As most of you know, nothing gives me greater pleasure than to beard the VA lion in his own den. This animosity arose in 1994 when I filed for an Agent Orange disease and VA informed me I’d never vacationed in the Republic of South Vietnam even one moment-let alone two years. They didn’t call me a liar outright. It was far more nuanced than that. Ever since, I have taken extraordinary pleasure in making sure they understand what it meant to be maligned in such a fashion. Each of you who brings his or her sad tale of VA disenfranchisement to me allows me to right your wrong and remind them of their error in mine. I figure conservatively that it has already cost them well over 10 million dollars and as much as $400,000 every month. If they had granted my claim then, I wouldn’t be writing this.
Today, I bring you a really poignant tale in the same vein about a fellow Vietnam Veteran (Air Force, of course) whom I was privileged to help. His travails, and more specifically, his wife’s, have recently culminated in a long overdue r(1) award. This will eventually have to be revisited for the final r(2) in the future but that will be another story.
As Vietnam Veterans, we all get the Agent Orange presumption for certain diseases such as Coronary Artery Disease (CAD), Parkinson’s and a host of other nasty cancers and bugs. I was told yesterday there’s a particularly nasty little vermin called a Liver Fluke that we now have to consider as well. As Mr. and Mrs Johnny Vet wish to retain their anonymity, I will address them is John and Jane.
Johnboy enlisted in 1967 just in time to attend the Southeast Asia Olympics. He bounced all over the south Pacific from Taiwan to Tan Son Nhut and was duly granted what we call “Nehmer” status-or one who served on land in South Vietnam. This gave him protection if he ever had the misfortune to contract CAD. He did. He had a nasty heart attack in late 2011 which left him with severe anoxic brain injuries-but more about this later.
After service, John signed up for the Montgomery GI college Bill and obtained an education in respiratory therapy and started his own business. He was wildly successful and grew the company from five to over 200 employees-some of whom were nieces and nephews. He was always engaged in some pastime in the garage from reupholstering things for the house to woodworking. In that time he and Jane also raised three daughters. It was an idyllic time for them and they eventually retired to Arizona for the weather and golf.
After Johnny’s heart attacks and subsequent brain injury, the real battle began. VA was paying John for 100% related to the heart injury as well as the ensuing dementia at the A&A rate plus a bump for the extra disabilities- or what we call Special Monthly Compensation at the (m) rate. This didn’t even begin to cover the costs to Jane from the brand new need for additional rehabilitation. She eventually had to pick up the flag herself and continue after she realized the sham help offered by her VSO-Vietnam Vets of America. They were deeply engrossed in Boldly Going Nowhere on Johnny’s behalf once they obtained his initial ratings.
In 2014, Jane was apprised of an analogy between John’s brain anoxia and Traumatic Brain Injury (TBI). Although TBI is an imperfect fit as a VA analogy to anoxia, she knew in her heart that John was entitled to a far higher rating for his enormous subset of disabilities. She proceeded to file for Special Monthly Compensation (SMC) at the (t) rate. VA allowed her to blindly pursue this fully well knowing SMC (t) was only permitted to Veterans who served after 9/11/2001. As expected, she was denied any higher compensation even though John was quite obviously entitled to a far higher rating than SMC (m).
Our paths crossed after she spotted some of my blurbs on a sister site at hadit.com. Around a year or so later, I attained my accreditation and agreed to help her sort this out. VA continued to obfuscate and dissemble pretending they didn’t understand the thrust of our argument. It finally took a filing for Parkinson’s to create that perfect confluence of diseases in order to qualify but it should never have come to that. VA was determined- to put it mildly- not to grant r(1) by continuing to use the salacious SMC (t) argument. It took eleven pages of a rather heated (for me) DickandJanespeak powerpoint presentation to get the point across. After rereading it now, I had no idea I was a) so loquacious; b) redundant and c) obnoxious. Apparently I/we got our point across because in short order, they agreed with us and granted all we asked for and perhaps even then some.
The final r(1) argument: R1 redacted
The VA mea culpa CUE decision: r1 redacted
I find it incongruous that Mrs. Vet was installed on the hamster wheel of VA justice as well as forced to navigate this labyrinth of stupidity when VA fully well knew the entitlements were due and owing. Even though I couched this in terms of requesting a rexamination of the r(1) denial, VA donned sack cloth, anointed their figurative foreheads with ashes and fell on their CUE sword by blaming it all on some Phoenix Regional Office FNG GS-8 who should have known better. I don’t buy that but then I don’t have to. We won. Sadly, it took six long, wholly unnecessary years to obtain a successful ending. It reminds me of mating elephants ( takes place at a very high level; only accomplished with a bevy of screaming and bellowing and the inordinate amount of time required for gestation).
Boy howdy. Is that a wonderful Thanksgiving story or what? Thank you John and Jane for allowing me to be the one to bring this to fruition and share it with other similarly situated Veterans. Cupcake and I took a u-turn coming out of Texas specifically to make time to meet these wonderful folks on our way back from Spring NOVA. It really puts the frosting on a win if you get to put a face to a name for some of these deserving folks. I almost wish we had a real court system with VA so we could present these situations in real time. That Perry Mason moment is a hoot. You’d get to turn to your figurative Hamilton Burger-VA opposite, roll your eyeballs, shrug your shoulders in a nonadversarial, paternalistic manner and say in your best Gomer Pyle voice “Well, Goooooooolly!”
Happy Thanksgiving to you all and I hope you are all as blessed as we are with opportunities to help our fellow Veterans-or anyone less fortunate for that matter.
And that’s all I’m going to say about that.
Firstly, I am so sorry that AO has caused so much suffering for this family. And to add insult to injury, Mrs. Vet has had to struggle for six years. I hope that when the adapted housing application is submitted, there won’t be another irresponsible wait and that only grab bars are approved. This stricken veteran needs a lot of material aid in addition to medical aid. Kudos to Mrs.Vet for seeking help. Prayers and best wishes are being sent your way.
Alex, brilliant writing as usual. You laid it out so neatly, reminding them not to waste scarce judicial resources, that you essentially did the job for them. CUE, CUE, and more CUEs.
Your readers share your satisfaction in this result and thank you for applying your many talents to this specific vocation. And for your family’s support which makes your work possible too.
Appreciated this Thanksgiving story about John and what you went through Alex to assist them.
Best to all you vets and attorneys who truly care about the challenge most vets face in this system.
Felt good after reading this last night and found this link in the morning. Good Vet story!
Thanks Gary, I saw this yesterday and was fairly astounded at the generosity of others; great story.
VA told my senator and congress person I had never served in RVN. My DD214 has “Vietnam Service” noted along with usual ribbons and medals. This was even before I filed for AO conditions. What if I died and my wife was left with these denials? I had an easy time proving the VA wrong and got SC’ed for at least 6 AO conditions, but that was because I knew the score and was able to go on the offensive. What if I had been really mentally disabled and helpless? I am sure I would have go nothing. It is horrible to think the VA is so adversarial and interested only in limiting the damage.
Way to go! Good to read this positive story.
You never cease to amaze…
Alex: Just read your article and redacted brief and VARO Decision. Great work Alex! You are an outstanding advocate. Best wishes for a happy Thanksgiving.
Charles E. Brown, Attorney
Member: Michigan, Georgia, and California State Bar Associations
Accredited by Department of Veterans Affairs; VA POA: 4M8
Member of National Organization of Veterans Advocates
Law Offices of Charles E. Brown PLLC
16245 Diamond Bay Drive, Wimauma, FL 33598
Office: (248) 891-1331; Fax: (813) 419-4064
Thank you Charlie. VA decisions are like cheap Chinese imported Wallmarket sweaters. Find a loose yarn and tug it. They always unravel.
Happy Thanksgiving 🙂
HTD right back at you two. The mere fact the VA is still mulling our little §1151 is that they can’t find a crack to drive a piton in. The longer they dawdle, the more sure I am.