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Smc-S To 1994


asknod
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Question

Every once in a lifetime, you have to stand up for what they have been denying you for twenty years. Here's a primer on the perfect way to write a Writ. Belts and suspenders on every request so there can be nothing misconstrued. VA loves to feign confusion on what you are asking for. I expect they won't have any trouble reading this one. It hit the CAVC's doorstep yesterday morning at 1153 Hrs L. Bob, Leigh and Allison got their copies today as well. On the heels of Gene Groves' Writ, it ought to make quite a splash.

https://asknod.wordpress.com/2015/01/09/cavc-the-birth-of-a-writ-act-ii-scene-1-the-pucker-factor/

Clear Prop.

Edited by asknod
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Holy Cow!!!!!!

Unlike any other Writ of Mandamus I have ever read.

Alex, why does the VA pick and choose certain vets and widows to F--- with?

The SMC S...it took me 18 years to get a proper SMC S accrued award.

And 20 years after my husband became fully eligible for SMC S in his lifetime.

Like you my husband had 2 100% ratings ,one under Direct SC and one under 1151 SC.

I only wrote one Writ decades ago.

But of course I still had an appeal process to go through, thus the writ was denied.But I tried anyhow.

If I ever need to file another one, I might raise the argument that any claimant should be extended Extraordinary Relief, when the evidence from the VA itself, in their C file, (at any level of the claims process) bears out the fact that numerous raters and even DROs at their AOJ

simply cannot read. ( my c file would prove that)

This will be Very Interesting. to follow ......and as you know, when VA chooses to victimize some of us, we can and will fight back Aggressively.and Legally. And we Will Prevail!

Whoever wrote into the regs that the VA is not arbitrary ,had their head in the sand ( or up their A--)

I began to consider something someone said to me, during my long SMC CUE ordeal.And during my AO DMII claim

They said maybe, since the VA knows you are an advocate at hadit ---(maybe this was when the IG inspected the site in 2005and found NO problems with our advice to PTSD vets.)

maybe your RO does not want to award the CUE or the DMII AO to impinge on your credibility as an advocate., and other claimants wont accept your advise as viable.

Maybe that is the case with your situation too.

And it is possible but you and I have done the Impossible already with VA because we know VA case law in and out.

I sure hope others chime in. No one ever knows when they will have an ordeal like yours.

And yes the Keith Roberts issue isn't over yet. But will his situation get rectified in his lifetime????

Our En isn't VA, it is time. That is what they hold over us.

Fabulous Writ Alex!......... you have NEVER given up !

Curious....did Bob square pants advise you to go pro se on this?

.....

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Bob and I have been discussing it for a year. I told him I was launching with or without him. I had it all written up and ready the day after Christmas. He, of course, felt obligated to fine tune it with the Cushman angle. The cites are mine for the most part. Something old, something new, something borrowed etc. I let him play with it but not the substantive wording. It sort of makes Gene Groves' BVA misfortunes pale in comparison. We always knew Hindin was a boob. When I wrapped up on the Hearing in 2011, he trotted out the old saw ty4ys. I chimed in that nothing could have kept me out of the Vietnam sandbox because everyone in my family had served in a war. I believe I used the term "Wild horses couldn't have kept me away." He gave me a queer look and said "I've never heard a Vet say he enjoyed war." Going pro se gets you in the front door a lot more easily these days. They've changed all the rules on filing now so even a pro se Vet hits a hard wall when he gets there. I see they haven't docketed it yet. That will be the acid test for acceptance. I look forward to girding for battle again. I've been out of the traces for over a year.

I look forward to a quick resolution. That 's the beauty of a Writ. It's like a FDC in a month or two. Best of all we get to watch Leigh Bradley blow post hoc rationalization bubbles. Gentlemen, start your excuses.

Edited by asknod
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Keith's trouble are almost over. Director of Comp and Pen just can't bring himself to cut the check. His hand is shaking too much. Allison is apoplectic. She told him to do it 3 months ago. Tempus fugit.

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The black robed Generals dont like anyone to challenge there AUTHOR IT TIE. Especially when your smarter than they are. :smile:

It dont matter if your right or wrong, they just consider themselves superior beings and must win, by hook or by crook.

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Well, it looks like we got pretty much everything we asked for except for the 100% on the Porphyria. I say give it a week and the OGC will come around. If they don't, they need to see a shrink pronto and be treated for being in denial. Chances are smarter heads than the DROs at Fort Fumble in Seattle will intercede and pony up. The C&P doctor's admission of totally disabled is like Monica Lewinsky's blue dress. §4.15 is pretty explicit

https://asknod.wordpress.com/2015/02/25/cavc-birth-of-a-writ-act-iii-scene-5-you-cant-hide-your-lying-eyes/

Cowboy up

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GREAT but sounds like they are not finished with it yet......that is great too.

§4.15 is pretty explicit"

Indeed it is:

https://www.law.cornell.edu/cfr/text/38/4.15

§ 4.15 Total disability ratings.
The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; Provided, That permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule."

My pending CUE is based on that rationale but I used other regs for it.

They said my husband was 100% P & T for a catastrophic stroke from Aug 1992 to March 1993.

I asked here if anyone could tell me how many months they should have paid on that (I think they paid only 6 months) but the evidence they had warranted a 100% P & T plus SMC, with one wife, one child, until Oct 1994 when he died.

No one answered my question.

When my claim is finished I will ask for an audit.Unless the decision explains those dates.

'The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule.'

I think his initial SSDI award was based on evidence SSA had that he could no longer use his hands in a normal way.Along with MRIs etc revealed multiple brain infarctions.etc etc

As a former PHVAC operator my husband .after his stroke, tried to fix our heater when it broke.It was the only time I ever saw my husband cry.He could not handle the tools anymore and broke the heater worse than it was.

Also Part of a March C & P 1993 done by a Neuro (which was not listed as evidence but they had it,) was the fact that one of the commands the neuro asked him to do was to stand on his toes and then on his heels. he almost fell over.

VA had stuck him in a wheel chair at Syracuse, telling me he would never walk again. BS to that. I demanded PT begin and once he could walk 3 steps without assistance,they sent him home.He learned to walk better himself, but still he had a loss of normal use of his feet and the Neuro said right away after he almost fell"I declare you Totally and Permanently Disabled."

This was funny. My husband and I exchanged a "DUH" look when the neuro said that. We already knew he was P & T.

But the neuro did this C & P in a hallway where many vets were standing around waiting for clinic appointments.The neuro went over the brain MRI briefly and it revealed substantial brain damage.The C & P lasted about 5 minutes.

She made that "P & T" statement very loudly and the other vets all turned around to look at Rod. 100% P & T is not easy to get.

"Boy he got lucky " I heard one of them say....

What none of them knew is that this CVA was in his 1151 claim he had filed. VA caused the 100% P & T due to their piss poor medical care.. It sure wasn't some windfall. ( Part of my 1151 DIC and FTCA award for wrongful death.)

Part of my CUE they are working on (I had a lot of probative evidence, in VA's possession,some of it for 22 years)

was a reminder to VA, that even after his major CVA, VA provided no treatment whatsoever to prevent a further stroke and has no medical evidence whatsoever that would indicate he either had been "cured" of the CVA P & T residuals, or had somehow became less than 100% disabled. The 1151 "as if service connected " status was granted in 2012, due to a different CUE I had filed.That is no longer the issue.

This is a CUE on one sentence in their award letter of 2012.

Edited by Berta
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