In the news, we’re constantly bombarded by articles about the passing of the last Pearl Harbor Survivor, the last guy who came ashore at Omaha, the last Navajo Code Talker and more. Don’t get me wrong. I revere every one of those Veterans but it raises another question. One of these days, you’ll be reading about the last Viet Nam survivor. At the rate Viet Nam Veterans are auguring in, you might expect we’ll be extinct in short order. Shucks. I’m turning 75 this year and I was a latecomer. I didn’t get to the party until six years after the shit hit the fan. Two if you count from Tet ’68. Guys my age are keeling over left and right. I know because I represent them.

Fortunately,  I’m not that bad off yet. I was able to help this poor gal Cheryl at the tail end of her and her husband Don’s VA odyssey. It’s one of the worst cases of VA “I don’t give a shit” ism I think I’ve ever run across. Don was a Marine and all that goes with it. Gung Ho takes on a whole new meaning in the world of crayons. He had a Purple Heart. That’s a mighty exclusive club made up of folks who suffered lead poisoning. When we signed the POA, Don was bedridden and at SMC S. With cancer times 2. And ALS. This was pretty much his last rodeo and we all knew it was a race for the win.

Cheryl came to me with a very sad tale of Don getting rejected for SC for ALS over and over. Now, a lot of Vets don’t realize that if you come down with this disease at any time after service, it’s an automatic 100%. §3.318. In spite of my filings for this- even with an IMO, VA dug in and began the fight all over. Not even a c&p exam. Just a flat out hard “What part of ‘no’ don’t you get, hoss?”

Check this out. VA kept denying Don on the ALS with a bunch of bogus no’s.

1) You didn’t have it in service or within a year of separation.

2) It isn’t on the list of Agent Orange shit.

3) No studies have ever said it’s caused by Agent O.

4) You don’t actually have a true dx of ALS-just a variant that we here at VA don’t recognize as the real McCoy.

5) 38 USC §1168(a)(2)(B) gives us the right to deny you a c&p. So piss off and be quick about it. redact RD 7.23.24

I think most Veterans (and their VSOs) fail to recognize that VA uses this technique of citing all the inapplicable laws to deny while studiously ignoring the regulation(s) that support your claim. The inevitable result is you give up because what the hey? VA knows the laws and they would grant if they could.

Fortunately, the Board  didn’t have its head hidden from the sunshine and wasn’t using its belly for a porthole… this time. Redact BVA ALS win 1.30.2025 . But the parade of “no’s” continued far past his death. VA plumb refused to piss on the fire and call in the dogs. This win for Cheryl firmly incorporates the holding in Akles and Bradley that the date of claim has nothing to do with the date entitlement arose when adjudicating SMC.

Don unfortunately passed away back in November 2024. The BVA decision on the ALS and a&a didn’t even pay Cheryl for the cost of his wake and incidentals. This is why I continued to fight this to the end. If the Board had gotten it wrong, I would have taken it up to the Court. This level of SMC ignorance at the local yokel level is becoming more and more prominent with the advent of Artificial Intelligence.

You can almost imagine some denial-challenged RVSR or Coach sitting in his 6X6 cubicle Kingdom in that two-story architectural abortion(the Houston VARO) being admonished to “find a way, Jose. We just can’t let this double a&a get through or Vets are going to be storming the gates at our Fort Fumbles across the fruited plains.”  Jose goes back to the drawing board and delves into ChatGPS™ or some other AI vehicle.  Because it’s eager to please, it promptly manufactures some fictitious Fed. Circus holding saying “Sorry, Don. One a&a to a customer no matter how many 100%s you have. It’s been that way since the War of 1812.” See how easy that was and it didn’t even require using the M 21.

So it was with great pleasure to realize a BVA Veterans Law Judge actually read my brief in its entirety and came to the same legal conclusions as I did. One thing I should stress in my writings is that you should not condemn VA folks for asking their AI machine to tell them what to do in any given claims consideration. It’s data base is a closed system and only relies on the M 21. Sadly, like an analog clock that needs winding, the M 21 gets it right at least twice a day.

Within the greater world of AI, searches via multiple platforms access tons of data that may be helpful as long as the platform isn’t geared to act like a Labrador retriever bringing the ball back to you. I know my Pickles sometimes stops to pee or poop while retrieving. When that happens, she hyperspazes out and sometimes just grabs an “apple ball” from under one of our trees or pulls one off a low-hanging branch. Retrieving the mail up to the house is an entirely different proposition. She’d pee in her pants before she relinquished a letter.

Until the advent of the AMA, the BVA used the Purple Book as a guide on how to resolve unique points of law. It not only summarized CAVC, CAFC and SC stuff but also dictated the decision outcome based on BVA’s very own past holdings. Notably, it expressly adhered to the Overton v. Wilkie theory that they were not beholden to the M21. Good thing, too or we’d have even more wild and crazy decisions than we do now.

The peach can solution to infeed jamming on a Pig

In its place, the BVA published the Operations Manual in 4/2020 to replace it. Same book. Somewhat updated data and rules to incorporate the AMA. Different color of the cover.  However, stare decisis is a many splendored thing. It means that, in the absence of any new Federal or Congressional revisions, VA is required to stand by the dictates of prior statute and regulation. We’re hoping that one day, VA will absorb that concept at the Agency level and develop a uniform way of adjudicating a claim the exact same way every time.

Here’s Cheryl’s new nest egg for her sunset years. I haven’t added it up but 9 years of SMC L for a&a back to 2015 is some serious folding money. The R2 grant was only effective for the eight months preceding Don’s death but it, too, will add an exclamation point to the settlement’s moral vindication. We don’t expect an apology or a host of mea culpas. As long as VA clings to their misguided Manual, we VA litigators are eternally condemned to toil alongside Sisyphus and keep pushing the rock of law back up the hill of Justice.

Personally, that’s something I’m honored to be allowed to do for my fellow Veterans.

redact 10182 a&a filed 2.28.2025

redact L & R2

P.S. The title of this blog for all you FNGs to life is a hit song from the Dave Clark Five from the mid-sixties.