Remember that time when you got caught misbehaving and you told a fib to get out of it? And then you fibbed some more to cover the first fib until you came around in a Mobius Loop where the fibs didn’t conjoin with reality? I hate that when that happens. So you can just imagine the chagrin of Sarah W. Fusina, with whom Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant General Counsel; and Selket N. Cottle, Deputy Chief Counsel, all of Washington, D.C., who were all on the brief for the appellee Roberto Shulkin must have felt when Saints Coral Wong Pietsch and Meg Bartley, accompanied by Friar Greenberg, called bull poo poo on how they like to play three card VA Monte.
Meet Bob Jensen. Bob served in the peacetime Army from 1981 to 1984 on a standard 3-year hitch. Bob must have had a job involving heavy lifting because everything went south from his feet to his back and up into his neck. Bob was smart and filed for all this when he separated. He got TDIU in 2006 retro’d by a year back to ’05. By 2008 he was a bonafide candidate for LOU of the lower extremities. The fact I’m telling you about this pretty much explains that he got the Dear John letter. And now for one of those “who woulda thunk it” moments. It’s like a Grimm’s Faery Tale replete with “and they lived happily ever after in their newly-remodeled SAH home” with his SMC P (L½) rating.
Imagine you’re Bob Jensen and you’re beginning to lose the ability to walk. This is caused by Loss of Use (LOU) of those lower fleshy sticks called “feets”. VA, of course, says hold the phone, Roberto!- you’re a candidate for the Boston Marathon and nohow near so much as needing a cane-let alone a wheelchair. Ol’ Bob had also filed for a Specially Adapted Housing (SAH) grant from VA. While waiting for this, he was browsing around the high numbers in the Book of VASEC and stumbled across 38 CFR §3.809(b)(1)- what appears to be an amazing bozo on the Secretary’s part best left unspoken. It’s a definition about what you need for SAH. Boy howdy, right there in front of him was an interesting new way at defining what constitutes “loss of use of lower extremities”. What gets a VA law dog’s heart really pumping is 38 U.S.C. §2101(a)(2)(B)(i), from which it’s derived, also says it almost verbatim. Bye Bye Chevron deference, Dr. Shulkin.
The portion of subparagraph (B) that applies to this case states that, to be eligible for SAH, a veteran’s disability must be “due to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.“
Read that underlined portion again about three or four times and then slide on down to §3.350(a)-(h) and take a gander.
Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot.
The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot,
The special monthly compensation provided by 38 U.S.C. 1114(m) is payable for any of the following conditions:
(ii) Anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place;
(iii) Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place;
The problem is simple. This is more earthshattering than Walker v. Shinseki and the §3.303(b) Chronic but not presumptive paradox. VA and the Courts blithely drove past it daily for 50 or 60 years and finally noticed one day what it really said. Bye Bye Savage v. Gober and 24 years of Fed. Circus precedence.
When what should our wondering eyes behold but Bob Jensen and his simplistic take on loss of use.
WHEN IS A LEG A FOOT BUT NOT A
LOWER EXTREMITY FOR LOU PURPOSES?
Imagine working for the OGC (027C) and having to stand up for 30 minutes at oral argument at the CAVC against someone like Kenny “Melifluous” Carpenter. Imagine having to defend the illogical- two definitions for one contingency that conflict-hell- they don’t conflict- they clash like a Congressional 18-wheeler t-boning a VA Jetta. This is light years past VA’s post hoc rationalization games. VA’s tortured attempt to explain the meaning of what “is” is borders on Flat Earth Voodoo shit. Allow them city lawyers to explain…
The Secretary expanded upon that understanding in another subpart of § 3.350. Labeled
“extremities,” that subpart contains provisions that allow for hybrid benefits when a veteran has loss of use of a foot as defined by § 3.350(a)(2)(i) and additional loss of use of a leg. 38 C.F.R. § 3.350(f)(1). If loss of use of a foot did not constitute loss of use of other parts of the lower extremity for SMC, then surely it should not for SAH.
The provisions discussed above reveal that the Secretary’s proposed interpretation of section 2101(a)(2)(B)(i) is the product of a rhetorical sleight of hand. He asks the Court to determine that the term “loss of use” is severable from the words “lower extremities” in section 2101(a)(2)(B)(i) but not from “foot” in section 1114(l) and § 3.350(a)(2)(i), state that “loss of use
of . . . foot” is the same as “loss of use” in section 2101(a)(2)(B)(i), and reinsert “both lower extremities.” The Secretary’s interpretation alters the statute rather than clarifies it.
Ruh-oh Rorge. VA speak with forked tongue? I always look for that defining moment when the scales of blind justice suddenly tilt inexorably in our favor. Bob Jensen must have had a shit eaten grin reading this on page 4 with yet fifteen more pages of similar beneficial explanations of what Congress, and not VA, intended…
The appellant’s position benefits from its simplicity. In his view, Congress defined lower extremity “loss of use” in the SAH context in the very sentence that contains that phrase.
I predict this panel decision, which is now no longer appealable to the Fed. Circus, will become one of the most salient precedents to be decided in this decade. The repercussions will echo for decades. It basically encourages Veterans who have been disenfranchised via a bogus ruling on LOU of their lower extremities to reapply – or better yet-file for SAH. This way you can let let the VA rater make the determination that your brand new hurry-caine® with 3WD positraction constitutes LOU of lower extremities without so much as a c&p exam. Dilly! Dilly!
Actually, this is a variant of the old ploy of applying for a 40 month VR&E training program for a paralegal when you are 70% for PTSD. They’ll never grant job training figuring your bent brain precludes it; in the process they inadvertently have to admit that their decision is predicated on you being unemployable. Unfortunately, one thing leads to another in VALand. In the above scenario it’s a tacit admission of TDIU. Bob Jensen’s decision says §3.809 is the controlling definition so from now on, file for SAH when you ask for SMC L due to LOU of the “feet”.
The VA’s Marie Antoinette-like wish for “Qu’ils mangent de la brioche” was not lost on the Court. It rarely is these days with real Justices being nominated and approved by Congress who genuinely and fairly rule on our claims. Of course, by the same token (as with the instant case here), overturning VA Texas-style necktie-party justice is nothing more than fishing with CBU-26s in a 100 gallon aquarium.