Happy New Year, pilgrims. I don’t ever want to come across as too bubbly and effervescent in these posts because I know there are many of you struggling to survive-both medically and financially. Concomitantly, I try to avoid giving false hope to those who need it knowing they are doomed. Rather, I like to remain upbeat, positive and glass-half-fullish about life. In my current profession, I’m blessed in that, for the most part, I can forecast the weather holds nothing but clouds with silver linings for my Veterans.
Have you ever gone to Denny’s™ for dinner with the family and the
waitress oops- waitperson (s/he, they) brought your youngsters paper placemats and crayons? Granted, the maze puzzle is not overly complicated but it still requires mentally tracing you way to the center with a few false starts. Comprende? Now, imagine giving it a cursory glance and being able to discern the path instantly. Or, equally, being able to see no path and know it was impossible instantly.
I don’t profess to be an idiot savant but I’ve kept a good diary of my successes and my failures. As most know, I take the impossibles, the improbables or the dying Vietnam Vets. I have a horrible soft spot for crying widows. But what is striking is that, with very few exceptions, I can foresee who are going to be the chicken dinner winners and who are most definitely not. I’m not some cherry picker who takes the mega-lucrative claims. They come to me unbidden. Usually, nobody else would take them. I did a pro bono for the widow of a Vietnam eleven bravo this fall who was heading over the cliff with her VSO. He refused to file it for her. Said acute myeloblastic lymphoma wasn’t on the §3.309(e) presumptive list and to get lost. I won a R1 at the Little Rock RO last spring without a fight. You end up doing a lot of pro bono stuff and that’s a good thing.
I spend a lot of time talking or answering emails from Vets who ask me questions about “what if…? Most of these are about Special Monthly Compensation at the higher/highest rates. As a one-man band, I’m time-challenged. It forces me to make snap decisions so I can get back to work. Being able to see the possibility of a rock-solid claim quickly saves me a two-day review of every page of 235 pages of 1970s handwritten SMRs.
Which brings me to today’s church service on SMC. This one will really roll your socks down. I’ve been working with a Vet and his wife/caregiver for three or four years trying desperately to get them SMC at the L rate for A&A. I took this one on shortly before the March NOVA in Nashville back in ’18. In fact, in the middle of a presentation, the Hartford Puzzle Palace calls me and informs me they tried like the devil to grant my boy that A&A but they just couldn’t find enough to pull the trigger. This guy is 100% for COPD and about 80% for DM II with PN in all four extremities… and sleep apnea… and sinusitis ad nauseum. I wisely gave up on the local yokels and beat feet to DC for a 10 182 Direct BVA review. It was a slam dunk but VA has recently rolled up the Welcome carpets at their 57 service centers across the fruited plains. If you thought it was difficult to win A&A before, it’s now even worse that trying to extract teeth out of a live, pissed off alligator. TDIU is equally as dicey.
In the meantime (August 2018), my boy got another 100% for his now major neurocognitive disorder with a side of incompetency. When my Vet’s PN in the lower extremities became so debilitating this year, I decided to go for the SMC L loss of use codicil to get him what he really needed-R1. Fort Sam Houston immediately pulled up the drawbridge. We got a denial back in 5 business days in spite of him being admitted to the VAMC for a really bad fall last March (2021). He thumped his melon on the sidewalk and got a concussion. This is where being able to ascertain the path through the maze pays off.
First, I’ll put the rating decision up. The obvious 800 lb. gorilla on the sofa was a new 100% mental rating which got an automatic ticket to a SMC L for A&A all by itself-but based on something six months after filing. Huh? VA glommed on to that as the predicate and ignored the 2008 100% for COPD w/ DM II. And, being ignorant of the ways of SMC, failed to infer that he got a bump up to SMC M for the extra COPD 100% -§3.350(f)(4). That began my second battle to get him up to M. The pukes ignored me and told me to engage in sex with rolling donuts. redact narrative A&A 3-4-20 reconsideration Bad idea.
After a year of no traction, I emailed our acting Under Secretary for Benefits and asked him for relief. Bingo. Seven days later, on August 27, we had the SMC M. VA fell on their sword and granted it but found CUE and moved the effective date for the SMC L back from August ’18 to February ’18… based on the same 100% neurocognitive disorder. No can do GI. My boy wasn’t 100% for the neurocognitive disorder on February 12. He was 50% and that, with another 20%, will get you little more than SMC S and some shitty VFW coffee at an Interstate rest stop. But the big error was the camouflage attempt to cover their asses. The DROs huddled and tried to braille their way out of it. Phonics© won’t save your ass at the RO if you can’t figure out how to read a Code sheet. The M 21 doesn’t go that far.
My Vet had asked for A&A in February 2018-not August of ’18. By using the neurocognitive disorder as need in the February earlier effective date, they couldn’t support A&A. Check out page 4 highlight. It read like someone high on Phonics©. The PTSD bone is connected to the… asthma bone and the asthma bone is connected to the …DM II bone… and the…okay-got it. Call CUE and grant EED for the M.
I called bullshit and asked for a Higher Level of Review and explained all this to the booth bitch. I even grilled her as to whether she understood SMC law or had to take her shoes off to supersize her abacus. About six hours later, out comes the HLR. She tried to fix the anomaly of not having a 100% by simply waving her magic rating wand and changing the medical reason for the A&A. Boy howdy is that a Colvin violation unless she has a MD after her moniker. This framed the idea for the name of this post. Sir Walter Scott nailed it in 1808 when he inadvertently prognosticated on how VA would forever rate claims “Oh, what a tangled web we weave, when first we practice to deceive!” . The problem was her statement that the a&a did not include any psychiatric disorders. See underlined in green on page 4. Kinda makes you wonder how they get their shirts on in the morning facing forward, huh?
My Vet’s A&A now was predicated solely on the COPD as it should have been when the shit show began in March 2020. But by doing this, Ms. HLR reviewer freely vocalized the anomaly that they had already admitted the 100% neuro disorder was also an A&A in it’s own right… but was not being considered in this particular a&a determination. Shit. I can’t make this stuff up. After three bites of the apple, they admitted without saying as much that he has two needed separate and distinct 100% a&a entitlements to obtain R1.
This is easier than fishing with hand grenades. I admit it took me about an hour to follow the error back to February 2012 and realize this lipstick-on-a-pig gig wasn’t going to fly at the BVA. What the hey. I’d have a field day with this at the Court. So here’s the prelim brief. If it seems redundant, remember it takes a lot of breadcrumbs to keep these folks on the reservation. Even staff attorneys at the BVA can’t follow the SMC Yellow Brick Road without going in the ditch. Which brings to mind the immortal revelation by Stephen Hawking…
“The greatest enemy of knowledge is not ignorance. It’s the illusion of knowledge.”
Imagine if they took the M 21 away from raters. They’d be lost. They suffer the illusion of being knowledgeable. They don’t know statute and regulation. They push X + Y and the M 21 magic 8 ball spits out the answer. If you file a NOD, they cobble together a bunch of cut -and-paste Adobe 2 Pro phrases which leave dangling participles and incorrect syntax scattered galley west. Who cares? Right? You’re denied.
That concludes this teaching moment for VA raters. Be careful how you craft a CUE revision or you may find you inadvertently have created a bow wave into SMC R1.
P.S. PFC Princess Penelope (Padawan 1st Class) is practicing up for her gig with the Rebel Alliance.