Hurricane Katrina has struck again and this time outside of New Orleans. We look forward to wins in this arena as being long overdue. When denied, which invariably occurs, we are left with few avenues to prove it. This is where having a good law dog to carry the water is essential. In Kelly and Jay’s case, it was imperative that they seek professional help as soon as possible to speed this along. Jay has come down with Hepatocellular Carcinoma or HCC as we know it. That’s the inevitable outcome in many cases for us. With Vietnam Veterans, the incidence elevates to 66% of the participants who consumed Agent Tang. I, too, worry about it.
While Jay served in peacetime in the 80s, he was still exposed to the jetgun risk and I had given them as much ammo and help as possible. Absent any good legal help at the local level (i.e. VSOs) until you lose, it was no surprise to get the waveoff. VA honestly believed Kelly would just buzz off. You do not have any idea how committed she was. I rarely meet Veterans’ wives more determined to get their husband service connected. Lori Molzan was one but there are many, many more. My email folder of Kelly’s queries doth runneth over.
Here’s the decision in .pdf. Kelly and Jay’s most excellent win
It came as no surprise to hear of a win after the NOD at the Phoenix RO. Ms. Eagle was certainly a determining factor but Kelly had carefully crafted the claim using the advice I proffered in my book. They had several nexus letters including one from Dr. Ben Cecil. They had all the ammo needed for the win, but, as we normally suspect, the RO seems to imply they lack the needed permission to grant locally. Katrina whacked them in a DRO review on the same record. Perhaps she convinced them to actually read it or sound it out.
We are seeing this local denial metric turned on its head more and more frequently. No more is it absolutely necessary to fight for 8 years to eke out win at the BVA. Jay’s dire straits allowed him the 38 CFR §20.900 (c) advancement on the docket. He is now 100% +100% +10% or what I consider to be 210% disabled. He will get his SMC L (or SMC S with Aid and Attendance) due to his precarious health. As he is not a post-9/11 Veteran, Kelly is not entitled to a Caregiver rating of SMC T. She could surely use that. Hopefully Congress will come to it’s senses soon and realize the dichotomy they have constructed.
I would point out that I received an email from Bruce Almighty illustrating the judicial inequality of this is legal terms. Try this on for size:
Wonder if any of these stalwart defenders of Vets [NOVA/ NVLSP] would volunteer to take on the guber-ment of the good ole USofA. Specifically a discrimination suit originating in the halls of congress.
Best I can figure when the good ole boys passed without opposition the Care Giver Act of 2010 they broke at least 2 laws:
Excerpt of letter to several senators…still unanswered. “When your legislation to correct the discriminatory practices of providing care giver assistance only to post 9/11 Veterans was rebuffed, Congress broke specific discrimination laws that body earlier enacted, to wit;
Title VII of the Civil Rights Act of 1964 –
“An Act…to prevent discrimination in federally assisted programs…”
Title I of the Americans with Disabilities Act of 1990 –
SEC. 12101. [Section 2]
(a) Findings. – The Congress finds that-…
(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
(b) Purpose. – It is the purpose of this chapter-
(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
Hope one or more of these [VA] law dogs will put on the cape of ‘truth, justice, and the American way’.
‘Hovering to POL for hot refuel’
Let us hope this will come to pass in the near term so Kelly and Jay can partake of it. The inequity is glaring and blatant. As I so often implore: What’s the difference between a Grunt who survived a Bouncing Betty in 68 and a post- 9/11 Vet who ate an IED? The injuries can be identical but the remuneration is far different. SMC “T” is currently awarded at the R2 rate or an additional $2,983.00 per month.
(t) Subject to section 5503 (c) of this title, if any veteran, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under subsection (r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care, the veteran shall be paid, in addition to any other compensation under this section, a monthly aid and attendance allowance equal to the rate described in subsection (r)(2), which for purposes of section 1134 of this title shall be considered as additional compensation payable for disability. An allowance authorized under this subsection shall be paid in lieu of any allowance authorized by subsection (r)(1).
That’s a hefty increase in compensation.
P.S. Kelly writes me this AM ( 3/15) to clarify that Jay did serve in Desert Storm in 1991. I apologize for shortchanging his deployment to a war zone. Us gomers from the Vietnam Boundary dispute just automatically assumed everyone who came after May 7th, 1975 served in the Peacetime Army until the next political uproar in the 90s.