Well, boy howdy. I honestly thought I’d seen everything but this one is a daisy. I’m not sure how to tell you all the particulars-or if you’d even believe me were I to. It’s so bizarre as to statistically deny it could even come to pass. But then, as I’ve reminded my readership, something very strange is afoot at our Veterans Service Centers across our parched plains these days. Well, parched most everywhere except here in Washington. We’ve had more rainfall in the last 60 days in as long as I can remember. We’re talking Noah shit. I thought it was going to beat down my corn for sure the other day. Good thing them suckers are already 17 inches tall. Eat your hearts out, California. We don’t tan. We rust.
I’ll even tell you that I love you if you want me too
Imagine this scenario. My client filed for a number of AO claims back in 2018. He’s genuine boots on the ground. No big fight. Prostate cancer, Parkinson’s and DM II- some of the usual Vietnam presents we received for our duty there. Things began to get worse as time goes on. After all, Parkinson’s is progressive. It doesn’t get better. In fact, it gets downright nasty and then it kills your ass. One thing we all know is you don’t get better. Well, you don’t anywhere in our world. This only occurs to Veterans.
David was chasing a SMC S when he came to me. He was already up at the BVA and was wondering what he ought to do. Was he, perhaps, more disabled than SMC S? I took him on and filed him for loss of use of all extremities, R1- the whole shiteree. What the hey? If he wasn’t there already, he soon would be. That was back in July 2021. The new, improved VA bean counters looked in the records and decided to fry his ass for some reason. Why is anybody’s guess. Shoot. Maybe they hate me. Asknod sure stands out like a zit on Denis’ nose, now don’t he?
Don’t forget. Not a word was said about Diabetes on the 526. The whole idea was the natural, ugly progression of his Parkinson’s alone. VA hired their own Dr. Judas for this project and anointed his hand with the requisite 30 pieces of silver. He became a font of neurocognitive information about Parkinson’s supersized with DM II. Now, if you can believe it, this was a Godsend. Dr. Victor Alpha (not a QTC gomer), in his overt haste to make short work of any Vet who dared go for the R1, did an “ACE” or Acceptable Clinical Evidence review instead of an in-person, face to face review. Thank you Corona Virus pandemic.
But what’s more, he adamantly refused to even look at any neurological lesions ratings percentages for the extremities (DCs 8514, 8520). His objection? In haec verba…
“ Parkinsons [sic] disease is not a condition of the peripheral nerves to include the Veteran’s left and right upper extremity peripheral nerves. Therefore there is no clinical indication to complete a peripheral nerve worksheet”.
But there is that pesky little problem with the Secretary’s regulation which is kinda sorta ya know unequivocal. Attendez-vous! That little blurb preamble at the start of §4.124a? Ignore it at your peril. Well, of course unless you’re one of them esteemed neurological whiz kid doctor dudes.
[With the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves]
Oh yeah. That would be that wad of DCs listed under the above admonition in 38 CFR Part IV. Thank you Dr. Joubert for being such an officious, overbearing boob.
Now, the silver lining was that Joubert did do the ACE rather than an in-your-face. When you’re gonna reduce someone, your reduction c&p has to be as thorough or more so than the one used to make all those original ratings. If the original one was done in person-and how could you not do it in person- then the new one would have to be also. The icing on this cake, if there is any, is Dr. Dumbshit tried to play VA lawyer and reinterpreted the regulation incorrectly using his superior intellect. I can’t figure out if that was laziness or some narcissistic neurological aberration thing with doctors. Works for me.
Being honest, I sent an email to the raters and warned them that Dr. Dumbshit was screwing up but they blew me off. He even called my Veteran a “combat veteran” which he is not- further demonstrating he was clueless. Copy and paste, anyone? When I didn’t hear back, I took it up a notch and put in a 526 for an increase in the bent brain rating. Then an increase for the constipation and incontinence. Always keep chipping away. Pile that shit up at their front door.
I’ve never really done this kind of thing before, have you?
The second half of this reduction expedition was done at the Regional Office. It was passed from VSCM to AVSCM to Coach A, Coach B and down the line until handed to the unwitting rater complete with cut-and paste-script. Read it and weep. It’s a hoot.
Apparently Parkinson’s and DM II residuals can do the Lazarus gig and evaporate into thin air. Lo, our AO-infested warrior had improved. Not just a little. We’re talking some serious 70% down to 30% shit and another PN down from 40 to 20%. A 20% and two 10%s reduced to 0% for face stuff. Now what was entertaining was that all these ratings were awarded way back on April 28, 2017. They would be exactly five years old on April 27, 2022 at midnight. The rating decision came out on April 25. Coincidence? Shoooo, doggies. There are no coincidences at the VA. Everything is carefully choreographed-this one included.
But if you scoot down to page 2 at the bottom of the Code Rating Sheet, you’ll see a reduction from 40% to 20% for Left lower extremity based on DM II only. It says nothing about PN due to Parkinson’s. So, somehow, one of the Davemeister’s four extremities is magically devoid of any neurological deficits whatsoever. But wait. There’s more. Go to page 6 at the bottom and note that the same rater is inviting a claim from the Veteran for…wait for it… an increase in ratings for his peripheral neuropathy due solely to DM II that they just reduced. I can’t make this stuff up. Way to go, Team Seattle DROC. You guys and birthing people rock.
But, when you try to fudge this game with another gambler, you better be pretty adept. My daddy would call these jokers “ham-fisted” ribbon clerks. Roger that. Check it out. They keep repeating the lie that the reductions won’t change his rating and incur the §3.105(e) stricture that the reduction be formally arraigned and notification given to object and abate the reduction until a hearing is held. News flash. Akles vs Derwinski (1991) invokes examination for SMC and its ancillary benefits automatically the moment you hit 100% (or TDIU). And boy howdy if they give you SMC L aid and attendance in this rating decision, then they dang for sure-sure gotta give it the hairy eyeball to insure they are not fencing you out of any other extra SMC ratings. VA pukes only think of reductions that cause a monetary reduction as applying to schedular ratings. But what if the “reductions” (which aren’t technically ‘reductions’ in their §3.105(e) lexicon) fenced you out of a bump from L to L 1/2 under §3.350(f)(3)? Ever chew on that one, bubba?
Of even more interest, one of the ways I like to lay a dynamite groundwork for R1 is to feint with the request for SMC L loss of use knowing they’ll step in the pit. Sure enough, they took the bait and went sideways and granted a&a which I conveniently asked for late in the game. But look what they did. They gave him a full blown 100% for the Major depressive disorder to make it the predicate for awarding a&a. It’s a good thing village idiots get merit protection at the VA. The Davester’s combined Parkinson’s also adds up to 100% or at least enough for TDIU. That gives him the ammo for the second a&a… and SMC O… and on to R1. See how that’s done? If you give these clutzes enough rope they’ll clothesline themselves.
Yes I have but only a time or two
Third rate romance indeed. Can you imagine what would happen if VA DROs had college degrees? They’d be woke. Well, actually I misspoke. They already are-after a fashion. The VBMS Outlook directory now allows you to add your pronouns after you name. I’m beginning to see a few (she, her, hers) appearing. I was going to put (it, they, them) after mine but chickened out. But seriously, folks. If you let college kids into these jobs, then they’d have to institute equity and give favorable review to you if you were a person of color or… trans or… well, other than straight? But that’s another story for another day. I digress.
Today began with cloudy skies. Almost as an omen, the VA HLR Inquisition forgot the time for the Informal conference. I wonder what they would have done when 1400 Hrs arrived here, in Seattle, and it was 1700 in St. Pete. I specifically warned them I was 3 hrs behind but then look who I was dealing with. I like to do HLRs in the morning after a lot of coffee. Besides, when it’s 9 here. that means they’re doing the HLR during their lunch hour in Saint Pete. Suffer.
After a email reminder, the DRO called me and got the vapors while apologizing. After a bunch of formalities, I just had to lead off with why these bozos were reducing with the right hand while extending an offer to file for with the left. She never got back on an even keel after that. I let go with the second shot and the ACE review being used for the reduction. The rest was like fishing with hand grenades. From looking at the computer, it looks like they’re going to rescind most, if not all, of the reductions. I don’t expect them to grant R1. I’m just setting up the Claymores and laying out the wire for the next phase at the Board.
So, my corn is almost knee high and we’re a fer piece away from the fourth of July so I got that going for me. Fact is, none of us litigators are having much luck with these HLR reviews since last July. Have you ever been up at a craps table and just be killing them dead and all of a sudden the dice get colder than a mackerel? Welcome to the new VA game this year. I always thought we got a better shake when the Liberals were in charge of the VA. I don’t see how these folks can dance their way out of this conundrum but then I’ve seen them pull all sorts of shenanigans that take about 3 years to straighten out. It’s worse than herding cats.