Sometimes, no matter how hard you try to get it right and are under the gun, timewise, it doesn’t pan out. The soufflé falls flat, the car battery is dead when you’re late for your doctor’s appointment etc. You feel like the Fates are not your BFF. Good luck has left you high and dry and the dice go cold. Welcome to my world this week.
Meet Don and his family. Rarely do I get to publish pictures of my clients.
Once upon a time, I always felt I existed in a magical universe where Misty 22 made sure the nape always hit right on the spot where we put our smoke rockets, where every BDA (Bomb Damage Assessment) fly-by revealed stellar results and we never picked up so much as a single round of groundfire. I was immortal. Bulletproof. Blessed by the Gods of Good Fortune. Right up until the time I wasn’t…
Post-war, I felt I had re-established this phenomenon; this connection with the otherverse netherworld that shielded me against misfortune. I artfully avoided automobile accidents and other disasters (excluding a marriage) that most folks encounter. When I began doing VA claims, I seemed to be incredibly successful. My timing was impeccable, too. Right up until a week or so ago.
Now, granted I do lose more than a few Veterans to disease during the pendency of their claims every year but up to now, I’d only lost one right on the cusp of a major BVA decision forcing me to refile the substitution documents in order to proceed. Don’s and Cheryl’s Appeal was actually sitting there “ready for signature” by the Veterans Law Judge (VLJ) when he passed away two Thursdays ago. Curiosity bit me so I decided to wait to see the results at the Board knowing full well it would be declared void and require a new decision process. I was like Lot’s wife. I couldn’t turn away.
In most cases, and especially if you go to your just rewards in a VA hospital, they pull the plug on your VA VBMS efolder within 48 hours. Strangely, this still hasn’t happened to Don’s file. Of course, when a Vet passes on, I promptly do a frantic search for his VAF 21-686 filings to rescue his marriage/divorce data for the substitution filing. Widows are distracted by all number of things when their significant other passes away. The last thing they need to concern themselves with is rooting around in the attic or basement for the old records to support the substitution. In most cases, to be safe, I build the DIC folder ahead of time if I even suspect a terminal illness may take the Veteran suddenly.
Let me tell you about Don. He was a Marine 0311 Rifleman. That’s the same as a Eleven Bravo but you don’t get a fancy blue badge with a rifle on it and a blue fourragère to sport on your right shoulder. Army guys are showoffs and require a lot more mental encouragement (and the promise of medals) to charge across an open field. Marines generally settle for far less because they’re a lot tougher and don’t need their ego massaged. All a Marine gets is a tiny four -colored Combat Action Ribbon (CAR) and maybe an Attaboy or two but most are happy to get that. They don’t need to brag. They’re Marines, for crying out loud.
Don got in on the Southeast Asia Olympics early on. He enlisted in ’61 and made E5 before he separated in ’67. He did have the misfortune to catch some enemy metal in the knee and get a Purple Heart. The reason he missed out on his CAR is simple. They didn’t ‘invent’ it until February 17, 1969. But that’s not all he caught. He must have eaten quite a bit of herbicide because he came down with about half the diseases listed in §3.309(e) and a few that weren’t on the list but should be to my thinking.
The fact is, almost all autoimmune diseases we Vietnam boots-on-the-ground folks get are proven to be related to exposure to dioxin. We’ve pretty much determined that to be an article of faith. The fact that ALS, Multiple Sclerosis or Crohn’s Disease aren’t on the list yet is simple. They’ll add them about 4 years after the last of us auger in. VA is broke and on a low-budget diet. Those 7-day Maui getaways for VA conferences on “How to Apply DEI Standards to a Changing Work Environment in the 21st Century” are expensive and without proper training and some decompression time, the raters might get our decisions wrong.
Don and Cheryl found me a little late in the claims process but I was still optimistic I’d get him his ALS rating and aid and attendance from the Board long before he passed away. Boy howdy was I wrong and it bugs me. I can’t think of anything I could have done differently but then, you always feel incompetent when you come up short. The only consolation is Cheryl will get her Dependents Indemnity Compensation (DIC) for the rest of her life. There was some concern in that regard because Don was eight months short of ten years at 100% P&T.
Rarely do I see VA turn a blind eye to their own c&p examiners and overrule them but it’s been known to happen. Here, a c&p nurseynurse got brave and actually cited to peer-reviewed articles to say that Don’s ALS, in a variant form called primary lateral sclerosis, was indeed a typical autoimmune disease and more likely than less likely related to…yep… Agent Orange (or Blue, Green, Purple, White or Pink) exposure. Herbicide flavors were like Baskin and Robbins® in the early days of the war.
To add insult to injury, I did check to see if the BVA had ever ruled either way as to whether the ALS variants were considered to be presumptive under §3.818. To make sure about these quandaries, I utilize the BVA Search Tool in the widgets at the top of my site above. Matthew Wilcutt and the folks over at Sutton Snipes Lawdogs Company created this gem and it’s the cat’s pajamas. Sure enough, I found two cases which stated what I needed to hear so I included them in my brief. Funny how VA disremembered they’re allowed to grant this variation, huh?
The BVA published Don’s post mortem decision yesterday morning but that won’t help Cheryl yet. We’ll have to wait for the death certificate to be issued to file with her substitution documents and wait all over again for the BVA to readjudicate the entitlement and make it official. The good news is we can (and will) fight the effective date on the award for as long as it takes to get the a&a back to before the filing of the request for a&a. This is one of those strange quirks unique only to SMC entitlements. You’re not required to ask for a&a or even file a claim for it. A&a is due and owing the moment your medical evidence proves unequivocally that you are entitled to it. Even better, Don’s neurologist stated he had paraplegia which means SMC O and on up to R1 for loss of use of the uppers and/or lower extremities as well.
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Here’s my filing and legal argument for the appeal and the Board’s belated decision. I reckon ol’ Don’s sitting up there in Heaven slapping his thigh having a good laugh about all this even as I write. If you believe in the everlasting afterlife, you can’t help but subscribe to my Win Or Die™ philosophy-even if you win after you die.
Rest in Peace, Don. You ain’t seen nothin’ yet. I’m fixing to make them bleed money for Cheryl ’til it hurts.
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