Used to be back in the old days, every rating decision with the the VA logo on the top had the actual Fort Fumble identified. Thus you knew from whence it originated if you wished to hurl imprecations and discuss wolf parentage. As most in the Veterans SMC world know, Laska (formerly Haskell until he augered in this spring) involves a sordid piece of skullduggery. I’m flying back to Salt Lick City for the Fall legal conferences with the organization I belong to. As I’m somewhat of an outlier of the group, they’d probably prefer I keep their name out of it. I’m sure Laska will be the major discussion subject though.

To reduce this to a short story, I have a mega TBI client in Alabama who just got his SMC L wings for aid and attendance-hence the Sweet Home Alabamy intro above. It was a long haul. He’s been fighting with little or no success for years because… well because he needed a Sherpa and SMC Sherpas are dang few and far between-in Alabama or anywhere else for that matter. Which is why I started teaching SMC to attorneys and agents I work with this last winter. The demand is so great I’m beginning the second class right after this shindig in Salt Lake.

VA is going to figure it out in short order because that little $15 Billion dollar shortfall they forecast this coming year is going to metastasize again dramatically if all the SMC seeds I planted bear fruit. Well, that and Laska are going to have serious fiscal ramifications.

 Anyway, Courtney had been struggling to get traction on his a&a for years. Then the grand mal seizures began on top of his OSA (50), hernias (60), incontinence (60) and migraines (50). VA kept saying he was good to go… or did for the last ten years- even though he has that nasty, pronounced habit of kissing the concrete with his face when he starts doing the chicken and the tonic clonic shit hits. He also has a pronounced left foot drop and about a gazillion other service connected ten and twenty percent bummers that run to ten pages on his code sheet. That’s a personal best. The best I’d seen up to now was 8 full pages. Courtney’s latest acrobatic trick was a swan dive from the second floor landing to the first with a two and a half gainer. It only cost him a few broken bones and a minor concussion this time.

Courtney was a combat medic in the Navy. That means he had to hang out with a bunch of gyrines, put bandaids on their foot blisters and treat them for sexually transmitted diseases. And when the shit hit, he had to hold the IV bags and shoot back. He has a Combat Action Ribbon and a few others for derring deeds of do. And boy howdy does he have a whopping nasty case of TBI.

If I didn’t know any better, I’d a sworn when I opened his c file for the first time I was going to see Dr. Bash’ or Dr. Ellis’ shit scattered in there in three part harmony. It was thankfully absent. But what was there was all the more appalling. When VA doctors work on you and opine on your condition, that’s unimpeachable. When Dr. Bash and his Ten thousand a pop for an IMO krewe show up, it’s like a coyote pissing on the food. VA turns their nose up and denies. I’ve talked about this in preconference colloquies with BVA judges at VACO hearings in DC and to a one, they all agree that when they see those names, it’s all over except for pissing on the fire and calling in the dogs. Now don’t get me wrong. I’m not impugning Doctors Bash and Ellis. Perish the thought. I merely repeat the scuttlebutt I hear. I’m sure they mean well and are above board but their reputations seem to contaminate all their good deeds.

You could go out and get a IMO Buddy Letter from Jesus Christ himself saying > “What he said” about whatever it was that ailed you and it would float like a rock after you introduce squirrelly IMOs from doctors who’ll take 30 pieces of silver for their work. The only folks who can get away with that hat trick are QTC, VES, OPTUM Serve, Loyal Health, LHI etc. Now, with the addition of all those Claims Sharks and their hired doctors and nurses, the IMO field is getting a mite crowded. VA raters are suffering IMO overload and denying even their own doctors’ opinions.

 But there’s one little problem. Ever hear of Sickels v. Shinseki?

See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that the Board is  “entitled to assume” the competency of a VA examiner and the adequacy of a VA opinion without “demonstrating why the medical examiners’ reports were competent and sufficiently informed”). 

To be sure, VA can insist an “examiner” is a VA rater who just happens to have a RN after his or her name. All’s fair in love and war. A lot of Vets think this all hangs on the “clinician” at the c&p exam.  But when VA’s very own doctors say your shit causes the need for aid and attendance or your legs would be equally well served by taking a hacksaw to the ankles and fitting you for bilateral prostheses post-cauterization, then their opinion is the straight shit. It’s about like an Eleventh Commandment. Thou shalt not denigrate the VA doc.

In Courtney’s case, not one but three VA doctors say Hogan’s Goat doesn’t hold a candle to Courtney’s predicament. So, after about three years of denial, it was with great pleasure that I finally got the second HLR reviewer to follow me to the letter the psychiatrist penned for us in VBMS. He kinda sorta had to agree that’s what it said. Of course, he ignored the part where DR S______ stated that without his significant other that he’d have to go live happily ever after at VA’s Sertraline Shores Rest Home down in Mobile.

Getting Courtney the a&a, as most know, is just phase one on the long road to SMC T. I always remind them chuckleheads that we’re not done until the SMC T Fat  Portly  Weight-challenged Lady sings. Good thing my DEI AI gizmo kicked in there, huh? This time, they were polite enough to get out their very best revolver and shoot themselves in the foot. They stated- in haec verba– that the reason he wasn’t going to be cruisin’ on Buck$ Boulevard was that he didn’t qualify because of the 38 CFR §3.352(b)(2)(ii) requirement that he need a higher level of care. I waited patiently for  the Laska decision to come out the day before yesterday and only then did I begin writing his legal brief for T.

Redact SMC L but no T for Thee

Back in 2018, Secretary Wilkie, or one of his buddies, surreptitiously inserted that §3.352(b)(2)(ii) blurb from R2 into T to make it about as hard as trying to hit the Power Ball in a 50-state Lotto. We call it the Thursday rule- You don’t qualify for SMC T because you  weren’t born on a Thursday. What the hey? Even if you were, you’d lose on the AM or PM coin toss. If you said AM, you and I know they’d just say bummer, dude. Missed it by thaaaaat much, 99. Has to be PM. TY4YS. Move along. Now serving Number 149.

And now we have Laska precedence from St. Margaret saying she disremembers seeing that “higher level of care” R2 shit in the SMC T requirement. One of my favorite quotes for legal wrangling is:

See Mitchell v. McDonald, 27 Vet App. 431,440 (2015) (Cases “must be decided on the law as we find it, not on the law as we would devise it”)

Sadly, VA Secretaries and their ilk tend to engage in Mission Creep. They get a rule written and then proceed to monkey with it and semantically torture out their interpretation of what the meaning of “is” is. After the death of Chevron Deference this spring, the CAVC is  now free to parse the meaning without listening to all Denis’  post hoc rationalizations of what Congress’ word salad really consisted of.  

VA has made many forays into SMC law over the years and always manages to stub their toe in the process. Remember Bradley v. Peake? Sorry Dr. Peake. A TDIU equals 100% in baksheesh so why wouldn’t it be a “total” rating for SMC S purposes? How about Buie v. Shinseki? Come on General. Does it make any difference in what order my boy got all those 50s and 70%s? Oh hell no. §3.103(a) says give the Vet the highest and best that is legally permissible.

Then there’s the George Breniser Blowout.  George didn’t win but the publicity about aid and attendance finally began to drag it out of the dark corner it had been hiding in since 1945. Jensen v. Shulkin exposed the fact that there were two totally different ways to look at loss of use of lower extremities. That’s a Bozo No-No at all 56 of our Puzzle Palaces across the Fruited Plains.

Finally, Barry v. Denis the Menace came out saying “Son, you’ve been reading this wrong since 1945. You can have as many half-step bumps under §3.350(f)(3) as you want as long as they’re all separate and distinct”. Now you see why the VA’s financing problems have just begun. They’ve been blowing smoke up Veteran’s asses and fencing them out of SMC entitlements since the end of WWII.

The parade of horrors continued with the inception of SMC T. VA just couldn’t restrain the urge to give it a haircut and fence us out of that, too. And lo, twenty three years later justice is achieved just like revenge- served best chilled. I admire Amy Odom’s attack on the OGC gomer’s interpretation of SMC T but this was like fishing with 40 percent Dupont stump dynamite.  I’d compare it to the recent Presidential debate between Brandon and Donbo where Don said “I don’t understand what he just said and I doubt he knows what he just said.” Basically, all she had to do was give it her 25 minutes and let the OGC clothesline himself which he managed with flying colors. Judge Bartley then swooped in for the coup de grâce.  Amy could have just as easily relinquished her five minutes back and still won hands down.

It’s an Air America thing. You wouldn’t understand…

See you all in Salt Lick City if you come. We’ll be camped out (indoors) at the Hyatt Regency and engaged in our CLE booklearning Thursday and Friday next. Well, that and engaging in some serious networking over adult beverages. Veterans law deserves no less.