This is one of those warm, fuzzy blogs I so enjoy putting up around this time of year. I actually finished up another for P&T on a Thailand Vet (Takhli RTAFB) on Monday for Agent Orange that took almost four years as well. I  began fighting his in early 2020 before they even dreamed up the PACT Act. This one, however, began back in early 2017. Terry came to me for a records review and decided to hire me to fight for what we finally won today. To think it took us from October 2017 to now is appalling on its face but it took me 28 years so I consider this to be somewhat of an improvement on the system. Thank you former USB Allison Hickey for rescuing  all of us from the VA’s paper jungle.

The back story is rather appalling in its own right. I flew down to Jackson Mississippi for a DRO hearing in September 2018 in an effort to resolve it quickly (LOU of the lower extremities and R1). I laugh in retrospect at my naivety.  My law dog mentor impressed upon me the value of confronting these chuckleheads at bayonet distance to show ones’ earnestness. He didn’t tell me I risked being ejected. I felt I had let Terry down and resolved to roll up my sleeves and fix it.

When I arrived that morning for the festivities, I discovered I was the only Caucasian male (cisgendered  or otherwise) in the establishment. Having been born in the South, I wasn’t put off or feeling threatened. It was more of a novel experience knowing VA is top heavy with White entitlement folks. I reckon I disremembered we weren’t north of Richmond, VA.

Ms. Teri Green, a senior DRO there, began by sandwiching us into the attorney-client conference room which is actually smaller than Cupcake’s walk-in closet. We were literally assholes and elbows in there with no ventilation. I’m pretty sure this was as intended, too. In most cases, these events are conducted next door at the spacious air conditioned VAMC conference room.

After about ten minutes of argument, Ms. Green rather impolitely and officiously informed us, that contrary to AB v. Brown (1994), Terry already had the maximum schedular rating for his lower extremities and there was nothing for it. He hadn’t filed for loss of use and until he did, we/I were pretty much pissing on a flat rock. Worse, my continuing arguments supporting his entitlement to DC 5110 versus two 8513s were beginning to irritate her and she proposed having me frogmarched out forthwith with a VA Gestapo agent on each arm if I didn’t cease and desist. So much for ancillary entitlements under the Akles Rule. Or §3.103(a) for that matter…

Seeing the writing on the wall, I acquiesced to her admonitions, I decided to piss on the fire and call in the dogs. It’s better to live to fight another day than waste one’s time on a fool’s errand. I flew back to Seattle with my tail between my legs and went back to the drawing board to begin craftily reassembling doctors’ statements and supportive medical evaluations to present to the BVA Veterans Law Judge on appeal. Nothing I submitted had had the least effect on the situation to date. Shoot. I was so conflusticated, I even went into my bathroom and examined my silver tongue in the mirror looking for cancer. No. Just kidding.

Terry’s condition didn’t have to be over-exaggerated. He was carrying a dual diagnosis of Muscular Dystrophy or Polymyositis and was retired prematurely due to it/them. Getting the necessary supportive nexus letters was childsplay. All his doctors were on board and extremely supportive. However, VA has a policy that demands VA be given “first right of denial” on the subject of what constitutes loss of use. The definition is so confusing you almost have to use Phonics™  to sound it out. Repeat after me.

§3.350(a)(2)(i) =:

“Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.”

I’m still dying to know what a suitable prosthetic appliance consists of to this day. Are there unsuitable prostheses out there in the marketplace?  If there are, does VA provide them both? All these queshuns…

In Tucker vs. West back in 1998, the Secretary became so bold as to define §3.350 as actually employing the use of a hacksaw at an elective joint somewhere below the knee and demanding a physical prosthesis(es) in support of the entitlement. Fortunately for all of us similarly situated, any “loss of” versus “loss of use of” requirement was quickly ruled void ab initio. Nevertheless, VA continues to this day to demand a far higher standard of loss than is required to suffice and qualify.

Continuing the fixed bayonet distance metric, Terry and I proceeded apace to the city of my birth to present our demand for justice at the BVA Central Office in person.  That was January 2020. I love Washington DC. If they haven’t painted over it, you can still find my “Alex was here” on about the 33rd floor in the stairwell of the Washington monument from our Cub Scout field trip back in 1960. Or the most recent 50¢ piece I left on my dad’s tombstone over in Arlington across the river this last October.

We drew Judge David L. Wight. I’ve had him before and he always writes a fair decision. Unlike some VLJs, he actually thinks Vets get the shitty end of the punji stick all too frequently. He said at the end of the hearing that he would like to cut the paper granting R1 on the spot but there were certain formalities that must be observed even when the obvious is staring you in the face. The “obvious” was Terry in his wheelchair and a mountain of medical records all saying he wasn’t going to be attending the Boston Marathon that spring due to prior incontinence commitments.

One trick I don’t mind sharing with all of you. I’m fond of asking verbally, with no forewarning, for AOD at these BVA bayonet hearings. 99% of the time the Judge will grant it but that also may hinge on the fact that virtually every one of my clients are already furiously pushing the RING™ doorbell at Heaven’s Door before we get there… or will be directly.

As I said, nothing gives me greater pleasure than prevailing in this David vs. Goliath business. I can’t express in words how honored I am to even be allowed to do this.  The only thing that might be more pleasurable would be to fly back down to Jackson, sashay into the VA Puzzle Palace there and wave the decision in Ms. Green’s face accompanied by maniacal laughter and dual birds. But then, I don’t relish the idea of getting the bum’s rush from their Gestapo.

For your reading edification and to prove to VSOs that R2 (and all SMC ratings higher than K) actually exist, enjoy. And Merry Christmas to all my readership.

redact r2 12.8.23

redact R2 CS 12.8.23

Redact Rating Calculator Worksheet(s)

P.S. As a postscript, and after consulting Terry, I wish to share the most incredible part of this journey to R2. Upon award of his R1, Terry announced to me his plans to become an accredited VA Agent. He accomplished that last year and  I neglected to include this in the above article but now wish to introduce him to all of you who might be seeking an advocate with that fire in his belly that rivals my own. Here’s his contact info.

https://serviceconnectdisability.com/

And today’s contribution from the peanut Gallery…