I wanted to write an article on Friday Sept. 11 but to me, the day shouldn’t involve dragging in Veterans’ trials and tribulations. That’s a day reserved for America’s civilian heroes. Hence, my purposeful two-day delay before writing this. Well, that and a few Cupcake Honey do’s. I should mention I got in 6,970 steps on my new Dick Tracy 2-way wristwatch (3.03 miles) doing the chores. Deb has me wearing an Apple watch now. Cool beans. I’ll get to see when I’m having AFIB in real time. Now that’s something every Veteran needs to know.

But today let’s talk about my favorite bitch. And no, I’m not implying VA identifies as a feminine gender to all those Karens  out there just waiting to pounce.  Since my practice focuses solely on SMC, it entails always being on the lookout for mission creep. As the title implies, I think VA is now pulling 9 to 5 days on Sundays chasing anything they can to save money instead of just adjudicating claims.

Mission creep was a term coined during my War. Congress, Fort Five Sides and PACAF HQ were always trying to get their two cents in about whether we should do something about Development X, what it would look like to Walter Cronkite, Chet Huntley and the American Public and what really should be done when the press isn’t looking. By that time we’d usually blown it up or naped it while waiting for guidance from above. In the military’s view, everything is spelled out. If it doesn’t say “Don’t”, then that, to me was an implicit affirmation that it’s permissible. So, you took what was proffered you, ran it by the Air Force Manual and that’s what came out as the FRAG order back in 1970. Our “field version” wasn’t always what the FRAG order said… or Congress and PACAF envisioned.

VA employs the same general attitude here. They carefully read Congress’ SMC statute, noted where the ‘and’s and the ‘or’s were, discerned the single or plural state, and narrowly tortured a whole new meaning out of something that was decided as long ago as 1946. I get it. I certainly am not going to claim sole credit for starting a stampede to the SMC feeding trough. But I will say I’ve been discussing the ins and outs of SMC and all the possible how to’s here at asknod.com since 2008 when I began my own battle for it.

Over the last twenty months- i.e., January 2025- it appears as though there was a serious backroom, unrecorded discussion downtown at 810 Vermin Ave. near the corner of Delay Ave. and Deny Street NW about the financial hole all my fellow SMC Jedi Knights and I are creating in the VA fisc. If it’s serious enough to resort to violating stare decisis, then it must be giving them heartburn. Even worse, when Congress opened up the floodgates with the PACT Act, poof. There went all them performance bonuses for actually coming in to work after COVID. They’ve even had to start a new Freedom 250 Lottery with paid time off this year for denying a minimum of 8 Vets in one day.

I don’t mean to create consternation and pop 4 Deuce illumination rounds about this but it’s more than just SMC. Tinnitus, and more recently, OSA w/ CPAP use, are just VA’s version of  Mardi Gras beads on Fat Tuesday Night. They always have been. Statistically, you’ll find more Vets rated at 10% for tinnitus and 0% for hearing loss over the next-closest disability (musculoskeletal injuries). Check them out. How many of you are sporting 10% bilaterally for lower extremity radiculopathy to go with your (yep) 10% for your IVDS from jumping out of perfectly good, aerodynamically capable C 130s. It’s the woke version of “Everybody gets a trophy for participation” updated from the older  1960s-70s version of the “Zeros for Heroes Program” when we came home from Vietnam. They gave us chump change and then suggested they might take it back if we complained. Sound familiar?

The military considered us as mindless pack animals. No Deposit. No Return. 10% for Tinnitus was a bargain at twice the price when they realized our combat-issue hearing protection was bilateral index fingers or Marlboro Red cigarette filters. Only now are we discovering even VA doctors are conceding that just standing next to a 105 or a 155 during the launch procedure constitutes TBI. Now think back on all those weeks and months at LZ Bronco in ’69 when you had to get up in the middle of the night for H&I fire missions.

Likewise, fifty years later in the Sandbox, you got run ragged with 4 hours of sleep if you were lucky. Everyone snored out of pure exhaustion and their ripsnorting brand new cases of PTSD and TBI. Again, the military (and VA) thought 50% for using a CPAP mask was a real bargain if they could skate on the 100% for the bent brain w/ TBI. Or a 10% side of sinusitis/rhinitis… supersized with tinnitus, of course. But all of that somehow magically never added up to quite what was needed to get to a TDIU. Funny how that works, huh? 50%+10%+10% = 60%. Missed TDIU by thaaaaaat much, Bro.

SMC–THE NEW REDUCTION GAME

And here we are talking about zeroing out, combining or significantly reducing these two disabilities (tinnitus and OSA) alone. How soon will it be that VA comes back to Congress hat-in-hand and says “Bummer dude. We can’t make this pencil out and still have Karaoke machines at our Christmas Parties. How about you guys let us monkey with Part 4 again and give a few more diseases or injuries a haircut?” Newsflash. That day is not some time in the future. That day is now. Here’s an example I wrote about that befell my friend Bob. This occurred back in Fall of ’24. So you see I’m not saying it may happen. It is happening. Bob’s up at the CAVC under #25-5399 right now.

But if that wasn’t enough to give you the heebie jeebies and start looking over your shoulder for the VA’s OIG secret police, mission creep is leading to what I suspect is an illegal use of artificial intelligence to support a totally new interpretation of 38 USC §1114(l) and 38 CFR §3.350(e) (1)(ii). VA might of gotten away with this if they hadn’t already let the cat out of the bag eighty years ago. It began after I bought Sue a killer IMO linking Bill’s anal carcinoma to his hepatitis C. We won at the BVA but it was a nothing burger. I though Sue deserved to get more than Mardi Gras beads.

Redact BVA Dec. 3.4.25 Win

Telling Pandora to get back in the box is more difficult that just one Veterans Law Judge being instructed to start denying double a&a SMC ratings. Which is what happened here. I got Sue her DIC for Bill and decided to go for about a three-month shot at SMC R2. Bill hated the VA more than me so I’m pretty sure he’s up there somewhere with two thumbs up. What I just cannot fathom is why Judge Velez would choose to die on this hill like Lt. Gen. (Brevet) Col. George Armstrong Custer over a measly 3 months of R2. That’s a paltry $33 K. It’s not like they’re being asked to pay it for the next 20 years.

redact BVA 2 a&a denial 7.29.26 CAVC

I have to stop and point out to the diehard Combat Craig fans who subscribe to that Flat Earth compost about “Don’t poke the Bear” that if ever there was a case of poking that deserved a bitchslap from VA, mine would qualify. But then it’s hard to reduce a feller when he’s six feet down in a hole. You’ll also note that Judge Velez’ law clerks stated I was an attorney and held me to a much higher legal standard of review than they would a VSO- or a VA agent in my case. That alone is enough for a vacate and remand at the Court- but we SMC Jedi Knights want to make sure the Court nips this ‘one a&a to a customer’ crap in the bud and reiterates Breniser’s holding of more than one a&a is established law.

Something else the good Judge screwed up was saying the arthralgias and loss of use of the extremities could be attributed to his hep C. But Bill was never diagnosed with loss of use. He was rated for a&a. He was mobile until the cancer (and the medications) showed up. If that isn’t a clear cut case of “but for the cancer, he’d still be walking among us”, I don’t know what is. And here, the benefit of the doubt has to accrue in Bill’s favor. If he was  bedridden before the cancer showed up, then he should have been rated for bedridden all these years instead of for a&a. As I like to say in my briefs, “The Secretary simply cannot have his bedridden SMC and eat it too”. In the immortal words of Judge Holdaway” An error either undebatably exists or there is no error within the meaning of §3.105(a).” (Russell- Sampson v. Derwinski (1992)).

To enjoy Bill and Sue’s amazing CAVC appeal, visit the CAVC site and look up Docket #26-7707. This should be interesting on how the Court wishes to revisit Breniser, Bradley and Akles. We haven’t had any new cutting edge SMC litigation since Barry in ’24 and never an affirmation of the concept of two a&a ratings other than a passing similarity to Breniser. But as I often point out, there are rarely ever two identical cases in VA law. Here, the facts most closely mimic Breniser but his case dealt with the enigma of a non-service connected (NSC) need for a&a due to his cardiological issues versus Bill’s two separate and distinct 100%  SC ratings for his Hep C and the anal cancer.

VA law fascinates me, but then winning also fascinates me. And since the VA is wrong almost 75% of the time, my (and your) odds of winning in this poker game are phenomenal and much higher than Vegas. Sometimes I almost feel guilty funning these VA fellers and playing them along for years. I’m guessing they’d be pretty bummed out if I started sending them all copies of the wins they denied. Naw. I take it back. I don’t feel guilty at all. This is just Shakespearian well-refrigerated revenge served up at 34° Fahrenheit for VA funning me for 28 years about not being in Nam. Actually, it was 37 years but who’s counting? I won.