Nothing makes my heart skip a beat like seeing a BVA decision pop up in VBMS. Well, let me rephrase that. Nothing except for that infernal habit of my heart suddenly deciding it wants to go apeshit at about 288 bpm for 29 seconds… then skip about 3-4 beats… and go back to normal. I think it’s just funning me. It most always slows back down about 29 seconds later-just before the ol’ onboard pacemaker/defib kicks in and gives me that 200-volt, 120-joule, 45 amp jolt. Boy howdy does that roll your socks down. But, skip with joy mon cœur did this AM. One thing I do know is I’m an antisocial, passive aggressive asshole so it figures my heart would follow suit, too.
But that’s not why I called you here. Waaaay back in August 2019, these folks, let’s call them John and Jane, came to me and sought help getting service connection for his Hepatitis C which had pole-axed him with the residuals. As almost all of my original readership had Hepatitis C from one thing or another (transfusions, dental, jetguns, the clap or tattoos), they are well-acquainted with the plethora of secondary shit that comes with 40-plus years of undetected infection. Just taking the Harvoni 8-week cure won’t resolve the autoimmune disorders, the right upper quadrant pain, the edema and pruritis in the lower extremities, headaches, gastritis, brain fog, bleeding esophageal varices, ascites et cetera ad nauseum. You get to unpack all that for life. Well, everywhere except at VA. There, it’s all related to alien abduction or an overactive imagination. Somatoform symptoms anyone?
Jane came to me because her Veteran John couldn’t perceive he had all these problems. He’d go in to the VAMC for a check up because the check engine light was blinking. By the time he got there he’d plumb forgot why he went. The doctor would ask him how he was doing and he’d flash the international thumbs-up signal. Good to go, bro. The only thing holding him together was a mega- high dose of medications which masked his myriad cirrhosis symptoms. So I made sure Jane began accompanying him to these forays in order to make sure everything got on the record. It finally paid off.
The brain fog, also known as hepatic encephalopathy, is caused by the high amount of ammonia in the bloodstream. The liver can no longer filter it out. It knocks your IQ down into the low fifties. Cognitive deficits accrue and soon you can’t remember important shit like the combination to your gun safe. But you haven’t forgotten how to converse. If Dr. VA dumbshit asks you your last four and your name, no problem. If he asks you who the President is and you pause for a few seconds and say ‘I’m thinking ah…Obama?’, chances are you have brain fog. If you pull up to a stop sign and wait for it to turn green… yep- brain fog, Bubba. You get the picture? John could present himself as relatively functional and, being a stand up guy, he tried his hardest. He was the diametric opposite of a malingerer. He sure didn’t want folks thinking he was touched in the head or feeling sorry for him. I wouldn’t either.
I fought the usual fight we all do all the way to the BVA and we won the service connection as expected. When we returned to Fort Whacko, the VA poohbahs inaugurated him into the Zeros for Heroes Program without so much as a c&p. We fought for a while and went back up to the BVA yet again. In spite of the overwhelming evidence, a very anti-Veteran VLJ affirmed the low ball ratings so I took the obvious tack. Begin anew with claims for cirrhosis.
I got the wave off for the cirrhosis with a 30 percent and finally had to do a dumpster dive into John’s VistA VAMC records to get to the truth. You didn’t need OCR search mode to find the words ‘decompensated cirrhosis’ about every other paragraph. But the VA doctors lied and kept saying it was “well-controlled”. That’s like saying “John’s condition is terminal but the impending death is well-controlled.” By now his spleen was blown out from the back pressure of the clogged liver. Headaches, and everything you can imagine, to include free fluid in the abdomen, were festering faster than gangrene. Doctors call free fluid in the abdomen ascites but not at VA. Most doctors would call hepatic encephalopathy forgetfulness but at VA that’s merely old age. Or here, they call it poor memory due to insomnia (or alien abduction). Or simply a fig newton of your imagination. The Johnmeister was gulping down incredible amounts of propanolol to squelch the bleeding varices which meant he didn’t qualify for 100% for cirrhosis. It was like that at every turn. Johnny, you do not have ascites. You have free fluid in your tummy. There’s a major difference. Ascites is 100%. Free fluid is 0%. Thank you for your Service. Next?
Back to the drawing board. I filed him for a major depressive disorder, secondary to his hepatitis C and the VA munchkins turned that into the insomnia caused by too much ammonia. I didn’t know if I was gonna shit or go blind so I filed for TDIU based on an extraschedular need. Wonder of wonders, they finally caved in this summer and granted what was about as obvious as the sun coming up in the morning. Three years to reach this point and now John had progressed to one really hot mess.
So, once again, I fired up the claims engines and filed him for aid and attendance. Jane and John carefully wrote 4138 statements that captured the truth without John’s optimistic rose-colored spectacles on. The VA’s c&p clinician saw the writing on the wall and concurred with what everyone at VA knew but had been camouflaging with their bullshit medical word salads. The Johnmeister had a major case of hepatic encephalopathy and left unattended, he was gonna die from forgetfulness.
I have a great rapport with the folks who advance claims on the docket up at the BVA and finally got this one loaded into the chute three months after I filed it. While many may not think forty days is the speed of light to get a BVA decision via an AOD, most Veterans arrive with a laundry list of appeals. This was one contention-a pure a&a argument. It only required a reading of the law and a review of the evidence to make a thumbs up decision. That’s the new AMA technique-distill your argument down to its very essence. Keep it simple, stupid. Only do direct reviews at the BVA unless you want your spouse to be the beneficiary.
In this case, the utter insanity of the new AMA is on full display. Well, either that or the absolute ignorance of how Special Monthly Compensation works is the problem. How can VA state in haec verba ‘Johnboy, you need the aid and attendance of another. Several doctors and NPs have diagnosed as much. Therefore, based on the law and evidence of record, we are denying your claim for a&a because you don’t qualify. But, because of the new law, we have to let you know the favorable findings of fact preponderate in your favor inasmuch as you do need aid and attendance. So you got that going for you.’
So, back to the BVA for the third time-and the charm. This is a first for Veterans in a way. Last week Agent Doug Haynes (of Veterans Claims Assistance Group) asked me if I had an example of a Veteran with less than a total rating being granted a&a. I told him he’d have to wait until this week for one. I suffer PMA (positive mental attitude) so I was convinced John and Jane would win. Et voilà. John was 60% combined with extraschedular TDIU and a&a when we saddled up for the ride to Washington, D.C. Check it out. Here’s the code sheet from June 2022 before I went up to the BVA again for his a&a. I was convinced this misconception of the requirements for SMC was the reason, too. Considering it’s happened about 5 times in the last year, it’s becoming a canned, default response.
Redact Code Sheet going for a&a
Mr. Robert Chisholm of Chisholm, Chisholm and Kilpatrick (CCK) explained his theory of SMC thusly: “SMC is the art of the possible.” Sounds simple enough but you still have to learn the magic handshake and password to get into the higher SMCs. VA tries to hide this from us. When confronted, rather than battle it out at the CAVC, they’re prone to cheiu hoi and grant to keep it under wraps.
So, don’t fall for that faery tale line about needing a 100% rating for an injury or disease in order to apply for SMC L aid and attendance. It hinges strictly on whether you have any deficits with the activities of daily living listed in §3.352(a). Period. Other Veterans Help sites will tell you otherwise. When they call you a liar, tell them to read this.
So, with great pleasure, I welcome John and Jane into the SMC Club. I apologize for the three years and four months of VA’s intransigence, attempts at subterfuge and misfeasance. I wish I’d known that Fort Waco and the VA were going to take this new, perverted view of Hepatitis C and the idea that once it’s cured, you’re healed and there’s nothing further to discuss. Fortunately, I’m like a bad habit. I’m akin to dogshit stuck on the VA’s shoe. The stink doesn’t go away until the problem is solved.
I reckon the chuckleheads at Fort Whacko will send the Johnster out for a c&p just to ensure the VLJ didn’t make a mistake. I wouldn’t put it past them. Merry Christmas John and Jane. You folks earned this present long ago in my book. ‘Better late than never’ isn’t in my lexicon. It’s Win or Die. And that’s all I reckon that needs saying.
Clear Prop. Pull the chocks. Let’s get this puppy airborne.
Alex – in that photo with the little Christmas tree, what are those snowman-looking things in that M113 troop carrier on the far right?
Shucks, I’m guessing you never heard of smokescreen warfare. I never saw much of it upcountry around Barrel Roll (MR II) but I saw it once when we were working the PDJ side to the west of the HCM trail just before monsoon. A company of gyrines or grunts (with alleged air support) and armor had wandered off course and must have strayed into the country that rhymes with mouse. We got a TIC (troops in contact) flash from Cricket to “walk that way “. Arrived on station to see the most magnificent white fog encompassing about a 5 sq K area. Couldn’t see shit on the ground but ABCCC wanted us to sort it out and assume FAC. We had no vhf comm freq for the ground troops so we had to wait for the smoke to dissipate. That was the longest 30 minutes of my life… and theirs
Nice work Alex. Love that you jammed favorable findings down their throat!
Another trick I like is the Bryant v Shinseki/§5104 HLR technique. “Okay, ma’m. You’ve denied him. Mind sharing what you want in order for my Veteran to prevail in this matter?” …. (insert crickets here).
Got email last Week from The BVA, that they have made Decision on my Appeal/Claim of March 2006 after my Hearing of August 7th 2022!
Hoping for Grant, I’m locked and loaded for CAVC Round #3 IF not.
To Throw a bit of hope to perhaps one or more of the purported 100,000 plus,
my Veteran Law Judge and I actually made a connection after encountering forty
years of pent up angst V/S her Original Agenda, which changed dramatically as I
read to her almost all that my last Attorney Robert R. (North Carolina) about
his discovery that VA had been using the “wrong legal standard” in my previous denials and perhaps which the Court may have recognized. FYI, My 3rd CAVC,
would most assuredly be as Pro Se, thus using my new socks on the Red Carpet they roll out.
It’s beginning to look a lot like Christmas 🎄
Yes sir, it’s win or die which ever comes first?