UTUBE©– POKING THE BEAR 101

One of the most absolutely hilarious VA old wives’ tales is the perennial “don’t rock the boat” speech given to aspiring disabled Veterans by countless VSOs over the years. I got one from my first protracted foray into VA benefits in 1989. I tried in spring 1974 but couldn’t stomach the way they were treating us post-Vietnam folks at West LA VAMC. I walked away for fifteen years- as was intended by their rudeness and indifference.

Anyway, after my big victory of 0% for Tinnitus and 0% for hearing loss in left ear only, I was eager to follow this Yellow Brick Road to Bucks Boulevard and get VA Disability. I returned to the DAV office a week after getting the BVA decision and asked when a good time was to schedule an appointment to go over the next attack. My minder Derrick’s eyebrow’s just about sailed outta sight right over the back side of his hair-challenged noggin. He stretched out the word “Whoa” for about 3 full seconds followed by “there, sonny.”

And I was given the “briefing” about how you lay low after you get that service connected tinnitus and hearing and sit tight. The normal schedule was to just cool it for at least three or four years and act nonchalant. Whistle as you walk past the graveyard shit. Then, and only then do you ask for an increase for your hearing issues- through DAV, of course. The reason was simple. VA might get this misguided belief that you were being greedy or even faking it to get their money. VA was well-known for coming after Veterans and taking away their benefits for cheating and faking their hearing tests or bad backs. That’s why you needed a reputable, well-respected firm like DAV because VA trusts them.

It took a while for that speech to wear off. About fifteen years or so. The speech wears off when your disabilities start piling up and hearing loss is about the absolute bottom of the problem list. I fell prey to a succession of AmVets and MOPH VSOs who included the same speech about the dangers of bear-poking. Thirty years later it still appears to almost be an article of faith among Veterans over at the FacePlace© group Vietnam Veterans-The Best of the Baby Boomers. One of the Admin guys is on a feeding tube and barely survived his latest battle with cancer. I pointed out to him that he should be at R2 and Tier II Caregiver PCAFC. Then the comments began.

He was really interested but afraid it might endanger his TDIU. He was advised by others to wait ten years to get it “protected” before he filed for anything. I find it’s best not to antagonize folks like this with the truth. They believe in Chemtrails and cameras mounted in the door of your refrigerator that transmit every word you say to the Black helicopters you see flying around in your neighborhood. I reckon even Jesus had to concede at some point He wasn’t gonna get everybody on board with that Water to Wine trick.

But, for those of you who don’t believe everything you hear in Social Media, the truth is vastly different. I’d already learned of the Special Monthly Compensation (SMC) benefits available to the very severely disabled by 2008 and decided to see how far I could push this bear crap. And boy howdy, did I poke the living shit out of VA trying. Turned out the bear story was a nothing burger.

In eight years, I wound up winning my earlier effective date for SMC S back to 1994, and with it a 20-year protected rating for not one but two 100% ratings. They didn’t reduce me to Private E1. They didn’t take away my benefits and put me in the Fort Leavenworth Home for Wayward Veterans. My wife and my dog didn’t leave me. USAA didn’t come and repo my Dodge Power Wagon. Doomsday came and went. My kid went on to college on VA’s DEA nickel and VA didn’t come back and ask for the tuition later.

A friend recently sent me a link to a U-tube© video of some city slicker with an ascot or turtleneck all decked out to the nines teaching us the dangers of “Poking The Bear.” Had to look it up. Mr. Jordan Anderson is the Sherpa. I won’t badmouth him. Everyone’s gotta have a Schtick. He means well. Commando Kraig is another who preaches this same Bear Harassment hooey. The only flaw I can see in their thinking is they’re using too small a sampling of VA claims. Did VA ever come after them for bear-poking their own claims?

Think about this logically. Neither Anderson nor the Kraigmeister are VA-accredited. This is not to imply they are claims sharks. They may skate pretty close to the thin ice of §14.628 -36 but that isn’t my department. I’m pretty sure the new Administration is going to plug the eternal mystery of what constitutes breaking the representation rule soon. But back to the Dynamic Duo above.

Logically, by operation of law, each of these gentlemen has really only done one claim apiece- their own. So, by extension, only they, individually, have seen, litigated and won one big adventure apiece. VA considers that you really only have one claim. The claim may exhibit different facets at different times like Parkinson’s and DM II with a side of pes planus. Nevertheless, it’s still one claim with a varying level of financial remuneration. In VA’s mind, it’s dynamic and subject to change up or down. Mostly down if they can find a way, too.

I’ve read on Reddit™ about VA raters opining on all manner of VA law. Again, in reality, what have they litigated? They used a flawed device call the M 21 1MR (Manual Rewrite) that has to update every month to try to stay abreast of current VA law. What we do know is 75% of all VA decisions have a remandable error of some sort at the CAVC. If you let a computer make your decisions, it cannot be said you have litigated it- right or wrong. What can be said is you, as a VA rater, input a lot of data about Vets and the computer invariably comes up with the wrong conclusion. With luck, it’ll get sorted at the BVA on appeal if litigated by knowledgeable representatives.

Put another way, if VA’s work was flawless and truly computer driven with high-quality AI intelligence, we litigators would become an anomaly. Demand for us would dry up and we’d all have to seek work selling used cars. Above many a library in Rome was Seneca’s immortal phrase Experiencia Docet. Experience teaches. While I’m sure all the Sherpas teaching us VA law on Utube® are convinced they are the cat’s pajamas of VA law in this game, I’d beg to differ. Doing a claim for Multiple Sclerosis for a Vietnam Vet would appear to be a fool’s errand to a VSO. Why? Because MS isn’t on the list of AO diseases in §3.309(e). So what? Get an IMO. But what about one for a brain glioblastoma due to Camp Lejeune contaminated water? How about the impossibly high legal standard for SMC T? If your claim to fame is that you won yourself a 70% for a MDD/PTSD, I don’t think that makes you proficient in the art of doing TBI claims.

VA law is crazy. Where else can you get a do over (CUE)? Where can you get a guaranteed bill of good health that can’t be disputed later (Presumption of Soundness)? Where can you prevail in a Federal Court of Law based on the evidence being in equipoise (benefit of the doubt)? In spite of the deck being stacked in our favor, Veterans lose their claims and appeals at a horrendous rate due to litigation ignorance. Why is that? Too many Vets poking the bear? Nope. Not enough experienced litigators and a dearth of good knowledge.

That ignorance sword cuts both ways. I’ve had innumerable VSOs call me a liar insisting 100% or TDIU is the end of the road. They deny the existence of SMC. When I ask what they call SMC K and S, they categorize them as ancillary benefits like Specially Adapted Housing (SHA) or an automobile grant. Some even categorize SMC S Housebound as aid and attendance “light”.

By the same token, I’ve had bigwig lawdogs at brand name law firms tell clients to ignore my SMC Blog babble as wishful Rainbow/Unicorn thinking because I have no legal training. About the only thing you can say with great accuracy about lawdogs is they don’t preach that bullshit about bear baiting. Think about all I’ve discussed today. Wouldn’t it be a piss poor business model for us litigators if all we told our client is we don’t think it’s a good idea to file for their 100% lung cancer just yet- right after we win their claim for a bum knee for 30%?

So, Veterans. Ask yourself why VA Agents and Attorneys are so successful at poking the VA bear and winning their clients TDIUs, 100% cancer shit and Permanent and Total? Why is that? Even stranger in this discussion is who’s paying Jordan and Kraig to shout “Don’t Poke the Bear” from the Utube rooftops and to never file claims for SMC benefits after they win P&T? Perhaps more à propos as an admonition would be Nothing Ventured. Nothing Gained.