Having won a greenhouse with all the bells and whistles last week, John invited me to join him on the show and share with the listeners how this came to pass. This I agreed to do. Putting it in context, this began on March 20, 2011 in a Dilaudid-induced opioid haze. Since I figured I was hors de combat, and probably would be for life, I figured growing a shit ton of vegetables might cut down on the food bill. Since those gomers at the seed companies always put in enough seeds to start a plantation, it’s easy to overplant and grow far more that you can eat yourself. I like to hunt out the Veterans on the peninsula where I live and unload all the excess. If anything is left over, I take it to the food bank.

Unfortunately, some Vets are more into Micky D’s or Burgerkingdom™ fare and don’t even own much more than a popcorn popper. My job ends with growing the veggies. If you are food-challenged and can’t even cook for yourself, then your options are far more limited if you’re SINK (single income no kids). Well, that or you have to find friends who manage to overlook you always just happening to be in the neighborhood about chow time.

The Independent Living Program (ILP) under 38 USC §3120 has never changed. What has changed is the way VA would like to interpret it after March 14, 2014. The VR&E poohbahs insist the new M 28-1MR becomes the de facto law instead. When I filed in 2011, the old M 21 was in effect. Under that version, VA could give you a greenhouse or a metal detector or a riding lawnmower. Since Veterans are prone to abuse the VA system, VA figured they’d just grow pot in the greenhouse, sell the metal detector (still new in the box) for crack and use the riding lawnmower as a power wheelchair to get to the VFW bar.

Notwithstanding that, they tried eliminating anything but medical devices as early as 1995. This forced VA advocates to fight back and go to Court. VA’s Office of General Counsel had to hold their collective noes and crank out a legal holding back in 1997. Here’ the meat of VAOGC Precedential opinion 34-1997:

HELD
1. No statute or regulation, including section 702 of the Rehabilitation Act of 1973
and its associated regulations, either specifically directs VA to authorize or
precludes VA from authorizing services and assistance of a recreational nature as
a component of an eligible veteran’s program of independent living services and
assistance under 38 U.S.C. § 3120.

2. VA has the authority, and responsibility, to provide all services and assistance deemed necessary on the facts of the particular case to enable an eligible veteran participating in such a program to live and function independently in his or her family and community without, or with a reduced level of, the services of others. This includes the authority to approve, when appropriate, services and assistance that are in whole or part recreational in character when the services are found to be needed to enable or enhance the veteran’s ability to engage in family and community activities integral to the veteran’s achieving his or her independent
living program goals.

Then, when the ink on the avocational argument was still drying, they came out with a whole new M 28-1 Manual Rewrite- Dude, you already  have a greenhouse. We can’t by law give you another one or even a bigger one. Sadly, waaaaay back in 1991, A guy named Marty Karnas  (CAVC 90-312) was up at the Court and arguing the same thing. The rules have to be the same when you win as they were when you began. Otherwise, all hell could break lose. You could win your claim but discover you won a nothing burger by the time you got there. Mr. Karnas’ case passed the VA’s smell test- but then what doesn’t? Fortunately for me, the Court called bullshit on Mr. Derwinski.

To give you an idea how I was admitted to the CAVC Bar, you need look no further than the flurry of Extraordinary Writs of Mandamus I filed trying to get them (the Seattle VR&E dicks) to build my greenhouse. Check these out- 2016-2098; 2017-1450 and 2018-0938. Sure, I lost them all but they all ended up in my claims file and those became fair game when I wrote my legal briefs after I returned to the BVA last year for my hearing(s).

The Big Boys’ best attempt, which pancaked miserably, was in 2014 when they insisted I missed my VA 9 filing suspense date. I defeated them with the ages-old USPS Green Card showing they received it and signed for it several weeks before showtime. I was polite. I didn’t call them liars. I just pointed out that it was there at the VARO if they’d even bothered to look. Magically, their attitude changed when they “found” it on the mailroom floor.

Anyway, I hope to see you all there with your virtual chips, dip and a brewski/chardonnay for a great story about how to whip these bozos at their own game. The ILP isn’t dead. It’s just metamorphosed into a more nuanced battle for your rights. Sound familiar?

The Call in number is still

(515) 605-9764

Or, should you desire to view it on the computer…

https://www.blogtalkradio.com/jbasser/12338841/connect/4e9e77f4c12feecfae7d24282c4584aad74031d8

Show starts @ 1900 Hrs East/1600 Hrs Left Coast