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. 

The Jackster

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?

Fort Deny, Mississippi

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.

Author and client

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?

Terry BVA brief redact

R1 Redact

SMC? No such thing

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.

Be safe.

About asknod

VA claims blogger
This entry was posted in Aid and Attendance, All about Veterans, Appeals Modernization Act, BvA Decisions, Corona pandemic, Corona virus, FACE HUMOR, Inspirational Veterans, R1/R2, Tips and Tricks, VA Agents, VA statistics, Veterans Law, Vietnam War history and tagged , , , , , , , , , , , , . Bookmark the permalink.


  1. Calvin Winchell says:

    I wait that day after 9/22/2020 as I know we will get straight poop from the Nodster! Now I just need to stay alive ☠️

  2. The Marines didn’t send in any Hueys from the 7th, 20 miles offshore. The only in-situ operational choppers during the evac (not counting the main evac by Marine Jolly Greens from the 7th on 29th) were the few Air America Hueys, the ICCS Hueys with the dayglow “+” painted on the bottom (flown by Air America), and ARVN/VNAF (Hueys and at least 2 Shit-Hooks). The heli-evac started 29 April, and officially ended 30th April, in darkness, very early in the morning. The 7th stood offshore for 3 days, and picked up straggling choppers -mostly ARVN/VNAF, which were dumped overboard (except the Vancouver, where we ‘liberated’ one Huey). The 7th then departed for Subic late on 2nd – very early on the 3rd. After 3 May there was no more evac by chopper. (Evac by sea continued – a different story.) By “Air America building”, do you mean the Grey House?

    • asknod says:

      Not sure about the Grey House. When I inprocessed for 404 in 6/70, I think I stayed at our designated hostel at 22 Gia Long Street. I think it also housed some CIA pukes on the upper floors with a view. I recognized this facade in the picture. I talked with a few AirAm rotorheads I kept in touch with in 78 and they said there were only about 12 rooftops that were even suitable for evac downtown. This was one, apparently. I knew the Pittman Apts. 3 blocks from the Embassy because I drove by them a few times but this ain’t it. Shoot-fifty years dulls the memory of two or three days in Saigon. All three ICCS birds on the apron at Wattay in Vientiane in 70 were Bell Jet Rangers. A good friend was out at TSN bagging and tagging Porters for shipping and had to bail on them 27 April when the rocket attack began. I left in May 72. we were still winning when I left. Very sad days. My form 10 NDA expires 9/22/2020. Someday I may talk about it.

      • Yep, much to talk about, much to be said. A lot of misreported shite from the ‘chowderheads’ that history hopefully eventually gets straight. Yes, there were 12 rooftops, not counting the Embassy. All were Embassy leased-facilities in the city. We put up 13 ladders, one BOQ required 2 ladders (we still called them BOQs even though they were occupied by DAO civilians, plus the usual cast of characters). The rooftops didn’t actually have ‘helipads’, they were putting the Hueys down on the elevator mechanical rooms/ exits to the roof. The Hueys kept their pitch, not wanting, not daring, to put too much weight on the roofs. Your Gia Long address was not the Grey House – Grey House was up near 3rd Field on the way into TSN Gate 1. (Third Field became the Seventh Day Adventist Hospital after the “”Peace”” Treaty was put into effect.) The 22 Gia Long address was just a stone’s throw from my off-base apartment. The ICCS (I Can’t Control Shite) replaced the ICC – International Control Commission (International Commission for Supervision and Control in Vietnam (ICSC)) in 1973, the Lao choppers would likely have been ICC, although I left Lao in 68.
        Keep up your good works.

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