One thing I know is that VA higher ups can be cantankerous and throw an a&a decision in underneath the bottom of the inbasket out of spite. Especially if they see my moniker on it. They did it to me once in 2013 and tossed my CAVC decision into limbo. It came out over six months later. The VSC didn’t delay and wrote it up within a week. The retro check? About $400 K going back to 1994. In this case, the actual retro is peanuts. It goes back to Pearl Harbor Day 2021- a mere year. But that’s not why we do this for Vets, is it? It’s the actual a&a rating that is the prize. It’s being victorious over a dysfunctional system infested with idiots. Breaking through that wall of denials and the incorrect legal standards of review is the reward.
Since I didn’t go to law school and incur a horrendous debt, I don’t have to get my pound of flesh out of Vets (or pawn it off on the taxpayers). I still drive a 2001 Ford F 150 with 205 K. I don’t have to take claims up and down the legal ladder and milk them for ten years to cover the kids’ college. Fact is, Cupcake and I are empty nesters except for the dogs and horses. It only costs me sunflower seeds and peanuts to operate my parrot Buddy. So normal ideas on a business plan pretty much fall on deaf ears around here. Win or Die is the mantra. But winning around Christmas is always a hoot. Check it out.
I could write about SMC from now to my passing and still have techniques to pass along. This particular decision is a great teaching moment for many. How many of you have applied for a&a and been told you don’t qualify because you lack a single 100% rating or a TDIU as your qualifier? Probably a stadium full at the very least. Read page 4 of this decision several months ago. What are they smoking in Houston? I want some.
BVA R1 Win & cite to a&a redact
Mr. Doe here could not buy or beg a rating out of VA after our BVA win for service connection back in 2020. Seems we were cursed-like we had better odds of being in an airplane crash or overdosing on Fentanyl than getting a total rating. No matter what I filed, VA came back with a 0% or an outright denial. I showed them PubMed peer-reviewed articles (by VA, no less) showing splenomegaly was always present in cirrhosis. Roger that. Denied. Next? Gall Bladder problems? Denied. Next. MDD? 10%. Hepatitis C residuals? 10%. bleeding varices? anemia for 10%. Here’s Cirrhosis for 30%-now get lost.
This went back and forth like a badminton birdie at Fort Waco and occasionally back up to the BVA. I finally got a decent gal for a c&p who was honest and bingo-TDIU and a&a. But the teaching moment has to be not to lose hope. I don’t care if the rascals refuse to give you ratings to help get to TDIU. Rules are made to be broken. Some Vets are far more screwed up than the ratings percentages reveal. Some VA raters are inherently unfair and low ball you. That’s when you take the lemons, get some vodka and make screwdrivers out of them.
This victory for Johnny Vet shows you what you can do when your highest rating is 30% because they refuse to be fair. You go around them. Whatever you do, don’t get in line somewhere and wait for 2 years. Severely disabled Vets spoil easily so time is of the essence. You have the right to demand they send your denial for TDIU back to DC to the Director of Compensation and Pension for a do over. We call this Extraschedular consideration. It’s right there in plain sight under §4.16(b)…
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.
Yeah. Yeah. Yeah. It says “rating boards should submit” but here we go with the rules argument. It doesn’t specifically say you-Johnny Vet- can’t request a submission. And since the Veterans Administration is such a stand-up, nonadversarial environment in which to adjudicate our ex parte claims, why, it would be a violation of due process of our rights not to kite it off to DC. Right? And boy howdy if they don’t, it makes for some bodacious legal screaming at the BVA. In fact, the only other body who can grant that special extraschdular after the Director denies it is.. yep- your BVA Veterans Law Judge.
My Vet here didn’t have what VA wanted to see to grant ratings commensurate with his level of disability. He also had a bunch of typical VA doctors who developed writer’s cramp when it came to Johnny’s condition. If they give you meds to prevent bleeding and raging ammonia headaches, it shouldn’t surprise them if your headaches abate and your stool is no longer jet black. To argue that one and win, use this gaggle of puppies. The legal argument is a chicken dinner winner every time.
Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), the Court held that the veteran is entitled to a rating based upon his unmedicated condition – that is, the higher disability evaluation – if the effects of medication are not explicitly mentioned under the applicable diagnostic code of the rating schedule condition.
It is well settled that the Court has jurisdiction to review VA’s interpretation and application of its own regulations. See, e.g., Lane v. Principi, 339 F.3d 1331,1339 (Fed. Cir. 2003) (holding that the “Court should review de novo the Board’s interpretation of a regulation”); Bradley v. Principi, 22 Vet.App. 280, 290 (2008). This power includes the ability to review the Board’s interpretation and application of a DC. See, e.g., Otero-Castro v. Principi, 16 Vet. App. 375, 380-82 (2002) (reviewing the Board’s interpretation and application of 38 C.F.R. § 4.104, DCs 7005, 7007 (2001)).
“The Secretary’s interpretations of his rules and regulations will only be given deference as long as they are not inconsistent with the regulation or otherwise plainly erroneous.” Ervin v. Shinseki, 24 Vet.App. 318, 326 (2011); see also Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009). The Court holds that the Board committed legal error by considering the effects of medication on the appellant’s IBS when those effects were not explicitly contemplated by the rating criteria.
What you want to avoid, if at all possible in the new improved AMA, is getting into the wrong VA lane of traffic at rush hour. Rush hour at VA begins every morning at 0001 Hours and ends at 2359 Hours. I’m still suffering a hangover with several of my Vets over this. We just didn’t see the BVA getting a virulent case of constipation. Wasn’t that what the AMA was supposed to be all about? Right now, going to the BVA is like finding yourself on the onramp to the Interstate and nothing’s moving-and hasn’t been for 62 years. The good news? It hasn’t radically affected requests for AOD unless they’re horribly complex and involve a trailer load of contentions.
The hardest thing on AOD, to me, is getting the BVA to “see” it. As the system works now, you send all your correspondence to BVA Litigation and Support at P.O. Box 27063. Somewhere, little gremlins intercept it en route (or in DC) and transship it up to Cheeseville, Wisconsin where it goes into the VBMS scanner. If they mark it as 3rd Party Correspondence, I assure you Hell will freeze over before someone notices it. Been there. Done that. If it sits there more than 30 days I’m all over the 800 Dial-a-Prayer line like white on rice. If that doesn’t get it, there’s the White House hotline a week later. That always works. I get my Vet to call and pretend I don’t know anything about it and allow as I’ll have a talk with him and tell him never to do that again when they yell at me. Bad Vet. Bad Vet. Down, boy.
So- another one for the bookshelf, folks. But I never close out my Vets’ claims because eventually we’ll all need a higher level of SMC. At asknod, we even assemble a DIC file absolutely free for the future surviving spouse just so they don’t have to fret and get in a bother about all that when the time comes. Can you imagine having to remember all your deceased’s prior marriages and divorces as well as the dates of both … and their locations? Find your marriage license? Helllllllllll no. Of course you shouldn’t have to. That’s just another neat thing about the VBMS. It’s all there from 45 years ago on an old 686. The trick is to grab it before the Vet passes away and you lose access to the file until the surviving spouse is substituted. Tips and tricks folks. Kinda makes you wonder why VA doesn’t provide this kinda like a concierge service, huh?
Merry Christmas to you all. I hope the New Year doesn’t bring any new trials and tribulations… or pestilence. Bon Chance.
P.S. From my good friends over at Duffel Blog.
That’s a very palatable BVA R1 win, written by the Judge. Thanks for the read, Alex.
And the same to you. Hopefully, the constipation at the BVA will abate and your tooth faery will appear this spring.