I got the BBE or big brown envelope as they say over at Hadit.com yesterday. From all outward appearances, it looked like VA had chieu hoi’d and granted my heart’s desire- the Special Monthly Compensation “S” all the way back to my filing in 1994. I had asked for that in the Writ. I was wrong. VA just cannot give it all away at one sitting. This is the famous low ball they employ. Let’s take a gander at it.
First of all, note the mailing address. Yeppers, Cheeseheadville, Wisconsin. An interesting concept. All this time we thought it was an intake center. To me it appears to be another RO like the AMC. If they don’t have raters there, then it suspiciously has become a mailing output center as well. I hypothesize that the brunt of my evidence was still sitting there growing moldy when Call me Bob’s troops called up and asked them to dig it out of the in basket and quickly “e-rate” it on the QT.
The next big problem is that it represents less than what I asked for-namely a 100% schedular rating for the porphyria. In their very best low ball form, they have given just the bare minimum needed to grant the 1994 SMC S but no more. Screw what the VA C&P doctor said. What does he know? These DROs are damned if they intend to follow the regulations.
First, the decision in long form:
VA raters have now officially stepped on their neckties four different times. In 2008, they tried to pawn off the ultimate lowball and call 100% totally disabled 10% under the lowest compensable rating under DC 7815 Porphyria. I objected and did the old lady at Burger King imitation “Where’s the phlebotomies?” In answer, in 2010, VA came back with CUE #1 and withdrew the 10% rating. No exam, no nothing. Remember, to withdraw a rating, you have to prove that the facts as they were known, were not before the rater or the law as written was not followed. A ” Manifestly changed the Outcome” was also part and parcel of this. They forgot CUE law. At the same time, they substituted 40% for phlebotomies but ignored the other debilitating conditions of housebound, photosensitivity, work limitations etc. opined on by the VA C&P doctor.
At this point I was paddling the Dilaudid canoe down the VAMC River with no paddle. I can recall returning to my senses about September 2010 and asking for equitable tolling as by now I was waaaaay past that 60-day limit for filing a Form 9. I promptly (in Dilaudid time) filed a CUE motion a year later in October 2011 after no action at the RO on my old claim. I called Secretary Bob in September and thought it would catch air. Boy howdy did it. A brand new SOC in a week with the big bitchslap ensued. I was dumbfounded. I thought VA was my friend all this time and it was just a big misunderstanding for the last 21 years. At worst, I though they were funning me with a game of Keep Away.
When I filed the Writ in January, I assumed VA was going to construct a Potemkin Village and populate it with bobble head DROs all sagely nodding “No” for Judge Davis. I grossly underestimated VA. They probably knew they were wrong all this time and figured they could roll me. Old, bad habits die hard. But wait. There’s more.
We now enter the fourth rating decision. I would call the initial denial in November 1994 the first. That was the “You were never in Vietnam” decision. Yesterday’s rating now rectifies the 2010 CUE by restoring my paltry 10% for the Porphyria but forgets the deleterious effects of photosensitivity, mechanical trauma and extensive scarring again. Offering 60% for the phlebotomies based on anemia is a new, straw man argument. Once again, VA pulls out their empty pockets and states they are ratings -limited due to the language in DC 7704. Poor Mr. Graham is not entitled to total disability because there is simply no language there to cover it. It’s 60% and that’s the law. Throwing in the 10% is a doggy bone to them. It accomplishes nothing. The argument tries to encompass the idea that they also considered the regulation in 1994 as written. The law says if the regulation changes during the pendency of a claim, the rating most advantageous to the Vet must be employed. Yeah, right.
The straw man concept VA is trying to employ here is to deflect attention away from what the VA’s own C&P doctor stated. Always remember, if you cannot find the right VA rating that encompasses all your symptoms, you can venture afield using 38 CFR § 4.20:
§ 4.20 Analogous ratings.
When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.
VA chooses to stick with the phlebotomy codicil in DC 7704 under 40% and then merely bump it up to 60% to get over the SMC S hump-and no more. To do this, they have to revert back to the 1994 schedule to get the 60%. I asked for 100% based on two metrics. The VA C&P doctor said “totally disabled” and the closest analogy to what a phlebotomy does is to cleanse the blood. Granted, dialysis returns the blood back to the body after cleaning it. A phlebotomy removes it and they throw it in the trashcan. Six of one and half a dozen of the other, right? Et Voila! Cleaner blood through modern medicine.
VA cannot swallow that one as it would be too “generous”. Ideally, they would infer a new claim for anemia and grant 100% for that alone due to total disability but we’re talking VA here. Moody v. Principi is a fig newton of the imagination at the ROs across the fruited plain. If you don’t ask for it, you don’t get it. Raters are not mindreaders.
VA also conveniently dodges the big question. If you can only donate blood every 57 days as the American Red Cross states, how then can I “donate” a pint (the same 800 mls) every thirty days? The short answer is it gives me a really good buzz for a week and I walk sideways like a drunken sailor. Moreover, I can’t drive. Actually I can. It’s that other motorists don’t see the humor in my technique. Again, VA makes no suggestions for that other than they have no rating to encompass the anemia and dizziness. That’s their perfect straw man construction. Bulletproof.
Hopefully, Judge Davis is going to see through this next Monday. If not, a whole new VA ratings game will ensue. No more will there be “total disability” as enumerated in §4.15. If the rating for your disease/injury has no equivalent, you’re $hit out of luck. Bye bye to a whole slew of 100% schedulars for lack of an analogous rating. Now wouldn’t that be a precedent? Sorry sir, but our back ratings only go to 60%. Perhaps you can find sedentary work sitting down because you sho’ ain’t totally disabled in our book.
38 CFR § 4.15:
§ 4.15 Total disability ratings.
The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; Provided, That permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule.
So much for the argument that their is no rating for total disability per se. Now, read 38 CFR §3.350 (f) (4). That’s what this is all about. VA must think I just stepped off the Mayflower and never heard of this.
(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114(l) through (n) or the intermediate rate provisions outlined above.
(i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114 (l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use.
An update: I stand corrected. Several Hadit.com members emailed me to say it’s also referred to as the “smooth tan one.”
This is a continuing series of the Birth of a Writ. The next installment is here: