“I’ve been reading a lot of Asknod and some of his trainees work he is more than solid has been working SMC for years his cases are very interesting and you get some Vietnam stories in the mix.”

The conversation link above is dominated by several of the Grand Poohbahs of VA law. One is an absolute hoot. As an aside, VBN booted me out long ago when I began publishing BVA decisions on asknod that contradicted all that wonderful advice they were offering over there. Grand Poohbah (GP) Cruiser even went so far as to correctly announce there is no rule forbidding two aid and attendance ratings but then promptly contradicted himself to say it cannot be done. A Veteran has a better chance of winning the Powerball Lotto than getting two a&a awards?

“To my knowledge (and I did do this at VA for 30 years so I think I’m on solid ground) there is no law or regulation that specifically says that two awards of aid and attendance cannot be granted based on separate disabilities, each requiring aid and attendance on it’s [sic] (their) own.  This has always been VA’s interpretation and VA decision makers (be they raters, DROs, or BVA Judges) are required to rule accordingly.”

Since I’ve done this (double a&a ratings) about 300 times, I’m wondering if GP Cruiser spent his thirty years at the VA mopping their floors. But not to be outdone, he (she?) doubled down and stated you would have to appeal to the CAVC or the Fed. Circus to attain this rating…

“The only way you will get this is to appeal a BVA decision denying you the second aid and attendance award to the Court of Appeals for Veterans Claims and get a Judge to overrule VA’s interpretation, either there or in a Federal Circuit Court of Appeals.  In other words you will only get this from a court outside of VA.  I haven’t looked to see if there has already been a court ruling on this.  I’ll let someone else do that.”

That’s okay. I looked it up for you, sir. It’s called Breniser versus Shinseki and it happened way back in 2011. It put the quandary he discusses to bed once and for all. I guess what scares me is that Veterans Advocates’ websites can publish this tripe with a straight face.

Lastly, on the VBN site, I notice they’re busy selling everything from cars to … wait for it… cheap Viagra. Jez- False VA law and Viagra? But I digress.

I see Hadit.com has reverted back to an ad-free venue again. In spite of the change, it would appear they’re having a hard time keeping the lights on. They have an active section devoted just to seeking donations. Again, what do they do with all this money?

$250 Dollars per year for a Patron’s Badge.

I know for a fact that I got Hadit’s owner (Theresa) SMC at the L rate for a&a back in 2018 or 19. Using the VA’s SMC calculator, we know a single Vet gets $4900.83 a month for a&a. Add in a SSA payment of at least the minimum at $1000/mo. and you’d think she would have no problem floating the Hadit boat. Go figure.

The next subject of interest this week is all the panicans going apeshit at the prospect of VA reinterpreting how §4.10 should be interpreted. To sum it up in a nutshell, this was a nonstarter. The whole thing existed on paper for 40 hours before being rescinded. Yet every guy with an ascot or a Santa Claus-sized beard is writing articles or Utubeing about how the sky is falling. Worse, even after Secretary Collins called off the dogs and pissed on the fire, the major news outlets (Stars and Stripes, Military Times etc.) were still crying in their beer about how many Veterans would be made homeless or die if this comes to pass.

Being the perennial Devil’s Advocate, let’s disassemble this and put it in perspective. Let’s say just for shits and grins that ol’ Secretary Doug did implement this for the sake of argument. The very first thing would be that if you were rated before this came into existence, VA could never use the new code interpretation to reduce your existing rating.

Another facet of the existing precedence, established back in 2012 in Jones v. Shinseki said that if the diagnostic code mentions the ameliorating effects of a medication, then you can rate on the medicated state of the Vet. Put more simply, if you had eczema and you used some kind of corticosteroid cream to help you reduce the rash or itch, then the improvement would be what you rate on. Look at Diabetes Mellitus II. Same thing. If you have it and need no medication, you get 10%. If you use metformin of glipizide, you get 20. If you have to regulate you activities and require a supervised diet then 40. And so on.

Take cancer. You get a temporary 100 for the active period when using chemo or radiation therapy. Afterwards, if it goes into remission, they rate on the residuals. So after they fry your prostate gland into charcoal and kill the cancer, they reduce you and rate on the residuals of how many Depends© undergarments you go through in a day.

I suspect the fear of most Veterans is if they are getting 50% for OSA and using a CPAP, they worry about getting reduced. Or with Bent Brain Syndrome, they’ll get a haircut based on the new and improved version of themselves on Paxil®. I get their concern. But, being the Devil’s advocate here, let me explore this.

So let’s say you’re at 70% for bugf**kyitis in a medicated state. You can still go to work as a Po-liceman and kill people but don’t need any accommodations for your disease. With the new ruling, VA is going to look at the medicated you instead of an unmedicated you. If you didn’t eat your Seroquel daily with a side of  trazadone and supersized with a hit or two of 10mg Valium, you might be a basket case. But you aren’t! The drugs make you a productive member of society.

So VA is saying why give you 70% for the bent brain when they can lubricate your brain and make you functional? Seems to me the 70% or 100% rating for a Vet’s mental problems should be reserved for the guys that medication can’t even fix. One of my Vets was getting hosed with 600 mg of Thorazine three times a day back in the 90’s and it didn’t even faze him. He was certifiable then and still is.

The biggest obstacle to instituting the new rule was trying to avoid the 90 day comment period. Well, that and the that pesky Jones v. Shinseki rule recently reinforced by the New Ingram v. Collins decision at the Fed Circus. That’s what put the fear of god in them. But, just like a bullet, you can’t call Ingram back and put it back in the gun chamber. Short of Congress remodeling the regulations, Secretary Doug’s hands are tied.

I have no doubt we’re going to be revisiting this abortion at some time in the future but I don’t waste my time theorizing on all the possible what-ifs. Think back, Remember when all the Big Six VSOs were shitting their britches and saying Congress was going to do away with TDIU? I noticed §4.16 is still on the books this morning.

This Chicken Little crap about the sky is falling is beginning to become a bit much. Let’s all calm down and worry about our health-not how much we’re going to get paid for the lack of it. Truth be told, I’d turn in my SMC S tomorrow morning if I could eat some magic pill that would give me back my health. I just can’t conceive of this argument I hear that Veterans are going to have to forego their Eliquis and Entresto in order to keep their 100% rating for Ischemic Heart Disease. VFW’s bigwigs say you’d rather keel over with a bodacious Myocardial Infarction supersized with a stroke that reduces you to a vegetable in order to keep the bucks? I just don’t buy it.