MEMORIAL DAY 2024–REMEMBERING THEM ALL

Posted on May 26, 2024 by asknod

Memorial Day is painful to some, joyous to those who aren’t a subset of America’s fallen and, sadly to most, just an excuse for a three-day weekend with a lot of burgers and brewskis.  I won’t dwell on the morose serious side. To me, even though my dad rests on Mary Custis Lee’s front lawn, Arlington National Cemetery represents the ugly fallout of War; all wars- not just our internal squabble between the north and the south.

Having participated in a war once upon a time, I survey the last fifty years and see nothing has changed. Every time we end one, it’s only a matter of time before a new trouble spot rears its ugly head and all George Santayana’s admonitions fly out the window. We bust out the yellow ribbons and the medals and patriotic fervor rises in our breasts. Again.

A stanza of Fortunate Son by Credence Clearwater Revival rises in my breast…

Yeah-yeah, some folks inherit star-spangled eyesHoo, they send you down to war, LordAnd when you ask ’em, “How much should we give?”Hoo, they only answer, “More, more, more, more”

In case you haven’t noticed, those eager to commit to war most often are not the same folks who’ll be carrying the flag or toting a 16. I’m sure they have all the moral and intestinal fortitude of patriotic citizens but that’s easy if your personal involvement consists of little more than raising your right hand to vote ‘Aye” to another Tonkin Gulf Resolution committing hundreds of thousands of your fellow Americans to certain death. Again.

However, I won’t dwell on that today. Dead folks don’t demand respect. How can they? They’re long gone. Only their offspring and survivors can occupy that unenviable position. In another fifty years, there will be no survivors of the Southeast Asia War Games. Ditto one hundred years hence and the eventual passing of any survivors of the Afghan/Iraq/Kuwait debacle. We’ll still have plenty of Memorials to remind us of the absolute, utter futility of War but will probably still have plenty of them folks with Star-spangled eyes just waiting for a new conflict. Again.

This last week, I encountered a completely unexpected scenario. I doubt any of you would even conceive of this happening. To put it in perspective, allow me to ‘set the table’ figuratively. Since the War of 1812 or thereabouts, we’ve had a soft spot in our hearts for our sons of war who suffer disabilities incurred in both combat and training. We have created munificent statutes (in Congress’ mind) to remunerate them for their suffering. In furtherance of that worthy objective in 1865, we were forced to enact laws to prevent Veterans from being fleeced by unsavory characters who would steal funds awarded to disabled Veterans. We had pretty much put the puppy to bed until 2006 when Congress let their guard down and eradicated criminal penalties that protect us from their depredations.

With the advent of the Pandemic, idle hands (and minds) began anew the hornswoggling of a new generation of America’s warriors. I speak, of course, of the new cadre of what we call “claims sharks”. Quite simply, in the last four years,  uneducated, unschooled and avaricious individuals have begun offering help with VA claims. Their numbers continues to metastasize exponentially and the financial harm done to Veterans’ pocketbooks, and, by extension, their dependents, is appalling. Yet Congress dithers and does nothing. Again.

Many in the field of Veterans Affairs and litigation have strongly advocated for the safety rails to be erected once again to protect our disabled Vets. Sadly, Congress’ resolve to do something is being overwhelmed by greedy interests (read lobbyists) who advocate for a wide-open free-for-all of unaccredited, unlicensed scalawags. They propose new rules that would allow those they represent to fleece Vets unmercifully. This has given rise to two competing camps advocating for two entirely different outcomes-one, the old school version where only accredited attorneys and Agents like myself are properly vetted and supervised to prevent abuse; and a new version where unlicensed, greedy operators are demanding they be allowed to charge as much as the market will bear. Again.

The two competing legislative bills in question are the “Guard” Act which would reinstitute the old penalties for practicing VA law without a license versus the “Cares” Act which would allow any Tom, Dick or Harriet to throw his (or her) hat in the ring and charge up to $12,500 for a single claim. Currently, these unscrupulous outfits in the VA litigation business currently have been known to take five months of past-due benefits, including dependency funds, on brand new claims-something forbidden by law for accredited individuals.

Putting this in perspective, the 146 Veterans Service Organizations chartered by Congress provide this service for free. We accredited representatives generally charge 20%. The most complex cases on appeal are allowed to reach 30% in some instances. But under no circumstances are we allowed to charge a dime if VA grants a brand new claim right out of the gate. So just imagine some shylock showing up, providing Mr. unsuspecting Johnny Vet with lots of help and then taking him to the cleaners for 50%-all with no guardrails or supervision to ensure honesty. Their proffered codicil? Why, they’re not greedy. A max ceiling of $12.5 K for their expertise would be a pittance for their knowledge and expertise. And besides, there aren’t enough accredited attorneys or Agents to go around so this is more fair to the Veterans.

So, you folks can imagine my surprise when Johnny (Iraqistan) Vet arrived at my front door asking for representation because his current attorney (legally accredited) wasn’t very well acquainted with Special Monthly Compensation (SMC) law. Since I know this to be true in most cases, I blindly believed his story and took his Power of Attorney for a records review only. After gaining access to his files, I realized this Veteran was what I politely refer to as a ‘frequent filer’. He had about 4 or 5 appeals pending at the Board that I would be legally required to defend if I accepted his full-blown POA. Whether they were viable, I had no way of knowing but I knew they would entail a lot of unexpected work I would be legally on the hook to defend.

I decided to hand this one off to a fellow attorney who wasn’t as busy as me but still well-versed in SMC. Before he even had a chance to do an in-depth longitudinal review of this Veteran’s claims file, a second Veteran, claiming to be a very close friend of the first Veteran, showed up and asked for help in the same SMC venue. He identified himself as a partner of the first Veteran in a “Veteran help site” with the business named “Blue Cord Patriots”. As most Army infantrymen know, they are permitted to wear the blue fourragère on their right shoulder after completing AIT. It increases the Esprit de Corps. If you’re going to become cannon fodder, you might as well look as snappy as you can to the gals.

My buddy Pete decided to take a gander at Mr. Blue Cord #2 and discovered to his dismay that the Blue Cord Patriots outfit is nothing more than another VA Claims Shark outfit. Pete called me to let me know whazzup. I immediately figured this out. Both of these Johnny Blue Cords are totally clueless as to how to prosecute and win a higher SMC claim. If they were so knowledgeable, they wouldn’t need me. What better place to learn than to hire a knowledgeable accredited representative to teach them how?

Granted, Johnny Vet #1 is a legitimate candidate for a high SMC rating. I won’t dispute that. But his former attorney was none other than Mr. Kenneth Dojaquez of Carpenter Chartered-probably one of the most knowledgeable attorneys of all things VA. I haven’t talked to Kenny about this but my guess is he caught wind of the guy’s affiliation with the Blue Cord sharks and wisely decided to part company with him. Could be I’m wrong but I strongly doubt it. As for Johnny #2, I didn’t see his file so I can’t say if he, too, was an SMC candidate. The funny thing is both are United States Air Force Veterans and the only guys who get to wear blue fouragères in the AF are aide-de-camp officers assigned to Air Force  Generals-but on their left shoulders. Nice try but no cigar, Sean and Patrick.

I guess the primary thought that comes to mind is chutzpah. Who would have the balls to surreptitiously approach an accredited VA representative with the express intention of absconding with his proprietary knowledge of SMC (or any facet of VA law) in order to sell the technique to other unsuspecting paying Veterans? You’d need a wheelbarrow to cart cojones that big around. I doubt even Commando Craig® would have the balls to do that.

Now, don’t get me wrong. I am not above sharing my SMC info with other accredited representatives. As a general rule, we enjoy sharing techniques to fight VA and gain benefits for our clients. Our efforts are truly driven by a strong moral compass. On the rare occasions I have witnessed other attorneys win big claims without a fight, I have never heard one utter a discouraging word about how they got screwed out of a fee for their services. Knowing some of my clients don’t have a pot to piss in nor a window to throw it out of, I sometimes do their claims pro bono.

The business of helping Vets obtain their benefits should be altruistic. It should be an endeavor akin to what Dan Ackroyd said to John Belushi in the Blues Brothers movie- “We’re on a mission from God.” Not many aspire to be a VA ambulance chaser at 20% when you can go out into the wider world of civil litigation and charge 40-50%. The mere idea of engaging in a business to fleece anyone-let alone Veterans- should be severely punished. The shocking fact that it’s against the law in civil practice makes it all the more despicable when done by their fellow Veterans like VA Claims Insider Brian Reese and these avowed Blue Cord Patriots. I’m unsure how they can look themselves in the mirror and be proud of their endeavor…

And that’s all I’m gonna say about that. Happy Memorial Day. Don’t burn your burgers and dogs. Raise your glass in  a toast to the likes Park Bunker, Capt. USAF (below) in hopes we’ll recover his body soon. He deserves to come home.

P.S. And, as usual, LRRP Ed had to throw this one my way.

P.P.S. As a final postscript, Asknod.com/Asknod.org is retroactively amending these articles which purport to “badmouth” VA Claims Sharks or those accused of same. As a VA-accredited representative, I strongly object to others who are not who purport to “advise” Vets on how to do this and then collect a fee for doing so. That clearly violates §§14.629; 14.636 but is no longer punishable with jail and fines. It makes no difference what you call these types. The repair order is simple. Get accredited. It’s free. Thus, I am forced to state that I really do not care if they are violating the law. If they get punished, it’s not because asknod.com brought on the complaint and drew attention to their violation. We report. You decide. as Fox News© says. Remember, I’m not an attorney. I’m just a shit-for-brains guy with a wild and crazy website like the Babylon Bee©. Asknod Inc. is a separate business entity and has no affiliation with me. My wife owns it.

Posted in Memorial Day, VA Claims Sharks | Tagged , , , , , , , , , , , | 2 Comments

CAFC-BARRY VS. DENIS THE MENACE–I LIKE THAT OLD TIME ROCK AND ROLL

Posted on May 16, 2024 by asknod

Not since the epochal SMC precedence set in Bradley versus Peake waaay back in 2008 have we seen anything to upstage this one. Buie v. Shinseki may have been a close second running neck and neck with Jensen v. Shulkin but today’s Federal Court decision in Barry is earthshattering and will very possibly bankrupt the VA. All these years (since 1945) VA has insisted §3.350(f)(3) or (f)(4) could only be awarded once apiece. Further, if you had a 50% or greater rating separate and distinct from the index 100% disease or injury that granted you aid and attendance, and you were awarded a new 100% rating for, say, coronary artery disease, you lost any prior half step awarded under 3.350(f)(3) and matriculated to (f)(4). So… let’s play with this in real time under the new Barry metric.

Click to access 22-1747.OPINION.5-16-2024_2318741.pdf

The interesting thing that jumps out at you-Johnny litigator- is the implications of how all this was written in ’45. I never thought it was very ambiguous in the least but I’m pro-Vet- not some mugwump VA Rater looking to deprive Vets of any and every dime they can deny. Let’s start with §3.350(f)(3). It’s in what we call the SMC P arena.

(3) Additional independent 50 percent disabilities. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.

Okay, pilgrims. Pack that away in the brainbox for a moment and digest this one- §3.350(f)(4):

(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above.

Both subsections appear to be regurgitations of a basic tenet-i.e., if you get an extra 50% rating and it’s a different body part, you get a bump up one half step from SMC L to L ½. Concurrently, if you get a an extra 100% rating and it’s a different body part, you get a full step bump up from L to M. But….let’s examine how §3.350(f)(3) notably differs from (f)(4)  in its semantics. (f)(3) says  “additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more”. On the other hand, (f)(4) says “additional single permanent disability independently ratable at 100 percent.” See where the camel got his nose under the tent? 

To my thinking, the much-maligned Village Idiot of Dr. Phil fame could easily parse the meaning of this one without strippin a brain gear. I noticed it back in 2016 when I really began to delve into SMC law. I even argued it fervently to VA raters at DRO hearings or  BVA judges to no avail. VA’s thinking was very linear. Their position was “If it was available we’d have been doing it that way since 1945. Buzz off. Nothing to see here. Move along.”

So along comes VA Agent James J. Perciavalle, Sgt, USMC (Retired), of Veterans Advocates Group, LLC fame (logo above), and jumped into this controversy a few steps ahead of me. He decided to take it up to the Court. Since he wasn’t admitted to the bar, he contacted  his good friends over at Carpenter Chartered to do so. The Court ruled against him which quite frankly surprised me. One of the Judges was Mike Allen who swore me in to the Court Bar. Of all the justices, I would have bet heavily on him voting to uphold the multiple awards entitlement interpretation of (f)(3).

At any rate, the Federal Circuit has spoken. Not only did they speak to this but they reversed it as being unlawful. Their interpretation is binding and they feel Congress spoke to this quite succinctly in 1945. That the VA Administrator in ’45, and now the VA Secretary in 2024, have spoken to the subject and insist their interpretation is correct, the Fed Circus has finally addressed this inequity for the first time. As such, that makes their misinterpretation of law retroactive to 1945. All I have to say is “Gentlemen, start your keyboards and begin filing Clear and Unmistakable Error claims.” VA has been  perpetuating the error for 79 years. I believe it was Senator Alan Cranston who first observed in 1988 that VA had existed in splendid isolation since the War of 1812 and now had to be dragged into the 20th century kicking and screaming to afford Veterans their due. I’d say he was off by thirty six years. Better late than never.

It does remain to be seen whether Denis the Menace might choose to defend this travesty at the Supreme Court. In that event, it will become McDonough versus Barry if he does. I do hope he sees the error of his ways. The operable phrase is, and always has been a nonadversarial Veteran friendly ex parte venue in which to present our claims. What part of that is so hard to entertain?  Yo. Remember us? You know. The ones who have borne the battle for you? Our widows? Our orphaned children? When the shit hits the fan, you folks always call on us. When it’s over, we’re forgotten and the parades cease. Welcome home my ass.

Make it so, Numbah One. And be quick about it.

P.S. A reader emailed me to ask what this looks like in real life. Read the attached  Code Sheet. Vet is 100% on 11/08/2017. He gets SMC L for Loss of use of lower extremities on 10/12/2018. He wins 100% for IHD and gets bump from L to M under §3.350(f)(4) effective 2/05/2019. This is currently up on HLR to get the bump to M which they missed.

Now, with Barry, he will also get a bump from M to M ½ because he has 40% for Prostate and 10% for tinnitus which equals another 50% separate and distinct under §3.350(f)(3). And… it’s retroactive to the date he qualified because Barry is a reversal due to incorrect reading of §3.350(f)(3) for  79 years. So, SMC L½ would occur when he was awarded the L originally and the M½ would be effective the date of his 100% award for IHD @ 100% or 2/05/2019.

Now you folks can understand why you dang near need a Ph.D. to figure all this out. Redact code sheet example of Barry precedence

Posted in CAFC Rulings, SMC | Tagged , , , , , , , , , , , , , , | 3 Comments

EXPOSED VET RADIO SHOW THURSDAY 5/16/2024

Posted on May 14, 2024 by asknod

Having won a greenhouse with all the bells and whistles last week, John invited me to join him on the show and share with the listeners how this came to pass. This I agreed to do. Putting it in context, this began on March 20, 2011 in a Dilaudid-induced opioid haze. Since I figured I was hors de combat, and probably would be for life, I figured growing a shit ton of vegetables might cut down on the food bill. Since those gomers at the seed companies always put in enough seeds to start a plantation, it’s easy to overplant and grow far more that you can eat yourself. I like to hunt out the Veterans on the peninsula where I live and unload all the excess. If anything is left over, I take it to the food bank.

Unfortunately, some Vets are more into Micky D’s or Burgerkingdom™ fare and don’t even own much more than a popcorn popper. My job ends with growing the veggies. If you are food-challenged and can’t even cook for yourself, then your options are far more limited if you’re SINK (single income no kids). Well, that or you have to find friends who manage to overlook you always just happening to be in the neighborhood about chow time.

The Independent Living Program (ILP) under 38 USC §3120 has never changed. What has changed is the way VA would like to interpret it after March 14, 2014. The VR&E poohbahs insist the new M 28-1MR becomes the de facto law instead. When I filed in 2011, the old M 21 was in effect. Under that version, VA could give you a greenhouse or a metal detector or a riding lawnmower. Since Veterans are prone to abuse the VA system, VA figured they’d just grow pot in the greenhouse, sell the metal detector (still new in the box) for crack and use the riding lawnmower as a power wheelchair to get to the VFW bar.

Notwithstanding that, they tried eliminating anything but medical devices as early as 1995. This forced VA advocates to fight back and go to Court. VA’s Office of General Counsel had to hold their collective noes and crank out a legal holding back in 1997. Here’ the meat of VAOGC Precedential opinion 34-1997:

HELD
1. No statute or regulation, including section 702 of the Rehabilitation Act of 1973
and its associated regulations, either specifically directs VA to authorize or
precludes VA from authorizing services and assistance of a recreational nature as
a component of an eligible veteran’s program of independent living services and
assistance under 38 U.S.C. § 3120.

2. VA has the authority, and responsibility, to provide all services and assistance deemed necessary on the facts of the particular case to enable an eligible veteran participating in such a program to live and function independently in his or her family and community without, or with a reduced level of, the services of others. This includes the authority to approve, when appropriate, services and assistance that are in whole or part recreational in character when the services are found to be needed to enable or enhance the veteran’s ability to engage in family and community activities integral to the veteran’s achieving his or her independent
living program goals.

Then, when the ink on the avocational argument was still drying, they came out with a whole new M 28-1 Manual Rewrite- Dude, you already  have a greenhouse. We can’t by law give you another one or even a bigger one. Sadly, waaaaay back in 1991, A guy named Marty Karnas  (CAVC 90-312) was up at the Court and arguing the same thing. The rules have to be the same when you win as they were when you began. Otherwise, all hell could break lose. You could win your claim but discover you won a nothing burger by the time you got there. Mr. Karnas’ case passed the VA’s smell test- but then what doesn’t? Fortunately for me, the Court called bullshit on Mr. Derwinski.

To give you an idea how I was admitted to the CAVC Bar, you need look no further than the flurry of Extraordinary Writs of Mandamus I filed trying to get them (the Seattle VR&E dicks) to build my greenhouse. Check these out- 2016-2098; 2017-1450 and 2018-0938. Sure, I lost them all but they all ended up in my claims file and those became fair game when I wrote my legal briefs after I returned to the BVA last year for my hearing(s).

The Big Boys’ best attempt, which pancaked miserably, was in 2014 when they insisted I missed my VA 9 filing suspense date. I defeated them with the ages-old USPS Green Card showing they received it and signed for it several weeks before showtime. I was polite. I didn’t call them liars. I just pointed out that it was there at the VARO if they’d even bothered to look. Magically, their attitude changed when they “found” it on the mailroom floor.

Anyway, I hope to see you all there with your virtual chips, dip and a brewski/chardonnay for a great story about how to whip these bozos at their own game. The ILP isn’t dead. It’s just metamorphosed into a more nuanced battle for your rights. Sound familiar?

The Call in number is still

(515) 605-9764

Or, should you desire to view it on the computer…

https://www.blogtalkradio.com/jbasser/12338841/connect/4e9e77f4c12feecfae7d24282c4584aad74031d8

Show starts @ 1900 Hrs East/1600 Hrs Left Coast

 

Posted in Exposed Veteran Radio Show, Independent Living Program | Tagged , , , , , , , , , , , , | 4 Comments

MAY 9, 2024–A COLD DAY IN HELL

Posted on May 9, 2024 by asknod

Thirteen years, one month and 19 days ago, I filed a request for an Independent Living Program (ILP) grant. That was March 20, 2011. A very close friend and fellow Vietnam Veteran had fought long and hard to win his own greenhouse. Bruce Almighty even traveled to Washington DC to testify before Congress on VA’s seemingly impossible requirements to obtain anything via the ILP. It was the ultimate Catch 22.

VA’s VR&E program under 38 USC §3120 exists. VA will concede that much. Yes. We have an ILP program. Yes, you more than qualify. But no, you may not have a greenhouse. If you wish, we can provide you with sock puller-uppers, grabber devices for that hard-to-reach can on the toppermost shelf or grab bars next to your water closet for those tense, unbearable moments when your hemorrhoids are overwhelmingly painful. A greenhouse, on the other hand, is not something that would help you attain independence in everyday living. Or so they said to me at several different stages on my way up the ladder.

In 1997, VA’s OGC issued a Precedent holding (VAOPOGCPREC 34-97) that was forced to concede that the ILP program actually had, for the previous sixteen years, been a vehicle used exclusively to award metal detectors, riding lawmowers, fishing gear, fishing boats and all manner of avocational accouterments to the most severely disabled Veterans. The program was awarded to 2,700 lucky souls per year. The competition was fierce and some applied year after year in hopes of qualifying.

For those of you who read

That would be me when I heard about Bruce’s long four-year fight. I was a year out of the Seattle VAMC and still hopelessly addicted to Dilaudid. I didn’t fancy myself framing more houses and couldn’t envisage myself doing much more than writing this blog and attempting a convincing imitation of a mushroom. Gardening was a passion so I put in for a really nice computer to create asknod articles… and a greenhouse. The computer only took a year to win- but it was still a fight.

I finally won the greenhouse on appeal in September 2015 but that was just the start of my battle. The VR&E hierarchy began by asking if they even had to comply with some ignorant jackwad VLJ back in DC who didn’t seem to understand that the ILP program had metamorphosed from avocational pursuits to HISA ones. That’s right. Somewhere between 1981 and 2001, the VR&E hierarchy decided there would be no more toys and such distributed to the Veteran welfare population. This was going to become a medical necessity program.

Riding lawnmowers were suddenly right out because they were transportation devices that could be used to drive down to the VFW to get drunk and avoid a DWI. Fishing gear couldn’t qualify because it didn’t make a Vet “independent in his community”. Huh? I finally had to point out that the OGC actually mentioned computers as an example of an ILP entitlement. VA mulled that over, sent it back to DC and asked “Do we really have to comply? This is pure bullshit.” DirVBAVREVACO (Director, VR&E Services)  and OGC all agreed that’s what it said. Bingo. Instant $5 K worth of computer and Adobe 9.5 Pro and a shit ton of other goodies. Believe me, this did not sit well with Hizzonor the VRE Emperor. He was one of those 1976 to 1990 Vets and then some Govt. Service to top off the tank at 20 and the golden parachute. His motto was “They serve, too, (and deserve combat medals) who only stand and wait. Yep. A cannon cocker for life in Germany.

I got my computer from VA in 2012 long before the BVA fight even began for the greenhouse and boy howdy was it a daisy. That Dell had everything but the toaster and electric ass scratcher attachments. It came loaded down with tons of  really cool software. VA even paid some ol’ boy to come over and teach me what that Adobe 9.5 could do. Between that and my copier/scanner/ printer, I can damn near print money.  I wrote my book on it. I wrote all about ILP and learned more and more. And then one day, it went to heaven in 2018.

After the big win, the Seattle VA VR&E Poohbahs showed up on July 13, 2016 and tut-tutted around the property. The Head honcho told me I didn’t ‘look’ very disabled and said he was going to have to reassess this whole thing. They did try to strongarm me into signing off on a VAF 28-8772 15 X 20 foot structure with a 60 watt lightbulb overhead and one (1) 120v outlet. No water faucet was contemplated because-hey-your old  6X 8 greenhouse doesn’t have one so all we have to do is give you a little more space. Right? I’d already declined to sign a blank 8872 two months earlier so I was amused  they thought this was going to be some kind of Come to Jesus meeting or a  Monopoly Do not Pass GO! Go directly to Jail card. Man, I’m 73 and 20 year protected. Gilead Industries had just cured me of Hepatitis C and I already had that Get Out of Jail Card in my wallet. What are they smoking? I want some.

When I complained and said I had my eye on a 20×28 version with hydroponics from Farmtek™, they all had a good chuckle and the Big Banana, Mr. David Boyd allowed as it would be a very cold day in hell before I ever saw a greenhouse that big. David retired somewhere in between the SOC in 2019 and 2022 so he won’t get to comment on today’s weather report.

So, here we are in 2024 and Hell seems to have a distinctly brisk chill in the air today. Some Vets think this is extremely greedy of me to do this. Could I afford it out of pocket? Of course but why should I? I am one of those lucky 2,700 souls who qualified. If they’re handing out free greenhouses, I’d be a fool not to throw my hat in the ring. I’m not stealing an entitlement from another deserving Vet as I was accused of at my first hearing in July ’23. There is no monetary limit to an ILP award. Congress appropriates the money to award to the Vets. If it doesn’t get used, I’m sure they appropriate it right back at VA for more important things like bonuses and Christmas office parties.

What really intrigues me is that those 2,700 (or even 2,750 now) Veterans chasing this chimera have now sunk to a lowly 526 souls last year. When Vets discovered there weren’t going to be any more ILP  freebees beyond grab bars, the enthusiasm kinda died down. And this, fellow Veterans, is why I fought for it. Now you and everyone of us who have borne the battle can file a request for a fishing boat or a metal detector … or… a greenhouse and point to me as an example of why you, Johnny Vet, are equally entitled to this largesse. VR&E bozos can’t very well explain this away as some entitlement that exists in your fevered imagination.

What I cannot comprehend, and perhaps never will, is how VA could fight me and incur ungodly litigation costs for thirteen years and change trying to defend the indefensible. Two BVA decisions. Three BVA hearings. Three Extraordinary Writs of Mandamus and now… defeat. I’d guesstimate, at a conservative minimum, that they’ve squandered well over one million dollars attempting to put the VR&E Pandora back in her box to no avail.  It set me back a buck fifty for filing fees up at the CAVC. Well, maybe more for the two round trips back to DC and hotel rooms to argue it in person. But then I get to motor on over to ANC and say hi to Dad or Uber down to the wall to say hi to Bob, Chuck, Fred, and Park. That’s chump change compared to the expected $200 K + they’re going to spend complying with the Board.  It also sets a new world record in the Delay, Deny until you Die competition for how long it takes to win a VR&E claim. Bruce Almighty held the bragging rights to that up until today. Eat your heart out, bubba.

Check it out. Here’s your ticket to a VR&E greenhouse. Free. You will have to obtain an IMO explaining why you need one though. Call Bethanie over at Valor4Vet.com

Graham VRE Grant

So, at some time in the far distant future, some ol’ boy wetting his 6 lb. test with a VR&E-awarded Garcia spinning rod with a Mitchell 500 reel and a Mepps #2 will thank me for not pissing on the VR&E fire and calling in the dogs when he ties on a smallmouth bass. I don’t care if he doesn’t recall my name. I’m not a parade kind of guy anyway. I just don’t cotton to that VA bait and switch shit. Our squadron motto in 1970 up north in the country that rhymed with Mouse was unequivocal-Win or Die. I see no reason to commence doing otherwise this late in my life.

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

Posted in Humor, Independent Living Program, VA Agents, VR&E | Tagged , , , , , , , , , , , | 21 Comments

THE DISPARITY OF VA DEPENDENCY $

Posted on May 4, 2024 by asknod

Cupcake and I went out to dinner the other evening because our home is in such disarray.  We decided to revamp the kitchen after almost twenty years of abuse. New countertops and avante-gard  counter outlets were definitely in order. Granite is beautiful but some of the newer composite products are far more elegant nowadays. Or so Cupcake insists. I’m told my taste is mostly in my mouth and will probably remain there for the rest of my natural born life. I’ll buy that.  Existing on c rations for two years is living proof of that truth.

With this kitchen do over came a critical examination of the color of the adjacent 5,000 square feet of paint. Married men, Veterans or not, can see where this was heading sans compass and map. To paraphrase the old Eagles tune, she’s headed for the remodel side of town.

At some point over dinner, Sig. other #2 asked in passing how much VA remunerates us for spousal dependency. That’s rather a misnomer. I think I’m dependent on her for most everything-including VA litigation. She owns and operates a thriving Real Estate company replete with a bunch of Agents and the income from it dwarfs my paltry monthly SMC S. And boy howdy does the cost of this remodel dwarf it, too.

So, I  apprised her of the most recent amount I recalled off the cuff.  The whole restaurant became quiet until her uncontrollable paroxysms of laughter subsided. About this time, I simultaneously realized we (male Vets who have successfully completed and filed a VAF 21-686(c)) are getting screwed. Hold on to your Alice packs and canteens, pilgrims. This is far uglier than any of us realized. Assuming arguendo that you are 100% or TDIU, your cupcake’s pittance is $208.40 per month. Subtracted from my actual monthly amount for SMC S means I – Grambo who hath borne the battle- get $4,183.85 per month versus her paltry two yards and chump change. VA calls this my Corvette allowance with a straight face. What in Sam Hill do they call her allowance?

Without delving too deeply into this obvious disparity, I’d ask my male readership how you can support any woman (even post-menopausal) on such a minuscule sum.  It must be another one of those anomalies of VA math. Shucks. Maybe they use those car mirrors that say “Objects in mirror appear larger than reality.” But that’s not the end of the matter.

Imagine a disabled Vet just starting down the path to service connection these days. Most are lucky just to get over the initial hump of the 30% roadblock to even get the marriage benefit. Hold on to your brain buckets, gentlemen. It’s a whopping $62 even per month. You can’t feed your dog for that much each month. If you want her to look better than your dog and sport a wrinkle-free forehead with plump, full lips, the Botox bill alone is going to flatass inhale that remaining $536.31 and then some. Throw in some finger nail polish with a side of Victoria’s Secret and you can said Sayonara to that Man Cave you were contemplating.

 So who’s in charge of figuring this magic dependency remuneration out? What bean counter down at the corner of Delay Ave. NW and NW Deny St. concocted this farce? Ostensibly, if you bothered to read §4.25(a) and managed to decipher the mathematical formula of deducting for the purported residual “efficiency” remaining of your disability(ies), you’d still be in a quandary as to how you-Johnny Johnny Pumpkin eater (with no deductions whatsoever) could possibly hope to keep Jane well- pumpkin shell or no pumpkin shell.

Should you wish to expand on this pumpkin shell argument, imagine how our 100% disabled, married with kids vegetarian Pumpkin eater can possibly feed, clothe and provide folding money for his horde of unappreciative rug rats at $152.62 per each. But wait. Because VA believes there is built-in economy of numbers, each additional child will only net him an additional $103.55. Based on this pie-in-the-sky VA economics model, Johnny’s gonna have to supersize these magical pumpkin shells for his brood. Either that or he’s gonna have to sign up for the Dave Del Dotto Cashflow System.

What concerns me is the blatant sexism afoot here. How can the cost to support a male child even begin to compare to that of a female child? Shouldn’t this be a two-tiered system? Or, if you wish to extrapolate further, how could this pittance even touch the costs for a gender-dysphoric child? Autistic? Severely disabled at birth? Need I expound further?

I’m not going to ‘poke the bear’ and explore Cupcake’s walk-in closet again. Been there. Done that (once). It didn’t turn out well. I’d venture a guess that Imelda Marcos’ legendary shoe collection doesn’t hold a candle to Cupcake’s. As for the rest of her ensembles, $208.40 per month wouldn’t make it past about 2.3 coat hangers. It turns out that you can’t be a real estate broker and sell houses unless you look successful. Apparently, that also entails smelling good-hence the need for Arpege. Gosh. Whatever happened to Patchouli oil and the bra-burning craze?

Suffice it to say, owning and operating a spouse-let alone kids- is far more expensive than VA ever imagined. Adding children to the mix only guarantees poverty that much sooner. And woe betideth Vets who have the misfortune to have kids at Columbia or Yale. At the $80 K per year it’s purported to cost to educate them on the long, complicated history of the Jews and the Palestinians, I don’t think Chapter 35 DEA benefits would even begin to touch the interest on it.

In closing, my only observation that makes sense is getting all of you SMC at the R2/T rate at a bare minimum. But even then, that can be dicey unless your wife is a Broker. The repair order is to contact your Congressman or Senator and call them out on the disparity of salaries. The only difference between them and us 100% disabled Vets is how much they feel Veterans deserve for their service. Apparently, being paralyzed from the neck up is far more disabling-even if you can still work. It’s called sheltered employment in DC.

In closing, I want to wish all of you a very happy 49th anniversary of Cinco de Siete this year. Get ready to break out the Yellow ribbons. Next year is the Big 50. I can’t wait for the big Welcome Home parades. And that’s all I’m gonna say about that.

Posted in Dependency allowance, Humor, VA Agents | Tagged , , , , , , , , , , | 3 Comments

BVA–IT’S FIVE O’CLOCK SOMEWHERE

Posted on April 28, 2024 by asknod

Ol’ Alan Jackson must have written this one for my client. Well, actually. Maybe several of them. I’ll just talk about one this today. In this ever-increasingly insane world of the new AMA system, where up is down and everything goes sideways, we almost need something tall an’ strong to keep our wits about us. Because by law I am not allowed to reveal the identity of my clients or their personal information. I’ll refer to her as Jacky-or Jackie. Dealer’s choice. It isn’t her real name so it’s immaterial.

This will tear your heart up. Imagine a young, naïve Army FNG arriving in Germany on her first tour right out of AIT. It’s 1985. She’s a motor pool expert- a deuce and a half truck driver. They’re out on NATO maneuvres in the hinterlands of Germany somewhere in late summer and that evening, she and her fellow transportation experts are gathered around the fire shooting the shit and having a brewski.

She’s 18 and has never been drunk in her life. She’s a farm girl and this is her first time off the reservation. Suddenly, she feels the effects of what she perceives to be the beer kicking in and asks a fellow soldier to help her back to her tent. The next morning she wakes up about 250 yards away from where she’d gotten woozy. She’s buck naked and her clothes are strewn all about her. She quickly dresses and races back to the Company area so as not to be counted as AWOL.

She’s morbidly embarrassed and ashamed of what she perceived as her allowing it to happen and never says a word to her superiors. Sound familiar? About a month later, it dawns on her she’s missed her period. Another month goes by and she decides maybe it’s time to go down to sick call and find out whazzup. Sure enough, the rabbit dies and she finds out she’s pregnant.

The Army doctor decides to fabricate a story and avers she told him it must have been her boyfriend even though she insisted they always took precautions. The only problem with that version of history is her boyfriend is back in Washington state- over 3,500 miles away- and has been since June when she began outprocessing from Fort Dix to report to Germany. This, of course, is all unbeknownst to her as she won’t see her STRs until I unearth them in the VBMS efolder thirty six years later. Which leaves us with something right out of a Jeopardy TV show- I’ll take Immaculate Conception for $200, Alex.

Sure enough, almost nine months later -give or take a week- her daughter is born there in Germany. Her depression ratchets up. She’s falling apart. Suddenly Miz PFC Perfect is getting Article 15s for being out of weight compliance and other minor infractions like failure to report for a formation on time. It eventually costs her that hoped-for career in the military. She finishes her three and separates in ’88. Then her life descends into a horror story of major depression, failed marriages ad nauseum.

Jackie finally filed for PTSD/MDD for this MST event in 2004 and got the poopy end of the VA punji stick. No evidence. Never happened. Just another welfare queen trying to get service connection for an imaginary event. You know Vets. Now imagine Indian Vets! They’re all trailer trash and shop at Dollar Generally™ and Wallmarket™. Nothing to see here. Move along. Just another charter member of the Piggy Wiggy slip-on-the -floor lawsuit club.

Fast forward to 2017 and Jackie decides to try again. Someone had mentioned  they’d liberalized the regulations on MST that came out in 2010 in §3.304(f)(5). I reprint it here below but note the bolded portions…

(5) If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran‘s service records may corroborate the veteran‘s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran‘s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

In 2020, an Indian tribal member who was an accredited VSO contacted me and asked if I’d be interested in helping her out with Jackie. While it isn’t my forte, and I personally get embarrassed discussing these things with women, I sorta accidentally might have said I’d be willing to guide her and give her advice. Well, that’s what I thought I said. Jackie was my second MST case… but I didn’t know it yet. She and her husband came over to our place and she started crying uncontrollably about how this was so unfair. Boy howdy it was all over when the tears started. I was dog meat. I chieu hoi’d and said I’d take it. But get this. She really wasn’t crying about the MST claim. The  VSOs and her had pretty much pissed on the fire and called in the dogs on it. She did get her NPRC file and the VSO said the STRs showed she’d wrenched her back trying to hook up a heavy trailer. But that was all she hoped to win. I was going to refer her to another fellow member of an organization I belong to but agreed to at least take a gander at her VBMS file to see what VA had up their sleeve. The Tribal VSOs had no access to VBMS themselves so they were flying blind.

I got into the claims file and was astounded at what I read compared to what she’d reported to me. Not about her back but about the gang rape. She had no idea what the pregnancy in the STRs meant legally. Hell, she didn’t even know what a claims file was. Apparently, neither did all the Tribal VSOs she’d been using. When I asked her about the boyfriend being the father, she explained it geographically and time wise. She never would have said that to the doctor. After parsing the language of the regulation above, and seeing that she’d reported to sick call and had the pregnancy test right there in the file, I convinced her the back claim was a 10% nothing burger compared to the MST.

I immediately set up a phone meeting with my favorite psychologist and briefed her in on the circumstances. Meanwhile I refiled Jackie for it and got the brand new bum’s rush. VA gave her their version of a dog and pony PTSD/MST c&p and miraculously declared she’d  had some kind of untoward “diagnosed” MST/PTSD event but it sure didn’t fit the exacting metrics of §3.304(f)(5). Worse- maybe she just disremembered. Might be it had happened after service… They freely acknowledged the pregnancy test but that was an outlier and didn’t really prove anything because, shoot, Immaculate Conception shit happens. Right? And besides, why would the doctor lie about the boyfriend story? Evidence? What evidence? Thank you for your service. Next?

I promptly refiled with the brand spanking new “ACE review with a phone call” IMO from my Doctor T. Two weeks later, that fell flatter than a cheese soufflé in a daycare center,  too. VA was still on that jag about the boyfriend being the father.  And now, with the Covid, it had to be done via telehealth video to be a valid IMO. Since Jackie had been unaware of the significance of the Army doctor’s notes until this point, she was a bit miffed to put it very mildly.

She put on her best war paint and drove over unannounced an hour later. She lives about half an hour away from us. She plopped her daughter’s original birth certificate down on my desk and pointed to the blank area where the father’s name would normally be entered. Holy shit, Batman. It was blank. She began bawling all over and said “Don’t you think I’d put his name in there if I knew who it was? There were four of them from what I dimly recall and I had no idea who was the father so I left it blank.” Shoo doggies. I just about began bawling too.

I immediately called Dr. T and asked for a do-over and a Zoom with this new evidence in hand. Jackie lived in rather primitive conditions without internet so we had to hold the video here. I got Dr. T to crank out a most excellent addendum IMO and submitted it with the birth certificate in the evidence venue at the Board. Then we all sat back and waited patiently for the Corona Pandemic to subside. Et voilà.

Three and one half years later, she won. If she hadn’t, I would have taken this one up to the Court in a heartbeat. I honestly believe there was more afoot on the denials below but I can’t prove that. Native Americans, like the Philippine Guerillas in WW II, get short shrift in this business.  Besides, VA-hired psychologists don’t make you raise your right hand and swear to tell the truth so help you Denis the Menace. Maybe they should. It’s a Rodney Dangerfield thing. They don’t get no respect.

Anyway, this is a wonderful ending to what I’d characterize as a never-ending nightmare. Remember the old ’60s TV show Branded with Chuck Connors? What do you do when you’re branded and you know you’re a man? I reckon this story bears some resemblance to the circumstances. I know how I felt in 1994 when the VA told me I’d never served in Vietnam and my 214 even proved it. It plumb sucks to be called a liar.

Anyway, I had to go through another crying session with Jackie and assure her this wasn’t a nasty April Fool’s joke. I expect she won’t believe me until that retro check hits her bank account. That ought to roll her socks down. Like I said, it’s five o’clock somewhere. Let’s all hoist a shot to her victory over VA stupidity and intransigence. Jackie’s case is why I love my job. Making VA eat crow is ever so satisfying. It’s a dish best served chilled as Bill Shakespeare was fond of saying.

redact Jackie MST

Redact Jackie RD

But, just to be safe, remember what Commando Craig advises- Don’t poke the Bear!

P.S. As usual, Ed the LRP sends me this thought-provoking video. It’s not something a lot of people can stomach to watch. I will warn you of that. We don’t do or allow politics or religion here on asknod. It’s too devisive.

However, this week I have seen my country being torn apart once again much like what we experienced in the Sixties during the Vietnam War. It culminated in Kent State as most remember. Rejecting America’s involvement in Vietnam was a legitimate reason to protest it. What I see today is ignorance and a blind belief of injustice being perpetrated. In war, soldiers fight soldiers. They don’t launch attacks on innocent, unarmed civilians or rape and pillage.

We haven’t always been a country to look up to until more recently but we’ve always outshined the rest. We’ve outlawed slavery, hate crimes and most other offensive behaviour of our ancestors. We’ve granted women the right to vote. States are free to choose what’s best for them for the most part. And most importantly, freedom of religion is inviolate.

We fought World War II in large part to eradicate Adolf Hitler’s Fascist regime and all it stood for. We’ve tolerated other repressive regimes, but we have never as a Nation advocated for the erasure of an entire race of people. Who could ever conceive of such a level of vitriol?

But, any group of people, regardless of religion or any other principles of humanity, who would assassinate their own countrymen defies any definition of cruelty. Regardless of your political bent, seeing our younger generation of college students profess allegiance to Hamas, or shout ‘Death to America”, defies who we are as a Country. From what I see, Hamas’ goals differ little from Hitler’s aspirations. Hitler extinguished 6 million Jews conservatively. The folks in this video aren’t even killing Jewish folks.  They’re killing their own countrymen. Next week, or next month or five years from now, they’ll resume trying to kill Israelis again. As my dad used to say “You have the right to remain stupid. No one can take that away from you. This is America, son.”

What separates us from vicious animals is a very fine line, apparently. This video more than substantiates that fact. I apologize in advance if this offends anyones’ sensitivities. 

Posted in BvA Decisions, Food for the soul, Independent Medical Opinions, MST, VA Agents, Women Vets | Tagged , , , , , , , , , , | 1 Comment

SMC AND COMBAT CRAIG–DON’T POKE THE BEAR

Posted on April 21, 2024 by asknod

I always wonder what VA “Experts” have been smoking when they open their pieholes and start explaining SMC. The best one I’ve heard in recent memory is probably when our fellow 100%-rated Veteran and expert in all things VA, Combat Craig, attempted to sum up all the different flavors of higher levels of compensation created by Congress and how dangerous it can be to risk attempting it. 

The old Craigmeister avers SMC T is named after TBI. Well, close but no seegar, bubba. Congress is responsible for that one after about 79 years of SMC’s existence. Take a gander at 38 USC §1114 here and you’ll see how SMC T got its letter. Congress had already used up all the letters from A (indicating 10%) through S which is housebound in fact or 100% plus an additional 60% of separate and distinctly different disabilities apart from the 100% anchor rating. SMC S is like getting promoted from PFC to Corporal. It’s currently $446 more per month than a 100% total rating.

If they’d been more precise, SMC at the (s) rate would actually fall after 100% (SMC J in §1114) and before SMC L for loss of use, blindness, aid and attendance or bedridden. SMC K is just an outlier-kind of like supersizing a minor SMC disability. Maybe S was an afterthought. Who knows how them politicians think? They lost me when they said boys could start wearing falsies and use the girls’ bathrooms. But by throwing the S in at the end, it’s confused the bejesus out of millions of Veterans for the last 79 years and it gives Craig a great talking point about T even if it’s untrue. If they’d had any sense, Congress would have call it SMC R3 or maybe R2(a) and Craig wouldn’t come across like the village idiot. Here’s the video. I think it’s a bit dated based on the rates he’s quoting.

The next best whopper of a tale was where he says “SMC N and one half is meaningless.” According to VA’s little flow chart,  SMC N is $6,047 per month and SMC N½ is worth (in 2024 dollars) $6,390.95 (married). Unless my math is off, I see it as about $350 more than N.  I suspect the old Craigster  was trying to employ some of that fabled VA math. If he’s referring to what it takes to get to N½ makes it meaningless, then I’d allow he’s partially right. There’s sure not exactly a bunch of Vets running around without legs (sorry for the pun).

SMC N is pretty strict.  One of the most onerous in this parade of missing parts is you have to actually have your legs amputated off completely right up at the trunk of your body to qualify. None of that loss of use nonsense. Them legs gotta be gone with the wind, dude. Here’s the rest of the qualifiers. You can see it’s a pretty nasty list of missing or useless body parts.

§3.350(d):

Amputation is a prerequisite except for loss of use of both arms and blindness without light perception in both eyes. If a prosthesis cannot be worn at the present level of amputation but could be applied if there were a reamputation at a higher level, the requirements of this paragraph are not met; instead, consideration will be given to loss of natural elbow or knee action.

(1) Anatomical loss or loss of use of both arms at a level or with complications, preventing natural elbow action with prosthesis in place;

(2) Anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance;

(3) Anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance;

(4) Anatomical loss of both eyes or blindness without light perception in both eyes.

N½ is rare. Don’t get me wrong. It kicks in when you move into the wild combinations in SMC P like:

§3.350(f)(1)(xii)

Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance, shall entitle to the rate between 38 U.S.C. 1114 (n) and (o). So, you can see you’d need to actually have one arm whacked off  right up to the shoulder and then have loss of use of the other. If you still had the forearm down to above the elbow, you’d be shit out of luck and only qualify for N.

VA doesn’t publish every possible combination of being blind, deaf and/or missing pieces and parts of extremities. In any event, you can be assured they’d screw it up and give you less than what you’re entitled to without a bunch of caterwauling. Besides, if they always did it correctly, I wouldn’t need to write about it.

One thing that made my jaw hit the ground was our newfound VA financial guru explaining an SMC example of a sample Veteran in possession of  SMC K, SMC L and SMC S and getting paid for all of them at once. Here’s “the raw numbers”. Add ’em up folks. K for $128.62, L for $4,506.84 and S for $4,054.12. Wowser. $8,689.58. Hooo, doggies. If only this were true, Craig. The problem, just like in the military, is when you get promoted from Private First Class to Corporal, you don’t get paid for both the PFC and the Corporal wages. You only get the higher one. Thus, you’ll have to subtract the $4054.12 from this faery tale to make it come true. So, from just what I’m showing you, it’s understandable if SMC confuses you, too.

Craig’s last admonition that “you don’t want to poke the bear and get reduced” sounds like it came out of the 1989 Disabled American Veterans playbook. Boy howdy if and when you get to 100% schedular, combined or TDIU and within striking distance of the higher SMCs, you sure don’t want to file for them and risk getting bushwhacked down to less than total. Jez. What kind of tripe is he selling?

Using this tidbit of information, does this mean if you have a raging case of Diabetes Mellitus II and winky quits working, you should forego applying for SMC K? Or if your peripheral vascular disease in the lower extremities becomes so egregious it requires amputation of your feet due to gangrene, you should refrain from filing for loss of extremities to avoid a reduction? Beware the Bear.

SMC is more complicated than piloting a sternwheeler up the Mississippi at night on a new moon. If you aren’t familiar with the river, you might want to avoid trying it. Sadly, VSOs are not taught this and most will deny there is such a thing. And then there’s Craig. He shouldn’t feel bad about his confusion. I’ve had attorneys from some of the Big name outfits try to explain how all this works and they’re just about as clueless. Shucks, The Paralyzed Veterans of America (PVA) sent us a spokesperson last Fall who purported to be an expert and he disremembered your legs have to be amputated at the body to get N.

I had an appeal back in ’17 where the Veterans Law Judge denied a Vet SMC L for loss of use of the bilateral lower extremities-all the while insisting the award of two SMC Ks (one for each foot) was correct in all respects. The best part of that was when the Court sent it back down to him after the JMPR, he had to chieu hoi and concede he was wrong. That would have been VLJ Mark Hindin. Dilly Dilly.

So, in closing, don’t feel pregnant and alone if all this makes your head spin. It has Craig pretty discombobulated too. It took me several years to wrap my head around every possible statute, regulation and interpretation of what the meaning of “is” is.  Shoot. Even the VA insists you can’t have two a&as. I’m sure Combat Craig means well. He just needs to go back to his fabled Boot Camp and hit them books.

Posted in How to Qualify for VA SMC, SMC, Special Monthly Compensation, VA Agents, VA special monthly compensation, VA TBI, Veterans Law | Tagged , , , , , , , , , , , | 5 Comments

EXPOSED VET RADIO SHOW– THURSDAY 4/18/2024 1900 HRS (E)

Posted on April 18, 2024 by asknod

Johnbo, the proud (and only) owner of what is unarguably the one of the best, if not the premiere example, of how to do a radio show, has graciously invited me on to Exposed Vets to share my fare. I had the great pleasure of meeting this fellow Veteran in person back in November ’23 in Winchester TN for a killer Veterans Day production show.  

In this business, helping Vets is the Holy Grail. Some aspire to be reps, some to be attorneys and then of course there’s that special niche of VA Agent. Frankly, we have it made. Under Calma vs Brown (or De Perez v. Derwinski), we get to skate on the rules. You heard me. As agents, we’re relegated to the untermenschen of legal existence-right down there on a par with VSO service officers. We have no legal education to mention so anything that issues forth from our mouths has to be treated sympathetically and our arguments must be granted great leeway. How cool is that? Who ever said it doesn’t pay to appear ignorant?

Because appellant is proceeding pro se, he is entitled to both a sympathetic reading of his informal brief and a liberal construction of his arguments. See Calma v. Brown, 9 Vet.App. 11, 15 (1996); De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992).

This really pays off when you go to the Court. I used to “ghost” my client’s appeals to the CAVC before I got accredited. If I’m doing my own, I’ll eschew my acceptance to practice there in lieu of a pro se appearance. It’s like flying First Class. They give you white glove treatment and I’m not above pointing it out at the beginning of every one of my briefs. Hi. I’m Alex Graham and I was raised by wolves. Please accept my client’s brief as a demented attempt to help a fellow Vet. Works like a charm.

But that’s not why I called you here. I have a Vet I’ve been fighting the good fight for. I’ve written about him a bunch of times while we bided our time waiting for our shot at a hearing in DC at bayonet distance. This case was a new one on me. We had to fly back there not once, but twice, to get it perfect. They forgot to turn on the microphone at the first one in April ’23.

Doing a hearing face-to face is le derniere cri in the New World Order. Used to be back in the olden days of Legacy that these were a dime a dozen. As we all know, every time VA improves the system, it adds about two more miles onto a very long tunnel. In this case, the advent of the AMA  effectively eradicated the in-person hearing as we know it. If’n you want to talk to the judge mano -a-mano, you gotta go to him now. That kinda puts it out of reach of most Vets.

But, there is a time and a place for this insanity. Think about two nights at the Hilton or Hyatt for a couple three yards/day and a round trip airfare for 12 more and you have the makings for a solid BVA win. This only makes sense if you’re shooting for a §3.156(c) EED going back to 1972. Which is what we were doing.

I’ll share more of that this evening.

To my knowledge the Johnmeister hasn’t changed the call-in number.

(515) 605-9764

And for those who prefer hands free computer hook up:

https://www.blogtalkradio.com/jbasser/12331935/connect/9dcb55a25991d0bd558a2bb38eaf299ae36e81e9

We look forward to seeing you virtually this evening. Don’t forget the chips and dip.

P.S. This document just landed in my lap. Imagine. VBA complaining that VHA psychologists are far better at denying PTSD (legitimately) than subcontracted QTC/VES/Optum Serve/LHI/ Loyal Health psychologists who are giving away the farm.  I’m not sure whether I ‘m gonna shit or go blind…

PTSD Disability Examination Reports A Comparrison Between Veterans Health Adminstration and Contract Examiners

Posted in 3.156(c), All about Veterans, BVA Hearings, Exposed Veteran Radio Show | Tagged , , , , , , , , , | Leave a comment

WINDSHIELDS AND REARVIEW MIRRORS

Posted on March 24, 2024 by asknod

Boy howdy I gotta tell you my body is screaming at me I’m getting old. When I sit down, it’s like a crash-landing. When I move to stand up, it’s like looking out the side window passing V 2 on the runway at 120 knots and knowing I’m screwed because I need 140 to get airborne. It’s not scary. I don’t regret a minute of how I got here. My only concern is losing my vision or my mind. If I lose either of those assets, my days of helping Veterans will be gone. 

Some folks fear death. I don’t anymore. Maybe 5o years ago but not now. I’ve had more fun and done more crazy things than I can remember. I don’t think like a cat that’s burned up eight lives. I’m still stuck in that 73 going on 17 conundrum. When will I start thinking and acting like an adult? Never, I hope.

During the last two months, with the exception of a week in DC,  I’ve spent every Friday morning teaching VA attorneys and Agents like myself the ins and outs of VA’s Special Monthly Compensation. Most people can read and absorb the pertinent regulations, statutes and CAVC precedential rulings on the subject. But they never see it done in real time. I chose ten of my cases as examples of SMC warfare and am using them to illustrate how to play SMC poker.

When push comes to shove, the level of ignorance about SMC is stupendous. You have to forget everything you think you know about SMC and begin over.  I’ve had attorneys who do nothing but VA law insist what I do is voodoo and impossible; that I’m just some chowderhead VA wannabe attorney with the incredible good fortune for drawing liberal Veterans Law Judges who grant my every wish every time. Nobody’s that lucky.

Last Fall, a groundswell of interest in SMC finally reached a crescendo such that our National Organization who helps Veterans, decided to bring in a Service Officer (retired military) from a major Veterans Service Organization (VSO). who presented himself as a Jedi Master of the SMC persuasion. Right out of the gate,  he asked his “class” to  stand up, first grab their ankles, then their knees and lastly their upper thighs-all while shouting “L! M! N!” As you might have guessed, he was of the Oo-rah! persuasion. All gung ho and about room temperature IQ. I’m sure he meant well.

As mentioned above, I hadn’t quite reached V 1, let alone V 2 yet, so I was waaaaay tardy on my wheels up and getting vertical with the other class members. But why I bring this up is simple. Our “expert”, while teaching us these finer points of SMC, neglected to even mention that SMC N- wherein you grab your upper thighs at the juncture they join your torso whilst shouting N!- requires the physical amputation of both legs at the trunk, not just loss of use as is a prerequisite for the L or M ratings below. I think that’s a pretty serious upgrade requirement that bears mentioning.

Most, if not all, moderators over at Doneit.com™ are convinced SMC “S” is SMC L “light”. Their belief is simple. VA employs the VA Form 21-2680 as a fact-finding form to award S or L. So, using this convoluted logic, if you only qualified for S (100%/TDIU plus an additional 60% of separate and distinctly different disability(ies)), you were just awarded aid and attendance at the lower tier one rate- SMC L, of course, being tier two.

I’ve read on other Veterans Help Sites that you are not entitled to double dip and collect PCAFC caregiver benefits if you are also collecting SMC L for aid and attendance. Some even insist that PCAFC is SMC L a&a.  This level of ignorance was the tipping point- and what led me to decide to teach a new generation of VA representatives this art form. It’s one thing to be strong in the Force and quite another to being trained to be a Jedi Knight. Just because you can drive a car doesn’t mean you’re ready for the Indy 500.

When my Padawans graduate from the “Academy” after ten classes, they should be able to spot a potential SMC R1/R2 or a T by just having a fifteen minute telephone conversation with the fellow or gal. You cannot absorb this determination based on a simple twenty-question intake form created by your law office. That little chatbot down in the lower right asking if you wish to speak to a VA claims expert is a nothing burger. Trust me, what the phone bank folks know about VA law could fit in a Crackerjack™ box. They’re just there to sign you up.

Sometimes, entitlement to SMC isn’t blatant. It’s under-developed or the VBA gomers artfully took away your 15-year TDIU and combined all 23 of your ratings into a 100% combined. Bye bye SMC S honey child. And worse, you didn’t even see it or realize you just got screwed. You probably hugged your VSO officer, marched him down to the VFW bar and bought him a couple double Jacky D and co-colas.

As an aside, I’ll share this nightmare. Johnny Vet comes to me with an old L for aid and attendance for his diabetes with nasty peripheral neuropathy. As usual, the Raters avoided the loss of use and rolled it all up like a Tekkamaki sushi roll and called it aid and attendance. No biggie yet. Fast forward about 15 years to 2024. Johnny, who incidentally has a megabig shot, name brand attorney who’s been his swordbearer all these years, has incoming Parkinson’s and gets rated for loss of use of a hand and a foot. For the anally retentive, that’s a 100% rating under §4.71a DC 5111 and now 2 (two, deux, song) SMC Ls.

VA bumps him up from L to M based on SMC P or §3.350(f)(4). His attorney informs him it’s all hunky dory. But Johnny Vet has been a bad boy. He’s been reading my site and calls me to ask why I’m a walkin’ talkin’ lying sack of shit about SMC. I gave him the briefing on the hows and the whys of my Ju-Ju voodoo and explained how you cast dem bones. You don’t need a Top Secret/Crypto clearance to be read in on this. Read §3.350(e)(1)(ii). Read Breniser vs. Shinseki. Read. Research. Don’t listen to others.

Johnny Vet goes back to his bigwig attorney down in Deland Florida (who actually is a 1/2 owner and even has top billing) and tells him he (Johnny Vet) should be getting R1 according to that SMC Oracle up in Delphi, Washington. His attorney (let’s call him Jim) tells him ol’ Alex has been smoking too much of the Devil’s lettuce. What’s more, he isn’t even an attorney. And since Jimbo’s been doing this for 35 years, ol’ Johnny would be better off relying on someone who’s actually trained in the art of law. And lastly, he informed Johnboy  he would not be filing Johnboy’s HLR for the R1 error. Nothing to see here. Move along.

Johnny came back and begged me to take it. Not wanting to upset the National Organization’s apple cart, I declined to do the POA but wrote him a ghost legal brief to use to argue with. Long story short, about three or four months later, Johnny’s sporting a shiny new R1 and ol’ Jimbo allows as he’s entitled to 20% of that sizable retro Johnny Vet’s fixin’ to collect. I reckon all that lawyer schoolin’ paid off smartly. Let your Veterans litigate it and swoop in to collect. Totally new concept.

SMC is more difficult that trying to skipper a paddlewheel up the Mississippi dead in the middle of the night under a new moon. It’s not difficult to learn but it’s difficult to master because there are so many “Thursday” rules. Just when you think you have it in the bag, you discover a new wrinkle. For the confused, we joke that to win SMC at the higher levels, you have to be born on a Thursday… but if by some chance you were, then the subsection codicil is for application-AM or PM? If it was AM, you’re SOL. Obviously, that makes for a shit ton of AM Veterans who are plumb shit out of luck. Funny how that works, huh?

I teach the classes in hopes that these new acolytes will master the art and then go out and find these poor confused Veterans who have no chance of winning a high SMC- even if they’re represented by law dog chuckleheads who insist they are versed in the art. Back before I was accredited, I’d refer those who came to my website to attorneys I honestly felt would be able to maximize their entitlements and tidy up all the CUE errors that had deprived them of some major baksheesh in decades past. My experience, sadly, was that some of the attorneys only picked the easy, low-hanging fruit and said thank you for your service. They should have added to that by saying thank you for servicing my mortgage. Turns out I was wrong. The attorneys just don’t understand it and give out bogus advice to mask their ignorance.

As Robert Chisholm once said over an adult beverage in San Antonio, “SMC is the Art of the Possible.” No truer words were ever spoken. In VA land, far too many of us Veterans focus myopically on the rearview mirrors of our claims. How many of you at some Vet Center Kumbaya circle on a Tuesday night listened to the trials and tribulations of how some Vet got screwed out of thousands back in ’84 and how they’re just shopping for that killer DAV dude who’s going to open up a can of whoopass and get him/her justice? Meanwhile, they’re stuck at 60% and not even making an effort to obtain their rightful 100% or TDIU?

This error is what I call the Windshield versus Rearview mirror paradox. If you have a flat tire, you stop and fix it. You do not continue driving on the flat, looking in the rearview mirror imagining on how it got flat. You don’t seek vengeance on the mechanic who sold you this retread and warned you it was unreliable. Well, hey. Maybe some of you do think that way. My job-and I feel it is any lawyer’s or VA Agent’s job- is to get you what you need RFN to survive and then to start focusing on the old errors which deserve to be fixed. In other words, I aim to make sure all of you were born on a Thursday afternoon. Every journey begins with the first step.

One hallmark of a longtime Veteran who has been chasing the SMC dream for years (and losing) is a code rating sheet that runs to eight pages. The first five pages consist of a few 100%ers, three or four 30-50%ers and about twenty zero to 20%ers. Pages 6 through eight list all the denied claims and are listed as NSC (nonservice connected).

I don’t mean to be nasty about this but if you keep stubbing your toe when you kick a rock, maybe it’s time to put on steel-toed boots. Ditto winning a SMC claim. The number of people who can do this for you are few. CCK is one. I could name others but I don’t need to. Soon, I’ll be referring those who come to me to these new Jedi Knights. VA has no idea of the shit storm I’m stirring up across our fruited plains.

Don’t ever think that these Veterans are somehow cheating to get higher SMC ratings. Rather, it’s that VA is equally as ignorant as them aforementioned law dogs down in Florida in thinking they know how to do it. If they did, I’d be out of business in a New York minute. Relying on a mechanical construct like the M 21 to spit out the answer is a fool’s errand. A true SMC calculator should reside in that grey matter between your two ears and be error-free… 100% of the time…without the need for any AI.

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

Posted in Aid and Attendance, R1/R2, SMC, Special Monthly Compensation, VA Agents, VA Representative Training, Veterans Law | 3 Comments

EXPOSED VET RADIO SHOW–THURSDAY MARCH 14 @ 1900 HOURS (E)

Posted on March 14, 2024 by asknod

Fresh from the East Coast and having recuperated from the time change, I’ve been invited to discuss the legal conferences I attended March 7 through 9. Quite a bit to be said and I plan to do so. Join us tomorrow evening for some Veterans talk about the state of process.

The call in number, assuming the John Boy hasn’t changed it, is

(515) 605-9764

If you wish to link in via the computer, here’s the device with which to do so.

https://www.blogtalkradio.com/jbasser/12322264/connect/2591d59d066433fb20bb08c33ebd13ef4a3fa665

Looking forward to a great show with lots of listeners.

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Posted in BvA Decisions, Exposed Veteran Radio Show, Food for thought, VA Agents, VA BACKLOG, VBMS, Veterans Law | Tagged , , , , , , , , , , | Leave a comment