Have you all (pronounced y’all) ever run up against an immovable object? Have you ever decided to become an irresistible force? Welcome to asknod- Home of the Win or Die™ Team of Pickles ‘n me. Pickles, of course is my law dog. She loyally sat (lay) (slept) at my feet for these last six years while my Johnny Vet and I crossed swords with the VA. It was spirited at times and occasionally downright disheartening but we prevailed. Johnny’s into it twenty two years. Me? Shucks, I’m the FNG here. I didn’t get into it ‘officially’ until 2018. Grab a six pak and some pretzels. It’ll take you longer to read all the BVA decisions than it will to read my explanation.
So, here’s the deal in a very large nutshell. Johnny witnesses a nasty MVA on the autobahn near Darmstadt, Germany in ’91. He was unable to save some folks who burned up in their car. Fast forward to 2003. Johnny files for a bunch of stuff in late 2003 and early 2004…and then he went AWOL mentally. It wasn’t his fault. He had some mighty big demons chasing him and it led to some megaheavy duty self-medicating. Try as he might, he couldn’t get this mental monkey off his back.
One day in 2009, in one of his drying out spells, the “cure” took. He met the gal of his dreams and hornswoggled her into getting hitched. Hey, it gets better and yep, they’re still married and madly in love. Roger that. Married with children. The full meal deal. Johnny’d been reading my blog and gave me the history. Read Rios v. Mansfield and you’ll understand exactly what happened. While Johnny was out woolgathering and visiting mental exorcists from 2003-2009, he’d never gotten his denial. VA had mailed it to the wrong address-not once, but twice. So technically his claim had been open since back then. Better yet, it was all there in his c file in three-part harmony.
He called me up and asked me what I’d do in his shoes around 2013 when he finally won service connection for the bent brain. VA knew they’d stepped on their necktie in 2003-04 but said nothing about earlier effective dates. That’s why they threw that 100% P&T at him in hopes he’d get the vapors and never discover the Rios Repair Order. I spilled the beans and ghosted a legal battle plan for him. I was still fighting my own stuff, emerging from my VA-induced Dilaudid haze after 14 months in a VA hospital and hadn’t gotten my OGC wings yet. And he won.
BVA No. 1 2018 Presumption of regularity of the mail
Six years later, Johnny Vet knocks on the door and says “Mission accomplished”. Thank you and all the other attaboy shit. I took a gander at his code sheet and said …”What if?”. What if we went for the SMC S for all that other stuff he filed for in ’03? He was game so I contacted my wizards at Mednick Associates and asked them to work some of their old time IMO magic. So here’ the opening gambit Code sheet. You can see we had some work cut out for us.
You can grasp where we were headed. Johnny had a 30 for asthma, a 10 for the bum back and a 10 for his left ankle fracture. That’s 43%- a mite shy of 60, so Mednick had to do some heavy lifting. Lift they did right up until the mean folks at the local Fort Fumble decided to piss on our parade. This called for digging a bigger punji pit. Mednick did their best but the folks up in the Big House had figured out where we were headed and began a concerted effort to make sure that didn’t happen.
So it was back to the IMO drawing board. Once again, Mednick came through with an addendum to their first opus. I figured, foolishly, that this might be the sword with which to cut the Gordian Knot. Not. All we got was another 10% for Johnny’s ankle. That just brought us up to 49%- about 20% shy of what we needed. I opted for a new IMO and tried all over. Trust VA to do the BVA decision and entirely disremember to look at the new IMO evidence.
BVA No. 3 False Start- where’s the evidence
So, lottsa drawing board work and not much BVA Board work. Worse, the VLJ began poking around in the claims file in search of negative evidence to deny any possible future excursions in search of SMC S. Worse, perhaps, is having to relearn VA law in the new AMA world. In the legacy system, you fought under the auspices of AB vs. Brown- i.e., you sought the highest and best rating and the party wasn’t over until you said so or you hit a 100% schedular for that which you sought. In the new World Order of AMA, once the AOJ granted what you’d filed for at the end of the BVA bayonet, even if it was 10% for PTSD, it was a done deal. If you wanted more, it was back to work and a new supplemental claim to fix it. This is one of the primary reasons I think the AMA system is adversarial to Veterans.
BVA No. 4 back to the AOJ drawing board
As the reader can see, this was becoming a game of inches; a veritable ‘he said-she said’ argument if you will. Again, in the succeeding fight, VA clinicians began to pick apart his earlier c&p findings. As most doctors know, looking for soft tissue knee injuries via an x ray is a fool’s errand. Realistically, if you as a medical professional wish to actually visualize a musculoskeletal knee injury short of cutting it open to take a gander, it requires an MRI or good CT scan. VA won’t have any of that. They’re still in the dark ages, and besides, if they rely solely on x ray evidence, it cuts down on what they have to pay out. Et voila! A new grant of 10% but not the needed 20% for SMC S success. Thus, we had arrived at 54%- one percent less than the magic 55 to get the 60.
As you can imagine, this wasn’t going unnoticed at the local Puzzle Palace. My next foray to get that final 10% increase needed to prevail provoked the VA weenies to bring out their Big Guns. They brought in a denial expert named Lucas Bader, M.D.. From talking with other VA litigators, I discovered he has a nasty reputation and a proclivity to streeeeetch the facts to fit the argument. If all else fails, he denigrates your IMO doctors’ opinions and implies they were raised by wolves. All of a sudden, an established favorable finding of fact was called into question. Dr. (and I use that term loosely) Bader insisted a c&p done in 2012 showed the c&p was looking at the right (not service connected ) knee and not the left one. Further, he swore the evidence showed there was no meniscal tear. The only problem with that is a VLJ and, by extension, the VA Secretary himself, had already declared he was rated for a meniscal tear in 2021. In VA law, you can’t just keep rearranging the deck furniture on the S.S. Titanic to keep it dry. A favorable finding of fact is just that. The only way to 86 it would be to declare CUE.
So, off to the CAVC to get this sorted. By now, I was becoming very well acquainted with orthopedic minutiae. Truth be told, I hate it. I like to work SMC claims because it is a field few VA litigators understand and even fewer feel comfortable doing. Think of all the Veterans who have been screwed for lack of a good law dog to fight and win their SMC. I hired Amy Odom from CCK who is an extraordinary individual- and a great litigator. She came to CCK from the NVLSP years ago. Some may recall she was the one who recently prevailed in the Laska case at the Court correcting VA’s misinterpretation of SMC T. CAVC Justice Meg Bartley, if you recall, also came from that very same stable of fabled litigators. Amy’s argument at the Rule 33 conference won a Joint Motion for Partial Remand (JMPR) because VA’s rating criteria in 2003 was vastly different from that which they currently use. So…. back to the BVA to hand it back to the AOJ for a fresh horse and a new hangman’s noose. But, this time I went back for IMO number 3.5- the .5 being the addendum that occurred in between IMOs number 1 and 2.
BVA No. 6 coming back down from the CAVC
I attach my legal brief below to try to shine some light on just how perverse, discombobulated and contentious this claim/Appeal had become. VA’s hired gun c&p clinicians were going further and further afield impugning anything and everything ol’ Johnny had ever uttered in his defense and a lot that was warped into making him sound like a malingerer. Trying to convert the meniscal tear onto the right knee was the last straw for me. Hell, I would have spent every nickel I’ve ever made winning this one for my Veteran. In my honest opinion, I’d guess VA has squandered vast judicial resources and untold quantities of baksheesh attempting to defend the indefensible.
What can I say? Those Dos Equis beer commercials come to mind. I don’t always set out to obtain 3.5 IMOs for my clients in a spirited defense of their claims but I damn sure set out to win. Money has never been an object or an impediment. The fact is, I gave my Johnny a bye on reimbursing me for all those opinions. What the hey? Considering he has a passel of kids, he sure needs the money more than me. Moreover, when VA trots out some overbearing dick to start casting aspersions on a Veteran who has defended his country, it raises my hackles. I well remember the VA jackwad who baldly stated I’d never served in Vietnam in ’94. Crusaders in the Middle Ages used to shout “God sends the Right” as they charged into battle. I’m not terribly religious but I knew I was right. Check out this last BVA decision. Revenge is a dish best kept in the refrigerator for seven years.
Attached, and suitable for framing, is the code sheet I had hoped to see in 2018. My parting admonition to all Vets is Don’t get mad. Get even. I wish to thank my Johnny Vet for allowing me the great pleasure of bringing this to fruition. While perhaps not the longest-fought claim of mine nor the most lucrative, it’s certainly one of the most gratifying.
asknod
Bethanie Spangenberg
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robinhoodesqvetsatty
Wesley McCauley
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