I wonder how many of you-both litigators and pro se Veterans- have ever had a double header HLR informal conference. You heard me right. I had a HLR on Thursday morning last with DRO Loralie. Forget she was 15 minutes late and accidentally called the Veteran instead of me. She got it straight after I emailed and asked if we were still on. Seems there’s a two-hour difference between Houston and Seattle. Whowouldathunkit? I laid out my case for Aid and Attendance and threw in at the end that the Akles rule (SMC requires no claim) is for application and, if  by chance he was granted a&a under SMC L, then the Secretary would have to equally entertain a claim for SMC T due to his bodacious 100% PTSD/TBI under AB v Brown (Vet seeks highest and best rating and the claim remains in contention until that happens). Loralie listened to my whole spiel, said she’d review all the legal points I raised, the evidence I pointed out and would make a fair and equitable decision. Yeah. Right. The check’s in the mail. We hung up.

The phone rang about an hour later and I promptly entered the VA déjà vu Twilight Zone. Loralie cheerfully identified herself (again) and then tossed the proverbial gender reveal hand grenade. She said she wasn’t trained on TBI and therefore this whole HLR gig had been an exercise in futility. But what she followed with was the illegal proposition as to how we might still salvage it and make the Vet a chicken dinner winner.

How many of you have been told/warned or admonished by your VSO that if you keep filing for disabilities after you win a pittance like tinnitus, you run the risk of having your ratings reduced because of your greed? I heard this for the first time from my DAV rep in ’89 after I got 0% for tinnitus and a matching 0% bookend for hearing in my left ear only. I followed the advice to a ‘T’ until 1994 when I began to get sick from Agent Orange shit. If there is any truth to it, I shouldn’t have two 100% schedulars and SMC S.

Lori offered me a Faustian bargain. Take the chance with her as the reviewer on winning the A&A and shut the f–k up about SMC T or…  I could opt to hold a brand new HLR tomorrow with her boss Natalie who was authorized to hear TBI HLRs. However, (pregnant pause) my Vet Donbo stood an incalculable risk inasmuch that he might have his ratings reduced and boy howdy you don’t want to go there now do you Mr. Graham? I thanked Loralie for her generous offer, promptly opted for the latter and eagerly awaited my new RVSR HLR yesterday morning. I wasn’t disappointed.

Sure as the sun rises in St. Pete, Natalie called (on time) and announced she was ready to rock and roll. Don’s case was like coming to a rocks, paper, scissors game with an M16 to me.  Donbo is on the VHA’s PCAFC caregiver  program. His wife has to help him bathe, toilet and prepare meals. She has to supervise his medications and protect him from himself and others. The beauty of it was it was all laid out right there in glorious color in his VAMC medical records. The VHA home visit Nursey nurse actually stated in haec verba he could be left home alone unattended for up to two hours. His anger management coping skills were sub par so he had to stay heavily medicated and he gave up driving years ago due to syncope at 65 mph on I 95. Of course, the VBA’s files said he was homeless in the past and lived in his car so he must be lying about that driving story. So much for dredging up negative evidence, huh?

To me, the picture was one of clear cut entitlement to a&a. In fact, he even had another VAF 21-2680 in the cfile from 2016 that essentially said the same thing verbatim-by the same doctor (his neurologist) who authored the latest one. The rating decision was typical Adobe 2.5 Pro Denialbuilder™ complete with dangling participles. Sorry Charlie. Uluz. No explanation as to how he was supposed to win it as required by law -§3.103(f)(5). Just the TY4YService, chump. What’s worse about this is the new AMA statutes specifically state if you pitch a bitch about getting shortsheeted and seek a higher rating at a HLR review, that VA is prohibited from readjudicating it and coming up with a lower rating. Turns out maybe Loralie speak with forked tongue.

I’d done some extra speshull VBMS dumpster diving and discovered that my boy Donbo had been sent to the Marines’ Brain Trauma Recovery Intervention Program  to- in USMCspeak- “learn compensatory cognitive strategies to help alter his memory and cognitive/coping skills post-blast exposure and teach him sleeping techniques to aid in  improving his chronic insomnia.” Apparently, it was unsuccessful and they decided the Donmeister couldn’t play GI Joe© anymore. They gave him “early retirement”. That flatass effectively ended his 20-and-out employment plan prematurely.

At the very end of the HLR, I pointed out that the Donster had a Combat Action Ribbon and that they didn’t hand those out in Crackerjack® boxes. His MOS was 0331 machinegunner. A CAR (or anything like it-e.g., a Purple Heart) means you can tell the VA what happened to you without supportive STRs. Unless they can come up with clear and convincing evidence that you’re a lying sack of shit, they have to buy your version of what is wrong with you. In the legal world, clear and convincing evidence dang near has to be news and film at eleven proving your version is incredible. It’s a higher legal standard of evidence- higher even than clear and unmistakable evidence needed for a CUE. Shoot. In my book anyone willing to fight (and die) for some sand rancher’s real estate deserves to be believed. It’s a worthy thing to fight for one’s own freedom. It’s a sight finer to fight for another man’s. I didn’t say that myself. I merely quote the brave man who did.

That DonVet needs a&a is unarguable. His entitlement far and away meets the “reasonable minds can agree” test.  It’s more obvious than that skanky, green wart on the nose of the Wicked Witch of the East of Oz fame. They’re saying he’s SMC S and housebound… but he shouldn’t be left alone for more than an hour or two? Are they worried he might order $10,000 dollars worth of Chinese food from Doordash™ on his spouse’s Amazon account or is the concern that he might suck on a lead lollipop?  There’s a big difference between housebound and needing lifesaving supervision. A very big difference.

I pointed out to Natalie the Naysayer that we were merely going through the obligatory gestures of crossing the HLR ‘t’s, ‘b’s and dotting the ‘i’s on our way to the BVA to ensure the Veterans Law Judge could see through this charade.  One thing I’ve learned in SMC bargaining is never beg. Go big or go home. Never ever meet them half way and accept a lesser benefit than that owed. It makes you look like a pussyfooted Snowflake. When you lay your cards out on the table and admit that you really don’t give a hoot how VA rules on this because you’ve been doing SMC for umpteen years and you welcome judicial review, they become horribly insecure. About that time, you begin to discern a note of doubt in their voices and a willingness to concede “that it appears” your guy may be entitled to a bit more than housebound. Natalie’s actual mea culpa was “It appears that previous reviewers might have missed that TBI clinic info.”

I’ll give you a good cite I always whip out during any discussion on whether SMC can be awarded, or, in this case, which disease/injury is responsible for the need. That’s just a smokescreen I encounter on all these denials.

Delineating the difference between PTSD and TBI is unnecessary as the sum of these SC (service connected) comorbidities unequivocally shows the Veteran cannot accomplish the activities of daily living. This is the correct legal standard of review under §3.351(c)(3)- not which SC disability is responsible. See Saunders v. Wilkie, 886 F.3d 1356, 1362–63 (Fed. Cir. 2018) “We have recognized that the word “disability” refers to a “functional impairment, rather than the underlying cause of the impairment.”   

When you spring that one on them, here’s what happens. Busted, dude. Saunders is mentioned in the M 21 so they aren’t strangers to the precedence:

Redact new HLR 20-0999 4.7.23

VA has taken denial to a glorified art form but not so much with SMC. They don’t understand SMC. It’s Greek to them. What’s worse is the M 21 is replete with errors on the subject. Learn how to read through the denial and see the truth and I guarantee you’ll always prevail. Crusaders were fond of screaming at the beginning of their charges against the Heathens ” Onward for King George. God sends the Right!” So far in my VA law travels, I have yet to meet the Veteran who wasn’t entitled to that for which he asked. In fact, most Vets err to the low side to avoid looking greedy. Thank VSOs for that faery tale.

But, because I’ve been hornswoggled once by a Vet with two 214s (with one OTH), I vet the Vet. It might sound discriminatory to some, but I prefer my post-Vietnam Vet clients have a combat medal before I’ll take their POA. Having served in that theatre of war, I’m all too acquainted with the trials and tribulations we endured in Vietnam-and especially Laos. On the other hand, I’ve observed REMFs like my shirttail cousin Senator Linsey Graham who come home from Southwest Asia dripping Silver and Bronze Stars and other medals who never heard a shot fired in anger. That bugs me. It cheapens the meaning of valor.

Anyway, Happy Easter or whichever Happy you celebrate this weekend. God does send the Right. I know. I was Right once-or so I was told. That’s all I have to say about that.

P.S. Late-arriving humor from LRRP Ed 51st Inf Co, F.