Imagine this poor guy. He served from 65 to 67. Chances are he was either in the 173rd airborne or fell out of a moving train in the line of duty while he was sightseeing in Vietnam. He has more wrong with him than I do.
100% PTSD–You get this from combat, not narcissistic disorders
60% –for major back trauma/arthritis/intervertebral disc bummers (usually from jumping out of aircraft at altitude).
40%–DM2 from eating too much Agent Orange for breakfast
30% –renal insufficiency.from eating too much AO for lunch
20%– Peripheral artery disease, secondary to DM2 (AO Hors d’oeuvres)
10%– Tinnitus from too many 5.56mm rounds and other boy toys.
10%– Atrial fibrillation (AO for dinner)
10% +10%=20.9 %– bilateral factor peripheral neuropathy lt.&rt. upper from DM2
10% +10%=20.9 %– bilateral factor peripheral neuropathy lt.&rt. lower ” ”
0%–lt. rib cage scar
0% — peripheral artery disease left leg
Yep. Johnny Vet has been shot up and got his brains bent way down yonder in Vietnam. VA agrees in every respect but still can find nothing under the sun to entertain this fellow with. He has everything. Excuse me. He wants things but due to his impediments (mental) he cannot vocalize these needs and couch them in coherent requests that can be granted. You are going to find that even if you can vocalize these desires, it still won’t put the chicken in the pot.
Johhny is not so ably represented by the DAV. It seems he has ADHD and can’t stay focused long enough to bring his ILP claim to fruition. VA finds this absolutely hilarious and plays him like a fish on for decades-all the while pretending they are doing everything in their power to make sure he gets a fair shake. This decision is rife with all the “We told him”s and “He was informed”s.
One thing you, as Veterans, will see over and over again in your decisions is the fact that VA has bent over backwards to make sure you get this so-called fair shake. You may not share this sentiment but VA has very carefully crafted a denial documented by miles of paper proving they have been more than fair. This is partly why we have global warming. Many trees are cut down to print these 26 page documents up.
Here, they will use the age-old trick of saying Johnboy has failed to articulate that which he wants. They build your case with all the proper forms. They invite you to come in to incriminate yourself in person. They document every failed appearance as indifference or that you have changed your mind and no longer are interested. When someone like Johnny shows up with visible mental aberrations, they take advantage of him by treating him as sane and competent to handle this matter ( and by extension, all his affairs). Were this outcome the sole product of the DAV representative’s handiwork, nobody would ever use them again.
The BVA decision here aptly shows VA has met or exceeded the requirements to assure a “Veteran friendly environment that is nonadversarial.” Everything appears above board. The Veteran is at fault first for failing to make his case and close the deal. He is indicted for being ineffectual. He is dunned for being inarticulate as though he was in complete control of his faculties. There is no mention of the DAV representative arguing on his behalf or requesting due process safeguards. None. With no one to advocate for him, he commits egregious errors that are almost guaranteed to ensure failure:
A March 2006 independent living assessment found that the Veteran functioned independently at home albeit with a high level of pain secondary to physical disabilities. He believed his PTSD was his most limiting disability; and caused social dysfunction and prevented him from accessing the community and society. The Veteran stated that VA had not met his needs, yet he was unable to identify any “specific wants.” The Veteran was not interested in having any in-home evaluations or using any adaptive equipment other than what he already had in his home. No specific independent living needs were identified and the Veteran was advised to seek medical and psychological treatment to address his needs.
What many do not realize is that a VA ILP claim (a request for a grant) is conditioned on many steps. Initially they determine Johnny is unemployable. I could have done that without meeting him. The 100% PTSD rating is a dead giveaway. If that somehow missed your eye, the next 10 compensable ratings might be a hint. Having determined he isn’t worker bee material, they move into the next facet. What can we do for Johnny?
This is the phase where the noose is fashioned. In a legitimate ILP investigation, a counselor would examine your strengths and weaknesses. The purpose is to develop a plan of attack. If you have desires to write or be an avocational photographer, these should be weighed. Most of all, an ILP assessment is a joint endeavor that involves all members as equal stakeholders. VA loves that word. VA makes it appear that they have accomplished this legitimately when they haven’t. In truth, it is a dictatorial process and you are informed of the final decision as an afterthought. A frank discussion about your wants and desires should be down to earth and balanced by what is a legitimate need and what might be considered “reaching”. Hence, a course in creative writing is not out of the realm of possibility on paper nor is a desire to begin a hobby of photography to while away the empty hours. VA will have you believe that all parties involved hashed this out and it was unproductive. Johnny’s identified needs were out of reach for his mental state and thus could not be granted. Further, the “necessary and vital” argument was dredged up like an old tire snagged on a fishing lure and his request was found wanting. Well, let me correct that. He was found to be able to do anything his heart desired in spite of all these medical deficits. VA is making the reverse argument that they can find nothing that he needs and he has not asked for anything that they can grant like a grab bar.
The concept of the ILP was predicated (in 1980)on severely disabled Veterans being given something-anything- to entertain them or increase their ability to get out and about. In reality, all VA programs are aimed thus. Automobile adaptive grants, Housing improvement (HISA) grants and the special VHA grants for prosthetics/companion dogs all share this common etiology. But once you enter the VA ILP arena, you are required to prove you need that which you desire for a hobby. I ask you in all honesty-How can one evince a desire for a hobby in words that passes the “necessary and vital” test to attain it? Absent a degree in psychology and an exquisite command of the English language, your request will fall flatter than a souffle in a houseful of unruly rugrats. This isn’t a Santa Claus naughty-or-nice test. Asking for a digital camera and computer to banish boredom is nowhere to be found in VA’s ILP rules. Well, unless it will lead to a productive vocation in computer photography.
VA will insist that you have no viable skills for employment and then proceed to tell you that you are “independent in your everyday living activities”. As we know, General Counsel precedent 34-1997 explains in detail that you are entitled to avocational tools to improve your mental well-being. And in the next sentence that same entitlement is withdrawn because you have not evinced a necessity for it. It is not vital to this mythological independence in daily living you seek and therefore forbidden fruit.
The trick to this, as with any other VA claim, is to examine the win/loss column and find the wins. Make a list of all the reasons the Vet prevailed and the exact language involved that was instrumental in the win. Similarly, examine a cross section of claims which were denied. As a baseline for measurement, look for like items such as computers, cameras, metal detectors and the like. Do not try to compare big ticket items to small ones yet. Here’s a screenshot of what I used to start searching for these decisions.
We had a discussion about this in my last SVR Radio show on ILP. Berta mentioned she had used the parameter of “Independent Living Services” and was getting 24oo+ hits for each year. As you can see above, I narrowed it down by using “Independent Living Program” to find the meat in this. There is a difference as you will see. Use both terms just to see the difference, then go back to just “program”.. The further you go back in years, the more grants you will see because they were more liberal (read honest). Most recently, this has become a cat and mouse game. I think VA keeps hiring more and more of these GS 10’s and 12s to hold the line. To them it’s six of one and half a dozen of another. Spend the money on the ILP and Vets or spend it on “counselors” to deny them and give them bonuses when they do.
Assuming VA has not cheated in the denial process, look at the dichotomy of the decisions. Who prevailed and why so? Who was denied and what was the predicate? There will always be a trail of breadcrumbs through this. Almost all denials are based on the necessary and vital language. Similarly, a large majority are won on VLJs recognizing the liberal parameters discussed in OGC 34-1997.
Most of all, keep a running tally of which ones mention 34-97. Those often will be the winners. Just as assuredly, the ones that discuss 6-2001 are the losers.
Often, building a winning argument involves providing a judge with legal standing to grant your desires. Some will never acquiesce, granted. A majority will give a lot of credence to a law that appears to agree with your argument. OGC 34-97 is that law. VA has carefully used arguments based on OGC 6-2001 to build the “necessary and vital” barrier to a grant. You, as the claimant, must overcome this by proving it is necessary and vital. That is the daunting task here. Disabling 6-2001 or at least providing a good old benefit of the doubt game is essential.
By reading 38 CFR §21.160 liberally, as VA is always instructed to do, you can find holes large enough to drive pitons into. Take 21.160(d)(iv) Health maintenance programs. In my quest for a greenhouse, I point out that a healthy diet of pesticide-free veggies is just that- health maintenance. VA would have us believe we need to drive 45 miles to the closest VAMC to sit in a classroom and look at the old food pyramid. This is not the panacea they make it out to be. Some of you see french fries at Micky D’s as a vegetable. Not. If you’re grossly overweight, have a raging case of uncontrolled DM2 and have never been near Saigon in your life, chances are its from those 100 missions over McDonalds every month. Be honest.
Nevertheless, you can legitimately say you are vocationally trying to improve your health via this exercise/garden vocation. Throw in that you are “selling” your extra seedlings that you grow in your window to the local nursery and having them donate the proceeds to Veterans groups in the community and you have cut the Gordian knot. Just make sure you get a letter and set this up with your cousin Claudia in case they check. I went one better and actually do give/sell the veggie starts away. I won’t lie or cheat to do this but I will create the perfect storm to circumvent the predicate for their denial.
Another item on your list that has to be addressed is the “severely handicapped”. Whew. Do we really want to go there? I’d say Johnny Vet here is but VA goes into a long diatribe about how he’s ready to dodge pressure cooker bombs and run the Boston Marathon. This is the piehole diarrhea problem men suffer. A Vet could fall out of a wheelchair and not bother to ask for help getting back in. If asked, he’d say he saw a dollar bill lying on the ground and merely jumped down to pick it up. Men are tough. We lie about that kind of stuff. Likewise, when someone applies for these goodies like Johnny Vet here, they tend to be upbeat and say “Yeah, dude. It’ll improve life. I need this stuff, man. I mean, I get around okay but I’d sure like to have that c-box and a new digital camera with all the goodies”. All VA hears is that you are fit as a fiddle and get around okay. In fact, you probably get down on your hands and knees and play ride the horsey with the grandkids. Ne problemo, right?
Without “faking it” you do need to be “severely ” disabled. That, to me, connotes at least a 100% rating. Johnbo here is sporting what I count as 193.4% with the bilaterals. I’m pushing 150%. You can see this is stressed in 38 USC §3120 where they specifically say that the program is for the “most severely disabled” including those in VAMCs etc. Following that, the next most disabled are to be served. The fact is you are not going to be seeing that shiny new Dell without some serious physical and mental deficiencies. The good news is that there are 2,700 slot open each year and there are few winners. Last year only 2,415 souls could be identified who were in need. This figure is deceiving. Some get those grab bars and the can fetcher/grippers and that counts as a winner.
This is a semantics game and until you learn the lingo, you’re pretty much going to discover what a lot of aspiring ILP Vets do. Independence should be used repeatedly around your vocational counselor. I even use it in lieu of Gesundheit! when I sneeze around him. Action words like “activities of daily living” linked with “self-actualization” and “vocationally oriented” must be layered in like a BLT sandwich.
Your vocational denier is going to see through this but he’s going to have a hard time lying and saying you aren’t focused on that I…I…In..dePENdence! (God bless you) that you seek. It’s a game just like getting to that 100% P&T. VA knows it. VA prays you don’t. If you do not employ this semantic tennis match, you can’t prove you’ve got skin in the game. Every utterance, every communication, every email has to exude a vocational desire to independently activate your life such that you will be more independent without the help of your family and the community-or with less help than you needed before you get(got) the computer. See the Catch 22? You have to prove a “future independence” in the present before you get there.
Many will see that you have to prove a positive by painting it in words before you get the object. This is the art form you have to master. Fortunately for you, my mother was an English teacher and fluent in 3 or 4 languages. Polysyllabic words laces with conjunctives and disjunctives are my forte. We’ll teach you these little lolly lolly adverb tricks by putting up winning letters and let you use them like Cliff Notes©. There’s no reason why you can’t play this game too. Hell, look at the letters they write to deny you with. Run on sentences with misspellings are the least of their mistakes. Some sentences don’t even make sense because they simply aren’t sentences.
The beauty of this is you will have the same set of traffic laws to quote and write from. When they cite to 21.160 and say you are independent, you’ll be ready with § 21.35, § 21.162 and a host of others at your fingertips and baffle them with it. Nothing confuses these guys more than being in an echo chamber of CFRs. They can’t hear themselves deny.
There is no guarantee you’ll win. However there is one telling item that is our secret weapon in this game. After a year of legal pursuit and parsing everything I can find at the CAVC, there is not one single case ever decided up or down about the ILP. I guess you know what this means. For those of you with the 100o yard stare still trying to assimilate “semantic tennis”, it means if you appeal this to the CAVC, they are going to head you off at the pass and strike a bargain outside the front door. They do not want this exposed and talked about. It’s not a conspiracy. It’s a cleverly contrived program to keep it under wraps. If you have the guts to see it through, you win. Remember my book? The squeaky wheel in this game gets the computer or the greenhouse. Perseverance is a password. The middle finger raised is the secret handshake.