Pack them c-files with evidence, hoss.
Building a claim is a gradual process. Fortunately for those of us who have decided to depend on no one but ourselves to win our VA claims, we have several venues that purport to give seasoned advice. I was trying to explain it to a new member of KPVets as being a way to “control it”. That’s no small advice in the early stages. Getting an albatross airborne pales in comparison. My particular site reviews it based on law and the interpretation of evidence. But you have to get the evidence into the file before you get to the CAVC. The early sparring is where the bulk accrues.
38 CFR §3.156(b) is getting a lot more attention since I won on it. VA has ignored it at their peril for years. What it does is force VA to make a new decision on each new submittal of evidence right up until you move your flag to the BVA in DC. They’re a sneak attack or subtle DRO review without years of that idiocy. It forces a fourth-and-short situation and VA has to punt to the BVA without looking at it or review it once again before certifying it and Form 8ing it to DC. Yep. There’s a VA Form 8.
Importantly, as a pro se claimant, you are accorded the Presumption of Stupidity-so essential to self-defence. You can change your story as you go as long as each additional item you introduce is “new and material evidence” in favor and not just vague generalities that make it look like you are a drowning man in search of a life buoy.
Well, my fortë at this seems to be in how Statutes, Regulations and lowly M-28 manuals relate to the claim and which were violated. And, more importantly–when, Gentle Readers. Unfortunately for VA, and in my favor is the skin disease from either Hepatitis B, C or Agent Orange. VA refuses to acknowledge it to their ultimate future loss. You are getting ready, should you so choose, to invest some time in it, to read a last-gasp -a last call by VA of the denial of my greenhouse under the Independent Living Program. After we’ve hosed them with all the extra evidence we assembled to rebut their contentions in the denial and the Statement of the Case (SOC), they mail one last document out. We at Asknod call it the “What part of No don’t you understand Part II?” Part I was the SOC
At this stage, you could bring in a buddy letter from Jesus Christ himself attesting to the fact that you were going to grow Manna from Heaven-and notarized. It would be to no avail. When you read the SOC and then the SSOC, you feel you are reading two different claims files. Gone are the numerous greenhouses that lurk around every corner. Again, no response about being ADA-compliant. Suddenly the law has changed and every item of evidence you put together in–get this– October 2012 –to rebut the SOC is now gone according to the new, improved M-28 R or Revised. A new set of parameters comes into play and yep- you guessed it hoss. Missed it by thaaaaaat much. We changed the rules at the end of March and only got to your case a week ago. Sorry you lose but that’s the luck of the draw in this VA business, huh?
The SSOC usually vomits the same exact language of the SOC even with rebuttal. Here’s the SOC so you don’t have to go on a witch hunt. This leads me to believe they just topsheet it and kite it into another Veteran’s file. Mine “disappeared” for six months, long enough for them to say I had not responded within the prescribed 60-day window. Not. The certified mail receipt showing I had met the Common Law Mailbox Rule was examined, reexamined and x rayed for signs of tampering. And it was discovered the poor boy in the mailroom accidentally shipped it off to DC to be with my earlier effective date for Hepatitis appeal. Dang. I hate that when that happens. With proof it was still a claim, they again shipped it off to DC looking, this time, for a way to rebut my new evidence.
By way of explanation, I think it is important for Vets to know that each VR&E Office at their local VARO is autonomous. They are a force unto themselves and have no masters. When they encounter an actual intelligent life form who is cognizant of the law, they often retreat to DC to formulate a game plan. Here, for lack of any substance or law,they have had to do so twice. This doesn’t exactly speak volumes for their acumen in their chosen avocation, but then who would expect a gomer like me to show up at the door? Which brings us to today.
What the SSOC attempts to accomplish by sleight of hand is tricky pure and simple. They’ve rescinded a large portion of the M 28 Manual-specifically Part IV (4), Subpart C , Chapter Nine- for us ILPers-and installed what I have referred to as the New World Order on ILP-cordless phones for when you fall down, grab bars at toilets and showers. 36 inch entry doors and a can grabber for those cans on the top shelf. And sock puller uppers. Negatory on the metal detector. Long handled shoehorns, roger. No more tractors or computers. Sayonara to the photography equipment. Hello headphones connected to the boob tube. No Ipads. No Iphones. No. No. No. No. No. M-28 (R) as of March 31, 2014.
Services related to an avocational activity should not expand to more than one type of activity. For example, if adaptive sports equipment is provided for one avocational activity, then additional services for other avocation activities may not be provided even if the individual expresses interest in other activities…
VA prosthetics and/or Home Improvements and Structural Alterations (HISA) grant programs are the primary providers for equipment to increase independence in daily living. However, the VRC may provide equipment needed to increase activities of daily living as indicated on the Preliminary Independent Living Assessment if such equipment is not provided by prosthetics and/or HISA.
Examples of this type of equipment include, but are not limited to the following:
• Grab bars to increase independence and safety with bathing and toileting
• Shower chairs
• Raised toilet seats
• Shoe horns
• Grabbers to extend reach and mobility
What? You thought I was joking two years ago? This has come to pass in the M-28 Manual revised. No discussion in the Federal Register? Nay Problemo. Just change the M 28 computer program. All of a sudden those $25,000 grants are turning into $250 dollar grants but where does that excess go? VA still budgets the same amount of money to cover 2,700 slots a year. Multiply it yourself. That’s a shit ton of grab bars. Read about it. Or should I say read about the growing lack of it.
Here’s the SSOC. Remember, Veterans. Each time you introduce new evidence into your claim bucket, a new review is supposed to ensue. I personally think that rarely happens but this one must have caused some heartburn. Changing the rules in mid-stream is still a Bozo No-No in all 57 VAROs and has been for 20-odd years. As for just changing the M-28 without even so much as a by-your-leave, the chutzpah of these guys to circumvent Congress’ intent is mortifying. Hell, that VA scheduling thing in Phoenix? Shoot, that’s metastasizing into Godzilla and is just more of the lip service they pay to their own laws.
It’s fun to write rebuttals like this because they are so uneducated about what they profess to administer to Vets. They fall back on the most current M-28 or worse, wait sixteen months for it to change and then use the new one. They honestly think you won’t notice. If it were a VSO, I’d bet he’d already have talked you into a round down at the tavern to drown your tears.
This is what I live for. I do this for all of you. My win for this will cement the law as it was intended. It will be called precedence hopefully so that others of you can point to it and say “Hold the phone, dude. Read your own law.” All the quotes and cites are assembled throughout the ILP file. Regardless of whether it is overturned at the BVA and granted, it will still be an example, in 2014, of what the Statute really means. Cocked and locked as they say. This one makes Blog Post Number 44 on the subject and is essential to any who have a current ILP claim in the mill. Think of it like a nexus bible for a compensation claim. It’s a good DIY primer to a win at this.
At seventeen pages, it is rather voluminous but it is essential to get all this in there so they cannot play dumb. You explain it to them in monosyllabic words. Photographs are a must. Remember the thousand word rule and continuity. Stay focused on the prize. They want you to puke out.
I’ve been assembling all the elements for this as I went so as not to be taken aback if I was denied. I just didn’t see the rule change in the M28 R coming. That bogus defense was rather anticlimactic. If you work at the Central Office in DC, you usually aren’t dumb enough to offer the VR&E chowderheads in Seattle advice like that. It’s almost like cheating to do claims with them. They know less than we do and get paid for it. Next? A Board hearing and maybe a 38 CFR §20.900 (c) filing for medical exigencies. I’d really like to get this puppy built before I die and have to be reincarnated to enjoy it.
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Wesley McCauley
