After a few pointless HLR informal conference rodeos with vapid DROs, I watched in wonderment as the three-page denials promptly populated in VBMS in as few as 28 minutes from my hanging up. This notwithstanding a carefully constructed follow-the-breadcrumbs legal brief explaining it in VAspeak so it was in smaller, monosyllabic, digestible word bytes. It seemed to make little difference even if I mansplained it verbally at the Informal telephone Conference (IC). I also noticed they were copying and pasting my own sentences with ‘no’ and ‘not’ inserted appropriately to negate the inference. Well, shoot. Two can play this game except I learned how to dig ‘predecisional’ or ‘duty to assist’ punji pits. 

Duty to Assist and Predecisional Errors

Okay, pilgrims. Stay with me. In the new, improved World of the VA’s AMA system, only two things can instantly pop the drag chute and provoke a new decision. Look for these terms in VA CUE rating decisions (RDs) or BVA Appeals decisions-now called Notices of Disagreement, NODs or 10182s. I’ve heard VA personnel call them ten-one eighty twos.

A predecisional error would be if they rated your knee under the wrong diagnostic code (DC) or forgot to look at §3.351(c)(3) when they deny you aid and attendance. Always remember that there are trap doors in Special Monthly Compensation (SMC). Raters ignore the CFRs and use the M 21. The fault develops when the M 21 encourages the examiner to employ mission creep and begin lying about the requirements.

Here’s an example. You ask for a&a under §3.350(b)(3) for being so blind you cannot accomplish the activities of daily living (ADLs) like normal folks. You’re legally blind by law (20/200 or less) but VA says no dice-you’re 90% blind by VA law. Granted, you’re dang sure not going to be driving a car unless it’s a Telsa and I wouldn’t put any bets on not burning the bacon come breakfast. Or me riding in the Tesla with you, either as far as that goes. VA denies and says you need a true 100% combined or schedular to even discuss a&a. Missed it by thaaaaaat much, 99. The punji pit is Akles v. Derwinski. VA is supposed to infer all the things you’re entitled to. To start with, if they gave my Vet a car allowance for being blind, then they were sure as Hell  supposed to throw in SAH for $81 K worth of remodeling. The horseshoe ambush is completed by pointing out §3.351(c)(3) or referral to the Director of Comp. and Pen. in DC for  the required Thun vs. Peake extraschedular  a&a.

§3.351(c)(3)

Sometimes we walk right by a regulation for years and then one day, someone says “Hey, dude. Look at this. Did you notice this only applies to…? Think back to Walker v. Shinseki ,  708 F.3d 1331 (Fed. Cir. 2014). Everyone drove by §3.303(b) chronicity for decades and failed to notice it only covered recognized chronic diseases covered  by §3.307 and listed in §3.309. Well, it’s the same scenario here. In the preamble of §3.352 Criteria for determining need for aid and attendance and “permanently bedridden”, you will notice the following:

“The following will be accorded consideration in determining the need for regular aid and attendance (§3.351(c)(3): “

The list continues after the colon and enumerates a nonexhaustive list of ADLs-meaning each one, as a stand alone disability, is sufficient to trigger entitlement. §3.351(c)(3) is the escape valve for those so severely disabled and not specifically identified by blindness, mental incapacity or loss of most extremities:

“(3) Establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a).” 

This is the Mobius loop. If you can’t see or drive or cook or whatever, you get a&a. Granted, your disability has to be pretty bodacious but there is nothing, other than that phony baloney M 21 cite,  that says “generally, a Vet will need a 100% rating.” §3.351(c)(3) is the law but it’s not your job to instruct the DRO on how to do this.

Summary

So, instead of spending 4 hours spellcheckwriting it all up on the company letterhead so the booth bitch can plagiarize it and play copy/paste, you just send in that VA Form 20-0996 naked as a baby’s butt and say you want an IC between 8-10AM Pacific Time and you disagree with yesterday’s RD denying you a&a and be quick about it. Well, right off they get nervous Nellie disease because they don’t know what you’re gonna argue. They’ll call you up a few days later and ask you if you’re ready to go… like, right now, dude. Be polite and laugh. Right now? Surely you must be kidding. How about next Tuesday at 0900…Pacific. That puts the St. Pete DROC gal smack dab into lunch her time.

Prebuilding the Punji Pit

Build yourself a batch of headnotes that cover the subject. Grab a handful of cites too if you wish but remember who you’re dealing with. If it isn’t written down, they have to write it up as you speak. It’ll make them remember their screw up better.

HLR Arguments

When you connect on the phone, the first words out of your mouth should be “We’re calling a predecisional error. My client asked for a&a and you have ignored §3.351(c)(3) and instead insist on a  100% requirement. No siree, Bob. That is error. Nowhere in the four corners of 38 CFR chapter 3 can that be found. Somebody’s been smoking the Devil’s lettuce again. In addition, as my client’s VAF 21-2680 A&A form clearly diagnoses by a MD, he can’t see to cook, drive, leave the dwelling unattended or take his medications. You have awarded him the automobile grant but where is the Specially Adapted Housing grant under §3.809 or 38 U.S. Code §2101 for eligible blind veterans? His vision is unarguably 20/200 or less per the recent c&p at QTC. My client has been granted TDIU-an extraschedular decision. Where is the extraschdular rating decision granting or denying a&a? That’s a failure in the duty to assist, by the way. I see no evidence the claim was sent to DC for this. In fact, I can’t even find a listing of any favorable findings of fact in violation of §5104(b) and the AMA. Didja get all that down, ma’am?”

$100 bucks says you’ll get that VA Form 20-0999 Redact 20-0999 admission of guilt and SAH in about 28 minutes and they’ll have that a&a inquiry back in DC faster than you can say Jacqueline Robinson ( pronouns they, we, us).  In fact, I’m guessing that most of you didn’t even know they have a VAF 20-0999. File this one under  “always have an extra hand grenade”. The Punji pit analogy is simple. When they go into an HLR cold, they think you’re going to stick to a basic script with a heavy layer of benefit of the doubt. Suck them in with a warm greeting. They expect a feeble, pathetic argument about the §3.352 ADLs and TDIU equals 100%. But you’ve kept two “hand grenades” in reserve- the requirement of Thun v. Peake for another gander at the a&a due to the automobile entitlement and the fact that they blew past the SAH entitlement. The absolute icing is the §3.351(c)(3) regulation right there in plain sight like an 800-lb. SMC gorilla sitting on the living room sofa. It happens so fast, they can’t recover. Hell, they’re still clucking like a pair of worried hens back in §3.352(a) reading that §3.351(c)(3) reference they never paid any attention to before. And then, Boom shaka laka laka…

redact SAH Grant RD 3.24.2022

The teaching moment is don’t telegraph your intentions. Think Ping Pong. Let them serve the denial first and then counterattack. Play dumb. Let them figure out the SMCs because it’s supposed to be inferred and automatically raised by the record. When they fail, you make them feel like boobs. Remember, these folks think we inhabit the shallow end of the dry lake bed of the gene pool. We’re VA welfare queen wannabes. There’s nothing more refreshing than rolling their socks down with a good ambush. Well, besides nape and CBU 26/49 delayed. Inadequate it makes them feel. Yesssssssssssssssssssss.