I loved that song by Vanilla Fudge. It sure describes VA law. I do so wish I had a better commo channel to Secretary Collins. I feel I could save the VA millions of dollars and speed up the claims process one hundred-fold. But this Blog is not a Santa Claus wish list for VA reform. It’s a weather report of what’s happening in real time to my clients, other clients of my good friends who share my vision of actually helping Vets and a seventeen-year ongoing report of purposeful VA delay and obfuscation. Yep. I started asknod in ’08. Time flies when you’re litigatin’.

I don’t bitch. I don’t complain. I don’t get mad. I get even. I win where others don’t- or can’t. I’m not sure why that is other than my proclivity to never give up. One complaint I hear from virtually every one of my Veterans is ” I gave up in ____ when I came home. I got my teeth kicked in and walked away. I’ve been to ___  VSOs and never got anywhere. After I managed to eek out a TDIU, I couldn’t interest an attorney to take my case for SMC. They all tell me I’m at 100% and there’s no money in it for them.” Sound familiar? That was me on trip #3 in 1994.

One thing in the new world of the Appeals Management and Improvement Act (AMA) of 2019 is what appears to be a big thrust into Artificial Intelligence (AI) to accomplish what should rightfully be a case-by-case investigation by a warm body. No two cases- nor two hundred or two thousand- will ever be alike. There simply is no template in existence which can accurately determine service connection for your disease/injury. Of course, every article written by AI also carries a disclaimer to the effect that you shouldn’t depend on this because AI is known to invent shit.

VA has taken to sending out for Acceptable Clinical Evidence (ACE) reviews of claims and purposefully asking for inane medical opinions which are a waste of time. How many times have I filed a claim for Aid and Attendance “due solely to PTSD” only to have VA send it out to VES/QTC/ Loyal Health and ask ” Is the Veteran’s need for a&a due to the combined synergistic effects of toxic exposure risk assessment to oil wells or other contaminants associated with his work environment or MOS? Please be sure to state you reviewed the entire claims file.”

The answer, as expected, is always a ‘no’. Burning human waste does not cause the need for a&a. $750 dollars spent on a FNP-BC to state the obvious. Bingo. Denied. If you’d like to disagree, please feel free to file a 996 HLR and wait 5 months for a phone call conference (informal) and another month for a new rating decisions saying “Hmm. You’re right, We see a duty to assist error and we’re going to send this out for another ACE A&A opinion.” Three months later, you get a shiny new denial based on the fact that you don’t qualify for it because… you do not qualify for it.

One of their latest ploys is simply to deny you based on what appears to be the ‘Thursday rule’- you weren’t born on a Thursday. They don’t send you out for an exam. They do not complete a VAF 21-2680 with you there at the c&p in person. Your denial simply says “A review of your files show you do not qualify for a&a.”

Or the newest one yet- “Please submit a VAF 21-2680 signed by your personal care physician or an RN after their name saying you need a&a. If we do not hear back from you in 60 days, we will be forced to close out your claim.” You go to your VA doctor and ask him to fill it out and he says “No way, dude. We’re forbidden to do that.” Problem solved, right?

I could go on but you get the idea. Here’s a classic example. Kenny has been denied more times than he can count on one hand for a&a. The reasons he didn’t qualify are a moving target. Most times, as here, VA simply says he missed it by thaaaaat much. But what, exactly, is ‘that’? It reminds me of “It all depends on what the meaning of “is” is.

VA errs when they fail to comply with §3.103(f)(5) and tell him what he does need- not what he doesn’t have that he needs. You’ll see this technique most of the time. The opposite conundrum is the “Favorable Findings” at the end of your denial saying “Dude, you like totally require a&a so you got that going for you.”

a&a brief redacted

The BVA granted because, well, Kenny is entitled to a&a. Nobody can deny that. But the Board doesn’t even discuss the illegality of the previous denials. They don’t acknowledge he’s been screwed since 2016. They don’t point out the only SMC rating requiring a true 100% is SMC S. They tell him the evidence is “in equipoise” as to whether he qualifies or not. Nine years wasted pursuing a chimera. It’s not that I have a silver tongue. It sure isn’t my good looks or my winning track record. All I asked for was that the Board give Kenny what he is due. And they did. Merry Christmas Kenny. Any comment as to why they screwed him for nine years? Crickets.

SMC A&A for Christmas_Redacted

Amazing, isn’t it? Nine years of denial and refusal to admit Kenny needed a&a was fixed in 8 short months with an 18-page, long-winded diatribe by a former Backseater FAC who graduated 59th in a class of 64. I’m not going to divulge the name of the attorney before me who had this for three years and accomplished zilch. He works for a well-known firm and has a killer reputation for winning tinnitus and hemorrhoids claims. You’d easily recognize his name.

As I’m fond of saying in my briefs, “But that is not the end of the matter”, check this one out. I’ve been working this in the same manner for a few years. I collect all my denials below at the Fort Fumble like a good little ignorant slut and go to the Board. Since them yahoos get about $131,700.00 (FNG) up to $183,400.00 (Senior SES) per year and have an actual Juris Doctorate (JD) from a name brand law school, you’d expect them to be proficient in the law. If they somehow aren’t well-versed, they still have about ten staff attorneys with JDs who are supposed to cover up their Judge’s ignorance with the latest updates on “how to” guidance issued by the CAVC.

Imagine my surprise when I got to the Board and VLJ John J. Crowley steps on his necktie, totally ignores Amy Odom’s masterful year-old Laska vs. McDonough precedence and denies Jimbo his SMC T because (wait for it)… he doesn’t qualify for SMC R 2. Once again, justice is thwarted and it’s off to the CAVC to beg for sanity. I guess I wouldn’t be so upset if Judge Crowley was an FNG but he’s a former USAF JAG. I’ve done a few rodeos with him in the past and he’s generally on point. How this one ended up going south beats me.  Here’s his Bio and Jimbo’s SMC T denial:

John Crowley

SMC T denied_Redacted

The truth is often stranger than fiction. The actual number of Veterans Law Judges (VLJs) at the BVA who are well-versed in SMC are an unknown. One thing for sure is that they’re rarer than hens’ teeth. They all talk a good spiel but the truth is evident in their (and their staff attorneys’) decisions. By rights, if you ask for loss of use of the lower extremities, they are supposed to grant (or deny) under §3.350(b)(1). I just got one back where they decided my Veteran was entitled not to loss of use bilaterally but to aid and attendance for his loss of use of his lower extremities under §3.350(b)(3). Go figure. How did dey do dat?

Merry Christmas

So, in my own inimitable way, I gave the Board all four rounds of #00 SMC buckshot I had in my trusty sawed off Remington Model 12- loss of use of the bilateral upper extremities, loss of use of the bilateral lower extremities, A&A due solely to Chronic Kidney disease (CKD) and A&A due solely to Multiple Sclerosis. Take your pick, bubba. Since Roger already had an a&a for his heart, this was a turkey shoot. One more L for any of the above listed SMC requests would automatically bump him up to O and from there to R1  lickityspit. This is  Kindergarten SMC 101 under §3.350(e)(1)(ii). Breniser v. Shinseki has been around since 2011.

2nd L for R1 _Redacted

BVA Veterans Rocket Scientist (VRS) Dustin L. Ware managed to stumble through what I was asking for but only came up with the SMC O. In all my thousands of trips to the BVA, every last VLJ has completed the project and awarded the kicker up to R 1- well, every one up to now but VRS Ware. Is it something in the water in DC? Is it gross ignorance at their staff attorney level? Are they smoking that high-test Mantanuska Thunderf*ck? Don’t they occasionally wander over next door to, say, Jedi Master Jonathon Hager’s office and  ask “Does this sound right to you, Jon?” If not, why not? Jez, no quality control at the BVA?

Now granted, the SMC Calculator has been broken since they inaugurated the new AMA in ’19. The VAOIG has already spilled the beans on that. But the same VAOIG explained the old Legacy SMC Calculator was, and still is, viable and works like a charm. The truth is simple. SMC hasn’t changed since it was created by Congress in 1946. You read that right. The problem is VA suddenly began reading it in an adversarial manner beginning in ’19. Funny thing is that was about the time I began filing SMC Ls and Rs in mass quantities. They had to purposefully set out to reconstruct it in the M 21 to say something entirely different than what it’s said for seventy three years.

Someone authorizes these SMC fig newtons of the imagination-but who? Remember that they told ol’ Roger he only gets one a&a so asking for another was a Bozo No-No? Someone also had to invent an M 21 cite that said you “generally” have to have a 100% rating for Parkinson’s or IHD in order to qualify for a&a. Not to actually win the SMC A&A, mind you, but just to qualify and get in line. So who’s in charge of writing the M 21? Inquiring minds wish to know.

In other words, someone in authority has to be making these pronouncements and their supervisors have to second the decision with an additional signature. If it goes over a buck and a quarter, it takes three signatures- one of which has to be at least the AVSCM. That kinda implicates a lot of supervisors, coaches, Veterans Service Center Managers (VSCMs) and Assistant Veterans Service Center Managers (AVSCMs) in an obvious coverup. As for the Quality Control Senior RVSRs, SMC errors speak volumes to their ignorance as well-or purposeful collusion in the error. We’ll discuss the mental paralysis above the neck of Quality Control folks on Barry bumps another day.

LS 15 Ban Ban July 1970

As I said at the beginning, I wish I could convey some of this accumulated knowledge harvested over the last 36 years to our new Secretary. He’s tasked with an ugly job of trying to accomplish more with less each succeeding day. I get that. Every day we read headlines telling us of VA orgies at VAMCs in Tennessee and disenfranchising homeless Veterans at the West LA  campus in order to accommodate a parking lot for a private school (Brentwood), the UCLA baseball diamond(s) and space to store all those Hertz Rental Cars. https://taskandpurpose.com/military-life/west-la-va-housing-veterans-appeals-court/

Let us all hope for a better New Year in 2026 and a SMC epiphany at the VA and BVA. And that’s all I’m gonna say about that.

  Adult VA humor: