Only in the corndog capital of the United States could you have a VA adjudicatory mishap of such epic proportions presented with a straight face. Nah. Just kidding. In this day and age, with the VA’s National Work Queue (NWQ), your decision is destined to be sent all over Hell’s half-acre before the final promulgation is complete and closed. No less than 20 VA “technicians” (insert eye roll here) will develop, search, research, approve for denial and finally decide your case. Some of them are even reputed to have IQs over 100.
A large majority of Vets think they personally have the most dynamite Regional Office of all the 57 across our fruited plains. A lot of these folks will also say they get the most awesome medical care at their own VAMC and feel sorry for the chumps in Phoenix. Why, waiting for 4 months for an x ray to check for cancer is just a minor inconvenience when you opt out of Medicare B and go totally free to the VA. So what if they still take your temperature anally? I hear it’s more accurate than those newfangled digital things.
This is the VA saga of Andy-not to be confused with the more famous Andy -aka Howard. Andy and his wife came to me via Hadit.com waaaay back in 2018 and asked why he was having such a hard time getting Special Monthly Compensation (SMC) for Aid and Attendance. Hey, this isn’t like Mardi Gras and the VA Krewe throwing out SMC necklaces. When you cross over into SMC land, the knives come out. I have a MS client who goes in to get infusions every two weeks. I get to see her medical notes sent over to the raters from the VAMC nurses. Deena (not her real name) has total loss of use of right upper and lower extremities. I’m trying to obtain R1 and have been as long as I’ve been fighting this one for Andy. She often uses a “knee scooter” when her husband is walking while holding her up on the left. The RN decided she had arrived “ambulatory”-i.e., on her own two feet or on crutches. No mention of said knee scooter. No mention of the better half holding her up, either. I’ll bet you didn’t know but every time you go to see a VA doctor and he sends you up to the lab for a blood draw and a urinalysis, they automatically check your pee for 5 different drugs-including pot and disco biscuits. Spooky shit, huh? These guys are shopping for negative evidence 24/7 so be aware of that.
I don’t know what Andy did to piss off them boys and girls down In Houston but they do not like him and make no bones about it. He tried everything. He filed for each and every disease or injury that came down the pike. VA dutifully granted them at 0%. He circled back and filed for increases and gradually got them. When the COPD got so bad he was winded just trying to make it to the bathroom and went on oxygen, they gave him another 10%. Eventually, the lack of O² impaired his mind like Sleep Apnea does. All the drugs began to make him obese. Then the Diabetes Mellitus and the peripheral neuropathy began. He filed some more and got denied or low-balled some more and on and on it went. He was rated at about 590% but could not get his foot in the door for a&a. Then he almost burned the house down. He left the sprinkler on for a week out back and almost flooded the basement.
Finally, Andy asked me to fix it. I began the process with what should have been a slam dunk filing. No dice. VA was adamant he was Boston Marathon material… or faking it. After the usual plea for reconsideration (which was decided at the Andrew M. Cuomo Memorial Regional Office in Buffaloed, NY), I filed the 10182 and NOD’d it to the Board.
Fortunately, saner heads prevailed and the good judge granted on February 4, 2020. On the 25th, Houston wrote it up but, as usual, their SMC Ratings computer, which they insist is infallible as are all VA artifices, failed to pick up all the ancillary entitlements. After all the grief I had already received from these chuckleheads, I felt I could just send them a polite letter pointing out the overlooked bump under §3.350(f)(3) and (4). Bad idea. They sent it up to the Board and told them Mr. Andy was unhappy with the BVA grant of a&a and wanted more.
So, I refiled a 995 and asked for the bump locally. VA tossed it in the circular file. Again and again. So, what the hey. I had plenty of time left to file a new NOD at the BVA and have them fix it. On April 29 of this year, the BVA decided it was defective and did not have a timely denial below at the Samuel Houston Memorial Regional Office. That appeal went into the trashcan too. The reason was the decision to shitcan it occurred about a month past one year from the original VA adjudication implementing the a&a. Are you following this?
So, I armored up on July 17th and shotgunned a 526 and a 995 at them simultaneously with no legal brief asking for SMC (p) under subsection §3.350(f)(4) (the bump from L to M). The reason for two was if you just send in the 526, they say you already have been denied for SMC M so you have to use the Supplemental claims form. Of course, if you just send in the 995, they say this is a new claim and say you used the wrong form. VA couldn’t decide which one to shitcan so Fort Lincoln took the 526 and Houston took the 995 (and shitcanned it). I got this back in VBMS almost immediately:
It was pathetic. I’ve had VA “misconstrue” a lot of claims I’ve filed for on behalf of not only myself but my clients over the last decade or two. This one was absolutely over the top. The rejoinder was basically “Oh. You want SMC M? Okay, fine Andy. Suck on this lollipop. The VA examiner says you don’t have any of the below:
1) LOU of upper extremities; or,
2)LOU of lower extremities above the knees; or,
3)Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place; or,
4)Blindness in both eyes having only light perception; or,
5)Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance.
They didn’t mention permanently bedridden until they got to the Rating decision. It appeared this was going to be all she wrote short of an Ex Writ to the Court.
That’s when I got out the M 79 and began walking the HE into their TOC. I fired off an email to Acting Under Secretary Tom Murphy, the Coach who reviewed the file before the decision, the RVSR supervising the GS-10 VSR “author”, every Tom Dick and Harry who had even left a note in VBMS or touched it in Lincoln, cc:’d it to Denis “the Menace” McDonough, the Lincoln RO director and his Veterans Service Center Manager (VSCM) castigating them for their ignorance on the subject of SMC. Shoot. I might have even cc:’d Micky Mantle’s mom I was so pissed. I allowed as Mojo, Homer Simpson’s famous trained monkey might be able to do it correctly.
Silence ensued over the weekend and then the Lincoln Change Management Agent (CMA) contacted me and said I had created a shitstorm and the Raters were running around like a Chinese Fire Drill. Oops. That might be racist to bring in the Chinese. Sorry if I offended anyone. Nevertheless, the fire drill produced results. I was watching it in real time last Friday on VBMS TV and then… Bingo. At 1547 Hrs the initial rating decision, now revamped to comport with §3.350(f)(4), appeared in the documents queue. At 1659 Hrs the two signatures popped up in the file and the game was over. Or was it?
VA tried hard to appease the Grand Poohbahs back east and prove they weren’t descended from, or raised by, wolves. They took a very vaguely worded 4138 to construe Andy had actually been asking for a&a as early as February 12, 2018-almost six months before I refiled him for it. But by granting that earlier effective date, they opened up a whole new can of worms. He was now entitled to a half-step bump under §3.350(f)(3) but they neglected to use their trusty SMC computer to determine if he was entitled. Not that it would have prognosticated the L 1/2. So, now I have to file a NOD and ask for 6 months of SMC L 1/2 worth $1,339.23. Idiot’s delight. These dickwits couldn’t find their asses with both hands or a methane detector while defecating. It’s a wonder they even get their underwear on facing the right direction in the morning. So here’s Act II.
That’s the problem with litigating SMC for your clients. You’re dealing with people who are allowed to procreate and make more idiots. Let us fervently pray their offspring do not find their way into VA employ. They might grow up to be like the guttersnipe in the video below…
Amen. Well, almost. You didn’t think I was going to rest on my laurels. No way, dude. I’m pissed and going for SMC R1 on the premise that his 100% for Major Neurocognitive disorder requires a&a in its own right. Right. Tally Ho! God sends the Right!