Our illustrious Governor is pulling a Groundhog Day on us. I reckon he came out of his mansion and didn’t see his shadow. Yep. Six more weeks of isolation. I get that. This is the Northwest. That doesn’t begin to happen until about June. It’s caused by a local phenomenon called April Showers. Fortunately, as a VA litigator, I don’t get out much anyway. I spend most of my time on Fort Facebook. No. Just kidding. I go there to pick up good jokes and sample the mood of the nation-both the sane and insane. It’s scary out there. No wonder Mark Zuckerberg is running around with his Whackamole hammer trying to tamp down some of the tomfoolery afoot. I’m generally not big on censorship but some of the stuff I see is beyond the pale.
Hereabouts, we’ve had seven (7) cases in my neck of the woods. Two deaths were attributed to it but they were never tested. They were 88 and 91 respectively. My guess is it was a 50-50 call. If a body got any kind of flu at that age, I’d be putting the Funeral home on speed dial just in case they weren’t Jack LaLanne types. Hey, did you ever notice that hair? Pretty sketchy. I’m almost positive that’s a rug. Cupcake can spot them a mile away just like she can folks who are not happy with their assigned sexual identity. Is that how I’m supposed to say it? Political correctness will be the death of me.
On another note, I got a big win on an old client. Terry heard me on a Hadit radio show way back in 2017 and called me up for a claims review. Terry has Muscular Dystrophy baaaaaaaad. He began coming down with it in service and had to retire because of it. I admire Terry. He’s gung ho. He went Operation Bootstrap and opted into a college education with the six-year hook of service as an officer and a gentleman following. He banked that into a total of 20-odd years and a light Colonel. That’s some kind of dedication to America.
I assembled all his ratings and the pertinent data of the latest denial. We talked for an hour or two and I agreed to rep. him. I have to refund my claims review fee when this happens. The law is explicit. No dinero to take a claim. Only the 20% if VA recoups it or up to 33% if one of the big boys like CCK takes it. Well boy howdy so much for the sympathetic development of his claim as a pro se litigant. VA started in with “Hey, dude. You’re the one who insisted we adjudicate it under nerves. Just because the ratings schedules in DCs 8513 and 8520 stop at 70% for your extremities isn’t our fault. Maybe you should have filed for Multiple Sclerosis and we woulda looked at it different. We can’t change it now…” In truth, the Army Medical Board chose it and the VA continued it. We were leaning towards DC 5110 for LOU of the lower extremities because poor old Terry was having the devil’s own time walking with Canadian crutches and one of those AFO rigs on one foot. Talk about foot drop. How about body drop when you fall down? How about Help I’ve fallen down and there’s nobody around to help me get up again. Hellooooooooooooooo?
I flew down to Jackson, Miss. for the DRO hearing and dang near got frog-marched out the door by the jackbooted VA Po-lice. They accent that on the first syllable down there. In fact, it almost sounds like two words. I’m not kidding you. The DRO booth bitch put me on notice that if I didn’t quit spouting off about SMC and R1 that I was going to be persona non grata and how would my client feel about attempting this without me?
Right. That was a dry hole figuratively speaking. No pun intended. Terry and I went back to the drawing Board. That would be drawing the Board of Appeals option. I put great stock in doing live hearings. With the advent of the new AMA, they are a thing of the past unless you want to make the trek back to DC and 1425 I street and do a meet and greet. We did. We got a January 5, 2020 date and rendezvoused there the night before for a confab on the Order of Battle. No. Just kidding. The Hyatt Regency in DC is right around the corner from Judiciary Square and they have six single malts and great chow. Well, not as good as some of the recipes in that Pow Wow Chow book put out by some Cherokee Senator from
Oklahoma er- Massachusetts with the high cheekbones. Man, her cowboy caviar is to die for. Them fresh-caught Muskogee crawdad cakes are the cat’s pajamas too. Cupcake and I are working our way through the recipes during this corona thing. My LRRP buddy Ed thinks this bug should be called the Chinese Tariff Revenge.
Terry and I bided our time/drinking our wine and sure enough the Judge (David Wight) cut a really good decision on this for R1. Hey, Terry earned it. Oddly, it’s the first BVA decision I’ve seen that only had about two or three cites to law in it. A lot of it was just 38 CFR or allusions to §1114 SMC stuff. Usually a decision has about 20 or 30 of them in there and most of them are not your friends. This points to one interesting fact. There simply isn’t very much cutting edge law on the higher SMCs besides Breniser and Jensen yet. Seems VA avoids it like coronavirus and hopes it’ll go away before it breaks the VA fisc.
Now, my Monday morning armchair quarterback analysis of the decision is Judge Wight didn’t want to let the camel’s nose in under the tent and go near my Breniser argument about “conditions”. To me, a condition is one of the ones in SMC L (§3.350(b). There are four listed -bedridden, blindness, A&A or loss of use of a combo of extremities be it leg and leg, arm and arm or arm and leg. Each one is a condition. Judge Wight was leaning on condition as in Muscular Dystrophy versus PTSD versus IHD ad nauseum. He was looking long and hard at the fact that Terry was granted A&A right out of the box at retirement based in large part on the virtual total loss of his upper extremities due entirely to Muscular Dystrophy. The loss of use of his walking tools was an extra “condition” caused by his Musc. Dystrophy. I had that covered with §3.350(e) saying all the losses of extremities and A&A are part and parcel of one disease process but that’s the incorrect legal standard of review. Don’t get me wrong. It’s certainly one way of looking at it but not the prima facie reason in my fight here. Besides, I want to push Veterans law in the Breniser “conditions” direction. Our job as litigators is to continually push for more rights, better interpretations of regulation and stretch the law to encompass a better outcome. The BVA hates to venture into new precedence. They leave that to the CAVC/CAFC.
Here’s Terry’s Great Big Adventure in DC. I was born there. I love the place. I Cub Scouted every memorial in DC and even went barefoot in the Washington Memorial Reflection pool. Shades of Jenny in Forest Gump, huh?
Nothing tickles my funny bone more than winning SMC R claims. I’m losing count of how many but I’m guessing it puts one hell of a dent in the VA cash cow. R1 is $96 K+/year. R2 is $108K. I found out quite by accident that there are less than 2,000 Vets in R1 or R2. The reason is simple. They don’t teach this to VSOs. It’s impossible to file a Vet for it if you’ve never heard of it. I’ve asked a number of them about it and I get the deer in the headlights response. SMC? Yeah, that’s a…a….ah pension thing. We do them all the time.
I recently got an email from a kindred spirit in this business. David’s a VSO and reads my drivel to figure out how this works. He even was nice to me and said all VSOs aren’t total dicks. After chatting, I have to begin lightening up on them. Hey, a knowledgeable VSO is better than nothing in this game. Considering VA attys/agents are as rare as hen’s teeth when you need one, VSOs serve also who only lick a stamp and send it in. Actually, the more educated they become, the more lethal. Which gives me an idea. I wonder if I should go down to Tacoma and join the VFW? I could sit in the bar and educate them from a VBM. I could fake it and act like I got it from the public library and was amazed at what I was reading… I’d probably get 86’d for having an IQ over 86. It’s a thought. Most of them die (my thoughts) shortly after that little thought balloon forms over my head with the little circles leading up to it.
Here’s the latest Corona humor if there is such a thing…
Last, I wish to remember all my Friends who didn’t come home from SEA. It pulls my string to see the bugout on April 21st through May 5th 1975. Nothing like coming in third and getting the bronze instead of the gold. To me, this is the day they should give to Vietnam Vets. The only thing worse than misreporting history is some chowderhead who can’t even identify an AirAm chopper from a USMC one. Worse even yet, the below was the AirAm building- not the US Embassy. Ours had bullshit registration numbers too. We called them Elvis Presley registrations- return to sender, address unknown… no such number…
Funny thing was I had signed up for Rotary wing school and was going to join and go back over working for AirAm. Maybe that was a blessing we got out when we did.