Have you ever had a claim go sideways over and over again ad nauseum? Hell, of course you have if it was the VA. Remember how they get to ‘construe’ what they think it is you’re asking for? Now imagine the intricate, convoluted rules of Special Monthly Compensation (SMC) that Johnny Vet tries to digest to no avail. Most use a VSO and file for SMC with little or no knowledge of what it is and the VSO promptly says “you can’t get there from here. You’re already 100% dummy.” He refiles on his own and they say “You’re not eligible.” They don’t explain what it is you need or what they would do in your shoes. You just get the wave off, go around again and keep turning left on final over and over until you hit Bingo and crash. And then you find me.
I’m not one for blowing smoke. I don’t promise miracles. I promise justice. And most times, I eventually prevail without going up to the CAVC. Oddly, I’m still batting .1000 on everything I’ve ever touched. This is a case that exemplifies the old adage of ‘If at first you don’t succeed, try, try, again.’ I’d have to count how many times I tried to beat 38 CFR §3.350(e)(1)(ii) into some Houston RO Coach’s noggin to no avail. Trust me when I say this one took from late Fall 2017 until this morning.
Andy came to me via Hadit.com. I used to post advice on SMC there but that ol’ VA IMO shitlist I published cast a pall on their favorite go-to Doctor for IMOs. You know the one. His initials are CB and you’d remember him if you ever hired him. Apparently he’s on the bad boy list. From talking to BVA VLJs over the years at conferences, he’s considered suspect as to his “independent” opinions. Hadit used to be a red hot Forum back in the day but unfortunately the inmates have taken over the asylum and frequently offer atrocious advice to the detriment of those who seek it. But this isn’t about Hadit or casting aspersions on folks.
Andy was unique. He had a longstanding 100% schedular for COPD (2008) and enough secondaries to run on to 8 sheets of paper on his Code rating sheet. Seriously. Talk about a frequent filer. He wasn’t throwing claims spaghetti at the wall hoping something would stick. He was sinking slowly like the Titanic and VA wasn’t even listening. All those extra 10%s they threw at him were merely to placate him. Eventually they toted up to enough to get to SMC S but it was obvious he deserved far more. SMC L would have been the very least award he was entitled to but Houston drives a hard bargain. No matter what he had wrong, he was stuck. And then they began lying about SMC. So he called me.
I immediately filed him specifically for the A&A due solely to all the stuff he was already rated for-the COPD being the ‘anchor’ for his A&A entitlement. VA contended all his ratings were being “used” to obtain SMC S so no dice. Huh? Seeing the spaghetti sliding off the wall and sinking down to the floor, I went up to the BVA and won it there. When it came back for the rating in Houston, they again dumped everything into one basket and said the BVA ordered them to do it that way. No bump up from SMC L to L 1/2 (or M) was available because the 60% for diabetes was being “used” to support the SMC L. But what they neglected to say was that his COPD was part and parcel of the A&A-just the DM II, the major neurocognitive disorder and the PN in all four extremities. That was the biggest financial mistake they’ll probably ever make. Shoot. Maybe not.
Now, if any of you have ever heard of Turco v. Brown or Prejean v. West, you’d know you only need one (1) item in the §3.352(a) laundry list to win A&A. Additionally, you don’t even need a solid 100% schedular rating to queue up in the A&A line for it. VA’s M 21 argues otherwise- especially at the Houston Puzzle Palace. More importantly, if a Doctor fills out a VAF 21-2680 saying you can’t accomplish one of those items in §3.352(a), and you demonstrate a factual need for A&A under the auspices of §3.351(c)(3), then you get it. Well, everywhere except Houston (or St. Pete or Seattle) or any of the other Fort Fumbles across the VA’s fruity plains for that matter.
The actual truth is scary. You can get A&A for a Vet with only a 40% rating and TDIU. I know. I’ve done it. It’s called an extraschedular consideration and requires sending it back to the Director of Comp and Pen for his personal imprimatur. That admittedly is the hardest way but a stellar example of the fact that what VA spews out as regulation is a bunch of hooey. They just make this shit up and insert it into rating decisions as far as I can tell.
So, try as I might, I couldn’t get Houston to budge on the §3.350(f)(4) bump from SMC L to M based on Andy’s extra 100% for COPD. They went sideways and said it was … wait for it… being used to support the A&A. But that’s not what the rating decision said after the BVA win for A&A. So I filed a CUE in August 2021 after failing to get any traction. Bingo! On Aug. 27, ’21, almost a full seventeen months after the SMC L win, the Houston overlords agreed with me and said by golly wolly they were wrong. Here’s your SMC M. And, because we stepped on our necktie, we’re even going to grant the SMC L for the A&A back six months to February 2018 because that’s the day you filed your ITF (intent to file).
Unfortunately, some folks don’t examine their handiwork before they push print. Andy was only 50% for bent brain on February 12, `18. He would not get a 100% schedular until August 23, ’18 and VA had just awarded the A&A back to a date where he couldn’t qualify unless… well, unless they substituted the 100% COPD as the ‘hook’ for A&A. But they didn’t. They incorrectly insisted he was 100% for bent brain on February 12th. I filed a VAF 20-0996 HLR a week later and pointed out this impossibility to the HLR reviewer.
It didn’t faze her one iota. Let me give you an idea how stupid she was. She revised the rationale for the A&A from the bent brain disability and blithely substituted the COPD. And just for shits and grins, threw in the DM II on top to fat it up. But, being paralyzed from the neck up, she decided to throw in a phrase that wrecked all her illicit handiwork. She stated that now the COPD with DMII-without even considering the bent brain– was the predicate for A&A. Ruh oh Rorge. All of a sudden we had two A&As on the table. Houston, however, couldn’t ‘see’ it. I reckon they’re gonna have 20/20 vision here directly. Somebody there has to write up the New Testament according to St. VLJ.
When VA grants something, it’s akin to pulling the pin on a M 26 and hucking it. You can’t run out there, grab it, stick the bail back on it and reinsert the pin. Prussic acid is very corrosive along about that time. Sure, VA can call CUE on themselves and revise a decision. What they can’t do is rearrange it and change it over and over until they get it right. It’s cast in stone. They gave him A&A on March 4, 2020 because “the BVA said to”. When I called them on the error to award the SMC M, all they had to do was grant it. By going back and granting a new effective date unsupported by a total rating for bent brain, they were “re-CUEing” themselves without calling a CUE. That’s a Bozo no-no in forty nine states. Once you grant something, it’s a done deal-assuming arguendo you didn’t lie, cheat or steal to get it.
Try as I might, I could not pound that rationale into the Houston raters’ noggins. They just kept coming back with that inane argument that all the shit had been used up – ergo there weren’t two A&As. Besides, in VA land 2 A&As is an impossibility- kinda like pots of gold at the ends of rainbows and unicorns.
By now, I had two BVA appeals in the pipeline. One was for the L 1/2 because by moving back the award date, it pushed him into §3.350(f)(3) for a half step bump. But no, the extra 50% disability was being used for… yep… the A&A. It was like arguing the Earth was flat as far as they were concerned. Besides, by now they were laughing their asses off and just kept denying each filing attempt I made at logic and reading the regulation correctly faster than I could get them CEST’d (CEST is a VA acronym for Claim Established) in VBMS. Their personal best was a filing on 12/10/’21 denied on 12/15/’21.
What’s a litigator to do? Why, write a Gutenberg Bible explaining it to the BVA Veterans Law Judge (VLJ). We’re taught to write as short a legal brief as we can to argue our case. Loquacious, redundant briefs are frowned upon. Nevertheless, it took me no less than 16 pages just to convey how ignorant these folks were. Apparently it worked. Check it out.
Last night I discovered that the BVA had shitcanned one of my NODs. This morning I discovered they’d rolled it all into the other one. I disagree that they were duplicative but why protest. I had already begun typing up a revised NOD last night and was about 8 pages into it. But it was all wasted effort. After I got my ears lowered at the local beauty salon this AM, I came home, sat down and pulled up VBMS. There, in all its splendor was Andy’s shiny new R1 in his e file. Much ado about nothing. Andy and his wife were tickled pink, too, by the way. Check out the last paragraph on page 4 where the VLJ informs the reader that Houston’s finest are laboring under an M 21 misconception. Say it ain’t so, Denis.
I don’t reckon I can convey how much I enjoy fixing broken claims. I consider it an honor to bring justice to a Vet. With SMC at the higher levels, the monetary remuneration after 4 years is often over six figures. That’s a mega life game changer for virtually every Vet I represent. Oddly, I’ve never met any filthy rich clients. Virtually every one is in danger of having a mobile zip code under an overpass or knocking on Heaven’s door. Thank you Andy for entrusting your legal woes to me. I’m just pissed that VA caused you to wait four years for justice. That was uncalled for. And that’s all I’m going to say about that.