I had my DNA tested by Twentyfourgalore.com ® to see whazzup. Nope. No Down syndrome. I realize some of you have had your doubts over the decades. I also figured I might like to know if I had a smattering of Native American ancestry. As #meapache is now the rage and all in vogue, I was hoping I could use that soon on the 2020 census. It seems “entitled white man” is not the box you want to be checking these days. Goodness. What singular event in history would cause an entire race of males to fall from grace and become pariahs in less than a generation? History is fickle.
What did turn up and is most of interest is that I definitely have Veteran ancestry in my blood. The DNA was incontrovertible and showed my father definitely was one. Moreover, on my mother’s side there was a 1/4096th chance I was descended from Veterans. Ahh. The modern miracles of science. But I digress…
I don’t like CUE. Motions to Revise are revulsive. The burden of showing reasonable minds can only concur on the error(s) is a very high bar to success. For that reason alone, many of the VA law dogs I rub shoulders with will take a bye on any Vet’s offer of untold riches just waiting to be had at their fingertips. Except me. I’m still a sucker. I have had several chicken dinner winners for R1 and R2 so I’m still a sucker for this kind of entertainment. And just for you who think this is as easy as learning how to ride a tricycle, there isn’t a lot of money in SMC. Most folks you win it for only get it back about six months or so.
Gina (name changed to protect me) came to me from my old home town area in Virginia. She suffers from MS and it’s not very forgiving. Throw in some teenagers and you have your hands full-or at least the one hand that still works (sort of). It’s a long story but the interesting part is what you’ll read here. I don’t try to catastrophize a Veteran’s predicament. I attempt to let the doctors’ opinions do that. And boy howdy did one of them VA doctors with diarrhea of the mouth open up his piehole and step in it. The problem was that VA didn’t “infer” SMC K from his diagnosis. Inferring things costs VA money. You don’t get a bonus at Christmas if you stuff the suggestion box with better ways to improve the art of claims inference.
This case is also illustrative of how VA will change the argument from oranges to orangutans without missing a beat. Entitlement to SMC is due and owing when the medical evidence supports it. If you see an error in the date entitlement arose, VA is obligated to “rerate” it. They generally CUE themselves with a sanctimonious mea culpa and quickly move on. Or not.
In Gina’s case here, the RVSR has decided to don his Lt. Colonel (Brevet Maj. General ) George Armstrong Custer uniform and ride into Medicine Creek Coulee. One thing is for shore. This is going up to the BVA and maybe even to a panel at the Court. Reading Breniser concisely, this is the only result you can get. I’m sure it isn’t the absurd result you’d expect but such are the vagaries of justice. It’s definitely a matter of first impression.
I begin where Gina left off in 2017. Oh, did I mention Gina is an attorney? Even she couldn’t make them see what was right in front of them. Because VA is wont to screw you, they inadvertently refused to give her loss of use for a lower extremity. When they finally did, it was to cover up the error of not doing so sooner. Unfortunately, when you conduct business this way, you leave indelible footprints in the VBMS concrete. We no longer live in the wild west days where VA could simply deny a Vet and give no reason whatsoever other than “We’re sorry but we are unable to grant your claim.” What’s damning is that when she complained, they gave her the loss of use of the lower and upper extremities and never said why. When’s the last time you heard of VA handing out an SMC L with no explanation of the rationale for it?
Here’s my filing in July to fashion a fix.
Here’s the VA garbled response. Whoever cranked it out is using an older, outdated version of M 21. You certainly cannot open a CUE claim with new and material evidence.
And lastly, the NOD response. At this stage, I realize I’m dealing with mental midgets so I have wisely asked them to perform the necessary steps to appeal it to the BVA. Nothing makes a VARO happier than to 86 an appeal to DC. It’s one less item they have to deal with.
Finding CUE is easy. Proving it to VA is the ultimate obstacle. I discovered the M 21 has no provisions for awarding both the 50% as well as the 100% bumps simultaneously found under 38 CFR §3.350(f)(3) and (f)(4). It will not let you input them both and even has a nasty admonition not to even consider it. How do you prove the earth is round to these Flat Earth Society folks? They are forced to follow the computer prompts from the M 21 gods. You can’t win these at the local yokel level- but fortunately for us, the Court exists to root out these arbitrary and capricious activities.
I’ll keep you posted on the insanity.