FERGOOGLE- Very important asset

[FormerMember]

Folks come to me with all manner of stuff they dig up. This one, FERGOOGLE, is a tool for VA raters but it is also a valuable tool for delving into the mysteries of the M 21. I find it useful insofar as you can find all the errors in how VA decyphers their very own regulations. Come on, 38 CFR §3.350(f)(3) and (f)(4) specifically state that they are both applicable in all situations. There simply is no "either/or but not both" argument. The M 21 says otherwise. I had that argument with a DRO in Fort Harrison Montana several months ago. She was powerless to grant both even though she agreed 38 CFR appeared to conflict with the Manual. 

https://www.fergoogle.com/

Here's a blog I just wrote about it. Enjoy. One more tool in the Vet's tool pouch.  You will find some links appear to be dead but that is because the links are internal in the VBMS. If you don't have access, you can't view them. 

https://asknod.org/2018/12/08/dva-fergoogle-for-fergetful-rvsrs/

Edited December 10, 2018 by asknod

[BigRedDog]

I found your blog post over the weekend and spent some time looking at those ad hoc guides that the employees made, plus the M 21.  Really learned quite a bit, thank you.

For anyone wondering about the procedure that the paper pushers and raters try to follow, it's well worth the time to look. 

[broncovet]

Alex, Im not getting this.  Maybe there are others who also find it difficult to understand.  

Oh, I get the part about the VA misleading us by using terms such as "

Quote

3.352 Criteria for determining need for aid and attendance and “permanently bedridden.”

This heading has 2 "and's" in it.  I think VA often takes this to mean that a Veteran HAS to be "permanently bedridden" to get A and A, which does not appear to be the case.  Kindly expand your explanation of this, as well as its relevance, if any, to M21.  

Edited December 11, 2018 by broncovet

[Buck52]

It seems they have regulations to cover them self  but why would they have a regulation and then another one to say other wise?

Asknod quoted

''Come on, 38 CFR §3.350(f)(3) and (f)(4) specifically state that they are both applicable in all situations. There simply is no "either/or but not both" argument. The M 21 says otherwise.''

I don't understand that.?

  so does this mean the M 21 is what we follow as the truth?

Maybe hoping to confuse the veteran?

Edited December 11, 2018 by Buck52

[Berta]

Thank you Alex- I LOVE IT!!!!!!!!!!!!!!!!!!!!!!!!!

I searched M21-1Mr OGC Precedent Opinions and lots popped up.

Then I searched M21-1MR OGC Precedent  Opinion # 08-97 and nothing in M21-1MR popped up-and that is why I have sent it to my VARO with each of my current CUE claims.

I have mentioned this Pres Op and linked it here before- I have never seen it  used by anyone yet.

It was written right after the 1151 Gardner moratorium and has never been revised or retracted by the VA.

OGC Pres Ops are also a great tool for veterans and their survivors.

 

 

 

 

 

[FormerMember]

38 USC is the defining statute in all or most of this. 38 CFR merely "interprets" what the Secretary feels Congress intended. <<<< from Buck: so does this mean the M 21 is what we follow as the truth?" >>>>The M 21 is not law. It is merely assembly instructions for a claim. Medrano v Nicholson held that if VA or the BVA grants a claim, or even part of it, based on M 21, that is a positive finding of fact  ( a conclusion of law) that cannot be rescinded unless it is CUE.

Now, for Bronco's query about §3.352. Remember always, the term shall or will demands compliance. The term "may" is permissive (granting the Secretary discretion on whether to grant.)

The term "or" is disjunctive. Any one of a number of disabilities listed when used with or implies any one of them are qualifiers. The term "and" on the other hand, is conjunctive and requires all the disabilities to be present in order to qualify for a specific % on a rating.

 

§ 3.352 Criteria for determining need for aid and attendance and “permanently bedridden.”

(a)Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance ( § 3.351(c)(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others

Clearly, the regulation applies to two separate conditions-i.e. A&A or being bedridden. One of the many conditions enumerated above is being bedridden. That qualifies you for §3.352 all by itself. Aid cannot be divorced from Attendance. Being bedridden can but you are still entitled to SMC L.

I see a lot of discussion here about SMC S being a lower level of aid and attendance. It is not. SMC S is Housebound. VA uses a form    (VAF 21-2680) to ascertain either one (SMC L or SMC S). 

Edited December 12, 2018 by asknod