But if you try sometime you find…You get what you need. Great song by my favorite band. They were a solid Rock n’ Roll band once upon a time in a place around the world from here. They still are. You needed that back then. Here, the lyrics merely alert you to the sentiment many Vets must feel after a road long traveled (9 years) and an utterly anticlimatic finish- literally a whimper. VA hierarchy disgust me. Years of endless denials and dissembling only to get it back from the BVA with “granted”. Doesn’t anyone at the local Fort Fumble Quality Control Team review these mishaps and come up with a band aid? Shucks, bubba. You must be smokin’ some powerful gunsha. We’re talking VA here. They were the last govt. entity to go paperless- and only with a lot of bellowing and screaming.
I wrote about Donald and Janet ( John and Jane Vet) several years ago and his R1 fight.
After reviewing the CUE grant, I realized we still hadn’t reached Janet’s original goal of T or R2. So we decided to go for it. Miz Janet had originally asked for SMC T. Unbeknownst to her, the Vietnam Vets Of America VSO was was the very idiot who filed her for it. You must have served after 9/11/2001 in order to qualify for this. It pays at the R2 rate which is where Donald should be paid. SMC T is also only granted for extreme Holy S**t, Batman Traumatic Brain Injuries (TBI). I FOIA’d the VA in 2014 to give me the stat sheet for how many Vets were rated R1, R2 and T. I’m still waiting. Apparently I need a current TS/Crypto clearance. Mine expired 48 yrs. ago. Nevertheless, I’m guessing from the way VA fights each one of these, there are not very many Vets who collect R2. Worse, when you argue SMC with a DRO or VSCM, you suddenly discover they can’t comprehend it. It’s utter Greek to them. It has to be done by VA’s magic SMC Calculator. It’s worse than a cold one-armed bandit in an Indian casino. I have to take them up to the BVA to find intelligent life forms capable of reading 38 CFR-not gazing into an M 21 Magic 8 Ball.
As with any request for such a rating, I always schedule a hearing. In this case, with the advent of the new Appeals Improvement and Management Act (AMA), we “opted in” to the new system rather than go the VA 9 Legacy route. Unknown to us all, VA had changed the rules on hearings. We had two ugly choices now. If we desired a face-to-face, we had to pack Donald up and take a train cross country to 1425 I Street Washington DC. Our only local option was a videoconference. We accepted the lemons and made our lemonade out of it. I plunked Donald down front and center of the video camera. I’m sure Judge Michael Lane kept his eyes on him throughout the hearing. Donald said nary a word but was, hands down, the best witness.
The Squirrely SOC Denial
The SOC was an enigma. In the preliminary denial sentence they admit straight off he would have to be institutionalized but for Janet. They freely admitted he was under the constant care of lots and lots of medical folks with MDs, DOs, PA-Cs and ARNPs after their names. And then a polite “but he doesn’t receive R2 therapy-like… well… medical stuff- you know, like catheters and PICC lines. Like IVs…like someone on Hospice. In short, like someone knock knock knocking on Heaven’s door, dude. Using this metric, most of us who managed to qualify- and trust me there’s darn few that can- would essentially only qualify for it for a month or 6 weeks on hospice. I’m sorry. I don’t think Congress’ intent was to be so niggardly as to only give you a bump at the end like handing out Christmas bonuses at the “Holiday” Office Party. Read this hooey below. Yes, we feel he needs it (a&a) but he’s not getting any medical treatment near what he’d get if he were institutionalized. Whoops. Wrong legal standard of review. R2 includes “physical therapy” specifically. VA missed that part.
So Janet and I shook hands and we filed for the R2. Remember my adage about Win or Die. It’s a Me and Bobby McGee thing- nothing left to lose. What’s the worst that could happen? We’d strike out and I’d get to take it to the Court. Besides, I was taught you don’t leave your buddies behind. Donald and I were both Air Force so the bond is even tighter. Turns out we didn’t have to do that. Common sense prevailed and Judge Lane ruled in our favor. I’m glad it didn’t take any more than the time needed to transcribe the hearing. I guess I have to thank my lucky stars for this being 2020 and not 1980. Back then, Donald would never have won in front of a Triumvirate of the BVA.
Here was my legal argument:
Janet has doggedly pursued this for nine long years. After her VA attorney won the easy money for A&A and the bump to M for an extra 100%, she cut and ran when the subject of SMC R1/R2 came up. I’m not sure if she was simply unversed in SMC or felt she had plucked all the low-hanging fruit. Either way, it’s a little disconcerting to look over your shoulder and discover your legal beagle wingman has morphed into a VVA beagle flying a VSO doghouse.
I just pulled this one down hot off the press. Janet and Donald are some of my oldest clients. We began all this back in 2017 or so. “We got what we need” for Donald. VA, you will discover, hoards R1 and R2 ratings. You should be prepared for a knife fight in a dark alley. VA will lie, cheat, misrepresent and shade the truth. R2 pays $9.062.26 per month so now you know why.
Here’s a shot of us after we had the hearing. The Judge probably would have granted right there on the spot but due process demands they make the the hearing transcript part of the record. Red power tie I was wearing. Yessssssssssssssssssssss.
All in all, an excellent week for everyone but those Phoenix VA Bozos. Too bad they don’t dun these chuckleheads for misadjudicating. I can’t wait for drive-thru windows at the VAROs soon with the Corona Beer Virus out of control…