HLR–SMC T-ANOTHER PLEASANT VALLEY SUNDAY

Posted on January 4, 2024 by asknod

The Monkees might have been a “canned” musical ensemble but they put out some good music in my mind. Who cares who wrote it or how much filler and backup singers they had to infuse it with. The line in the above song  had the phrase “charcoal burning everywhere” in the bridge. One of the terms I use to describe what happens after a TBI is charcoal brain. Nothing works. It won’t even light. All those normal functions we take for granted are screwed up and life is infinitely harder. And that, ladies and gentlemen, is why they deserve SMC at the T rate. Their needs are far greater than yours or mine-by a magnitude of ten.

Did any of you ever see that drug commercial where the old boy holds up an egg and says “This is your brain.” Then he cracks the egg into the frying pan and says “This is your brain on drugs.” Well, multiply that. Think of TBI more like scrambled egg brain.

I don’t mean to come across as devoid of emotion or characterize charcoal brain as an insult either. If you’ve ever had your bell rung, you know full well what it feels like for a while-maybe forever- depending on the severity. An IED that reaches a 9 on the TBI Richter scale is some serious business. The longer you’re unconscious, the worse it’s going to be. It’s comparable to what happens to a NFL lineman after about 6 seasons all at once. You get fuzzy. You can’t remember your kids’ names. You sometimes get so dizzy you’d flunk the straight line test stone cold sober. You pull up to a stop sign and sit there waiting for it to turn green. That’s assuming you’re still foolish enough to be out driving and want to take your- and anyone else’s- lives into your hands.

As the title  of this article implies, I write to say that our Juju was good at Tony’s SMC T  Higher Level Review (HLR) informal conference last week. This is only the second one where  I’ve prevailed locally via an HLR. Most times, I have to go to the BVA and employ the carrot-and-stick technique and lead them to the obvious conclusion. Occam’s Razor doesn’t exist in VAland. At the VA, they’ll only believe in  SMC when they actually see  SMC.

I think I was blessed to draw Rebecca ________ as my Reviewer. She’s a DRO and was brutally honest in agreeing with me that on a scale of one to ten, SMC is right up there with brain surgery to VA raters. Most of these folks give you the dog-and-pony show approach and promise they’ll employ their electron microscopes and keep an open mind. On average, twenty eight minutes later the Rating Decision  pops up like a cork bobber on your fishing line. Sorry, Kimosabe but SMC isn’t in the cards for you today but thank you for your service.

I’m going to refrain from sharing all my SMC secrets from here on in for several reasons- the biggest one being I don’t want to keep tipping my poker hand to VA. Rebecca knew who I was- or had at least heard of me. Either that or she had spotted my name on a legal brief in the file with the asknod header at the top. In any case, I guess it isn’t a state secret I do a lot of SMC claims for the higher levels. I reckon I’d need more than a ghillie suit  to keep this all a secret.

If you don’t know how to win it, don’t expect VA to get all warm and fuzzy and explain what you need to achieve it. Every rating decision denying a higher SMC I’ve ever set eyes on merely said “Your current rating is confirmed and continued. Y’all come back now, hear?”  And, weirdly, by law, they know that under §3.103(f), there’s a punch list of things they need to explain to aid you in repairing your application for SMC T or R- or which ever SMC you’re fighting for. How is it they keep blowing us off on that regulation though?

I’m not sure if someone lit a fire under somebody’s ass somewhere to hurry up and crank out decisions RFN to make the stats look better in 2023, but my clients have all been on a tear. In just the last two weeks, a Vietnam Vet from LZ Cork won his BVA appeal for an L up to M rating back from early 2018 to the present, another Vietnam Vet with a CAR finally proved he’d been inside the 12-mile limit and got his DEA P&T back to early 2022, a surviving spouse got her DIC win in just over a year, my very good friend Terry, whom I also induced to become a VA Agent, got his R2 after an interminable seventeen-month delay, Allen got his SMC T up at the BVA, Tony just got his T last night and Harvey won his §3.156(c) claim back to 1989. Cool beans. My blind Vet Jim’s appeal just got the ‘signed by judge’ status from VLJ Osborne in Caseflow so that may metamorphose into another R1 tomorrow… or not.

Here’s Tony’s T in case any of you/they wish to see if he/she/they can glean any insights from it to win their claims. I publish these to show you winning SMC can be done but requires infinite patience. From start to finish, Tony’s win took slightly over a year from the day I pulled the POA.   Redact SMC T

I sure don’t want anyone to think this  SMC poker game is like falling off a log easy. It isn’t. Not by a long shot.  As for getting two SMC Ts in a week- now that is pretty heady stuff like scoring a hit with a .338 Win. Mag from a mile out. While claims for tinnitus or flat feet require you to follow a recipe like baking cookies, SMC resembles more of a pedantic chess game.  You have to react to your opponent’s every move accordingly. The wrong move can be fatal both legally and financially.

Congratulations Tony and Sheila. You’re now in a very small VA club. Thank you for letting me be your SMC Sherpa.

And that’s all I’m gonna say about that.

Posted in 3.156(c), Aid and Attendance, BvA Decisions, How to Qualify for VA SMC, R1/R2, SMC, Special Monthly Compensation, TBI, VA Agents, VA special monthly compensation, VA TBI, Veterans Law | Tagged , , , , , , , , , | 5 Comments

§3.156(c)–HARVEY’S DELOREAN TIME MACHINE

Posted on December 31, 2023 by asknod

Happy New Year’s Eve to you all. I’d like to extend my heartfelt joy to Karoni Forrester on the recovery of her father’s remains fifty one years after he was shot down over the DRV. She can now hold that funeral that was denied her as a child when he went missing on December 27, 1972. I only hope we’ll be able to bring them all home some day and retire the POW/MIA flag forever on that chapter of the Vietnam Boundary Dispute. That is a welcome remote footnote in history finally resolved. VA also just solved another enigma-albeit only 34 years old and belatedly granted my Veteran his due after quite the fight. Pop an IPA and kick back. This is a good one.

Harvey and his wife

Harvey was a young go-getter back in the day. He eagerly signed up in December of ’80 for what promised to be an exciting career in the Navy. Had he prevailed, he might have still been in when the 1991 shootin’ match began down in Iraq/Kuwait. But that wasn’t meant to be.

Harvey came to me from my website. He was homeless and living out of his van in East Bumfork South Dakota with his dog and attempting to fight VA over his Hepatitis C claim. I was appalled and promptly sent him $100 for dog food.  I finally steered him to an attorney down in San Diego who was able to help him get his TDIU. That’s a story for another day. What’s salient about this tale is that he’d been sent ashore to the US Naval Hospital in Yokosuka Japan for treatment after a load of heavy notebooks fell on him in heavy seas one night in ’85.

As they had no EMG gear to check his nerve impulses there, they sent him out to a Japanese hospital for the test. Bummer. The Japanese were skinflints and neglected to sterilize the needles they used for the conduction tests. And, just like a jetgun, he came down with Hep C which wouldn’t rear it’s ugly head for several more decades. The damage to his cervical vertebrae was ugly. He had a nasty C8 nerve root impingement that was causing him immense pain. All his Navy doctors freely acknowledged this and recommended a medical discharge. The Navy Administrative arm wasn’t feeling as generous and refused to grant it. After a year or so, they discharged him at the end of his current enlistment.

 Three years later, he filed for the neck issues after they failed to resolve. VA did grant for rheumatoid arthritis under DC 5002 at 40% but vociferously denied the 20% for the C8 nerve gig. They insisted there were no STR records to support it and they were quasi-correct. VA failed to associate his Yokosuka inpatient records with his claims file. Fast forward to 2010 and South Dakota’s Fort Fumble.

The immortal $1.19

By now, the Hep C was literally killing ol’ Harvey. After an extended fight to find the Yokosuka records, he convinced a DRO at the Sioux Falls Puzzle Palace to send out a 3101 query to Yokosuka in an attempt to win the hepatitis claim. He succeeded in that respect but didn’t quite realize the import of the introduction of those STRs in 2013. Whether or not his VA attorney did recognize the significance of the new records, she declined to file the claim under the authority of §3.156(c). Her loss has turned into my gain, I reckon.

After reading my blog for a few years, Harvey came back to me and asked me if I’d be interested in a fight to win this. By now, I was accredited and felt it was a travesty that he hadn’t been vindicated in 2013 by the introduction of the new records. To be truthful, fighting for a §3.156(c) win back that far was (and still is) as equally daunting legally as a fight for a CUE that far back. Not many VA litigators can be induced to pick up that flag and charge up the hill. It’s a labor of love.

Redact 10182 filed 6-14-2019

VA is fond of redirecting you down the wrong legal rabbit hole and Harvey got the  treatment I somewhat thought we would. VA attempted to misconstrue it as a CUE claim. Try as I might to turn the discussion and legal argument back to §3.156(c), VA continued to yell “No CUE”.  Finally, after exhausting all the venues below, I filed for an appeal to the Board. Being unable to foresee the impending backlog-to-be at the Board from the AMA and the Pandemic, I chose the hearing option to untangle this mess. If the chuckleheads in Sioux Falls couldn’t unravel it, I figured it was gonna take a heapin’ helping of word salad and a well-polished silver tongue to help a VLJ “see the light”.

Fast forward to June 16, 2023 and a Videoconference with VLJ David Robertson. For whatever reason, Harvey declined to do an in-person hearing at the Albuquerque Regional Office and so we did it remotely. It still worked out because of one important fact. When Harvey entered, some idiot mistyped his social security number into the system. They used 485 as the prefix instead of his real 484 one. He pointed this out early-on and the Navy gomers said “Roger that. We’ll get it sorted. In the meantime, report to Basic RFN, son.” Which he did. Six years later it still had not been corrected when he was unceremoniously shown the door.

Napalm. It’s what’s for Breakfast.

Harvey filed in ’89 in San Diego under the aforementioned wrong SSN prefix and VA granted under that number. What the hey? His DD 214 had the 485 on it.  When he filed to reopen for the hep up in South Dakota twenty one years later under the correct 484, VA became extremely discombobulated.  No one could find his records. Worse, they couldn’t for the life of them figure out how he was getting a 40% comp check for the last 22 years absent a c file to support it. Worser, from VA’s standpoint, since it was a protected rating under §3.951, they couldn’t just rescind it and send him on his way.

After a year or more of intense fighting and a belated recognition of the incorrect social security number, the records from Yokosuka arrived and he won. But there would be no talk of a retroactive date back to 1989. No sireee, Bob. Not yet. I began the battle six years later in April of 2019. As I mentioned above, VA went off on a tear and ignored the whole 156(c) argument. All they could surmise with their pointed little heads was that it had to be a CUE claim and promptly denied.

When this happens, you have a better chance of convincing them the Earth is flat or that chem trails are hazardous to your health. Realizing how futile this would be, I elected to cut to the chase and place it before a VA judge on appeal with a college education and a real law degree. I just didn’t realize it would take four years and four months to obtain the hearing. I sure can’t fault the VLJ for remanding it. Judge Alexandra P. Simpson, before whom I will be arguing my greenhouse appeal directly on January 10, 2024, in D.C., wrote the decision correctly. Thank you, Lelli!

REDACT BVA remand 11.17.23

After surveying the legal wreckage below, she rightly remanded it as a pending claim which had been incorrectly adjudicated under §3.105(a) as a CUE-leaving the matter of entitlement under §3.156(c)(1)(3)(4) unadjudicated. It was promptly sent down to   Albuquerque’s village idiots for a do over. Still convinced they were right, they decided to shitcan it as a no-go. Can you imagine the chutzpah of a lower tribunal (and I use the phrase loosely) wadding a remand up from a higher tribunal and hucking it into the circular file? Balls he has. Yessssssssssss. That’s the “legacy” we’re experiencing nowadays under the new AMA. Any jackwad can make these determinations without any oversight whatsoever from above. Pretty scary, huh?

Not the least perturbed, I fired off an email to the gomer Coach who’d 86’d it and pointed out that yes, indeed, the 2013 records were new and they had two choices. Either reconsider them under the remand instructions or I’d be sashaying on down to DC and filing an Extraordinary Writ of Mandamus to get my claim done there. I like to make them feel guilty. Poor Harvey’s liver isn’t doing well and he might fall into the old saw about delay, deny until we die if this continued. I also cc:’d it to Denis the Menace just in case they doubted my resolve to pursue it.

Well, boy howdy did this float to the top licketyspit like a fishing bobber. After ignoring the Remand and refusing to CEST it from November 17th to December 28th, the industrious raters sharpened their pencils, CEST’d an EP 930 and cranked out a grant in record time-24 hours after the email. And here it is. What’s that beer commercial?  Paraphrased, it comes out sort of like “I don’t normally do §3.156(c) claims but when I do, I like to kick ass and take names”.  A VA rater has to know his limitations. I’m a bonafide asshole. Sometimes I don’t even like myself. My mantra has always been Win or Die™. Did these muffinheads actually think I was going to walk away and tell Harvey I gave it my all but VA said it just wasn’t in the cards? Oh hell no.

Ladies and gentlemen Veterans, I give you my next to the last production of 2023. I also got another long-suffering Vietnam Vet his rightfully earned 100% a day later. How VA could deny (for years) his being inside the 12-mile limit when his DD 214 clearly and unmistakably showed the award of a Combat Action Ribbon (CAR) escapes me. What do these gomers think? That the Navy awards CARs for combat KP duty? Shut the front door.

Redact RD 12.28.2023

Harvey even insisted on paying me back the $100. And that’s all I’m going to say about that this year. I look forward eagerly to doing battle in 2024. Who knows what adventures await my clients? All I know is I no longer feel like a one-legged representative in a VA ass-kicking contest when I win one of these claims.

P.S. I do realize that the photographs you Veterans send me to publish sometimes contain disturbing images involving death and destruction. I make no apology for them as they are your memories, not mine specifically. In truth, they convey far less than what I saw with my own eyes in my two years over there. Perhaps they’ll induce our fearless leaders to carefully reconsider waging war in the future. Somehow, after observing the debacle of Afghanistan, I doubt it.

HNY

alex sends

Posted in 3.156(c), §3.156(c) claims, BvA Decisions, Food for the soul, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 5 Comments

HLR @ SAINT PETER’S=AID & ATTENDANCE (FINALLY)

Posted on December 24, 2023 by asknod

Me and my law dog Pickles

Season’s Greetings to you all. I’m getting a lot of the Iraquistan TBI chickens coming home to roost these days. The majority of them are like my Vet Allen I wrote about earlier this week. At some point, the Marines’ FacePage or Ticktock jungle drums started talking about me and my ‘relative’ success in the business of SMC. Ever since, it’s been a veritable gully washer of phone calls asking for representation to “get over the hump” of SMC S and move on to L and T.

Tony and Sheila

And hump it is. VA goombahs fully well know the moment they let these fellers through the gates of aid and attendance that they’re destined to be eligible for SMC T. After all, that’s what it was inaugurated for in 2010. Unfortunately, someone down at the corner of Delay Street and Deny Avenue put out a sub silentio codicil that entitlement to this was going to be done strictly by VA’s Thursday Rule. That would be the invisible regulation (§3.?????) that says Heads I win and tails you lose. Sorry but you weren’t born on a Thursday. And if you were, we’ll just change it to the Wednesday rule. Same difference. You don’t qualify. The reason is simple. We have X amount of money for X number of Vets. Brandonomics is rough so we need more money than you. Besides, we VA employees “work” for a living and most of you don’t. Tough shit if your quality of life sucks. Imagine having to work for VA. We need three signatures for permission to go to the latrine. Get it?

Of all those who have asked for representation, none was probably more entitled than Tony. To shrink the story down, Tony was severely burned and has yet to recover completely from the burns, scars and subsequent pruritis. He has a Combat Action Ribbon so the usual PTSD and post -concussion TBI from the explosion are a given. Nobody at VA debates any of this. The problem is simple. Nobody at VA will acknowledge that his four-page Code Sheet List of disabilities actually rises to the level of needing (or being entitled by law) to a&a.  To those unschooled in medicine, pruritis is the  sensation that commands you to subconsciously scratch an itch. Now imagine the insane urge to scratch 60 percent of your body 24/7/365. The term ‘sucks” doesn’t quite describe it.

Imagine further, if you will, the sleep deficit you incur when you constantly wake up and scratch yourself so hard you bleed. Add Obstructive Sleep Apnea (OSA) and stir briskly. What the hey? How ’bout we throw in a tablespoon or two of Myocarditis with a myocardial infarction (heart attack)? What’s missing for an entitlement to SMC L? Why,  major debilitating headaches every day, of course. But SMC for housebound (rather than the higher level of true aid and attendance) status just wouldn’t be complete without major muscle injuries to the upper body and arms. Apply the tinnitus as the final topping and you had Tony as he arrived at my front doorstep at SMC S. Here’ Tony’s burn damage several days after the injury:

Shucks. It doesn’t make any difference what’s wrong with Tony… or you. Add it all up and every last one of  you missed it by thaaaaaaaaaaaaaaaaaat much-burns or no burns. As far as VA was concerned, Tony could have just climbed out of a deep fat fryer and still lost. It would seem the only way to get over this hump and put the mustard on the hotdog is to find someone that’s walked point on this and actually won.  My website seems to attract a lot of TBI Vets and we have an inordinately high success so far doing this. “We” means me and my law dog Pickles (above). Don’t laugh. She’s an integral part of asknod Inc. She keeps me focused on the task.  “Inordinately high success rate” means I haven’t lost any yet. Knock on wood. Which is not to say I decline to take hard cases. Some cases have been hamburgered by VSOs or the Veteran themselves so thoroughly, there’s no hope for them. I speak of using certain unsavory types found on the VA IMO Sh*tlist.

Once you invite these folks with truth-telling issues in to opine on your medical state, you condemn yourself to the ranks of the Flat Earth Society and Chemtrail Sniffers. VA raters open your efolder in VBMS and begin to laugh uncontrollably at your poor choices for medical opinions. Hey. It’s not your fault. These jackwads advertise or somehow gain a following on various Veterans’ Help Websites -even if they charge $10,000.00 a pop for their wild theories. I don’t doubt some have even attributed a Vet’s PTSD to Alien abduction. Name withheld to protect the naïve, hornswoggled Veteran.

Winning SMC T for TBI could be compared to sneaking up on an alligator and hogtieing him before he even smells the duct tape. You build the claim components to accentuate the deficits before you launch the frontal attack for the actual SMC itself. I watch Vets file an eighteen-wheeler full of claims and then throw the SMC  LMNOT in on the top of the heap. When the rating decision comes out, they get to read an incredibly long list of all them denials in HD stereo.

Now, one thing I do know and it’s not any Vets’ fault, but TBI/Bent Brain syndrome tends to cause chronic sleep impairment. That, in turn, begets fuzzy brain. You turn into an insomniac trying to envisage multiple scenarios on how, when and where you’re going to fight this, analyze prior failures and plan new strategies. Hey guys (and gals). I’ve been there. This movie starts in your head every night around 2030 Hrs. Don’t feel pregnant and alone. Unfortunately, you a) don’t have access to VBMS, b) can’t see what your VA opponent is holding in his hand; and c) the legal course knowledge on how to defeat their bogus illegal denials.

Not to put too fine a point on it but if you’re calling or emailing me, chances are playing SMC poker with VA didn’t pan out as you’d planned. I don’t guarantee anything but I will fight like a rabid, cornered dog for you. That’s pretty much what I did here for Tony. If you read his code sheet, it appears he has more wrong with him than he has right. He has severe burn scars with pruritis over 60% of his body. He has the usual combo of 9411-8045 with a Combat Action Ribbon to go with it. In a nutshell, he has the same identical disabilities as all the rest of my TBI clients with a heapin’ helpin’ of burn scars on top. Headaches? Check. GERD? Check. Multiple musculoskeletal damages from the aftermath of being tossed ass over teakettle after the blast. The list goes on. Dizzy. Visual auras. Hallucinations. Anger management “deficits”.

Tony came to me at about the same time Donald, Cordney, Courtney, Allen and Roger did. He won’t be the last. To be truthful, it was confusing. They were almost indistinguishable from one another as they all had so much in common. Worse, they all were either stalled out at SMC S or L or any forward progress had come to a screeching halt. Their VA rating decisions all said the same thing. “Here’s what you need to get to L but you don’t have it”. One of the decisions went into more detail and said the  Vet needed a moderate amount of help with dressing, a moderate amount of help bathing, and a moderate amount of help with medication management. Where do they find these enterprising raters who manufacture a whole new (moderate) legal standard of review? Either you can accomplish the activities of daily living most of the time (but not continuously)… or you can’t. Either you can cook for yourself…or you can’t without burning down the house.

Tony had gone out of his way(as had a few of the others) to obtain Independent Medical  Opinions (IMOs) documenting his need for a&a but still didn’t get any traction. I won’t go into a long diatribe about why but it’s a vintage VA denial technique.  VA has been in this  disability business since the Revolutionary War and actually have become quite the consummate denial factory. For the most part, the denial is ambiguous. Sure, at the end of the denial, they’ll insert a postscript that you have a few of the ingredients…but not all. By operation of law and §3.103(f), there’s a laundry list of what they’re required by law to tell you and suggest you obtain in order to win. Laundry list? We don’ need no stinkin’ laundry list. We have spoken. Thank you for your service. Next victim er Veteran.

And like all of these Veterans, I find myself having to fight first for the SMC L for aid and attendance and then spring the SMC T trap on them. Outside of some Special Forces, Deltas or LRPs, most of you are unfamiliar with the horseshoe ambush. There’s one way in and no one comes back out alive. I’ve heard this called Claymore Disease back in my day. With my technique, you get the a&a first while simultaneously obtaining everything evidentiary-wise needed to support your SMC T in the interim following  the closed out L claim for the aid and attendance. By the time they figure they’ve been duct taped into a T rating, it’s too late to bullshit their way out of it.

Sure. You’re going to get denied at the outset. You may snag it at the HLR but I’ve only had that happen once. Nowadays, I use the duct tape method and combine it with the Hansel and Gretel “breadcrumb” ambush. You present everything needed to qualify for T and itemize it in triplicate but don’t push it. The HLR booth bitch will take desultory notes and ignore half of it and discount the rest as the “vapors” anyway. Twenty eight minutes later, Bingo. More often than not, they’ll grant the a&a but deny the T. They don’t want that shit on their resume. It’s easier to deny on some nebulous M 21 stricture than to run the gamut of 5 or 6 RQSRVSR quality assurance checks which eventually question whether you were raised by wolves. Oh. And forget the Christmas bonus, bubba.

SMC T is a second cousin to Unicorns and pots of gold guarded by leprechauns. Sure. They exist, but like ol’ Nessie in the Loch of Ness, it’s an utter bitch to get a picture of her (assuming arguendo ‘she’ identifies as a cisgender female and uses those pronouns). Add into the equation the Heads I win/Tails you lose technique  and you begin to understand why you can’t get to T from here.

Tony had all the ingredients but he couldn’t assemble them all into a coherent attack because he thought VA was there for him. By the time he realized his mistake, he’d used  up all his hand grenades, shot his 249 dry and we had to concoct a brand new ambush. This is where having VBMS is a Godsend. Your efolder is chronological and well laid out. All the old evidence is carefully assembled and word-searchable. You do the dumpster dive on the file and assemble all the “hoo-doggies, he needs a&a” from 2014 to 2023. VA finally concedes he does… but only as of last week. And then you begin anew with Phase II and set up the horseshoe T ambush. It’s a recipe. Just like baking cookies.

Merry Christmas Tony. We’re halfway there. I have his HLR informal conference and some duct tape set up for next Wednesday to give the HLR Reviewer plenty of time to recover from his/her/their hangover. I must confess I’m kinda lost on this whole plural pronoun thing re the folks who aren’t totally dialed in to what’s down there in their underwear. Is this a Sybil gig with multiple personalities like the ’60s movie? Not that it matters, mind you. Just my Tourette’s rearing its ugly head. All these queshuns runnin’ ’round my brain. Anyway, here’s Act II of the  SMC T Program.

Redact a&a RD 12.18.2023

Redact CS a&a 12.18.2023

Stay tuned next week (0r next Spring) for the exciting conclusion. The one thing I can always guarantee my Veterans is I will prevail. Defeat is not an option with VA. As most know, my mantra has always been Win or Die™. Seriously. I even patented it and the flag.

TTFN

And Christmas (or any other post) just wouldn’t be complete without Ed the LURP’s video contributions…

Posted in 1154(b) combat presumptions, Aid and Attendance, Combat Presumption, Food for the soul, Higher Level of Review (HLR), How to Qualify for VA SMC, Independent Medical Opinions, OSA, SMC, TBI, Tips and Tricks, VA Agents, VA TBI, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , | 2 Comments

YES FRANCI, THERE IS A SANTA CLAUS

Posted on December 20, 2023 by asknod

I guess I find it hard to express in mere words how lucky I am to be allowed to help Veterans. The only thing that could possibly be even more rewarding is to be allowed to help their surviving spouses after all hope of success is crushed by a denial when their husband dies unexpectedly. Remember that old boy who did the Queen for a Day program back in the ’50s? Well, you probably don’t but I feel the same way when I get to put that crown on someone’s noggin.

Tom and Franci 

In the instant case, Franci came to me with her daughter holding her up a short time after her husband passed away in October 2022. Distraught is a masterpiece of understatement. I disremember who she was referred by but that’s immaterial. What was striking to me was the logical conclusion I would have made that he died from a chemical contamination during his 20 years of service. After all, he was a jet mechanic and exposed to JP 4 for all those years. That VA couldn’t (or wouldn’t) make that connection speaks volumes as to how this PACT Act process works… or should I say how it doesn’t work.

Now, I know from experience (my own) that men are recalcitrant about going to see the doctor. Men don’t want to know why they have that killer pain in their gut. They’d rather chug a bottle of Ibuprofen and ignore it for as long as they can. This solves the problem of finding themselves in a hospital with kidney cancer. It’s even more unfair to their wives when they s unexpectedly find themselves a widow.

In the last year, I’ve watched VA slow down to a crawl, take everyone off doing ratings and assign them to building TERA (Toxic Exposure Risk Activity) and ILER (Individual Longitudinal Exposure Report) reports for Vets who aren’t even filing claims. What the hey? They did them on me and I don’t have any claims pending. Shucks. I’m even 29 years protected. How would they know how much Agent Blue and White I ate upcountry? What a waste of time. And of course, in the meantime, I have a ton of Vets with claims over 250 days old pending. WTF, over?

Nevertheless, after the May 2023 denial, I contacted my go-to IMO folks at Mednick Associates and they came through once again. It saddens me that Franci had to suffer such a protracted, long period wondering if she/we would prevail and I would be able to bring her across the line to a much-deserved DIC.

This morning, of all days, the VBMS Prize Redemption Line (formerly known as 800- Dial-A-Prayer) informed me her decision was ready for decision. In our business, that’s written as RFD. Usually, it’s another 2-3 days before it becomes RDC (Rating Decision Complete). Imagine my surprise when I dialed her file in and discovered that it had already been promulgated. Shut the Front door. Hooo doggies. I get to make that phone call and tell her to sit down first. Check it out.

Redact IMO

Redact RD 12.20.2023

My expectations of VA employees and their capabilities are very low so this restores my faith in the system in some small measure. A warm thank you should go out to John Francis K____ of the Saint Paul Regional Office for bringing this in sooner rather than later. He’s made a surviving spouse a mite bit more financially stable in her final years. In addition, he’s my hero of the week and entitled to a couple five attaboys.

Merry Christmas to you all. I had a few more of these successes this week but haven’t had the time to get them written up yet. I’ll get on that directly. I’m told by my Vets that it buoys their spirits and gives them hope their claims will be met with equally similar success.

More anon.

Posted in DIC, Independent Medical Opinions, Nexus Information, SC For Cause of Death, VA Agents, Veterans Law | 8 Comments

BVA-SMC T–ALL I WANT IS A CADILLAC RANCH

Posted on December 15, 2023 by asknod

Christmas is a great time to win a claim of this magnitude if you were wondering where you were gonna  scare up some shopping money… with a wife and three rug rangers. Just so you know- with the new economic plan passed by Congress (Brandonomics), your George Washington coupon is now worth about 87¢ and shrinking fast. Meet Allen- my newest SMC T winner. I’m not prognosticating but I’d reckon this win had not been factored in to his 401 K or Roth IRA plan in his lifetime. That’ why I feel so honored to be able to win these types of claims which many feel are nigh on impossible. 

SMC T is a relatively recent invention by Congress and fortunately separate from their economic plans thank God. So many Vets were driving over mines on the roads of Iraquistan in the last 20 years that the number of truly permanent scrambled egg brain Vets are beginning to surpass even the huge numbers of Bent Brain Syndrome (PTSD) Vets with Obstructive Sleep Apnea. The only difference is they never win the Big Banana.

There’s a shit ton of my fellow Vietnam Vets who almost ended up on the wall due to what VA would characterize as Acoustical trauma rather than concussion trauma. In 1969, doctors called it organic brain injury. Back then, VA had a home to bury these brain claims (10% jokes) hiding in §4.132 (now §4.130) under DC 9304 Chronic brain syndrome associated with brain trauma. That’s where the tinnitus  claims went to die pre-1976-(DC 6260=8045=9304 combined for 10%). VA gussied it up for the Wounded Warriors and began referring to 8045 as TBI. Six of one. Half a dozen of another. Getting the new SMC T was (and is) like winning the Powerball and with similar odds as the old organic brain game. Most folks don’t realize how this works.

There are 18.9 million Vets. 5 million are rated from 0% for hearing, scars or hemorrhoids all the way up to TDIU or 100% schedular for really big issues. In 2018, there were 119,000 ± at 100% schedular and about 115,000 at IU. There were about 38,000 in the SMC L to M cohort  for blindness, loss of, or loss of use or aid and attendance-many with a K or a bump under §3.350(f)(3)(4) moving them into SMC P.  But there were only about 8,000 on SMC O to R1. As for R2 and T, think less than 4,000 lotto winners combined.

TBI is ugly. It gives you hallucinations and waaaay more. Headaches, Meniere’s disease, photosensitivity, bent brain off the map, road rage, severe anger syndrome and extremely poor judgement skills are the legacy of this injury. The fact is your loving family probably doesn’t cotton to taking you out unless you’re on a leash with a choke collar or very heavily medicated. And none of it is your fault. You probably don’t even know you’re being socially awkward when you clock that cop with a sucker punch after he pulled you over for doing 90 in a school zone. I’m lucky. All I have is Tourette’s syndrome and a proprioception deficit. I flunk the Romberg test every time. TBI does that to you.

In these instances, your spouse needs far more Baksheesh to hire Visiting Angels™ (armed with tasers) to provide you aid and attendance. Entitlement to T has a nasty Catch 22 hook. You have to be mega messed up to qualify. In fact, you have to be nigh on to Kingsford™ Charcoal mentally to qualify. The dividing line is whether you would have to be institutionalized in the absence of your significant other (or wife). Even worse, it can’t be due to your bent brain from dodging B 40s. And guess who gets to make that determination?

So, in the most simplest terms, you are a financial black hole and require the highest rate of VA compensation payable. In this case, a husband and his spouse, not even counting any children, are entitled to $10,905.63 per month now with the latest 2023 COLA bump. VA, however, isn’t all het up about publicizing this too loudly nor are they inclined to grant it. When, and if, you do learn the secret handshake and the password as I have, it’s still a grueling path to the BVA for a win. You need a SMC Sherpa to navigate this or you’ll just end up in the ditch. I have yet to meet a SMC T Vet who won it by himself.

This is why most of my clients who are in this group of medical misfits are broke and need it the most. And, if you are adroit as a litigator, you’ll get them advanced on the docket RFN due to their being in financial hardship or terminally ill. This reduces their time spent sitting on the Arlo Guthrie Memorial Group W bench. Not to put too fine a point on it but on a scale of difficulty, winning SMC T is right below successfully mating Unicorns for fun and profit at your world-famous Cadillac Ranch.

Allen and his supportive wife (and children) have had a full time job taking care of him. I can’t even imagine all their horror stories over the years of their fight up the SMC ladder to get here today.  I see his plight replicated over and over in the system every day. Vets come to me with a SMC S and VA is adamant they do not qualify for more. It’s a semantic distinction. VA is like “Dude, you’re getting SMC housebound. You don’t qualify for more or we’d give it to you”. The suffix to that sentence should be “but we don’t know how to do SMC”. Ignorance is bliss. In the VA adjudications system, it’s a denial.

To begin with, Allen had a SMC L for A&A and a second 100%, separate and distinct due to his heart condition. Bingo. At the very least, he was due an instant bump up from the L to M under §3.350(f)(4). But nooooooooo. After numerous arguments, they reluctantly gave him a L 1/2. Wrong. That was nothing more than a distraction in the genesis of this appeals argument. When you’re playing SMC poker, VA is required to infer what you are really entitled to-not how little they can get away with giving you. They even have a fancy SMC Ratings Calculator for this. The problem is elementary. Garbage in= garbage out. The M 21 is remarkably remiss  as well or somebody hasn’t written that chapter yet. SMC is one of those rare times when what you don’t know can hurt you.

The modern miracle of Willy Pete

The denial technique is vintage VA. They get to determine if you qualify. But their doctors or ARPN/PAs are programmed to say it’s all too speculative as to whether your bent brain or the TBI is the cause for your need for a higher level of care for a&a. I guess I don’t need to tell you that 99% of Vets’ claims for T go down the tubes. None of them VA Examiners ever say “Gee. Johnny Vet suffers both of these problems (TBI + PTSD). Since we’re brain-challenged, let’s give him the benefit of the doubt and say it’s TBI. What the hey? No skin off our asses, right?” No sir. If they did, it might endanger their 30 pieces of silver for not kowtowing to the VA’s denial plan. So what’s a Vet to do? Well, to begin with, I’d suggest you send me an email.

My son, who is an attorney, calls my style of legal brief “thin-slicing”. Could be it is. I don’t have any legal training to say one way or another. In the BVA direct appeals lane, which is the fastest, we’re not allowed to submit evidence to prove they earned it. I recite the Vet’s history to save time. It’s like a mini-RBA or Record Before the Agency to give them a roadmap.   I don’t “tell” VA what they screwed up on so much as I tell them what they were required to do by law and federal precedence. I use the chronological receipt dates in VBMS to help those poor VA souls paralyzed from the neck up find the medical evidence they insist doesn’t exist to support  entitlement.  Then I lay out what the correct procedure and outcome should be. Then I beg like hell for mercy. This recipe is the ages-old axiom that honey attracts bees-not vinegar. Too bad it doesn’t work at your local Puzzle Palace. If it did, I’d be out of a job.

Face it. Nobody likes to be talked down to-especially VLJs and their staff attorneys. And, sadly, not all of  VA’s finest at the local level have a functional hard drive upstairs. You cut the Gordian Knot by giving them the evidence they cannot ‘see’ that supports your case. When they find it, they shout out Eureka! as if they’re Mensa material and directly descended from Sherlock Holmes. Let them gloat. Hush, child. Bite your tongue. It’s  reward enough to read the BVA decision and see they plagiarized all your cites from your legal landscape section as the legal predicate for their grant.

So, without further ado, let’s unwrap Allen’s brand new SMC T and see if anything here can help another Veteran similarly situated.

Redact SMC M & T Denial

Redact Code sheet 8.3.23 L 1.5

Redact SMC T filing

Redact SMC T 12.14.2023

If you would, take a gander at his Code Sheet above. The winning clue is right there in front of you. Note that DC 8045 (TBI) is in front of DC 9411 (PTSD) and note they are hyphenated. This is important.  We all know VA conjoins these two disease processes into one and says they are hopelessly entangled to the point that them poor doctors are totally conflusticated and unable to see where one ends and the other begins. This is VA shorthand for ‘you’re screwed’. You had a 70 for TBI and a 70 for PTSD and now all of a sudden after fling for T you have a 70 for them combined-or maybe they upped it to 100%. Take a look at the favorable findings at the end of the SMC M&T Rating Decision denial above. See the  “You need a&a”?  VA just admitted you’re charcoal but it’s PTSD charcoal- not TBI charcoal.

They act like they’re doing you a favor and throw in the SMC L for a&a but now the speculative clause comes into play. Sorry Charlie. No SMC T because we can’t untangle it. Case closed. This is the wrong legal standard of review but Vets don’t know that. Why should they? They’re not law dogs. All they know is they need a lot more financial help but they’re never going to get it because VA’s hired guns have foreclosed that possibility. That’s where I come in. I’ve learned how to play SMC poker. I’m not going to explain it here in detail because that will just provoke VA to “fix” the loophole and make my job more difficult (again).

My success lies mostly in digging out all the exams and medical evidence which proves your case. I frequently see the Raters say there is no evidence to support your claim but that’s because they gloss over anything over a year or two old. Or worse, they’ll glom on to an antique a&a assessment from a 2014 VAF 21-2680 form as proof you’re good to go. As for VSOs helping you out, get serious. They have a 200+-Vet case load and no time for doing a dumpster dive into VBMS to unearth the proof.

In January, I’m beginning classes on SMC to train ten VA representatives on bulletproof techniques to outfox VA raters and win these claims. My workload is plum off the map. By training others, I can pawn all my backlog onto them. Maybe then my horse Cooper and me can become friends again and go riding. Right now he’s so pissed he won’t even talk to me.

Congratulations are in order here to Allen for managing not to go completely bugf**ky before he found me and won. TBI is a nasty reality that VA is currently sweeping under the rug using bogus law and illegitimate techniques. Thus, SMC T falls into VA’s “Thursday Rule”. What? You weren’t born on a Thursday? Well, shucks. There you go. That explains why you lost. Should you actually answer in the positive, the next rejoinder would be “AM or PM?” Heads VA wins. Tails you lose. Unravelling their bullshit and getting it sorted is difficult because nobody knows how. I aim to fix that directly.

Everybody’s got something to hide except for me and my monkey.

Merry Christmas to you all from Cupcake and me. I’d throw in a “thank you for your service” but I don’t want anyone to get nauseous and throw up.

P.S. Here’s Ed’s LRRP Christmas humor to brighten your day.

Santa’s wish list:

Posted in Aid and Attendance, BvA Decisions, C&P exams, PTSD, SMC, TBI, Tips and Tricks, VA Agents, VA TBI, Veterans Law | Tagged , , , , , , , , , , , , | 7 Comments

FORT FUMBLE MISSISSIPPI–DASHING THROUGH THE SNOW

Posted on December 8, 2023 by asknod

This is one of those warm, fuzzy blogs I so enjoy putting up around this time of year. I actually finished up another for P&T on a Thailand Vet (Takhli RTAFB) on Monday for Agent Orange that took almost four years as well. I  began fighting his in early 2020 before they even dreamed up the PACT Act. This one, however, began back in early 2017. Terry came to me for a records review and decided to hire me to fight for what we finally won today. To think it took us from October 2017 to now is appalling on its face but it took me 28 years so I consider this to be somewhat of an improvement on the system. Thank you former USB Allison Hickey for rescuing  all of us from the VA’s paper jungle.

The back story is rather appalling in its own right. I flew down to Jackson Mississippi for a DRO hearing in September 2018 in an effort to resolve it quickly (LOU of the lower extremities and R1). I laugh in retrospect at my naivety.  My law dog mentor impressed upon me the value of confronting these chuckleheads at bayonet distance to show ones’ earnestness. He didn’t tell me I risked being ejected. I felt I had let Terry down and resolved to roll up my sleeves and fix it.

When I arrived that morning for the festivities, I discovered I was the only Caucasian male (cisgendered  or otherwise) in the establishment. Having been born in the South, I wasn’t put off or feeling threatened. It was more of a novel experience knowing VA is top heavy with White entitlement folks. I reckon I disremembered we weren’t north of Richmond, VA.

Ms. Teri Green, a senior DRO there, began by sandwiching us into the attorney-client conference room which is actually smaller than Cupcake’s walk-in closet. We were literally assholes and elbows in there with no ventilation. I’m pretty sure this was as intended, too. In most cases, these events are conducted next door at the spacious air conditioned VAMC conference room.

After about ten minutes of argument, Ms. Green rather impolitely and officiously informed us, that contrary to AB v. Brown (1994), Terry already had the maximum schedular rating for his lower extremities and there was nothing for it. He hadn’t filed for loss of use and until he did, we/I were pretty much pissing on a flat rock. Worse, my continuing arguments supporting his entitlement to DC 5110 versus two 8513s were beginning to irritate her and she proposed having me frogmarched out forthwith with a VA Gestapo agent on each arm if I didn’t cease and desist. So much for ancillary entitlements under the Akles Rule. Or §3.103(a) for that matter…

Seeing the writing on the wall, I acquiesced to her admonitions, I decided to piss on the fire and call in the dogs. It’s better to live to fight another day than waste one’s time on a fool’s errand. I flew back to Seattle with my tail between my legs and went back to the drawing board to begin craftily reassembling doctors’ statements and supportive medical evaluations to present to the BVA Veterans Law Judge on appeal. Nothing I submitted had had the least effect on the situation to date. Shoot. I was so conflusticated, I even went into my bathroom and examined my silver tongue in the mirror looking for cancer. No. Just kidding.

Terry’s condition didn’t have to be over-exaggerated. He was carrying a dual diagnosis of Muscular Dystrophy or Polymyositis and was retired prematurely due to it/them. Getting the necessary supportive nexus letters was childsplay. All his doctors were on board and extremely supportive. However, VA has a policy that demands VA be given “first right of denial” on the subject of what constitutes loss of use. The definition is so confusing you almost have to use Phonics™  to sound it out. Repeat after me.

§3.350(a)(2)(i) =:

“Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.”

I’m still dying to know what a suitable prosthetic appliance consists of to this day. Are there unsuitable prostheses out there in the marketplace?  If there are, does VA provide them both? All these queshuns…

In Tucker vs. West back in 1998, the Secretary became so bold as to define §3.350 as actually employing the use of a hacksaw at an elective joint somewhere below the knee and demanding a physical prosthesis(es) in support of the entitlement. Fortunately for all of us similarly situated, any “loss of” versus “loss of use of” requirement was quickly ruled void ab initio. Nevertheless, VA continues to this day to demand a far higher standard of loss than is required to suffice and qualify.

Continuing the fixed bayonet distance metric, Terry and I proceeded apace to the city of my birth to present our demand for justice at the BVA Central Office in person.  That was January 2020. I love Washington DC. If they haven’t painted over it, you can still find my “Alex was here” on about the 33rd floor in the stairwell of the Washington monument from our Cub Scout field trip back in 1960. Or the most recent 50¢ piece I left on my dad’s tombstone over in Arlington across the river this last October.

We drew Judge David L. Wight. I’ve had him before and he always writes a fair decision. Unlike some VLJs, he actually thinks Vets get the shitty end of the punji stick all too frequently. He said at the end of the hearing that he would like to cut the paper granting R1 on the spot but there were certain formalities that must be observed even when the obvious is staring you in the face. The “obvious” was Terry in his wheelchair and a mountain of medical records all saying he wasn’t going to be attending the Boston Marathon that spring due to prior incontinence commitments.

One trick I don’t mind sharing with all of you. I’m fond of asking verbally, with no forewarning, for AOD at these BVA bayonet hearings. 99% of the time the Judge will grant it but that also may hinge on the fact that virtually every one of my clients are already furiously pushing the RING™ doorbell at Heaven’s Door before we get there… or will be directly.

As I said, nothing gives me greater pleasure than prevailing in this David vs. Goliath business. I can’t express in words how honored I am to even be allowed to do this.  The only thing that might be more pleasurable would be to fly back down to Jackson, sashay into the VA Puzzle Palace there and wave the decision in Ms. Green’s face accompanied by maniacal laughter and dual birds. But then, I don’t relish the idea of getting the bum’s rush from their Gestapo.

For your reading edification and to prove to VSOs that R2 (and all SMC ratings higher than K) actually exist, enjoy. And Merry Christmas to all my readership.

redact r2 12.8.23

redact R2 CS 12.8.23

Redact Rating Calculator Worksheet(s)

P.S. As a postscript, and after consulting Terry, I wish to share the most incredible part of this journey to R2. Upon award of his R1, Terry announced to me his plans to become an accredited VA Agent. He accomplished that last year and  I neglected to include this in the above article but now wish to introduce him to all of you who might be seeking an advocate with that fire in his belly that rivals my own. Here’s his contact info.

https://serviceconnectdisability.com/

 

And today’s contribution from the peanut Gallery…

Posted in DRO and BVA Hearings, R1/R2, SMC, Special Monthly Compensation, Tips and Tricks, VA Agents, VA special monthly compensation, Veterans Law | Tagged , , , , , , , , , , , , , | 3 Comments

BVA–SMC INFERRAL= DUTY TO ASSIST

Posted on November 30, 2023 by asknod

I don’t quite know how to express my thanks to Veterans Law Judge Leslie A. Rein for her BVA decision posted in Caseflow yesterday evening. It was a long time in coming but nevertheless a vindication of VA’s asinine demand for a VAF 21-2680 to “prove” a need to entitlement to aid and attendance of another. Thus, in 2020, I decided to fight this one in hopes of establishing a precedent of sorts on this uncalled-for requirement. My good friend Sam was dying of liver cancer. He was put on hospice when he decided to piss on the fire and die with a fifth of Single Malt by his side and a fine cigar. VA wasn’t buying.

Here’s my post on Sam’s last days. I flew down on the Fourth to be with him and his wife Kathie as they are close friends of ours through our mutual Hepatitis C Vets (HCVets) group. He passed peacefully that evening. Would that VA would have granted peacefully.

SAMUEL BAILEY–THE LAST DETAIL

After fighting VA for 28 years on my own claims, I take a “Contrary” position on VA adjudications akin to contrary as defined in the seminal movie Little Big Man starring Dustin Hoffman. I put everything VA does under the microscope to ascertain its legality, applicability and relevance. If it doesn’t pass the test, I fight. And boy howdy did the military ever teach me how to do that.

Our good friend Semtex

When Sam’s wife Kathie first popped smoke to say he was stern up like the Titanic and sinking, it became a matter of personal importance to file to defray the costs of the hospice at home for his final days. Aid and attendance was a given, right? Even if it was only going to be for a few months at best, it was still due and owing.

When I began this odyssey of VA claims work, I was taught two important facets. One was to support everything I did in duplicate such as filing via electronic means as well as by mail. This is called “belts and suspenders” in the legal vernacular or “always carry two hand grenades” in the military. Secondly, I was taught to leave no money on the table that rightfully belonged to the client.

During my fight for my greenhouse back in 2013, prior to my accreditation and electronic access to filing, I was fond of using the USPS Green Card to prove delivery of my filings. It finally paid off when VA insisted in a Statement of the Case (SOC) that I had not timely filed my VA 9. I simply produced the ‘return receipt requested’ green card showing VA mailroom employee John Q. Smiley had dutifully signed for it. A quick review of employees at the Seattle Fort Fumble confirmed his employ and it promptly squelched that bullshit line of attack.

Similarly, Sam’s terminal hospice was being supervised by a VA-contracted outfit locally who specializes in these things. Since they were in constant touch with VA, the presumption of regularity attaches to the concept that they had constructive possession of the knowledge medically that Sam was knocking on Heaven’s Door. So, why on earth would there be a requirement to medically prove he was going down the tubes?  Jez, weren’t a lowly RN’s treatment notes enough to substantiate the validity of his condition?

To add insult to injury, if such a thing is possible at the VA, they didn’t bother to answer the 526 filing for a&a for almost 6 weeks demanding the VAF 21-2680 signed by a doctor showing a need for a&a. Idiot’s delight, huh? He died before I/we even got the letter requesting it. Pissed me off, it did. I didn’t even contemplate an HLR informal conference. This level of arrogance/ignorance was simply too much. Hence, my departure for Washington DC and a substantive appeal at the BVA.

And here we are, three years and eight months later. Just imagine if they hadn’t passed the Appeals Management Improvement Act (AMIA) and revamped the adjudications procedures to remedy the unholy backlog! Why, we might be waiting for another aeon or two. While this won’t, in and of itself, enrich Kathie dramatically, it needed to be done. Sometimes we just have to put our collective foot down and call out their tomfoolery and silly requirements.

Attached here are VA’s initial denial, my legal arguments and VLJ Rein’s decision. I hope they may help even one of you to prevail or guide you in formulating a legal strategy to start calling these chuckleheads out on their obfuscation. To me, the mere filing of a 526 to ask for aid and attendance or any Special Monthly Compensation (SMC) is superfluous on its face. It’s an ancillary entitlement that must be inferred from the medical facts in the instant case (Akles vs. Derwinski 1991). I would have thought the dead giveaway was the word ‘hospice’ (no pun intended). Maybe that noun isn’t in the VA vernacular.

Redact 526 for A&A

Redact Sam RD 3-10-20

Redact Sam a&a 10182

Redact Kathie extra pgs for 10182

Redact Sam BVA Win

Seasons Greeting to you all and may this season bring you belated good tidings such as the above. Personally, I can’t believe I’ve been granted a license to do this work. Helping our Nation’s Veterans should be a given rather than a contest to figure out how to prevent them from attaining that which was rightfully promised them when they raised their right hand.

And that’s all I’m gonna say about that.

Posted in Aid and Attendance, Food for the soul, How to Qualify for VA SMC, Inferred claims, Presumption of Regularity, SMC, Special Monthly Compensation, Tips and Tricks, VA Agents, VA special monthly compensation, Veterans Law | Tagged , , , , , , , , , , , , , , | 2 Comments

Hello everyone! A new Guest Contributor has joined!

Posted on November 26, 2023 by robinhoodesqvetsatty

Asknod was kind enough to invite me to write some guest columns. I’ve followed along the various Veteran focused blogs for years (Asknod, Hadit, /r/Veterans, etc) and I have a ton of respect for what Asknod does. He is definitely a zealous advocate! I will do my best to live up to his expectations and to contribute to the community he has created here.

So, my name is Robin Hood (yes it really is) and I am a practicing attorney. My first job out of law school was with the Veterans Benefits Administration in 2008, and I worked there until 2014 as a claims adjudicator. I was very senior by that point and would train and mentor the new folks. When the Director had a hot case that really needed to be moved along, my desk was one they would choose. I was very good at it, and I really did love my job; I got to grant people benefits by way of solving puzzles and using laws, regulations, and policies. It was glorious. But, it’s the VA, and no place is perfect. I finally had enough of the red tape and bureaucracy and lay people trying to tell me what the law is, when I’m the one with the law license. So, I left and joined a Very Large Law Firm in 2014 where I still work because they wanted to get into the VA space. (I’m not mentioning their name in order to avoid having to clear any of this with them).

Over time our lead attorney left and the leadership role fell to me, and our junior attorneys both quit within months of each other, and so now I’m faced with handling three attorneys worth of work and rebuilding the department. I am very fortunate that this summer we were able to hire Glenn away from the Board of Veterans Appeals. He’s a 20 year retired Marine and I’m hoping to get him to contribute here as well.

I’d like to try to write an article each week, talking about claims/appeals related issues, or maybe telling stories “from the trenches” as we deal with fighting/dealing with the VA. Oh the stories I could tell. It might give the regular readers a window or insight into what is going on behind the scenes.

Potential future topics I could write about:

  • Claims Sharks: how to recognize them and why they are evil.
  • How VSO and accredited agents/attorneys are similar and how they are different
  • The difference between “Service Connection” and “Evaluation”
  • Service Connection in depth (Direct, secondary, presumptive, aggravation)
  • The Appeals Modernization Act in the real world at the VARO level.
  • AMA at the BV
  • BVA Hearings
  • Higher Level Review Informal Conferences.
  • Independent Nexus Opinions or Evaluations
  • Effective Dates.
  • Dead Reckoning in the context of Blue Water Navy claims.
  • The “business” of being an accredited Veterans Attorney/Agent
  • “War Stories” as they occur to me, based on recent experiences with the VA
  • Other topics suggested by you, the dear reader! Post a comment with suggestions of topics you’d like to see.

Obligatory disclaimer to keep me out of ethics hot water. I’m an attorney, which means I have to follow the Rules of Professional Conduct as adopted by my State Bar. The preceding statements are not legal advice and do not create an attorney/client relationship. See my profile for contact information.

P.S. As a postscript, and due to potential legal attacks for discussing the subject of “VA Claims Sharks”, we (both Mr. Hood and I) are forced to state this disclaimer that anything you read here is not legal advice instructing any of you to stiff a company you contracted with to do your claims. Perish the thought. However, it does not prevent us from saying we do not sanction a business model clearly forbidden by the Congress and the DVA. As a VA Agent with no legal training and no JD, my thoughts on the subject do not constitute legal advice and never will. Consider Asknod.com/asknod.org as an entity akin to the Babylon Bee site.

Posted in Guest authors, Lawyering Up, Tips and Tricks, VA Attorneys, VBMS Tricks | Tagged , , , , , , , , , , | 28 Comments

A WARM, FUZZY THANKSGIVING FROM VA SECRETARY McDONONOUGH

Posted on November 22, 2023 by asknod

Denis the Menace

Every once in a while about this time of year, we all become a wee bit maudlin and little acts of kindness well up in our bosoms. We have this insane urge to spread joy and happiness across our fruited plains and draw those we love near to us. Well, most of us anyway. Thus, in order to make all of you feel much more self-assured it isn’t just you getting screwed over, I thought it prudent to share this one with you.

Co. F, 51st Inf. LRP Bien Hoa 1967

After fifteen years of asknod.com, I’m fairly certain ol’ Denis & Company know who I am.  What the hey? When a BVA Veterans Law Judge interrupts me in mid-sentence during a face-to-face Board hearing and asks if I work for asknod inc or are familiar with him (it) because my logo sits atop his legal brief he’s holding (and pointing to), it’s obvious my ‘bad company’ reputation has preceded me. In this case, it was VLJ Jon Hagar back in April of this year at the VACO on 425 I Street NW and he’d just granted a SMC R 1 claim for another of my Veterans about six months prior.

Oddly, this wonderful work I do, which is fairly well-known (and recognized) above at the Board, isn’t thought of quite so fondly by the troops in the trenches below at our 57 Fort Fumbles. In fact, those curmudgeons up there in Detroit don’t seem to cotton to my attempts to help my fellow Veterans. I reckon they don’t do Thanksgiving up there judging by what I’m fixing to share.

Let me put this in perspective. It’s dry season 1967 up in I Corps. A twelve-man LURP team has just engaged a NVA company and called for extraction. After all, that’s what they do. Roam around for a week or two out in the bush and find the dinks. When they find ’em, they call in arty and an airstrike. Next, they call in gunships and slicks to extract them RFN. Lather. Rinse Repeat for one year. My boy Bob is the team leader. I represent five others of his team as well.

In their haste to egress the overwhelmingly superior enemy force and the hot LZ, the Peter Pilot pulls a bit too much pitch and wallows off to the port side. Veteran Bob hasn’t managed to get a death grip on a D ring in the floor yet and falls from 40 feet. Fortunately, another gunship swoops in and grabs him but the swan dive really messed up his back permanently as you can imagine. VA knows this, too. It’s all in his STRs. Bob leaves Vietnam after his 375 and a wakeup. He’s sporting a CIB and a BSM.

Fast forward to 1994. Veteran Bob has finally worn out his back. A few fusions and a permanent, imbedded pain pump with Dilaudid later, VA generously grants the maximum schedular rating of 60% for his back with left leg radiculopathy. Fast forward twenty years to 2016. Veteran Bob’s back is so bad, if he sneezes he shits his pants. The dilaudid kinda slows him down a mite bit and he’s eschewed driving by now. Lack of exercise has caused DM II -if the Agent Orange didn’t first. He’s getting OSA from a nasal fracture that didn’t heal well from the fall out of the chopper back in ’67.

Bob puts in for SMC L aid and attendance and they grant. It’s legit, too. He’s having a hard time getting around. VA grants on an extraschedular basis because-well, hey- he’s only 60% screwed up and can’t walk without a walker and being a zombie from the dilaudid. Fast forward seven years and along comes that eeeevil VA Agent Alex Graham and his plans to get Veteran Bob up to SMC R 2.

I file him for PTSD, OSA, DM II and peripheral neuropathy, secondary to the DM II. I really don’t pay much attention to the fact that his claims are run out of Deteroit. I thought that was pretty much over with the new NWQ spreading all claims across the US depending on what they are. Uh-uh. Detroit’s been sharpening the punji sticks and waiting for this shindig to fire up.

It begins innocently enough. He gets the 20 for DM and the 50 for the OSA. No sweat. A few years back in ’15, they’d upped his Bronze Star to one with a V and still awarded him another one (first oak leaf cluster). They don’t hand them out in Cracker Jack boxes.  As for the PTSD, they’d called it DC 9433 “Dysthymic Disorder” back in ’93 and ’03 when he reopened it last. It figures. They said I was “passive aggressive with antisocial tendencies” after two years over there. Remember, they didn’t “invent” PTSD until 1981.

Right now, that one and the bilateral peripheral neuropathy are deferred awaiting God only knows what. Seems that BS with the V or the CIB would suffice for the bent brain gig. All his team members are at least 70% and have been for several decades. But you don’t know the VA. Veteran Bob just came down with Stage 3 lung cancer in the right upper lobe. It ain’t responding to the chemo or the radiation. They gave him 100% and a zero chance of remission. Of course, he’ll have to go back in to prove he’s not healed in December of 2024 if he wants to keep it.

Which brings us to today. Put your Holy Shit Batman safety belts on when you hear this one. Don’t even waste your breath on a ‘say it ain’t so, Bro.” This is downright ugly to read. Attached is the initial salvo and the Extraschedular fired off three days after I asked for all the new goodies and the a& a to go with them.

redact 526 filed 3.13.2023

Redact extraschedular

Happy Easter, Bob! We love you and we have a special present in store for you. We don’t even care if you’re 20-year protected under §3.951. We’re gonna fix your wagon. Hear? But that was not the end of the matter….

I haggled with these folks and finally wrangled a terminally ill flash out of them. It still didn’t budge them on the PTSD or the PN of the lower  extremities yet. I finally wrote ol’ Beth Murphy, Tom’s wife, who took his old Director of Comp. and Pen. Services job yesterday. I received a polite “We’re on it!” back from her this morning and dang if she wasn’t telling the unvarnished truth…

redact Dir. c&p response

redact RD 11.22.2023

Redact CS 11.22.2023

Boy howdy if that doesn’t just make you proud to work for VA. A Veteran is dying of service connected disease(s). As a government employee, it behooves you to protect the fisc and ensure no slackers slip through who are not entitled. Bravo, gentlemen. Another financial threat has been averted. Promote that man. Actually, it took three signatures. Detroit’s VSCM, the AVSCM and a RVSR all joined hands and sang Kumbaya and averted financial ruin.

Happy Thanksgiving. I have much to be grateful for. I have two new granddaughters-one 2.5 going on 16 and one just 5 months old. The best part is they don’t have cell phones and actually talk to me.

P.S. Of course, you folks know me by now. If I can’t win in Detroit, I go to DC.

RD R1 7.24.24

Posted in Extraschedular consideration, Thanksgiving and war, VA Agents, VBMS Tricks | Tagged , , , , , , , , , , , | 10 Comments

EXPOSED VET RADIO SHOW THURSDAY NIGHT 11/16/2023

Posted on November 13, 2023 by asknod

Following on the heels of last week’s Tennessee SMC Seminar, I’m happy to announce  the Post-Game Wrap of our presentations by none other than the speakers themselves. If you were unable to dial in that day (Wednesday the 8th last), you can still get a round up of the whos, whys and whats this Thursday at 1900 Hours Eastern or 1600 Newsome time. John and Ray will be hosting and the rest of the Peanut Gallery will be contributing bits and pieces as well.

Cocktails and snacks will be served virtually, as usual per Corona 19 protocols.

Here’s the computer link to the festivities

https://www.blogtalkradio.com/jbasser/12287062/connect/d85782b2a48f89768c4c68613143c01bd049f36e

And the call in number for you computer-challenged folks is

(515) 605-9764

Hope to see you there in the cloud or out loud. Dial one if you wish to contribute to the conversation. Look for the Bat Signal in the sky

 

Posted in Exposed Veteran Radio Show, Humor, research, Tips and Tricks, Veterans Day | Tagged , , , , , , , , , , , , | 1 Comment