I don’t quite know how to express my thanks to Veterans Law Judge Leslie A. Rein for her BVA decision posted in Caseflow yesterday evening. It was a long time in coming but nevertheless a vindication of VA’s asinine demand for a VAF 21-2680 to “prove” a need to entitlement to aid and attendance of another. Thus, in 2020, I decided to fight this one in hopes of establishing a precedent of sorts on this uncalled-for requirement. My good friend Sam was dying of liver cancer. He was put on hospice when he decided to piss on the fire and die with a fifth of Single Malt by his side and a fine cigar. VA wasn’t buying.

Here’s my post on Sam’s last days. I flew down on the Fourth to be with him and his wife Kathie as they are close friends of ours through our mutual Hepatitis C Vets (HCVets) group. He passed peacefully that evening. Would that VA would have granted peacefully.

SAMUEL BAILEY–THE LAST DETAIL

After fighting VA for 28 years on my own claims, I take a “Contrary” position on VA adjudications akin to contrary as defined in the seminal movie Little Big Man starring Dustin Hoffman. I put everything VA does under the microscope to ascertain its legality, applicability and relevance. If it doesn’t pass the test, I fight. And boy howdy did the military ever teach me how to do that.

Our good friend Semtex

When Sam’s wife Kathie first popped smoke to say he was stern up like the Titanic and sinking, it became a matter of personal importance to file to defray the costs of the hospice at home for his final days. Aid and attendance was a given, right? Even if it was only going to be for a few months at best, it was still due and owing.

When I began this odyssey of VA claims work, I was taught two important facets. One was to support everything I did in duplicate such as filing via electronic means as well as by mail. This is called “belts and suspenders” in the legal vernacular or “always carry two hand grenades” in the military. Secondly, I was taught to leave no money on the table that rightfully belonged to the client.

During my fight for my greenhouse back in 2013, prior to my accreditation and electronic access to filing, I was fond of using the USPS Green Card to prove delivery of my filings. It finally paid off when VA insisted in a Statement of the Case (SOC) that I had not timely filed my VA 9. I simply produced the ‘return receipt requested’ green card showing VA mailroom employee John Q. Smiley had dutifully signed for it. A quick review of employees at the Seattle Fort Fumble confirmed his employ and it promptly squelched that bullshit line of attack.

Similarly, Sam’s terminal hospice was being supervised by a VA-contracted outfit locally who specializes in these things. Since they were in constant touch with VA, the presumption of regularity attaches to the concept that they had constructive possession of the knowledge medically that Sam was knocking on Heaven’s Door. So, why on earth would there be a requirement to medically prove he was going down the tubes?  Jez, weren’t a lowly RN’s treatment notes enough to substantiate the validity of his condition?

To add insult to injury, if such a thing is possible at the VA, they didn’t bother to answer the 526 filing for a&a for almost 6 weeks demanding the VAF 21-2680 signed by a doctor showing a need for a&a. Idiot’s delight, huh? He died before I/we even got the letter requesting it. Pissed me off, it did. I didn’t even contemplate an HLR informal conference. This level of arrogance/ignorance was simply too much. Hence, my departure for Washington DC and a substantive appeal at the BVA.

And here we are, three years and eight months later. Just imagine if they hadn’t passed the Appeals Management Improvement Act (AMIA) and revamped the adjudications procedures to remedy the unholy backlog! Why, we might be waiting for another aeon or two. While this won’t, in and of itself, enrich Kathie dramatically, it needed to be done. Sometimes we just have to put our collective foot down and call out their tomfoolery and silly requirements.

Attached here are VA’s initial denial, my legal arguments and VLJ Rein’s decision. I hope they may help even one of you to prevail or guide you in formulating a legal strategy to start calling these chuckleheads out on their obfuscation. To me, the mere filing of a 526 to ask for aid and attendance or any Special Monthly Compensation (SMC) is superfluous on its face. It’s an ancillary entitlement that must be inferred from the medical facts in the instant case (Akles vs. Derwinski 1991). I would have thought the dead giveaway was the word ‘hospice’ (no pun intended). Maybe that noun isn’t in the VA vernacular.

Redact 526 for A&A

Redact Sam RD 3-10-20

Redact Sam a&a 10182

Redact Kathie extra pgs for 10182

Redact Sam BVA Win

Seasons Greeting to you all and may this season bring you belated good tidings such as the above. Personally, I can’t believe I’ve been granted a license to do this work. Helping our Nation’s Veterans should be a given rather than a contest to figure out how to prevent them from attaining that which was rightfully promised them when they raised their right hand.

And that’s all I’m gonna say about that.