Sometimes you just have to wonder if this VA compensation game is the luck of the draw. I’ve done hundreds of aid and attendance claims and one thing is as predictable as the sunrise-you simply can’t predict the outcome. I mean at the local Fort Fumble level- not the Board of Appeals.  For some reason, that part is the easiest. In all honesty, to me, SMC is like fishing with Dupont Spinners. 

For every SMC claim I’ve won locally, the Veteran was generally only months away from auguring in. VA generally reasons ‘What the hey? It’ll only cost us about an extra 5 Benjamins per month until he kicks and we’ll get some damn good PR from it. Ditto a speedy resolution on the DIC.’

Now to the interesting quirk here. VA insists (wrongly) that you ‘generally’ have to have a 100% rating, a TDIU or a single disease process that has a shit ton of residuals like Diabetes or Parkinson’s. This article is going to illustrate that premise is not the case on appeal. No sireee, bob.

Allow me to show you why. Read 38 USC §1114(l). Congress wrote this- not VA. VA tries to restrict the intent of Congress judging from how §3.350(b) is read. Here’s 1114(l):

L  –if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance,

VA would prefer you only have one disability that qualified but even then it still would not avail you. In case you hadn’t noticed, if you file for a&a, VA hands this out about as frequently as winning lotto tickets.  The plural using ‘disabilities’ above blows right through that ‘at least one rating at 100’ theory. But let’s go further.

Donna here has a bunch of shit wrong with her but Lyme Disease was the last straw. VA gave her a full 100% for it for three years. Then the ratings grinch showed up and began the reduction game. True, she was “healed” in the most general sense of the word, but the residuals were the lifetime nightmare. Grand mal and Petite mal seizures. Vertigo, Headaches that felt like the Ax murderer had snuck in and sunk a hatchet in her noggin 25 days of the month. Oh, and don’t forget the fibromyalgia and lottsa arthritic conditions in the extremities. In a nutshell, Donna was one hoooooot mess.

Donna finally came to me just as they were pulling the plug on the 100% that kept her in SMC S. With the reduction, she was headed back to TDIU. Add in she had a two-year old boy and a husband who was nothing but dead weight financially. So she did the South Pacific routine of ‘Wash that man right outta my hair” and moved back to North Carolina…without him. Now she’s singin’ ’bout how all of her exs live in Texas.

My patented attack technique has always been to attack when being attacked. Flank them. Fall back a hundred yards lickety spit, turn right, pop smoke and call in the airstrike. In Donna’s case, her Grand/Petite mal seizures were rated at 20%. Her headaches (HAs) were at 50%. There simply was no time to begin a claim for increase on them. She’d be homeless if it took that long. Besides, 50% for HAs is max. So I began thinking how ’bout an extraschedular for HAs? Never heard of it before. Why not? Since I’ve never been to law school, I didn’t learn the rules. Thus, I can be forgiven for going off the reservation every once and a while.

So, attack it was. What better way than to appeal the denial of a&a that came with the reduction? I’ll let you read the brief I filed. The extraschedular for the HAs fell flatter than a cheese soufflé in a daycare facility. The VLJ wasn’t having any part of that discussion. I reckon I won’t try that one again. Check it out. “These aren’t the droids you’re looking for. Move along. Grant the A&A.”

BVA 10182 filed USPS 9.24.2024_Redacted

Shucks.  I guess my Jedi mind tricks worked like a charm on the Grand/Petite mal strategy part of it. Reasonable minds can only concur that if the medical evidence of record says you’re having 5-20 of these ‘fall down and do the chicken’ episodes per month, you need a&a. Who in Sam Hill gives a rat’s ass if the raters are lowballing the shit out of the poor girl? As a VLJ, s/he can declare 1114(l) is for application and give her SMC L for her 20% as he sees fit.

BVA a&a grant 4.22.2025

I have a fellow law dog who swears by the M 21 and everything it espouses as God’s Written Truth. I prefer to use a mixture of 38 USC and 38 CFR to accomplish my tasks and supersize it with a heapin’ helpin’ of precedential cites. It’s the old military adage of “If it’s stupid and dumb but it works, then just exactly how stupid and dumb is it? You don’t have to build a Rube Goldberg perpetual motion claim to win what you seek. This is more of a Joe Friday enterprise like Badge 714- “Just the facts, ma’m. Just the facts.” Legal tomes tell you never to write a legal brief that exceeds six pages. Shoo, doggies. I sure have never been able to do that.

Nothing give me greater pleasure than doing this job. May the Force be with all of you as you do your claims. And if you just can’t muster up the Force, shoot me an email and we’ll see what we can rustle up for you. This isn’t rocket science but there most definitely is a science involved in how you attack.

Fifty years ago, we did this with Nape and CBUs. We’re far more civilized now and use keyboards but the same predicate still applies- Always arrive on target with three times more ordnance than you’ll ever hope to need-and don’t be afraid to expend it.