I apologize for my absence here. The VA tasks me. They scheduled five hearings I’ve patiently waited four years for all at once. I’m racking up frequent filer/flyer miles at a stupendous rate but have no time to even answer the phone or offer advice to Vets. On top of that, my fourth grandchild Daphne was born last Monday and I was so busy writing appellate briefs, I didn’t get over to see her until the day before yesterday. Lots of news to share and very little time to do so. Here goes.

First off, I think everyone who doesn’t know it’s against the law to practice VA law without accreditation should be aware the bell will be tolling for you fellers shortly. I just received this from fellow agent Doug Haynes. I wondered how long it would be before someone geared up to combat this atrocity. Think about it. Even if you’re the most hotshit VA law dog in the universe, you’re still limited by law to charging no more that 33 1/3% commission on the winnings. I charge 20% and so do most others who authorize the VA to be their collection agency. Imagine having no accreditation whatsoever and soaking Vets to the tune of over 50% a pop for a win. Sucks, huh? So I was enthralled to read the Pels Group have decided to sharpen their spears and skewer these chuckleheads. Right on.  https://vadisabilityinvestigation.com/

Finally, after seven years waiting patiently for SOCs, VA 9s and VA 8s, my own day in the sun has dawned. Thomas Williams called me this morning from BVA VACO and asked me if I prefer tea or coffee while I wait in their  lounge on the 12th for my hearing with VLJ Lauren Cryan. There, the VLJ will entertain my plea for a larger greenhouse than the 10X15 visqueen shoebox w/ 60 watt lightbulb heating they originally proposed back in 2016. After appealing for a 24X28 and hydroponic gear, my entreaty was rudely rebuffed and the head of VR&E declared they were already being far too lenient in even granting entitlement to one. The trouble with that is the BVA was the one that granted it- after the AOJ VRE cowboys denied it for five years. VR&E folks have short memories or else they’re smoking some killer gunsha.

As for the M 21 and Artificial Intelligence, this will be a lesson on SMC in a roundabout way. It began with a serial stalker named Harry who snuck up on me during the ‘confinement’ pandemic in late 2021 and hornswoggled me into taking his claim for R1. Moreover, it metamorphosed into having to fight an incompetence allegation as well as an earlier effective date of 2002 for his SC for Parkinson’s under §3.816(c). To say this was a battle royale would be a masterpiece of understatement. Harry had arrived with a veritable suitcase full of problems. Harry is my kind of people.

Harry was granted a&a due to a plethora of problems.  Read his BVA decision down below this. Note how the VLJ wrote it. The need for a&a was based on “impairment” of extremities. Note she did not say the condition of loss of use of extremities existed. This is where the precedence embodied in Breniser v Shinseki  comes in handy. ‘Condition’ is the operable word. Note also on page three of the BVA decision that Harry was granted SMC S for Interstitial lung disease as the “anchor” 100% to the grant of SMC S. Thus it can be said Denis the Menace was in constructive possession of the knowledge that Harry was waaaay past severely 100%. What the hey? I got him advanced on the docket three times now off the same doctor’s note saying he’s terminally ill and expected to live no more than 2-5 years (circa 2022). https://www.va.gov/vetapp20/Files11/20075742.txt

I fought extensively for four months straight to get him his R1 and succeeded a few days after the New Years hangovers of 2022. During this period, I did some dumpster diving in VBMS and noted he hadn’t been granted the bumps we all get on top of the SMC L. He had been entitled to L 1/2 for several months and then an M for the lung disease up to his grant of R1 . As those who do this know, VA isn’t exactly forthcoming about all these 1/2 step and full step add-on bumps described in SMC P under §3.350(f)(3)(4). Surprise, surprise, surprise- in the immortal words of a TV Marine private. Purposeful it may be. Yessssssssssssssss.

So, being a perennial pain in the VA’s ass, I filed him for it. The Jedi master I learned this trade from said never to leave any money on the table. This is where it gets funky. I expect there’s no love lost between me and Denis. I’ve always pooh-poohed the old saw about VSOs chiding us not to be greedy or it’ll bite us in the ass idea or that they are always looking for a way to whack your rating and reduce you if you file too many claims. But this time, it appears true. Either that or Denis has a hard on for me. The funny thing is this is going to be easier to repair than trying to hit something with nape from 1000 feet ASL at 300 knots.

The BVA granted the bumps as I had expected but when it came time for the OAR in DC (VBA397) to write up the BVA’s decision, it went into cold storage. I found out why the other day. These bozos are trying to reduce him back to SMC O because the a&a was granted based partially on the Parkinson’s issues in all four extremities. Remember them? VA plumb forgot all about them for a year while I fought arduously to get him the R1. Now, they say they somehow forgot to retire the old 8515 and 8520 ratings they actually gave him in 2017-2020 and insert the DCs 5109 and 5110 for the loss of use. Kinda like the blind leading the deaf across the street against a red light.

So, their idea of how to fix it was not to apply the Akles rule and not examine all Harry’s disabilities in great detail to see if they could do a Buie “rearrangement” of the ratings such that the interstitial lung disease could be substituted for the a&a and he’d remain at R1. Oh, hell no. They went balls to the wall into “screw the Vet” mode and whacked him down to O. As an aside, if you wonder why VA can’t figure out SMC, part of the problem lies in the M 21. It’s riddled with errors on the subject and VA either chooses not to correct  it or is complacent and likes it the way it is. Keep in mind that §3.350(e) describes SMC at the O rate as the “maximum rate”. Yeah, right? Most of us would argue R2 or T is the maximum rate but semantics was never the VA’s strong point.

Redact bump and CUE reduction

Redact Code sheet for reduction to O

I figured I’d be getting that call with the “Another fine mess you’ve gotten us into, Ollie.” I did get the call but Harry said he trusts me to get it sorted. I will. It just seems like such a waste that I have to keep sweeping up the VA’s broken glass after they screw it up.

I reckon I’ll have to file a CUE claim and explain how §3.103, AB v. Brown and Buie v. Shinseki applies. Worse, these chuckleheads are using a BVA ministerial remand a la Encarnation v. McDonough as a vehicle to combine two disparate subjects into one. Seems there should have to be a proposal to reduce, n’c’est pas? Anybody down at the corner of Delay Street and Deny Avenue ever hear about §3.105? Due process? Oh hell no. They’re lost in space and happy as pigs in shit, folks. They have their M 21. What else do they need?

Happy 4th of July to all of you. Remember, there is no 1004 with hand grenades or fireworks so be careful. Notwithstanding my love of SMC, I like you with all your parts and pieces firmly attached whenever possible.

P.S. Enjoy the video from-who else- Ed the LURP.