I reckon if you query any seasoned VA litigator, especially the folks down in the trenches who do this 24/7/365, you’ll find consensus among them that the VA’s ability to get their underwear on facing the right way when they get up in the morning has become a lost art. Well, outside of the old-fashioned, time-tested technique of “yellow in front/brown in back”, anyway. Once upon a time they were quasi-intuitive but any ability to “construe” what you’re asking for nowadays is like expecting  your dog to pick up Greek as a second language in his spare time. Babbel™ ain’t even going to be your huckleberry on the Greek… or VA claims.

Now, the title of the blog may lead some think I’m talking about the VHA-sponsored orgies down in Mountain Home, Tennessee but I’m not. I’m referring to the VA’s insane propensity to c&p you to death trying to torture a ‘not’ out of an unwilling clinician, and, failing that, finding a new Judas who will take their 30 pieces of silver. This is how they “reimagined” Bob’s loss of use six years after they granted it.

Yep. We in the AF had to defend our own perimeters at Air Bases.

But this case is the derniere cri in utter ignorance and a classic example of adversarial misfeasance. Who would waste their time on a simple Board remand by looking for some way to rescind a six-year-old rating (quasi-protected) for loss of use? And, by the same token, who in their right rating mind would think they could do a bait-and switch with a straight face and trade a loss of use for aid and attendance-all without so much as calling a CUE? Perhaps that’s why they call it VA 3-card Monte. Check it out.

Bob here was part of the LZ Cork crew who showed up when I started writing about the January 18, 1969  attack back in 2014. Bob and his friends got clobbered by a 60 mm mortar round about 30 yards below Butch where they were pulling duty at the LP. The gooks’ number 2 round had Butch’s bunker dialed in and scored a direct  hit on him, too. Bob and his crew shot their 16s dry and were in deep shit until Bob tripped over a crate of M 26s in the dark and they began hucking them down the hill at the dinks. You can read about that  adventure here. https://asknod.org/2015/01/29/lz-cork-bob-lovetts-lp-at-the-bottom-of-the-lz/

I began helping Bob after he read the blog and we’ve developed a friendship in our own right. Bob is only one of many Agent Orange Poster children. IHD, Parkinson’s, DM II, PN, etc. It’s ugly. He finally reached that point where walking was plumb hazardous to his health. Being a responsive representative, I filed him for LOU (loss of use) of his legs. VA granted it based on a VA PA-C saying he needed someone to hold on to him when he walked to keep him vertical. Check it out. No fight. No discussion. Just a “Here you go, Bob. LOU of the lower extremities”.

redact c&p 11.28.2018_Redacted

redact Narrative 1-18-2019

Fast forward a few years. In 2020ish, I won his IHD at 100% up at the Board. Sure enough, with the BVA Judge’s gun to their head, they had to grant him the 100% but they neglected to give him a bump up from L to L 1/2 for six months and then the bump to M. This was pre-Barry so I wasn’t asking for M 1/2…yet.

The BVA decision came back down in December 2023 and they began dinking around. I had a HLR hearing scheduled for April and on the day it was scheduled, they went silent and disappeared off the grid. Crickets. Loud crickets. A month later, they suddenly began talking- not about the bump to M but rather about revoking Bob’s loss of use of the lower extremities as a CUE. The HLR finally happened but we didn’t talk about CUE. We talked about the bump. I honestly thought they had given up on it.

Redact BVA grant 12.12.2023

Finally, five months later, the wildest and craziest thing I’ve ever seen them do happened. The Ratings Engineers down at Fort Whacko (the David Koresh Memorial Veterans Service Center) did the improbable. They took away his October 2018 SMC L for loss of use under §3.350(b)(1), which is protected by §3.344 and substituted aid and attendance due to Parkinson’s in its stead. It makes you wonder what transpires in that narrow space between their ears that passes for a brain what possessed them to do this but it’s just the good ol’ M 21 at work. If it says you have to show that you would be equally well served by amputation at a suitable joint(s) and outfitted with prostheses to qualify, then it would be CUE to award the LOU without those magic words. But after six years, you can’t change the diagnosis or come up with a different point of view. So you just “invent” a repair order. VA is famous for that. Rules? We don’ need no stinkin’ rules.

Redact proposal to CUE LOU

The rating decision is below and it’s a masterpiece of logic. Unfortunately, it’s against the law in 58 VAROs across our fruited plain. Since they know and I know they could never get away with revoking it via a CUE, they feel it’s kosher to just do the switcheroo without actually calling it a CUE. No harm. No foul. Just a typo, right? Shucks, we all make mistakes. Everything’s just like it was back in ’18 and we’ll even throw in that M you’ve been harping about since last December just to show there’s no hard feelings.

redact RD 11.25.2024

Let’s unpack this disaster. In order to take the LOU away, they’d have to prove Bob committed fraud to get his loss of use. But  he didn’t. VA’s very own hired medical guns did that. The actual VAspeak is “an act of commission or an act of omission”. A difference of opinion six years later is just that. A difference of opinion and nothing more. Happens all the time but it isn’t CUE. But the kicker is they gave him another L for aid and attendance. If you’re up on SMC Chess, you know that means he would advance to SMC O under §3.350(e)(1)(ii).  And, since one of his Ls is a&a, he automatically advances to Boardwalk and gets R1.

When you cut the paper (rating decision) and officially declare LOU, it’s a finding of fact and a conclusion of law. Assuming no CUE occurred, it’s inviolate under §3.104(c) unless they can prove they legally screwed up. But they didn’t. They just bought into the c&p clinician’s diagnosis back in ’18. That’s covered by Sickels v. Shinseki. There’s a presumption of regularity that VA doctors know what they’re doing and if they say the Bobmeister’s legs are toast, then they are.  Once they uttered LOU, it became so. §3.104 guarantees it. But, by the same token, when they said a&a, it, too, became a finding of fact. And a conclusion of law. If, on appeal, the Board finds Fort Whacko took away Bob’s LOU of the lower extremities illegally, by operation of law they have to restore it. If they do, he will then have the two Ls that catapult him up to SMC O and on to R1.

So we’ll be off on the Yellow Brick Road to DC again to go get Bob’s R1 shortly. I think this time, in consideration of Barry vs. McDonough, I’ll throw in a few more bumps under §3.350(f)(3) just for shits and grins until his R1 kicks in. Who among us knew that if you keep throwing claims at them, they eventually hit that brain fart point where they don’t know whether to shit or go blind and start making those ‘yellow in front/brown in back’ errors?

I can’t make this shit up. It’s what $346.7 billion dollars buys (or doesn’t buy) in the way of VA justice. And that doesn’t count the $15 Billion dollar bounced check for the last part of the current fiscal year.

That’s my story and I’m sticking with it.