Love that expression. I don’t know if Dr. Phil personally coined it or had one of his staff writers who hit upon it but it dang sure captures the essence of the new VA mindset. Which is “When in doubt, DBQ it”- each of which means the US taxpayers cough up $600 for a c&p plus .415 ¢ per mile for you, Johnny Vet. Of course after that first in-person exam (or two), VA starts asking for ACE (acceptable clinical evidence) exams from folks like Deshonda Rimbreath, FNP -status post 2 years from graduation from the RN University in Grenada. This is who will decide your fate. But that is not the end of the matter which is a phrase I do use frequently in legal briefs.

As some know, I do a lot of SMC R 1, R 2 and T claims for Vets. In fact, between that and §3.156(c) claims, it consumes most of my time. At 72, you really need to bench press your brain a lot to keep the oxygen flowing. Don’t get me wrong. Agent Orange claims are part and parcel of this because so many of us got the bum’s rush in the 66-73 era for our service in Vietnam. I’m still picking up the pieces of that era and righting the wrongs. Sadly, not all can be retro’d all the way back. Worse, most of these Vietnam Vets don’t even know there’s a whole new world after 100%.

Fortunately for some, though, VA was a little bit too loose-lipped in some of their old rating decisions and spilled the beans. From that, you can compare it to what they filed for and sometimes find a glaring mistake even reasonable VA minds can only concede is error. As most know, too, it will invariably result in a mea culpa of no more than a 0% rating until it magically metastasizes into a 100% rating forty years later on the day you filed for it again in 2015.

The secret to getting those 1970 wins for the big $$$ is always the fact that those lazy folks at the VA never bother to go get your records at the very places you identified on those antique 526s. They just kite off the 3101 PIES (Personal Information  Exchange System) requests to NPRC and blithely accept anything handed to them as the whole enchilada – never asking for the more probative records. Often, inpatient hospital records stay at the hospital-sometimes forever-or until requested. But if you patiently keep pointing in the right direction, those aspiring Dick Tracy wannabes will find the §3.156(c) magic paper but then try to slide it in unnoticed. About then you have to take it to the Board. Nobody at the AOJ level is going to grant it. It’s radioactive and you can kiss your VA GS 14 aspirations bye bye if you even volunteer to suggest it seems to resemble a §3.156(c) claim. Move along. Nothing to see here.

But back to the title subject. I have several of these R 2s in the pipeline on any given month and right now I have about four. So, fully well knowing once you are R 1, an advance to R2 can only fall into the narrow purview of §3.352(b). A determination that you are entitled to it hinges on your wife/brother/sister/ Visiting Angel™ or a VA caregiver administering a higher level of aid and attendance care on a daily basis in your home. Remember, in this Chutes and Ladders VA game, if you are institutionalized in a residential care facility, you drop back to SMC O automatically. Ergo, always go for early hospice in-home. But that is not the end of the matter.

In addition to oodles of other little Catch 22s in §3.352(b) which are easy to fix, you have to be “trained” and documented as such to take your charge to the pool or engage in physical therapy. But even easier to comply with is the need to administer injections. Lots of wives have to do this even if it’s just Vitamin B 12. But it could be insulin or even Rheumatoid arthritis heavyweights like  Tocilizumab® spring loaded like the old Morphine Styrets we had back in Vietnam for simplified dosage and administration. Makes no difference what you’re shooting up as long as it’s prescribed and administered by your “caregiver”.

Back in ’10 when I finally escaped the VAMC, Cupcake and her best friend were trained to hook me up to 1000 ml saline IVs daily with my VA-issued pump. They plugged in to my 3 lumen PICC for several months to rehydrate me that summer. I just couldn’t seem to get rehydrated. Eventually, they gave me a 18-inch extension so I could do it myself.

But here is the problem. Our missing village idiot, among perhaps many, is no other than the one in charge of sending out requests for the c&ps. Somewhere, in the cavernous innards of the M21, there must be an instruction that tells him a 2680 must be filled out to determine if you are eligible for R 2. After a couple of these face-to-face exams, said village idiot then determines the contractors haven’t answered the burning question. Does he need a higher level of care? So they send it out for a “clarification”. This is c&p #3 or so. That medical genius opines that yes, you need aid and attendance which still fails to answer the burning question. This can actually go on for years and has to my Parkinson’s Vet. I have one now that I filed 7/25/2021. We’re at the last phase where they’re asking just one more last time if the loss of use of the uppers isn’t due to PN secondary to Diabetes. Who cares? He’s SC for Parkinson’s and Diabetes so it really doesn’t matter unless you’re some mega-anal bean counter…or a VA “examiner”.

David, instead of being awarded loss of use of the uppers and lowers, was granted a&a instead- but for PTSD. I guess they figured we’d piss on the fire and call in the dogs. Fat chance. It did save me several months of work obtaining an a&a to add to a loss of use of uppers or lowers. All I need now is just one LOU of extremities and we have both in the bag. Just now, I counted 30 c&p exams in his VBMS folder-both ACE and in-person so far. David finally got a diagnosis of loss of use of upper and lowers from an October ’22 VA contract exam and that just stirred the hornet’s nest. She had to rewrite it twice and even  after all that they sent it out to a rent-a-doc in Texas for ‘clarification’ that it’s really Parkinson’s and not PN from DM II. She parlayed it into 5 c&ps -one for each extremity and one as a holistic medical opinion. Pretty soon, they’ll be asking how many angels can dance on the head of David’s EMG pin.

The obvious problem is SMC. Nobody knows how to do this anymore, or maybe they never knew how, which is pretty scary and why nobody wins without a Sherpa. If you attempt to explain the what and how and why, they politely shush you and point to the SMC calculator like the Oracle at Delphi. I’ve read their notes on this. It always says “Calculator refused to recognize SMC O and R 1. Coach says to override it and enter it manually.” But that is not the end of the matter either.

I had a “Pre-reduction” hearing on my blind Vet on Wednesday at bayonet distance instead of that hoky palloky videogame version. I like to look my enemy in the eye. I asked her point blank before she cranked on the tape recorder if she had been chosen for this because she was Seattle’s finest on SMC. I got the answer I expected. “Sheesh, no. said Tiffany (who’s younger than my daughter). We just upload the disability and the SMC Calculator does all that for us. They don’t really teach us to do it manually. There’s no need to with the M 21.”

Next thing that happened was she couldn’t get the microphone to work and announced that it looked like we were fixing to have an informal conference with no transcript. I stood up and said we’d be fixing to be back when she got it working and to reschedule. She had IT there in less than 3 minutes and he told her to push the right button (record). Bingo. We were in business. Funny how that works.

This ignorance of even the simplest machinations of SMC explains their asking for 3 a&a exams on 2680s for an R 2 determination and still deny when your VA-trained wife is giving you three injections a day and you don’t even know who the president is. Wait. Maybe that second part’s not such a bad thing…. But seriously. No explanation. Just that old fashioned love song “Here’s what the regulation says you need but we determined you’re not entitled.” It’s devoid of the requirements of §3.103(f)(5,6). File your 996 for an HLR and ask what you need to win and they’re guaranteed to look at you like deer in the headlights. It’s simple. They don’t know what you need but they dang sure know you don’t have it-whatever “it” is. The narrative decision gets pretty sketchy as if this all depends on what the meaning of “it” is.

Thus, the ages-old paradox of why you can’t get to the higher SMCs is finally revealed. SMC is so complicated, it’s easier to just fence it off and have a “Just say No!” mantra like First Lady Nancy Reagan’s old DARE drug campaign of the eighties. Problem solved. DBQ it a few times and deny. Listen rapturously at the HLR and then have Ralph over in DROC Appeals Tag Team “Victory” write it up in Adobe Rate Builder™ and see if they go away.  And here I always thought these folks were just being hardasses when the truth was they’re ignorant. I don’t blame them individually. Would you hate a rattlesnake? They’re only instinct is to strike their enemy. They don’t hate you. Shoot, VA folks are hive people. They don’t even know you so it’s not personal. They’re taught to upload data. The computer determines how to phrase the “What part of ‘no’ is it you don’t understand?”  Your average Joe Blow VA employees must be oblivious to this 88% denial rate. Well, until they get to the higher levels and know better. Then it has to be plain vindictiveness or orders from on high.

A good friend and client, and now an Agent, is applying for R 2. I carefully helped him dig the punji pit and have his wife schooled (and properly documented) in the art of caregiving ahead of time. He already has a running contract with a physical therapy outfit due to his musculoskeletal disabilities so that box is checked. So, what would you expect Joe VA  Intake development service representative to do? Right. Bifurcate all the evidence submitted away from the VAF 21-0526EZ by uploading them as two .pdfs and label the evidence as ‘Third Party Correspondence’. Poof. Gone with the wind. Develop the claim without the supportive evidence. This calls for a DBQ or two.Send that boy out for a 2680 A&A/Housebound. Yeah. We know. He’s already R1 for LOU of lower extremities and a&a so I guess they want to determine if…. ah… he needs…mmm more aid and attendance? Got it. Submit to (choose one) LHI, OPTUM, VES, Loyal. Push print. Send to 499 holding tank and await upload of unneeded 2680. Get attaboy for doing 5 in one day. It’s a well-oiled machine from start to finish and almost guaranteed to generate a completely wrong decision.

So, be untroubled when you’re denied SMC at the higher rates. This is a process that almost demands having access to VBMS so you can shepherd these things through and spot them innocently trying to sabotage the claim. Having real time access to a client’s efile is so critical to winning, I almost can’t imagine how I did without it all those years. This is a poker game and you deserve to see what they’re holding or know someone who does.  I hope I live to to see the day  they grant Vets access to  their claims file. There will much grinding of teeth. Congressfolk will complain mightily that their emails doth runneth over.

P.S. I love this one.