Remember them old party games with adult beverages back in the 70s and 80s like the Telephone Game? It might have been called something else depending on where you lived geographically. It consisted of Partygoer #1, so designated and labeled, whispering a statement to Partygoer #2-again, predenominated with affixed name tag. This allowed you to roam around and seek out the next numerical successor without all the guests having to stay put. Partygoer #2 would thus seek out and transmit this communication to Partygoer #3 and so on until it had traversed the entire Partygoer contingent-be it 20 souls- or 40. Partygoer Ω then announces the communication loudly and it is compared to the original, primary statement of Partygoer #1. All the intermediate contributors are amazed at how the message metamorphoses (incorrectly) until becoming unintelligible gibberish.
So, too, the VA claims process. You file. VA gets to decide what it is you filed for. By the time it gets to the BVA, the VLJ is using terms like “It’s unclear but appears from the Form 9 that the Appellant seeks service connection for painful scars secondary to RFID chip implanted during an alien abduction while on active duty for training.”
I don’t know how many claims and appeals I get that require being sorted and clarified in order to get them back on track. Ten years later at the BVA for the third time, the Vet’s claim tends to metastasize into a long phrase requiring five typewritten lines. Imagine DC 8004-8613. You have virtual loss of use of your right (dominant) upper extremity. You no longer eat soup with a spoon. You drink it from the bowl wearing a bib and still end up wearing 20%. VA has turned that into Right Upper Extremity with tremor and muscle rigidity and stiffness as a result of complication of Parkinson’s disease with peripheral neuropathy (dominant) 70%. The VA idea is to lump all these diseases and injuries into one homogenized disability. I’ll explain why later. Here’s another stellar example which will soon be a bone of contention at the BVA. Major neurocognitive impairment (MCI)-Previously claimed as Mild Neurocognitive Impairment, Major Depressive Disorder, Adjustment Disorder with Anxiety and Unspecified Neurocognitive Disorder (also claimed as Memory Loss and Sleep Disturbance) associated with Chronic Obstructive Pulmonary Disease (COPD), Asthma and Sleep Apnea (previously rated as Asthma DC 6602). Did you get that? Asthma just turned into a neurocognitive disease associated with COPD.
When it comes time for SMC S or L, the rater is going to throw all your disabilities into one basket and ascribe your rating being due to all of them. Be aware of that going into SMC.
The VA Telephone Game begins early on when you file your 526. It gets more interesting when you become more refined and file the third or fourth 995 to “get it right this time”. This AMA merry-go-round cranks out a decision now in as short a ten days from what I’ve seen. VA’s favorite ploy is to turn Vets’ claims into Hamburger Helper™. I shouldn’t just shoot my mouth off like that. Maybe it’s true of all govt. stuff. If so, it’s probably why aliens don’t want to talk to us. I’m gonna go way out on the little branches here and wager a VA rater with this “construal” mindset wouldn’t be able to hold down the booth bitch job at the drive-thru window of your local choke-n-puke. You order a Big Mac©. You pull around to the pickup window and get a Happy Meal® and three shakes.
Most of these start with a misunderstanding by the Vet when he files. I guess it could equally be the “Intake Specialist” at a VSO. But who would expect a Vet to be a medical whizbang? To him it’s “parachute knees” from jumping out of perfectly good airplanes. To the VA examiner it’s chondromalacia with DeLuca pain. The Vet always loses at this game. Let’s say you want to file for Hepatitis C from a jet gun, ringing ears due to shooting your Pig in ‘Nam for a year and IHD due to AO. VA sends you a generic notice they have received your claim- nothing more. Just a brief “Rog on the incoming, over.” Six weeks or months from now, you’ll be reading that your tinnitus has been denied due to no evidence in your service treatment records of complaints of tinnitus. No mention of the 11Bravo10 MOS. Your claim of IHD secondary to the tinnitus is also denied. They miss the Hep C claim completely and have to deny that a month later-but only if you bitch. The denial is appalling. “We cast dem bones in the Sacred Circle and construed your filing to mean that you were claiming your IHD secondarily to your tinnitus claim. We denied the Tinnitus. Since there is no evidence you served in the Republic of Vietnam or manifested IHD in service or within the year following discharge, we regrettably have to deny you.” VSRs and and their ilk don’t know how to decypher ARCOM or CIB. Granted, eventually you win-but only if you get it sorted. Many never do. They just give up and go home. I meet them all the time nowadays. Same old VA shit. Different Claim.
You don’t even see the second part of this VA Telephone game coming. When you have won and the shekels have been deposited, you pretty much continue to decline in health. You file for the increases and the SMCs and all of a sudden, your find your diabetes is actually part of your IHD which is associated with your prostate cancer. Sorry, dude. You don’t get the §3.350(f)(4) bump because your 100% for IHD isn’t independently ratable (in VA’s eyes). I’ve see VA continue to add up disabilities by “combining them” with §4.25 VA math. You never get to 100% this way- or if you do- it took every rating you had to get there. Sorry dude, No SMC S. They ignore Rice v. Shinseki and don’t consider TDIU the moment you hit 60% for one rating or a combo of 40% with others adding up to 70%. They only do the right thing when supervised and cornered like a rat. Sadly, that doesn’t happen until you get to the BVA-if then. That’s why Congress created the CAVC for us. Thirty one years later, it is slowly beginning to turn the tide in our favor. I’ve heard it takes 1.5 miles to stop the Exxon Valdez and turn it around. VA must work for Exxon or vice versa.
VBA benefits specialists (VSRs, RVSRs, SVSRs and DROs) are of the opinion that All Veterans get better. They call it the Lazarus Effect. Paraplegics rise regularly at those tent revival meetings where the Pastor exhorts them to cast their crutches and wheelchairs aside and trust in the Lord. This is why you get those surprise letters out of the blue from VBA saying please report for an examination to see if you’re getting worse. Miraculously, the c&p invariably shows you didn’t get worse but rather can now
run walk perambulate the Boston Marathon assisted with nothing-not even a walker. It conservatively takes two years or more to turn one of these cattle stampedes around and head it back to the barn. Sadly, I’ve found the only instant cure is to race out and grab an IMO stating the opposite (the truth). I just turned a Proposal for a 50% Reduction down to 10% into a 70% rating by whipping out an IMO from my private contract shrink RFN. VA granted the 70% and went on in the Rating Decision to tell me they’d be contacting us to schedule the reduction hearing shortly. That’s pure unadulterated bullshit. I can see it in the VBMS file. They closed out the EP (end product code) and there are no claims pending.
As I discussed above, Vets discover the ultimate bitchslap when they file for SMCs. They get trapped. Let’s say you file for Aid and Attendance at the SMC L rate. VA goes into the rating code sheet and looks at everything you are currently rated for. I mean everything. If they grant, they write it up that way too. It’ll look like this.
“SMC L granted for being so helpless as to need the Aid and Attendance of another” but they summarize all your disabilities-all of them- as the need for granting the A&A. Thus, if your disabilities increase, your SMC rating is artificially compromised by the “independently ratable” language in §3.350(f)(3) or (f)(4). You can’t show progression of your disease or loss of use because, well, you’re already getting paid for it under the A&A, dude. No pyramiding allowed. If you think about it, it’s one hell of an argument not to file for all that’s wrong with you unless or until it will result in a net gain in your SMC rating. The last thing you want is to have VA say the IHD is secondary to your DM II. It’ll take an IMO to get them separated into two separate and distinct illnesses to get your (f)(3)(4) bump or to SMC O as a separate A&A award. VA is actually trying to do exactly this to one of my Vets. The herbicide presumption is for application but they are trying to attribute the hypertension caused by the DM II as the reason for the IHD. WTF, over? What are they smoking? Sativa or Indica?
I encountered this a few days ago (no- not the throat spray). One of my LZ Cork survivors, Bob, just won 100% for IHD. I already got him SMC L for loss of use (LOU) of the lower extremities due to really, really bad diabetic neuropathy or PAD (Peripheral Atherosclerotic Disease). VA forgot to give him the (f)(3) bump up to L 1/2 back in 2018 which we’ll be fixing directly. It’s more fun to let them clothesline themselves first. The teaching moment here is simple. Let’s say he had filed for A&A first for the PAD of the lower extremities and all his other stuff like DM II, SFW scars, perforated eardrums with vertigo etc., and VA granted it. He could never file for LOU of his legs as a stand alone condition AFTER he got the A&A. Here, he has “used” his DM II card as the primary cause of the LOU of the legs. If he needs aid and attendance of another later due to his IHD alone, he can do that legally because the need for A&A can be alleged as due to the IHD which was never the subject of the reason for A&A. A&A for the IHD advances him to SMC O (2 SMC Ls) and he progresses to SMC R1. There’s way more things most Vets need to know on SMC course knowledge. Think of it like a Chutes and Ladders game.
Here’s an intriguing example of either CUE or the proper application of §3.350(f)(3) and (f) (4) awarded together.
“Here, the Veteran was receiving statutory payable SMC (L) based on
the need for aid and attendance. His aid and attendance finding was
noted by the RO to be based on the combination of his Parkinson’s
disease, cervical spondylosis, diabetes mellitus, radiculopathy,
left upper extremity limitation of motion, and cervicogenic
headaches. As the Veteran’s PTSD was rated as 100 percent
disabling, and not considered in finding he required aid and
attendance, this raised his rate to the next higher statutory
rate, or raised him from SMC (L) to the next higher SMC (M).“
“However, the Board finds that the Veteran’s cervicogenic
headaches, independently ratable at 50 percent disabling
was not a necessary factor in consideration for the finding
for his need for aid and attendance. Which provides the
Veteran with SMC (L) for aid and attendance, plus the next
higher intermediate rate for headaches independently rated
at 50 percent, and lastly, plus an additional next higher
statutory rate based on PTSD independently rated as 100
percent. As such, the Veteran is entitled to the intermediate rate
between 38 U.S.C.A. §1114 (M) and (N).”
Get that? Johnny Vet just got both (f)(3) and (f)(4) and the Regional Puzzle Palaces insist via the M 21 this is verboten. Of course, you might want to note that the reason they don’t “print’ the M 21 is that it changes all the time. I counted 137 revisions last year (2020). That sumbich would be obsolete before they got to setting up the print for Part III.
Here’s a BVA decision awarding two 1/2-step bumps under §3.350(f)(4) which the M 21 says is impermissible, too.
In the SMC business, don’t ever believe what VA tells you. How about two SMC Ls for Aid and Attendance? That is more frequent than you think.
The takeaway from all this requires a new game plan on what you get awarded and when. Buie v. Shinseki insists it makes no difference in which order the entitlements or SMC are awarded. By operation of law §3.103(a) will be the final arbiter- the highest and best that the law will permit-not how VA chooses to assemble them.
“… to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.”
Different Judges will grant different SMC entitlements under the exact same circumstances. This hard ass VLJ says no double dipping on (f)(3)(4)
“With respect to the Veteran’s assertion that he is entitled to a higher level of SMC under 38 C.F.R. § 3.350(f)(3), as noted above, he currently is in receipt of SMC under 38 U.S.C.A. §1114(P) and 38 C.F.R.§ 3.350(f)(4) at the rate equal to subsection (M) based on the loss of use of both legs with additional disability independently ratable as 100 percent disabling from August 20, 2009. The Board notes in this regard that concurrent receipt of SMC under 38 C.F.R. § 3.350(f)(3) and (f)(4) is prohibited. In other words, because the Veteran currently is in receipt of SMC under 38 C.F.R. § 3.350(f)(4) based on the loss of use both legs with additional disability independently ratable as 100 percent disabling, he is not eligible to receive SMC under 38 C.F.R. § 3.350(f)(3) at the same time (as the AOJ noted in the October 2012 Statement of the Case). Thus, this claim must be denied as a matter of law. See also Sabonis v. Brown, 6 Vet. App. 426 (1994).”
The reason I think this is squirrelly is there is nothing in §3.350(f) that specifically forbids both awards. It’s merely an M 21 rule they made up one day. Considering BVA VLJs are adamant in that they are not bound to subscribe to the M 21, I think it’s disturbing this only happens when it’s gonna cost them some serious baksheesh.
A definitive answer on a lot of SMC paradoxes can only come from the CAVC with a panel. I’d like to see this but I know if I won it (concurrent receipt of (f)(3) and (f)(4)) or another fellow litigator did, they’d just go back and rewrite (f)(3) and (f)(4) and preclude it in the future. In this respect, VA regulations often remind me of the Whack-a-Mole game. As soon as VA plugs one loophole, we find another to exploit. It never helps the VASEC when the CAFC/CAVC are constantly sawing off the rotten legal limbs he chooses to stand on.
Remember what ET said. B. Good. I hope you all stay healthy and mentally sane during this perilous time. Our country is on thin ice and we need to remember Vets. We’ve always been the sacrificial lamb on the altar of finance when the Govt. wants to rein in the spending. With the passage of the newest NDAA signed last week, I fervently hope the new Agent Orange diseases will be promptly recognized without an interminable one-year phase-in like our Blue Water Navy Vets got. The most egregious- the award of special caregiver status only to post-911 Vets- has now been revised to extend to all Vets regardless of their color or creed-or when they served. That was sooooo wrong. My advice is if you have the Parkinson’s-like disease as I do, you need to file pronto as that will be your effective date for benefits. As for the Thailand AO Vets, all I can suggest is to keep singing Linda Ronstadt’s When Will I Be Loved? and pray you’ll be heard by Congress too.