, 1975 date as the demarcation line for no’ mo’ Agent Orange. But even then there were still a few Spec. Forces or SOGs acting as the fire department nearby in Thailand in case they were needed for extracurricular activities. Thus, you can understand my confusion when someone just pulls an extraneous date out of their hat. All President Nixon did on March 29, 1973 was to “officially” shut down MACV Headquarters, fold up the flag and proceed to conduct business as usual. Granted, they had to begin parking the cars out back to make it plausible.

So I pulled out my Perplexity or whatever AI trick Google is using to see what’s actually going on officially in America today as well as on May 7th that caused us to get bumped just for shits and grins.

Today is World Piano Day celebrated here and around the world. That’s because March 29 is the 88th day of the year and a piano has…wait for it… 88 keys. I’m willing to share May 7 with them.

Long before we kissed the concrete in Southeast Asia, March 29th was National Mom and Pop Business Owners Day. Women business owners were recognized equally as men were. We didn’t even need a DEI committee to supervise it.

As for May 7th, it’s pretty popular for quite a few more things. No wonder we drew the short straw. As I explained above, Congress chose March 29 solely because of President Nixon’s MACV shutdown. Obviously, they all think that has a shit ton more “resonance” with America.  Here’s a short list of other reasons why we won’t be celebrating Pontius Pilate Day on May 7.

May 7th celebrates National Barrier Awareness Day. Congress aimed to help us simpleminded folk to recognize, understand and attempt to rid America of its social and physical barriers to disabled people-presumably including all those Vietnam Vets who had the misfortune to step on a Bouncing Betty.

In addition, I’m gonna take a wild guess and say most of you didn’t know it is also National Tourism Day, National Homebrew Day for all you aspiring Jack Daniels CEO wannabes, and National Roast Leg of Lamb Day (for which I plan to readily partake in this year).

Lastly, unless you were mistaken, it’s also National Paste Up Day recognizing all you “Traditional Graphic Design Technique” folks, National School Nurse Day and National Day of Prayer. So that explains it. May 7th’s dance card was plumb full up and already spoken for long before we made out hasty retreat on April 30th.

But what did happen on May 7th, 1975?  President Ford officially moved to declare the end of  the Vietnam “era” for monetary purposes. AI phrases it this way: “President Ford declared May 7, 1975, the end of the “Vietnam era” by proclamation to legally terminate wartime benefits, such as burial allowances and special Montgomery GI Bill rates, for new military recruits. Following the fall of Saigon on April 30, 1975, this move marked the transition to a peacetime military, saving the US $1.5 billion over five years.

This changed us over from “War Vets” to “Peacetime Vets”. The most obvious change was you no longer were awarded the coveted National Defense Service Medal (NDSM) from May 8th, 1975 on until we started invading places like Panama and Grenada. Shucks. Even Haiti. I get that. Every once in a while it’s necessary for our Military poohbahs to want to test out some of their new toys like M16A1s, Pigs and Claymores. I mean, how would they ever know they were going to need an A2? Or a clacker that didn’t require three pumps. So, if you raised your Right hand on May 7th, you got a NDSM. If you raised it on May 8th, you didn’t.

Taking that to it’s natural conclusion, you’d think that they would have put the kibosh on the NDSM from March 29th, 1973, on, right? Face it, all the combat troops had hopped a ride home on their Freedom Birds and they cut off the lights at Phu Cat, Nha Trang and Tuy Hoa, Tan Son Nhut, Bien Hoa, Phan Rang, CRB, An Khe and Da Nang. Right?

The VA recognizes the Vietnam Era for Agent Orange purposes to encompass January 9, 1962 through May 7, 1975. That’s the official date the Air Force cranked up Operation Ranch Hand out of Bien Hoa- and very  surreptitiously out of Ubon over in Thailand. Apparently, King Bhumibol wasn’t too hot on seeing that shit sprayed all over his country. The Air Force nodded their heads and said Roger. No AO, bro. But to them that didn’t rule out a host of other flavors like Blue and White. The fact is, it didn’t even rule out Orange- just the overt mention of it around Thai Army folks.

So that’s it in a nutshell. Because President Bush decided to pick that day to reserve it for V Vets in 2008 based on what President Nixon did in ’73, and because President Obama announced he, too, was going to choose March 29 on Memorial Day of 2012 to make sure we got “commemorated”… and because President Trump quit screwing around and signed the Vietnam War Veterans Recognition Act of 2017 on March 28, 2017, we now are stuck with it. For lack of a shoe the horse was lost. For lack of a horse the War was lost. But take consolation. Remember, Vietnam was not a War. According to the VFW, it was just a conflict. Try explaining that to the 59,474 families who lost a loved one.

We should be commemorating, for what it’s worth, on May 7th- or April 30th at the very earliest. In fifty years, no one will remember we lost anyway so it isn’t important. Moreover, if Viet Nam was not a war, why in Sam Hill did they begin handing out NDSMs in 1962 to them $23 drivers out of Bien Hoa? All them queshuns. And that’s my story and I’m stickin’ with it.

P.S. Because it is No Kings Day across our fruited plains, I was asked to share this with you.

 

Posted in Food for thought, Vietnam War history | Tagged , , , , , , , , , , , , , , | 4 Comments

MILESTONES–JOSEPH ALLEN McDONALD 1942-2026

Posted on March 8, 2026 by asknod

For Millennials, Gen Y and Z, this will be lost on you. In fact, I expect it would only have relevance to Baby Boomers. Country Joe was THE voice in the late-Sixties-early Seventies for the Vietnam Counterculture. I got to see him that August in ’69. Woodstock tickets were a graduation present from my mother. I took a  friend I went to school with. We had a good time. It was the first time I saw a woman’s boobs. Two months later I was in Basic Training in Texas. And seven months later there I was.  Country Joe’s I-feel-like-I’m-fixing-to-die-rag was still being sung in Vietnam when I left two years later in ’72. 

The enduring song finally faded sometime after 1975. I’m surprised it wasn’t resurrected in 1991 or 2001 but by then America had developed more respect for us as servicemen and Veterans. Why, after almost twenty five years, folks began greeting us with “Welcome Home!” as if we’d just stepped off the Freedom Bird.  Now, if we can just convince our government to quit instigating intractable 20-year wars like Viet Nam and Iraqistan, we may even be able to trim VA’s budget due to a dearth of disabled Veterans.

Joe died of Parkinson’s. He was in the Navy from 1959 to 1962 but never was exposed to herbicides. Which brings up the question of what he might have come into contact with as an Air Traffic Controller that would give him Parkie’s. Or whether Parkie’s is just endemic in the general population. In his words “Ain’t no time to wonder why. Whoopee, we’re all gonna die.”

Either way, I salute him for his service and pray I get to live that long. It would seem logical that America is gradually reaching the bottom of the Viet Nam barrel as far as Vets go. Various numbers are batted about but it seems the calculator is stuck at 850,000. That’s what they said in 2008 and the number hasn’t dropped appreciably since in spite of the fact that I lose 8 per year on average. Reincarnation?

 

Perplexity tells me between 610,000 to 850,000 still walk among us. But then, the 2020 census results revealed that in spite of the known fact that only 2.9 million of us served in-country, a whopping 13.4 million folks endorsed that they, too, had red clay betwixt their toes. Do tell. I suspect these are the Vets who pronounce Bien Hoa as Bee-in Ho-wah. I even met one at the 1992 Republican caucus in Gig Harbor. I asked him where he served because he looked pretty young. He said he was born in 1957 and got there just before they rolled up. He disremembered the name of the place he served. Time does that to you. Maybe it was with Senator “Bien Hoa” Blumenthal…

 

 

Posted in Food for the soul, Milestones, Vietnam War history | Tagged , , , , , , , , , , , , | 3 Comments

REDUCING THE VA BACKLOG ONE MISTAKE AT A TIME

Posted on March 1, 2026 by asknod

Several days ago, I read that VA has miraculously managed to shrink the backlog to less than 100,000 claims for the first time since 2013. At first glance, most of you would think “Holy shit, Batman. That means my claims will get done sooner.” Back the boat up to the dock, Gilligan. It doesn’t work that way.  First off, allow me to set the stage for this article. I have a client for whom I won Aid and Attendance. As most do not know, because VA has perennially been narrowly interpreting its own Special Monthly Compensation (SMC) regulations to shortsheet Veterans since 1946, hundreds of thousands of Veterans were disenfranchised over the years and lost a lot of dough on just one of their regulations – §3.350(f)(3).

That error cost each and every one of you Vets with a SMC L or higher rating (up to N 1/2) a minimum of $250 per month in today’s dollars- and conceivably lots more. Obviously, SMCs L through O paid less in years past. But right now, in 2026, if you had been granted aid and attendance ten years ago and you had separate and distinct ratings adding up in VA math to 50% or more, you’re missing out on that money.

This gentleman managed to stand for his CMOH during the SOTU address.

The good news is you can file for it and get it paid back to you retroactively because it isn’t a new regulation. That makes it a CUE with retroactive application because nobody ever pitched a bitch about it for seventy eight years. And, because I think that is a rather nasty thing to do to my fellow Veterans, I’m letting you all know. It might drive the backlog up over 100,000 again but VA owes it to you.

Now, to put that in perspective, I’ve done about 500 of these SMC L aid and attendance (or higher) claims and appeals just in the past five years or so and almost each and every one of those Veterans are calling me up asking me to file for what we call the Barry bumps. §3.350(f)(3) permits a “bump” up from SMC L to L 1/2 with the above-mentioned case of 50% or more. If you had two disabilities or combinations adding up to another 50%, you’d bump to SMC M. And so on all the way up to N 1/2.

If you reach the N 1/2 combination and also had a SMC K for loss of use of winky or a mastectomy, you’d get a bump up to SMC O automatically. If your L was for aid and attendance and not for loss of use of the lower extremities, your O would “bump” up to SMC R 1. To put this into perspective, SMC L (married) pays $5120.42. SMC L 1/2 pays $5373.59. SMC M pays $5628.14. And so on. SMC R1 currently pays $10,046.47. These figures are enough to roll your mental socks down around your ankles, huh?

On the eighth day the Lord created White Phosphorus and saw that it was good.

Now let’s put this into the context of reducing the VA backlog. Simply put, how will you ever reduce the backlog when antique error is built into the equation? But there’s more. What happens if you ignore the error and keep repeating it now-in 2026? This is worse than Sisyphus pushing the rock up the hill.

It’s a given that WW II, Korean and early peacetime, pre-Viet Nam Vets are probably too old or unaware that they got the poopy end of the Punji stick. But for Viet Nam Veterans, and especially the hordes now assembling in the wings from the 20-year Afstan and Iraq misunderstanding, correcting the record is going to take a while. Add in the Duran v McDonough decision pointing out that VA has also been screwing us on §4.124a DC 8000-8025 diseases since 1946, how can VA ever hope to reduce their backlog? They’re their own worst enemy and merely make more work for themselves every time they cut a new SMC rating.

On a more personal note, let’s do a peekaboo at one of the classic mistakes VBA is making every day nowadays. You finally prevail on your claim for SMC L for, let’s say, aid and attendance. By being granted the L, you are now automatically entering the “bump” zone. Since VA raters do not use innate intelligence to ascertain your correct rating or entitlement to these ancillary bumps, they just grant the L. This is the problem. VA raters don’t know how to do SMC. They resort to the fabled M 21 manual to tell them how to adjudicate a claim. Garbage in. Garbage out.

So we start with Johnny Vet’s new SMC L. In this case, he also has a 30% for migraine headaches, a 20% rating for a lower back problem and a 10% for his left knee. Using the §4.25(a) chart, he has a combined rating (30+20=44+ 10=50). Actually, he has five 10% ratings in addition to the above but we’ll get to that in a moment. The VA blew right through the Barry bump we did file for like a stop sign and didn’t even slow down. No problem. An easy fix, right? But this means while VA just reduced the backlog by one claim, they created the need for another one. But that is not the end of the matter. Oh, hell no- not by a long shot.

I can’t make this up but I’ll show you how bad the system has become. I’m unsure if it’s all the new AI or if it’s pure ignorance. That’s irrelevant. I now had to file Johnny Vet for a supplemental 995 and say he’s entitled to SMC L 1/2 (or in the vernacular of the VA, ‘the intermediate rate between L and M’) based on the headaches, back and knee. I even pointed it out for them both in VAspeak and in Dick-and-Janespeak just in case they assigned it to a FNG who’d never heard of SMC. Shoot, I went even further and attached a 4138 just in case they were still confused…

redact 995 Barry bump

VA accepted the supplemental claim but here’s where the confusion and claim # 3 begins. The intake specialist (and I use that term lightly) read this to mean Johnny wanted an increase on his headaches, lower back and knee. They promptly scheduled him for three (3) new c&p exams for each of the items I listed. Now think about this. Each one of those c&ps cost VA (and you the taxpayer) $750 bucks a pop. Poof. There went $2250 up in smoke. The silver lining to this cloud for Johnny Vet was that the Headache inspector actually read the records and checked the right box.

When I spotted  all this c&p stupidity, I emailed the Coach who was supervising the rater and explained it carefully in one-syllable words. All I got was “If you have a complaint, please submit it to the Change Management Agent and s/he will transmit it to us. Otherwise, piss off.”

Fort Houston gave Johnny a brand new rating with a 50% for headaches (they just confirmed and continued his back and knee ratings). They even managed to figure out he was entitled to that SMC L 1/2 I asked for, too. But not so fast, Speedy Gonzalez. They gave him the 1/2 step bump for the headaches only. But by increasing his headaches, they accidentally created another half step bump to SMC M because Johnny has other 20 and 10% ratings that add up to 50% or more.

redact L RD for L1.5 2.24.2026

You see why I can’t make this shit up? Nobody would believe me. So here’s the code sheet. He’s now L 1/2 but he still has separate and distinct disabilities which have nothing to do with his bent brain syndrome supersized with his TBI that add up to a second 1/2 step bump. 20+10=28+10=35+10=42+10=48+10= 53%. How could Roger the Rater miss this? How could the M 21 miss it? Brain fart or programming error?

redact CS 2.24.2026

The repair order for Johnny Vet is definitely not to go for a HLR. If these folks can’t get their underwear on facing the right way when they get in the morning, expecting them to fix this is a fool’s errand. No, sadly this will require another trip to the BVA to get it sorted. Idiot’s delight. From the cheap seats where I’m sitting, I see one claim actually creating two more. In my parlance, that’s one step forward, two steps backward. If they turn around and walk backwards, they’ll get there sooner.

 I do wish someone with a little pull could take this documented example up to Secretary Doug and explain the time-tested adage that haste makes waste. Or, as the Ahnold might say it, hasta la wasta, baby.

Yeah. I know. The picture’s reversed because the infeed was on the port side.

Here’s another good example of missed bumps. I’ve done about 25 of these in the last five months. More come through the door every day. To me, the crime is that you Veterans do not get to see your code sheets which means you have no idea they’re screwing you out of some serious folding money. Come to think of it, maybe that’s the idea…

redact 995 Barry bump

redact BVA filed 2.16.2026

This one was even more humorous. they turned the Vet down because he didn’t have loss of use of hands above the elbows and a few other misinterpretations of §3.350(f)(1).

 

Posted in Aid and Attendance, Barry Bumps in SMC, SMC, Special Monthly Compensation, VA Agents, VA special monthly compensation, Veterans Law | Tagged , , , , , , , , , , , , , , , | 2 Comments

THE SUNDAY ROUNDUP/CHICKEN LITTLE REPORT

Posted on February 22, 2026 by asknod

I find all kinds of gems scattered across the Internet. One toy I play with is a word search tool to find out where my name is mentioned to make sure nobody is putting words in my mouth. As all of you know, I don’t have to advertise young Russian hotties who seek White American Males or cheap Viagra for 87¢ a pill. I cheat. I have a law practice which pays for all this. “All this” is a whopping $100 a year. I owe my thanks to WordPress™ for that. Actually, even if I had no practice, I lucked out by marrying a rich girl. 

My word search alarm went off somewhat late on this one but it’s a daisy. We talk about SMC a lot here because, well, what the hey? That’s the essence of my practice. Relax, I’m just a lowly VA Agent with permission to practice at the Court. That makes me .001% more cool than a VSO service officer in reality. Like old Rodney Dangerfield used to say, “I don’ get no respect.” But then, I’m not a parade kind of guy. I don’t expect any.

But back to the search alarm. I see VBN (the Pink Peggy site) has really changed. It ain’t pink anymore. I hadn’t been there for almost a decade but my name popped up on one of their forums Check this discussion out. https://vetsbenefits.net/viewtopic.php?p=1643933 

The word search found Tankerslead 19K interjected my website as a trustworthy source for information on SMC. Mr. Tanker was wasting his electrons. VBN treats me like an illegal alien or the crazy aunt that lives in the attic and erased my existence. But then, so did Hadit.com. Over there, they had so many threads with my name in them they couldn’t erase me so they just gave me a new moniker- Former Member. But Mr. Tanker announced:

“I’ve been reading a lot of Asknod and some of his trainees work he is more than solid has been working SMC for years his cases are very interesting and you get some Vietnam stories in the mix.”

The conversation link above is dominated by several of the Grand Poohbahs of VA law. One is an absolute hoot. As an aside, VBN booted me out long ago when I began publishing BVA decisions on asknod that contradicted all that wonderful advice they were offering over there. Grand Poohbah (GP) Cruiser even went so far as to correctly announce there is no rule forbidding two aid and attendance ratings but then promptly contradicted himself to say it cannot be done. A Veteran has a better chance of winning the Powerball Lotto than getting two a&a awards?

“To my knowledge (and I did do this at VA for 30 years so I think I’m on solid ground) there is no law or regulation that specifically says that two awards of aid and attendance cannot be granted based on separate disabilities, each requiring aid and attendance on it’s [sic] (their) own.  This has always been VA’s interpretation and VA decision makers (be they raters, DROs, or BVA Judges) are required to rule accordingly.”

Since I’ve done this (double a&a ratings) about 300 times, I’m wondering if GP Cruiser spent his thirty years at the VA mopping their floors. But not to be outdone, he (she?) doubled down and stated you would have to appeal to the CAVC or the Fed. Circus to attain this rating…

“The only way you will get this is to appeal a BVA decision denying you the second aid and attendance award to the Court of Appeals for Veterans Claims and get a Judge to overrule VA’s interpretation, either there or in a Federal Circuit Court of Appeals.  In other words you will only get this from a court outside of VA.  I haven’t looked to see if there has already been a court ruling on this.  I’ll let someone else do that.”

That’s okay. I looked it up for you, sir. It’s called Breniser versus Shinseki and it happened way back in 2011. It put the quandary he discusses to bed once and for all. I guess what scares me is that Veterans Advocates’ websites can publish this tripe with a straight face.

Lastly, on the VBN site, I notice they’re busy selling everything from cars to … wait for it… cheap Viagra. Jez- False VA law and Viagra? But I digress.

I see Hadit.com has reverted back to an ad-free venue again. In spite of the change, it would appear they’re having a hard time keeping the lights on. They have an active section devoted just to seeking donations. Again, what do they do with all this money?

$250 Dollars per year for a Patron’s Badge.

I know for a fact that I got Hadit’s owner (Theresa) SMC at the L rate for a&a back in 2018 or 19. Using the VA’s SMC calculator, we know a single Vet gets $4900.83 a month for a&a. Add in a SSA payment of at least the minimum at $1000/mo. and you’d think she would have no problem floating the Hadit boat. Go figure.

The next subject of interest this week is all the panicans going apeshit at the prospect of VA reinterpreting how §4.10 should be interpreted. To sum it up in a nutshell, this was a nonstarter. The whole thing existed on paper for 40 hours before being rescinded. Yet every guy with an ascot or a Santa Claus-sized beard is writing articles or Utubeing about how the sky is falling. Worse, even after Secretary Collins called off the dogs and pissed on the fire, the major news outlets (Stars and Stripes, Military Times etc.) were still crying in their beer about how many Veterans would be made homeless or die if this comes to pass.

Being the perennial Devil’s Advocate, let’s disassemble this and put it in perspective. Let’s say just for shits and grins that ol’ Secretary Doug did implement this for the sake of argument. The very first thing would be that if you were rated before this came into existence, VA could never use the new code interpretation to reduce your existing rating.

Another facet of the existing precedence, established back in 2012 in Jones v. Shinseki said that if the diagnostic code mentions the ameliorating effects of a medication, then you can rate on the medicated state of the Vet. Put more simply, if you had eczema and you used some kind of corticosteroid cream to help you reduce the rash or itch, then the improvement would be what you rate on. Look at Diabetes Mellitus II. Same thing. If you have it and need no medication, you get 10%. If you use metformin of glipizide, you get 20. If you have to regulate you activities and require a supervised diet then 40. And so on.

Take cancer. You get a temporary 100 for the active period when using chemo or radiation therapy. Afterwards, if it goes into remission, they rate on the residuals. So after they fry your prostate gland into charcoal and kill the cancer, they reduce you and rate on the residuals of how many Depends© undergarments you go through in a day.

I suspect the fear of most Veterans is if they are getting 50% for OSA and using a CPAP, they worry about getting reduced. Or with Bent Brain Syndrome, they’ll get a haircut based on the new and improved version of themselves on Paxil®. I get their concern. But, being the Devil’s advocate here, let me explore this.

So let’s say you’re at 70% for bugf**kyitis in a medicated state. You can still go to work as a Po-liceman and kill people but don’t need any accommodations for your disease. With the new ruling, VA is going to look at the medicated you instead of an unmedicated you. If you didn’t eat your Seroquel daily with a side of  trazadone and supersized with a hit or two of 10mg Valium, you might be a basket case. But you aren’t! The drugs make you a productive member of society.

So VA is saying why give you 70% for the bent brain when they can lubricate your brain and make you functional? Seems to me the 70% or 100% rating for a Vet’s mental problems should be reserved for the guys that medication can’t even fix. One of my Vets was getting hosed with 600 mg of Thorazine three times a day back in the 90’s and it didn’t even faze him. He was certifiable then and still is.

The biggest obstacle to instituting the new rule was trying to avoid the 90 day comment period. Well, that and the that pesky Jones v. Shinseki rule recently reinforced by the New Ingram v. Collins decision at the Fed Circus. That’s what put the fear of god in them. But, just like a bullet, you can’t call Ingram back and put it back in the gun chamber. Short of Congress remodeling the regulations, Secretary Doug’s hands are tied.

I have no doubt we’re going to be revisiting this abortion at some time in the future but I don’t waste my time theorizing on all the possible what-ifs. Think back, Remember when all the Big Six VSOs were shitting their britches and saying Congress was going to do away with TDIU? I noticed §4.16 is still on the books this morning.

This Chicken Little crap about the sky is falling is beginning to become a bit much. Let’s all calm down and worry about our health-not how much we’re going to get paid for the lack of it. Truth be told, I’d turn in my SMC S tomorrow morning if I could eat some magic pill that would give me back my health. I just can’t conceive of this argument I hear that Veterans are going to have to forego their Eliquis and Entresto in order to keep their 100% rating for Ischemic Heart Disease. VFW’s bigwigs say you’d rather keel over with a bodacious Myocardial Infarction supersized with a stroke that reduces you to a vegetable in order to keep the bucks? I just don’t buy it.

 

Posted in CAVC Knowledge, Diagnostic Codes (DCs), Food for thought, Medical News, VA Agents | Tagged , , , , , , , , , , | Leave a comment

BVA– DIC- DON’T WORRY BABY/ EVERYTHING WILL TURN OUT ALRIGHT

Posted on February 21, 2026 by asknod

This is another one of those DIC stories I love to make the telephone call to the widow on. Only this one dragged out for ten years and three months. Grab a brewskie and some chips, turn off the boob tube for a spell and listen to the story about Frank and Jeannie- two American kids who grew up in the heartland.

 Jeannie and Frank met up in Nashville back in 1982. She got a job at Frank’s supermarket and caught his eye. Turns out they fell in love and got hitched. Too bad all stories don’t just end with “and they lived happily ever after.”

Frank joined the Marines when he turned 18 in 1953. He did his three years as a R/T, got out and went back to Nashville. Part of his enlistment was two years and some change at Camp Lejeune and he was unaware the water was pure poison. Sure, like most guys his age, and especially in the Gyrines, he smoked leftover unfiltered smokes from c rations. Even if they hadn’t been free, they sold them at the PX for about a nickel a pack.

The Famous Peach can to prevent jams on the infeed of the Pig.

Three or four years after he got out, he decided to quit and that was that. Or so he thought. Fifty three years later, in April 2015, he went to the family doctor with a persistent sore throat and cough. Turns out it was the lung cancer. They began the usual stuff like chemo and radiation to fight it but he was gone by November. I can’t  help but think he was probably telling his Jeannie “Don’t worry baby” just like the Beach Boys song right up until the end. That’s what I plan on telling Cupcake, too.

 

Fast forward a few years. Jeannie was right about it being due to Camp Lejeune but just imagine her locking horns with the VA. After a two-year tussle, the VA went out and got a gomer independent medical opinion. The doctor decided to alter history and stretch the truth a mite bit. He claimed the records showed ol’ Frank was a regular smokestack and went through no less than 3 packs a day until 1975.  Six years of a pack a day segued into 22 years of 3 packs a day just because a doctor who had never laid eyes on Frank said so. Pardon my French but that sucks.

Frank had filed for the lung cancer back in April when he found out. Hell, Camp Lejeune’s water problems were pretty much old news by then but not the lawsuits. VA was beginning to panic and was trying to limit the damage as much as possible. That part of the claim was lost for accrued purposes because Jeannie wasn’t getting any legal help. But she did manage to keep the wrongful death part of the claim alive.

After the VA denied it in ’17, she waited patiently for the Statement of the Case (SOC) to come out in early ’20. She then filed her 10182 and transitioned into the AMA process. Fortunately for me and for the sake of a happy ending to all this, she asked for a hearing. She’d submitted two “sorta” IMOs- one  from Frank’s family doctor who’d known him since he was knee high to a 9-inch bottle of Schlitz. That doctor put a fork in the 3 packs-a-day lie the VA was pushing.  His pulmonologist/oncologist doctor also opined as to how it had to be from Camp Lejeune water. But, from the tricky legal aspect, we know that unless she had submitted these before the SOC, they were inadmissible in the AMA… unless she submitted them in the Evidence lane within 90 days of her 10182 or… if she’d asked for a hearing, then they were admissible in the 90 days following the hearing.

Everybody wonders if there’s a God. Well, for the sake of argument, let’s say a lot of folks wonder. Me too. Fast forward again to Veterans Day in 2023. Having been cooped up at home for two years of that nothing burger Pandemic thing, I had a hankering to get out and move about the country. So I sashayed on over to Winchester, Tennessee for their grand celebration.

John Stacy, who does the Exposed Vet podcasts, with Ray Cobb, who is also one of my clients, put on a great show and we had a full house of Veterans, their wives and VSO representatives. One of my LRRP group (of five) even came down from Northern Tennessee with his lovely wife to thank me for getting him his 100% with aid and attendance. I don’t get to meet very many of the guys and gals I represent so this was quite the treat all by itself.

I gave an eye-opening speech about SMC and how it begins after 100%. All the VSO crew were busy shaking their heads sideways and allowing as there was no such thing. Jeannie had come to listen mostly but one of the fellows sitting at her table who was taking in my SMC speech leaned forward and said to her “Now that there’s the fellow you want to represent you- not one of these chowderheads.” And then along came God.

So, about lunchtime, I was headed to the kitchen to strap on the ol’ feed bag when Jeannie glides up and slides her arm through mine and introduced herself. She talked a blue streak over lunch about how Frank had passed on and all the trouble she was having with VA. Now, I reckon most guys have a soft spot for widows- especially ones who have been done wrong. Before I could even think about it, I’d already agreed to take the case.

I went through that file and realized this was a job for Mednick- my trusted outfit for good medical opinions. I’ve never lost a single claim or appeal using them over the last ten or so years. Their doctor wrote a beautiful opinion but VA’s opinion wasn’t hard to beat. He had the facts so screwed up, no one was going to buy it. Worse, he didn’t have one peer-reviewed cite and all he talked about was how most folks who smoked for 30 years died of lung cancer. The dude never said squat about Camp Lejeune’s famous water or what would happen if you smoked and drank that, too.

I did the BVA hearing with Jeannie remotely. I was in Seattle and she was in Winchester. If I hadn’t been so pressed for time, I’d have liked to have flown back to DC and had her drive up from Winchester.  Talk about luck. When you’re dealing with a widow and DIC, you pray for a woman VLJ. God must have heard me because we drew Judge Jennifer Kirby. I think she was used to holding hearings with VSO service officers who had room temperature IQs.

I’ve read a bunch of their briefs and read their transcripts. The prime argument always consists of “My client never got the benefit of the doubt, your honor. §3.102.” Short and sweet. No discussion of the evidence for… or against.  The representative asks the Vet how he got _______ and they always recite stuff that is pure poison to the Judge’s ears. You never ask your Vet to dangle a stethoscope around his neck and talk like a doctor. Never.

By the time I got finished with my hearing, the Judge was nodding and telling me it was refreshing to talk to someone with a grasp of the law, CAVC cites and had a vocabulary of more than 300 words. That’s when I felt like busting out with the Beach Boys song in three part harmony. I knew I had Jeannie’s cat in the bag. Just to be safe, I’d asked Judge Kirby up front if she would consider taking this case all the way to the finish line. With the new AMA, she wasn’t obliged to. She didn’t say one way or another so I didn’t even know she had until she signed it. Here’s the transcript.

redact BVA Hearing txscript 4.26.2024

What I didn’t contemplate was that it would take another 663 days to solve this Rubik’s cube. My guess is it’s the backlog. The evidence was unequivocal. Seems when President Trump took office, a lot of BVA employees took offense with his methods of fixing America and quit. This created a problem getting things done in a timely manner.

I was glued to CASEFLOW on Friday when the decision finally was published about 1629 Hours (L) DC time ( a minute before quitting time). I wasn’t surprised we won but I’ll tell you Jeannie had flat out been a hot mess ever since the hearing. She was convinced she’d stepped on her skirt and done a face plant with the judge. No amount of cajoling or encouraging words could roust her out of her funk.

redacted BVA DIC Win 2.18.2026

Redact RD 2.19.2026

I get to do about 3 or 4 of these DIC gigs every year. Nothing gives me greater pleasure than to make that phone call and set a widow’s heart at ease. But then, I don’t recall hearing about any gal having to fight ten years and some change to win one of these. That’s unheard of… or should be.

I reckon the best part is old Frank is probably looking down from Heaven about now and saying “See? I told you not to worry, baby. Everything turned out alright.”

That’s my story and I’m sticking with it.

Posted in BvA Decisions, Camp Lejeune poisoning, Dependency allowance, DIC, Exposed Veteran Radio Show, Food for the soul, SC For Cause of Death, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , | 4 Comments

EXPOSED VET ZOOM SHOW

Posted on February 18, 2026 by asknod

Tomorrow afternoon/evening (1600 Pacific and 1900 East) John Stacy is doing a Video discussion of the new Medications = reduction that just came to pass yesterday. We’re going to discuss this one until we’re blue in the face. Also, we will discuss the import of the new Fed Circus decision in Hamill v. Collins which does away with the odious “implicit denial” abortion from Cogburn v. Shinseki. Call in and give your opinion or figure out how to ask for access to express your views.

Here’s the link:

https://riverside.com/studio/exposed-vet-productions?token=9e9897cb93037443f3af1b98ea67d6e2788b9eb2

Be there or be square.

Posted in Exposed Veteran Radio Show | Tagged , , , , , , , , , | 3 Comments

FED CIRCUS- IMPLICIT DENIAL– SWEET CAROLINE

Posted on February 8, 2026 by asknod

I never was a fan of Neil Diamond. His stuff crossed into Neil Sadaka territory-too bubblegummy. But I heard the song on a recent Landman episode and it fits. “Sweet Caroline/Good times never seemed so good/I’ve been inclined/To believe they never would.” After almost 37 years, I’ve watched a lot of legal decisions adjudicated and our rights as Veterans gradually increase. This last week,  we received a long-overdue ruling from the Fed Circus doing away with the dreaded “Implicit Denial” theory. I’m fixing’ to discuss it directly but you might want to chew on it as I lay it out for you. https://www.cafc.uscourts.gov/opinions-orders/24-1543.OPINION.2-4-2026_2642963.pdf

Frequently, when we file for claims, VA has a habit of denying them in strange ways. Sometimes they even disremember to mention they adjudicated it. If you pitch a bitch, they’ll try to convince you they actually did deny it but somehow it must of just snuck by you. I reckon you’re expected to examine the decision and deduce your denial by the fact that your paycheck didn’t grow larger. Considering Veterans never get to see their Ratings “Code Sheet”, how would they know?

So, let’s spin the wheel of fortune and see what it (implicit denial) is (or was), what it looks like and what just happened.  Let’s start by pointing out that in the old world of Legacy claims pre-February 14, 2019, implicit denial was perfectly legal but hardly fair in the true, nonadversarial venue we’re supposed to inhabit. Even though they’ve forbidden it from now on, you can bet they’ll take another two years to “catch up.”

Since all I do is SMC, implicit denial has been a major thorn in my side. Let me begin with a sample of a real filing for several SMCs. VA, up to this point, had denied anything to do with SMC above an S or K for my Vet. So, to get their attention, I threw three at them at once. It had it’s desired effect. Boy howdy did it.

redact filed for A&A X 3

VA looks at this like a bull at a red blanket. One of three things usually happens. Either they state “Your current level of SMC is confirmed and continued at the current rate.” or “Aid and attendance is denied.” or this new one: “Review of your file shows you are already in receipt of aid and attendance. As it can only be awarded once, you’re plumb shit out of luck, bubba.”

redact RD 9.15.2025

When Congress decided to make VA law ten times more difficult in 2017, they invented the AMA. A big change between AMA and Legacy was that they had to tell you a few things.  You know- important things you needed to win. In other words, no mo’ implicit denial. The Boys down in the trenches didn’t get that email and continue denying Vets using Legacy rules. For six years this has been going on, folks.

Here’s what they’re supposed to have been doing since February 19, 2019- §3.103(f)

(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting of relief. Written notification must include in the notice letter or enclosures or a combination thereof, all of the following elements:

(1) Identification of the issues adjudicated;

(2) A summary of the evidence considered;

(3) A summary of the laws and regulations applicable to the claim;

(4) A listing of any findings made by the adjudicator that are favorable to the claimant under § 3.104(c);

(5) For denied claims, identification of the element(s) required to grant the claim(s) that were not met;

(6) If applicable, identification of the criteria required to grant service connection or the next higher-level of compensation;

(7) An explanation of how to obtain or access evidence used in making the decision; and

(8) A summary of the applicable review options under § 3.2500 available for the claimant to seek further review of the decision.

Not one but eight things VA is required to do in a rating decision. Here’s a hoot. The RD says a&a denied but the favorable findings report avers you need a&a. Only in VA Unicornville, folks.

redact RD 7.23.24

Implicit denial arose out of the anti-Veteran, trailer trash, Walmarket Big Six VSO mentality that Veterans are just a bunch of welfare queens. It began perhaps in Ingram v. Nicholson, then grew into Deshotel v. Nicholson, segued into Adams v. Shinseki and finally blossomed in Cogburn v. Shinseki. This came to a head in 2010 with Mr. Dennis W. Cogburn, a true, boots in red clay Veteran like me went up against the VA. Dennis got a remand and then got his ass handed to him on fine china. The BVA trotted out a new horse, a fresh rope and clarified what was needed to rebut an implicit denial (the four Cogburn rules). Turns out it was just a rehash of the old VA Three-card Monte game. Heads I win, Tails you lose.

What disturbs me was the CAVC judges. This was perhaps the first time I felt Judge Schoelen was way to hell and gone off base. She put in a separate concurral but still agreed that the legality of the concept of implicit denial was okay. This, to me, is a betrayal and repudiation of her pro-Veteran stance up to this point. In what universe would it be okay to purposefully pee on a Veteran’s leg and tell him it’s raining?

We are finding more and more inconsistencies in the AMA as we move forward. Certain regulations have had to be rewritten to comprehend the New World Order of the Bix Six VSOs due to their being found to have conflicts. Their fingerprints are all over what attorneys and Agents can and cannot do in Part 14. They (VSOs), of course, are free to make mistakes willy nilly and laugh it off as gross ineptness on their part. We Agents and Attorneys are expected to have our shit in a row. Look at the Laska “copy and paste” disaster. VA clearly made SMC T’s requirements the same as R2’s  and then tried desperately to defend their error.

The only way Veterans’ advocates like me have found a way around implicit denial is to frame our requests for a&a individually and capture them in anally specific bites. Hence, “entitlement to ___________ due solely to _________.” The purpose of doing it this way becomes clear after the denial when you move up to the BVA. There, people actually read the law and act appropriately in applying it. But not always as we know or there would be no reason for the CAVC, the CAFC or the Supremes. Every legal system has to have a runaway vehicle off-ramp to fix mistakes.

So, after you analyze your denial, look for all those eight items listed in §3.103(f) above. They won’t all be stacked up in a nice row. You may have to jump back and forth from page 6 back to page 1 to page 4 to align them with the components of §3.104 numbers one through 8. If they ain’t all there, then VA just gave you an illegitimate rating. Now, sadly, if you take this implicit denial error up to the Board, all you’ll draw is a remand back down to shit-for-brains land where they’ll probably screw it up all over again. Unless… you do some simple housekeeping.

The repair order is simple. After your initial denial, file a 995 supplemental with  a VAF 21-2680 which specifically states you do need a&a for _________ and collect the second denial. Take that one up to the Board and you have a chicken dinner winner. Your Fort Fumble may even get specific in this supplemental denial in saying you lose but will again step on their necktie and fail to address all the a&a contentions. Or they’ll say you need a 100%er to get in. Or you’ll get the favorable findings denial. Or the confirmed and continued at the current rate or whatever- but it almost always will be a denial.

I overcame this recently by slamming two a&as down their throat into the supplemental. VA granted the a&a four days later without any c&ps and the effective date was, yep- you guessed it- the date I filed that 995. My Vet has so many things wrong with him that his code sheet runs to 8 pages so I filed for the Barry bump trick all the way up to N 1/2 plus K which translates to O and R1. I’ll report back after the win sometime this Thanksgiving or Christmas when it’s decided. Make ’em shit or go blind trying, folks.

redact 10182 filed 1.28.2026

Remember, these chowderheads at the local Puzzle Palaces don’t even have a clue how SMC works. They type it into the M 21 and out comes what passes for the correct answer. What’s even funnier is watching all this on VBMS TV. The Quality Control Rater, usually a RVSR, runs it through her magic SMC calculator seven or eight times getting God knows what answers before she just says screw it, it is what it says it is. Imagine an old 8 ball you keep turning over and it says “Come back later” the first time. Next, it says ” It’s possible”. The third time it’s “I can’t be sure.” In Unicornville, that’s a hard ‘no’.

Fortunately, the BVA is getting far more consistent in their denouements which gives us hope. Hamill is just one more small step for Vets but a giant leap for Vetdom to start of 2026.

Happy Super Bowl Sunday. I know my Seahawks are gonna shine today.

 

Posted in CAFC Rulings, Duty to Assist, How to Qualify for VA SMC, Implicit denial, SMC, Special Monthly Compensation, Tips and Tricks, VA Agents, VA special monthly compensation | Tagged , , , , , , , , , , , , , , , , | 2 Comments

BVA– AND I’M FEELIN’. . GLAD ALL OVER

Posted on January 19, 2026 by asknod

In the news, we’re constantly bombarded by articles about the passing of the last Pearl Harbor Survivor, the last guy who came ashore at Omaha, the last Navajo Code Talker and more. Don’t get me wrong. I revere every one of those Veterans but it raises another question. One of these days, you’ll be reading about the last Viet Nam survivor. At the rate Viet Nam Veterans are auguring in, you might expect we’ll be extinct in short order. Shucks. I’m turning 75 this year and I was a latecomer. I didn’t get to the party until six years after the shit hit the fan. Two if you count from Tet ’68. Guys my age are keeling over left and right. I know because I represent them.

Fortunately,  I’m not that bad off yet. I was able to help this poor gal Cheryl at the tail end of her and her husband Don’s VA odyssey. It’s one of the worst cases of VA “I don’t give a shit” ism I think I’ve ever run across. Don was a Marine and all that goes with it. Gung Ho takes on a whole new meaning in the world of crayons. He had a Purple Heart. That’s a mighty exclusive club made up of folks who suffered lead poisoning. When we signed the POA, Don was bedridden and at SMC S. With cancer times 2. And ALS. This was pretty much his last rodeo and we all knew it was a race for the win.

Cheryl came to me with a very sad tale of Don getting rejected for SC for ALS over and over. Now, a lot of Vets don’t realize that if you come down with this disease at any time after service, it’s an automatic 100%. §3.318. In spite of my filings for this- even with an IMO, VA dug in and began the fight all over. Not even a c&p exam. Just a flat out hard “What part of ‘no’ don’t you get, hoss?”

Check this out. VA kept denying Don on the ALS with a bunch of bogus no’s.

1) You didn’t have it in service or within a year of separation.

2) It isn’t on the list of Agent Orange shit.

3) No studies have ever said it’s caused by Agent O.

4) You don’t actually have a true dx of ALS-just a variant that we here at VA don’t recognize as the real McCoy.

5) 38 USC §1168(a)(2)(B) gives us the right to deny you a c&p. So piss off and be quick about it. redact RD 7.23.24

I think most Veterans (and their VSOs) fail to recognize that VA uses this technique of citing all the inapplicable laws to deny while studiously ignoring the regulation(s) that support your claim. The inevitable result is you give up because what the hey? VA knows the laws and they would grant if they could.

Fortunately, the Board  didn’t have its head hidden from the sunshine and wasn’t using its belly for a porthole… this time. Redact BVA ALS win 1.30.2025 . But the parade of “no’s” continued far past his death. VA plumb refused to piss on the fire and call in the dogs. This win for Cheryl firmly incorporates the holding in Akles and Bradley that the date of claim has nothing to do with the date entitlement arose when adjudicating SMC.

Don unfortunately passed away back in November 2024. The BVA decision on the ALS and a&a didn’t even pay Cheryl for the cost of his wake and incidentals. This is why I continued to fight this to the end. If the Board had gotten it wrong, I would have taken it up to the Court. This level of SMC ignorance at the local yokel level is becoming more and more prominent with the advent of Artificial Intelligence.

You can almost imagine some denial-challenged RVSR or Coach sitting in his 6X6 cubicle Kingdom in that two-story architectural abortion(the Houston VARO) being admonished to “find a way, Jose. We just can’t let this double a&a get through or Vets are going to be storming the gates at our Fort Fumbles across the fruited plains.”  Jose goes back to the drawing board and delves into ChatGPS™ or some other AI vehicle.  Because it’s eager to please, it promptly manufactures some fictitious Fed. Circus holding saying “Sorry, Don. One a&a to a customer no matter how many 100%s you have. It’s been that way since the War of 1812.” See how easy that was and it didn’t even require using the M 21.

 

So it was with great pleasure to realize a BVA Veterans Law Judge actually read my brief in its entirety and came to the same legal conclusions as I did. One thing I should stress in my writings is that you should not condemn VA folks for asking their AI machine to tell them what to do in any given claims consideration. It’s data base is a closed system and only relies on the M 21. Sadly, like an analog clock that needs winding, the M 21 gets it right at least twice a day.

Within the greater world of AI, searches via multiple platforms access tons of data that may be helpful as long as the platform isn’t geared to act like a Labrador retriever bringing the ball back to you. I know my Pickles sometimes stops to pee or poop while retrieving. When that happens, she hyperspazes out and sometimes just grabs an “apple ball” from under one of our trees or pulls one off a low-hanging branch. Retrieving the mail up to the house is an entirely different proposition. She’d pee in her pants before she relinquished a letter.

Until the advent of the AMA, the BVA used the Purple Book as a guide on how to resolve unique points of law. It not only summarized CAVC, CAFC and SC stuff but also dictated the decision outcome based on BVA’s very own past holdings. Notably, it expressly adhered to the Overton v. Wilkie theory that they were not beholden to the M21. Good thing, too or we’d have even more wild and crazy decisions than we do now.

The peach can solution to infeed jamming on a Pig

In its place, the BVA published the Operations Manual in 4/2020 to replace it. Same book. Somewhat updated data and rules to incorporate the AMA. Different color of the cover.  However, stare decisis is a many splendored thing. It means that, in the absence of any new Federal or Congressional revisions, VA is required to stand by the dictates of prior statute and regulation. We’re hoping that one day, VA will absorb that concept at the Agency level and develop a uniform way of adjudicating a claim the exact same way every time.

Here’s Cheryl’s new nest egg for her sunset years. I haven’t added it up but 9 years of SMC L for a&a back to 2015 is some serious folding money. The R2 grant was only effective for the eight months preceding Don’s death but it, too, will add an exclamation point to the settlement’s moral vindication. We don’t expect an apology or a host of mea culpas. As long as VA clings to their misguided Manual, we VA litigators are eternally condemned to toil alongside Sisyphus and keep pushing the rock of law back up the hill of Justice.

Personally, that’s something I’m honored to be allowed to do for my fellow Veterans.

redact 10182 a&a filed 2.28.2025

redact L & R2

P.S. The title of this blog for all you FNGs to life is a hit song from the Dave Clark Five from the mid-sixties.

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