Mr. Stacy and Mr. Cook have cordially invited me to this week’s radio show conjunctively with my fellow VA Agent-Bethanie Spangenberg. Ms. Bethanie and I have discussed VA law in the context of SMC professionally on occasion so we are not strangers to one another. More importantly, we are both members of NOVA-the National Organization of Veterans Advocates.
More about that. NOVA began in 1992 when three attorneys Ken Carpenter, Hugh Cox and Keith Snyder) got together in a Baltimore motel room and incorporated for the benefit of us all. Think about this. Since 1865, if you defended a Veteran and won, the maximum you could collect was $10. That didn’t attract a lot of attorneys for obvious economical reasons. This didn’t change until June 14, 2007 when Congress relented and let us charge for representation in spite the vociferous opposition put up by the Big VSO outfits. Imagine ignorant folks wearing funny hats insisting their free representation and grasp of law was on a par or higher than that of an attorney. That’s like suggesting week-old 7-11 sushi is on a par with a Japanese restaurant’s specialty sushi bar wares.
One thing I hope to discuss on the show will be the new VA proclivity under the AMA to bifurcate, segregate, separate and then ignore or cancel your claims. I can’t think of a greater violation of due process. The days of the “well-grounded” claim ended in 2001 with the advent of the VCAA. Once you file a claim in this day and age, you are entitled to an up or down decision regardless of whether it’s legitimate, marginally viable, just plain hooey or totally far-fetched. I can’t count the times in recent memory since this confounded pandemic nonsense began last year that a VA “technician” (liberally employing the term)) unilaterally cancelled (PCAN’d in VAspeak) a legitimate CUE or other claim filing. Boy howdy. That’s against the law in 56 VAROs-57 if you count the
AMC, AOC, ARC OAR. They must have sign painters on speed dial at 810 Vermin Ave. NW for all the changes on the office doors. Oh, and OAR stands for Office of Administrative Review. That’s the Ghostbusters number we call when VA screws something up so badly that Hogan’s famous goat can’t figure out which end to chew on first.
In my last show several weeks ago, I had hoped to dive into the intricacies of SMC. When to file for an SMC is often as important as what to file for and how to phrase it. If you don’t have your claims file or an advocate with access to VBMS, you may fall into a nasty punji pit. Let me give you an example.
When VA grants you aid and attendance of another for your disabilities, they list the exact ones that provoke the need on the Rating Decision “code sheet”. A Veteran never sees this unless he gets a copy of his claims file. They use a dust pan and a broom and sweep up everything you’re service connected for and call all of them the predicate for your A&A. So, using that as the yardstick, let’s say you filed for A&A due to your service connected Diabetes and IHD with a heapin’ helpin’ of PTSD because you forget to bathe, shoot up insulin and take your Paxil®. You need your wife/significant other to remind you to eat your Entresto® so you don’t have another myocardial infarction, to inject the Glipizide™ to avoid going into diabetic shock or try to kill the neighbor’s dog for shitting in your back yard every day because you’re overdue for your Happy pill. Without her, you’d be screwed.
One day your peripheral neuropathy gets so bad they have to start amputating toes due to lack of circulation and gangrene. You can’t walk without falling down. You file for SMC L for loss of use of your lower extremities and VA says hold the phone, Ramone. You’re already getting paid for that in you A&A. Stay with me here; your PN is secondary to your Diabetes and you’re already getting A&A for Diabetes with PN so it’s covered. Got it?
VSOs, if they even understand the fact that you can actually get paid above and beyond 100% schedular or IU, are not taught the precedential “condition” holding in Breniser v. Shinseki. This info is a prerequisite on how to play high-stakes SMC poker with VA. In almost every case, the VA will default to the lesser award of SMC P using §3.350(f)(3),(4) and give you a bump up to L 1/2 for a 50% rating or SMC M for a 100% rating which isn’t included in the reason for the A&A award. Hence my discussion about the timing of the award for multiple SMCs leading to the Holy Grail of SMC R1 and R2.
Trying to untie an old A&A award that has everything but the kitchen sink listed is often a major claim unto itself before you can even proceed to R1. I’ve been repping a gal we’ll call Susie with Multiple Sclerosis (MS) since 2017. We’re trying to get her A&A up to SMC O and R1. Her 2007 A&A award was for MDD, neurogenic bladder and upper/lower body weakness/dressing/cooking/ bathing but- and this is a capital BUT- she didn’t have an award of SMC L loss of use of her upper or lower extremities. One day her PCP noted she was dragging her right foot (foot drop-aka loss of use of peroneal nerve). Sorry, kid. No SMC K for Loss of Use (LOU) of foot. Then her right hand went out. shortly thereafter, her right leg went totally south above the knee. VA finally read this as a case of LOU of hand and foot but it was just a “progression” of the MS-and besides, the LOU of the extremities is really just a part and parcel of the MS, right? Ergo, here’s your brand new SMC at the M rate, sugar. Sorry, no SMC O or R1. Next? Who’s next, please? Now serving numbah 251.
I am careful to prearrange the filing for R1 to encompass and isolate each “condition” that is the predicate for SMC L. There are only four conditions and the counting of the number of conditions shall be no more than four and no less than 4. Five is right out.
- Loss of use of both lower extremities, or both upper extremities or one hand and one foot.
- Totally blind in both eyes with 5/200 or less bilaterally.
- So helpless as to be in need of the A&A of another
- Permanently bedridden.
To get to SMC O, the portal and entry to SMC R1, you need two of the above “conditions”. I’m not going to explain how you can get to SMC N 1/2 with a SMC K to get to SMC R1. I teach the most logical path. If one of your two SMC Ls is for A&A, only then can you get promoted from SMC O to R1. The VA has insidiously inserted a codicil saying only they can make the medical pronuncement that you have lost the use of your lower or upper extremities. To get around that, you rope-a-dope them and let them deny you can’t walk or eat peas with a spoon. Then you go out and get your private IMO saying you’d be just as equally screwed trying to perambulate if they sawed off your legs at the ankles and strapped on prostheses. Or, conversely, you cannot insert your catheter with either hand as they don’t grasp much of anything anymore. Point out that buttoning things like blouses and employing toilet paper in a sanitary manner are also insurmountable problems.
We also see this prohibition of using your own private docs for IMOs at the VA now with PTSD. I file a claim for bent brain. My Vet goes in for a c&p and they say he has a shit ton of personality disorders but fortunately has no psychoses that qualify as PTSD or anything else. I get an IMO from a dynamite psych doctor saying the opposite and refile my supplemental claim. VA sends the Vet out for yet another new c&p (illegally) and denies again. They add that I’m not allowed to use a private psych because only VA”s hired psychs can make that call. This is clearly error. The only way to fix it is to go to the BVA and get a Veterans Law Judge to point out I can legally use my private psych, and, oh yeah, by the way service connection is granted for Bent Brain Syndrome.
Winning the big banana of R1 is getting to be an art form. Often, I have to deconstruct the claims to rearrange them properly. It can’t always be done. Your client has to come down with a separate distinct illness (read condition) requiring either a LOU determination or say, permanently bedridden. In Susie’s case above, it’s less clear cut. My argument is that she was awarded A&A for a subset of defined disabilities-none of which involved loss of use. The decision to grant A&A did not involve the condition of loss of use. Thus, the increase in disability of LOU of a hand and a foot was not covered in the A&A. It’s one thing to have a rating under §4.124a DC 8520 70% for PN of your right leg and a 70% under DC 8515 for your right hand. It’s another thing entirely to have a rating for §4.71a DC 5111 for LOU of hand and foot. The key to the conundrum is the definition of “condition” and “no condition counted twice”. With conditions like arthritis or Multiple Sclerosis, you can always fall back on §3.350(e)(3), too. Remember, the law says VA has to “to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.” VA tries to rephrase that as “Relax. We’re gonna give you everything you got coming, Bubba”.
If you get an award of A&A for the need of another due to being helpless, any new “condition” such as LOU of extremities on top of the A&A award can only be seen as entitlement to a new condition-i.e., one of the four specifically mentioned in §3.350(b). Think outside the box. If you come down with a bodacious case of Parkinson’s and suddenly start falling up the stairs like our illustrious President did last week, chances are you have lost the “effective” use of your lower extremities. You, yourself, might not think so but when you fall down (or up) a lot, you break things. That is a danger and you can no longer perambulate safely without risk. VA will deny LOU and say walk more slowly and stay away from stairs. You fix this by getting a private IMO from a neurologist that says you’re going to end up with a concussion and you have LOU by medical default.
Conversely, you can have an award of SMC L for LOU of your lower extremities but can still drive the car with the adaptive devices. Then you have a bodacious myocardial infarction that leaves you with an ejection fraction of less than 20%. When that Bat Signal appears in the sky, you can’t make it to the Batroom without someone helping you. You can’t cook or do dishes. You can’t fart or hiccup without arrhythmia or angina. You need A&A now where you didn’t before. VA is going to have a hard time saying your MI/IHD is related to the DM II with PN of the lower extremities causing loss of use. Don’t misunderstand me. VA will use that when they deny R1. It just won’t stick at the BVA if you argue it using Breniser.
Arguing SMC at the higher levels requires a hearing in most cases and an appeal. It’s not so much that VA raters don’t want to grant but they don’t know how to. Well, that and I’d allow as no one wants an R1 award on their ratings resume come promotion time. Actually, the M 21 is the culprit. It’s logic circuits all lead to 70% and 60% ratings under DCs 8515 and 8520. The argument against will also say you have been awarded the highest ratings available and they sure wished like all get out they could do more.
Thursday, we’ll be happy to talk about it. The show starts at 1900 Hrs on the East Coast and 1600 on the Leftmost side of our fruited plains. The Mayor has declared rioting in downtown Portland, Oregon will be postponed until after the show in case you’re worried about a scheduling conflict.
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