BVA-FORT FUMBLE, VIRGINIA–SMC=SMALL MENTAL CAPACITY


As a foreword, I wish to let my friends know I no longer use FacePlant™ for social purposes-or any other for that matter. I saw an illuminating show about how the good folks at the FB establishment exploit your data and enrich themselves at your expense. I didn’t use it much to begin with but I only publish these articles here on asknod now. My private page est mort.

I had a BVA  video hearing before (A)VLJ Martin Peters yesterday for my Multiple Sclerosis Veteran. Judge Peters is an “Acting” Judge. That means he’ll probably be a full-fledged VLJ one of these days. He’s been acting for a while. I do hope he gets his wings. He’s a keeper.  It’s taken us a gazillion years to get there (the hearing) due to this unplannedemic. Never have I been so thoroughly pleased with my experience. We were scheduled to be in front of another VLJ gal weeks ago. For reasons I’d rather not say, I’m a little gunshy of women VLJs. They tend to be a wee bit more skittish or judgemental around my women Vets for some reason. That’s not to be seen as misogynistic or a woman hater. Perish the thought. It’s just that I’ve had mixed success with them. Women are from Venus and we men are from Mars. I get that but I don’t always perceive right off what it is the Venus people require to grant. Funny thing is I have same problem with Cupcake. It’s a man thing. We will never understand.

While doing my last dumpster dive into all the evidence for this hearing, I finally found the root of the problem-SMC-or more succinctly, the mental incapacity to understand SMC. As I’ve pointed out to any who will listen, SMC is more convoluted than the Mississippi River. It has no rhyme, rhythm or cadence. Just when you think you have it intellectually mastered, it turns around and drops you like a jilted lover. I’m referring to VA raters’  SMC comprehension, not me. I laugh when I talk to VA raters and they point to the SMC calculator like a HAL 9000 with AI. The device is useless if all you do is load M 21 garbage into the front end. Naturally, it’ll regurgitate garbage out the rear chute. That’s been scientifically proven. The mathematical formula is GI=GO.

When doing CUE claims in the past, I always used to gloss over the authority for an action. I guess I figured VA knew how to apply the regs and they wouldn’t baldly cheat and leave behind written evidence of their misfeasance. Boy howdy was I wet all over. I’m adroit at finding the error but rarely do they (VA pukes) cobble together two halves of  disparate regulations and conjoin them into one with a straight face. SMC is so complicated because the higher levels are rarely attained by most Vets-hence the lack of experience yields such inaccurate outcomes. Oddly, every SMC mistake I’ve seen errs in that it deprives the Vet of a higher SMC rating-never an overpayment. Since this is my favorite swimming hole, a misquoted SMC regulation sticks out like a Mount Vesuvius zit erupting on your nose. It would be like being up at bat and the umpire behind you yells “Strike 2! You’re out!” Say what?

So imagine if they awarded you SMC at the (l) rate for the need of the aid and attendance of another under §3.350(b)(3) but you noticed they’d tagged on “while not hospitalized at government expense.” Seriously. I’ve heard of mission creep but regulation creep? That’s against the law in 56 ROs but they get away with it.

Read it here on page 5 in the Narrative and page 4 on the code sheet.

redact 6-19-2015 CUE

redact code sheet 6-19-2015

VA uses a little trick I should share with you. When they decide to give you Aid and Attendance, they’ll try to sweep up every hemorrhoid, every pes planus and every tinnitus ear ring into it. Pretty soon your a&a award has every reason and every 0% disability including the kitchen sink as the predicate. To beat them at this game, you have to control what goes into the maw of the A&A Kitchenaid®.

My MS Vet Suzi (not her real name) has a bunch of things which have no connection to her MS like headaches, IBS and MDD. All these are what we call independently ratable. They come into play when you want to segregate your symptoms into one pile for the A&A and another pile for anything that you can “build onto” for a higher SMC rating.  Suzi started out with loss of use of her right foot but VA “accidentally forgot” to give her the accompanying SMC K . This is important because, well, to begin with, it pays you another Benjamin Franklin coupon every month. $1200 a year extra isn’t chump change- it ‘ll buy you about 12 bottles of Dom Perignon.

But then Suzi’s 3-card VA monte game began in earnest. In 2014, a few years after the loss of foot, which they forgot to rate as SMC K, she  came down with a nasty case of loss of hand in addition to the foot which gave her a second SMC L §3.350(b)(1). Even though the loss of use of the hand/foot was due to MS, the loss is a “condition” as described in §3.350(e)(1)(ii),(3) like arthritis. There are only four conditions that will get you into the SMC Big House-LOU of the feet/hands or a combo of them, bedridden, the need for A&A and blindness.  From there on out, it’s merely how much of each extremity you lose (hand; elbow; armpit) or a combo of LOU and being blind or the need for A&A.

VA makes no distinction about losing the use of, or the actual loss of an extremity, until you get to SMC N. Then it (loss of lower extremities) becomes mandatory. The maximum rate, unbeknownst to most, is actually SMC at the O rate. R(1) and R(2) are merely an enhanced a&a entitlement added on to SMC O. For most of us, the only way to get there is not losing more and more of each extremity plus your buttocks, but to obtain two SMCs between the rates of L and N. Suzi had a new SMC L for LOU of hand and foot plus an earlier award for SMC L for a&a. Bingo. Advance to SMC O and thence to SMC R(1). VA hornswoggled her into thinking if she kept her a&a, she’d lose out and have to pay any time she had to be admitted to a hospital-VA or otherwise. Hogwash. Once you go over 50%, VA give you free medical for everything-even shit that isn’t SC. If you are awarded SMC R(1) and you have to be hospitalized at govt. expense, your award drops to SMC O until you are discharged.

Worse, these little chowderheads in Roanoke urged her to “amend” her own rating. I shit you not. In law, we call this Estoppel. The VA encouraged her to relinquish a high-$ entitlement which would harm her. Assuming arguendo, they convinced you to do it, it would still be illegal even if you agreed to it. Simply put, the actual CUE was to say you’d lose a&a if you had to be hospitalized at a VAMC.

The little rascals also “pre-screwed” Suzi. While they suggested she ought to shitcan the a&a in favor of LOU, the code sheet shows they already had done so.  On page 4 of 5 it says she had a&a from 1/9/2012 up to 9/23/2014 whereupon she “amended” her SMC to LOU of hand and foot forever after. Shoo doggies. She wouldn’t even received the Big Brown Envelope for another five days…

Remember, campers, once VA gives you a rating, it cannot be rescinded unless you cheated to get it or VA stepped on their regulatory necktie and awarded it to you in error. Here, in Suzi’s case, they essentially substituted her SMC L for LOU of hand and foot in lieu of her existing SMC L for Aid and Attendance. Welcome to VA 3-card Monte. Now you see it. Now you don’t.

Judge Peters is a novitiate in SMC and I realized that in the hearing when he asked if we were seeking SMC L for a&a in 2012 or SMC K. He understood it to mean you could not have two SMCs of any flavor simultaneously. Half the hearing was squandered on teaching him how it works-or, more appropriately, how it’s supposed to work. I decided to hold off on submitting my amended brief for the hearing in case they switched back to a Venus person. I had a modified brief in my back pocket just in case. Mostly, I want this 16-page Gutenberg Bible to land on his desk with a big thud.

I find it intriguing to read other attorneys’ ramblings in their briefs. Many experts in VA law teach us to KISS (keep it simple, stupid). Others advocate doing it in as few pages as possible. I disagree. I never went to law school. I don’t have attorney brain. Nobody ever told me what I can and cannot do. If it takes 16 pages to explain why there is no intelligent life at the Roanoke Puzzle Palace, so be it.

redact amended brief

The best part was a stab in the dark at getting Suzi advanced on the docket. Sensing we had this fellow’s sympathy for her dire, never-ending plight, I mentioned she was flashed at the RO for terminally ill. I timidly asked if he would even consider giving us AOD. His rejoinder was “Are you formally putting a motion for AOD before me? My rejoinder was Hell, yeah but I need to file it, right? He  said that wouldn’t be necessary and that he was granting forthwith.

I never try to read a VLJ’s intentions and get all giddy about how it went but if I was a betting man- and boy howdy am I- I’d say the Judge already has made a decision. The last time one said ” You understand I can’t grant your claim today but I’ll look into it extensively”, I won. Oddly, it, too, was for R(1).

Financially, this thing disgusts me. Suzi should have been awarded SMC K in 2012. That error was only $3 K’s worth to September 2014. The rest- 78 months  of R(1) – or about $312 K (after  deducting her prior SMC M payola) leaves me embarrassed for VA’s taking so long. 20% of that is a lot of  baksheesh even if I did spend four years on it. I would have done it for far less and if VA had their shit together, it would have been far less.

And that’s all I’m gonna say about that.

NOD was here

About asknod

VA claims blogger
This entry was posted in CUE, Lawyering Up, R1/R2, SMC, Tips and Tricks, VA Agents, VA Attorneys, Veterans Law, Women Vets and tagged , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to BVA-FORT FUMBLE, VIRGINIA–SMC=SMALL MENTAL CAPACITY

  1. asknod says:

    If you actually lose a foot or lose the use of the foot, you’d get 80% plus SmC K. See §4.124a DC 8520. If you lose both, you’d get SMC L and a 100% rating under §4.71a DC 5110.
    I find I have the best luck on helping Vets reach the higher levels of SMC if I get a neurologist to state in an IMO that the Vet’s fall danger due to the loss of feeling in the lower extremities is extremely high. Thus, by trying to ambulate, (s)he incurs the risk of further injury or even cerebrovascular injury by falling and hitting his/her head in addition to injuring a limb. I have a Vietnam Vet with PN of the lower extremities due to DM II. He even had surgery to increase circulation to the legs. Not much success so we put in for LOU of the legs. VA c&p agreed. He was rated at 40% per lower extremity when I filed. We won.
    SMC is very convoluted. Winning is almost impossible without a Sherpa.

  2. john T T says:

    Is there such a thing as partial loss of use where a vet can get a SMC. I have loss of use of 40% on both of my feet and my right arm. Do I have to wait until I can’t move to get SMC for these conditions? If you actually lose a foot you get rated 40%.

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