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The Double Whammy-2 A&As = R1


FormerMember

Question

It's not often I can snag a double SMC L for  2 A&As. Here, the Veteran was going down the tubes with just the Parkinson's. The A&A was a no brainer. With his inability to perambulate without falling down, he should have gotten LOU of the BLEs. I couldn't convince Judge Peters on that one because the VA C&P troglodytes made sure they put in that "He drove himself to the Emergency room." I might point out his wife had been in a traumatic automobile accident and hasn't driven in over a decade. Maybe I should have filed a NOD on just the 20%ers for the BLEs but he would have been dead before that even made it to the docket.  

When he got the b cell, hairy leukemia, that's all she wrote. I'm glad I drew Judge Peters. I have another R1 appeal before him right now. It feels like they've assigned him solely to SMC cases or me personally. Nah. Just kidding. Anyway, this decision illustrates that you can obtain two SMC Ls just for Aid and attendance in order to get to R1. That's the point of this.

Onward through the fog. Win or Die.

2 A&As = R1 BVA redact.pdf

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Congratulations!  But dont start thinking that you will get 2 A and A's just yet.

At the top of page 4 of the decision it explains that 1 SMC L is for aid and Attendancee,  and a second seperate SMC L is for loss of use of the feet.  So, no, this Veteran did not  get 2 A and A's, he  got 1 A and A, and 1 loss of use for the feet.  However, it does amount to 2 SMC L's...one for loss of use, the other for A and A.  Likely the confusion here is thus:  A and A is paid by SMC L.  Loss of use of the feet is also paid by SMC L.  And, loss of use is not mutually exclusive with A and A..instead they are added together.  

Its my opinion that, frankly, this was a "Veteran friendly" judge, and many other judges would see it another way.  As my attorney explained, its a "luck of the draw" which judge you get.    This said, if you get multiple tries, you can often get a Veteran friendly judge, eventually.  

Its about persistence, evidence, and, most importantly, asking.  (that is, applying for it).  "You have not because you ask not" James 4:2 KJV

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Jez, Loyal. No offense but your reading comprehension is a bit deficient. Please note that on page three  of the BVA decision it states, and I quote:

"The appeal period before the Board stems from receipt of the Veteran's service connection claim for Parkinson's disease and associated disorders on September 3, 2019. According to the February 2020 rating decision, the Veteran was in receipt of one rate of SMC under subsection (l) based on the need of regular aid and attendance and loss of use of a creative organ due solely to his service-connected Parkinson's disease complications as of the date of the award of service connection for such (emphasis added)."

Okay. Stay with me. That's SMC L #1 for Aid and Attendance.

I contended he should get SMC L for loss of use of the lower extremities secondary to his service-connected Parkinson's. That contention was denied. My client is not rated for loss of use of any extremity unless you consider a creative organ an extremity.

However, VLJ Peters states on page seven:

 "Upon review, the Board finds the medical evidence dated as of February 8, 2020, indicates the Veteran's service-connected leukemia, independent of his Parkinson's disease and associated disabilities, markedly restricted his ability to care for himself. In particular, the aforementioned treatment records show the Veteran became hospice eligible based on his new ADL needs. Therefore, the Board resolves all doubt in the appellant's favor and finds the Veteran's service-connected leukemia resulted in his need for aid and attendance of another person. Consequently, the criteria for a separate rating of SMC under subsection (l) based on the need for the regular aid and attendance of another person were met as of February 8, 2020." 

That is SMC #2 for Aid and Attendance based solely on his b cell hairy leukemia.. 

You certainly don't have to believe me but VLJ Peters' decision is unequivocal in this regard. My client has been rated SMC at the (r)(1) rate as the conclusion of law states based on two (2) rates of SMC at the (l) rate. Since at least one rate of SMC L is for the need of aid and attendance of another, He automatically advances from SMC at the (o) rate to (r)(1) unless hospitalized at government expense which would cause him to be reduced back to SMC at the (o) rate for the duration of his inpatient stay if more than one month. SMC is very complicated and confusing. This is precisely why the Seattle chuckleheads screwed it up. See this: https://asknod.org/2021/07/09/bva-down-for-double-why-we-serve-vets/

Again, no disrespect intended. I just wish to correct the record. I do this for a living now and I certainly would never allege something that was untrue. I do agree with you VLJ Peters appears to be a Veteran friendly judge insofar as I have only had one hearing before him. 

TTFN

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The "first sentence" on page 4 says otherwise. (Again, that it says the Vet rep argued "the Veteran was in need of regular A and A...., and, therefore  therefore a seperate SMC L was warranted based on the loss of use of both feet").

   Oh well, it just depends on which part of the decision you read.  Its not unusual the decision conflicts with itself.  Apparently, Im not the only one who thinks there is only ONE A and A (tho 3 levels), as you argued the same.  

I mean, YOU argued your case, not me.  

Edited by broncovet (see edit history)
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A decision has many parts. Try reading the whole thing. If that fails, focus on the findings of fact (#1) and the Conclusions of law (#1). Nowhere does  it declare the Veteran had loss of use.  Page six unequivocally denied my client's entitlement to LOU of the BLEs- e.g., "the medical evidence does not show the latter resulted in loss of use of both feet".  or "Therein, the VA examiner specifically found there  was not functional impairment of an extremity such that no effective function remained other than that which would be equally served by an amputation with prosthesis. That's VA shorthand for you do not have loss of use of your lower extremities.

I'm not sure what you mean. I think it would be very unusual if a BVA decision conflicted with itself. Of course I argued my case. That's my job. I argued two different theories- §3.350(b)(1) and §3.350(b)(3). the Judge denied (b)(1) and granted (b)(3) which is aid and attendance of another for leukemia. I'd already won A&A (§3,350(b)(3)) for the Parkinson's back in September 2019. To get to (r)(1), all you need is two SMC Ls but one has to be for A&A. Judge Martin awarded me a second one. Game. Set. Match. No LOU of extremities. No blindness. No permanently bedridden. Just two A&As. I'll put up a redacted code sheet when the OAR issues it next  week to illustrate it on paper for you.

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Alex:

You needn't bother posting  a copy of the code sheet, tho that my be interesting, to some.  

  I dont have an incessant "need to be right", fortunately.    It does not matter that much to me "whether Im right" or not as virtually all of us have made mistakes they later regretted.    If it were not for "mistakes we later regretted", Our military would be MUCH smaller, as many regretted enlistment.  Exceptional hall of fame baseball players strike out about 2/3 of the time, or more, also, suggesting even the best of the best still strike out quite frequently.  Perhaps, you, too, will one day regret mistakes you have made in the past.  Or not.  

  My self esteem or self worth is not based upon other people's (or self perception) of "being right".   Instead,  I have a much more reliable source of self esteem dating back approximately 2000 years, and is the "alpha and omega" of the calendar you use today.  When you write down a date, that date presumes "After Death" (AD) of Christ.  Its an acknowledgement of the birth, death, and resurrection of my source of self esteem.  

 If Vet's want to seek TWO A and A's, they can proceed with my blessing.  They could  also buy a lottery ticket at the same time, however, as odds of winning "two" A and A's, I surmise, would be similar.  

Winning a lottery hardly renders one worthy of teaching others how to win the lottery, even tho that logic has been used.  

Its a logic error referred to as "generalizing on too small of a sample size".  

A non precedent BVA decision does not ensure that each Veteran who goes to the BVA "seeking 2 A and A's" will be similarly awarded.  

If you had 10 people independently interpret this decision,  its likely you would get multiple interpretations and not a single unifying interpretation.  It really does not matter much to me that your interpretation differs from mine.  

Feel free to put a feather in your cap, that you may boast that you bested me.  For me, however, a little humility has served me well for very soon in the future, you will again feel a desire to defend your words or actions and that cycle shall repeat.  

I look forward to tomorrow and not having a need to try to prove to others Im right.  

Edited by broncovet (see edit history)
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I agree most of us are here for info and to spread info. With that said we don't have to accept everybody info.

It's up to u

I brought this up on one of my post that you can have two smc l awards for aid & attendance. To get to o.

Like you said I feel the need to try and prove it. This decision just made me feel smarter lol.

I am fight the same thing a@a for neck smc l already. Smc l for disorders  remember to take medicine not to cause harm to self and socialization. All part of my in home care plan.

Like u said it's like win the lottery some judges will address other will not.

But asknod u gave me hope I have only found 5 decision that this was granted.

I can't even get a denail on this they just refuse to address smc l for my adjustment disorder.

But I have a dro hearing where he sent me to a adjustment disorder exam to address it.

Exam was great but never give a decision. Smh.

But like I said great job and you give others hope.

 

 

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To BroncoVet et al.

To address the above rejoinder, I don't have an incessant need to be right. I argue the law and the VA, the BVA (or the Court) makes the decision as to my correctness. Fortunately, I'm blessed inasmuch as I don't suffer any problems with my self-esteem or self worth. I'm content in my own skin-replete with all my many idiosyncrasies. However, I cannot let an obvious misunderstanding of the conclusions of law stand. 

My job  is to ably serve my clients and turn over every legal rock in search of benefits for them. I come here to teach how, not brag or put feathers my cap. I strongly disagree with this being viewed as winning a lottery, baseball statistics or mumbo jumbo about alphas, omegas and God. It's not precedential but that isn't the teaching moment. The idea is to convey the possible. This isn't a quirk of law. Robert Chisholm did this in 1992. I assure you winning a claim is never luck. It's predicated on decades of work learning how to do it and putting forth a cogent legal argument. I'm guessing there are many who are legally far more knowledgeable than me. I have never said I was Mensa material. I report. The VA decides. It's as simple as that- not some narcissistic infatuation with being right.

Considering the vast amount of knowledge you have in this field, Loyal, I find it incongruous you are not accredited and doing this for others too. As for 10 people viewing this decision and coming up with 10 different interpretations, that's the wrong legal analogy. All I need is one interpretation from one VA law judge-not a panel of ten "people" (complete with dissents) on Hadit. VLJ Peters decided it purely on its legal merits, not a roll of the benefit-of-the-doubt dice.

For the record, I have not "bested" you, sir. I merely point out your error in reading comprehension that led you to insist the Vet was awarded LOU of the BLEs where he clearly and unmistakably was not. Veterans advocates-accredited or not- certainly don't want Veterans coming here and being misinformed. Perish the thought. I don't have to prove I'm right. In fact,  I'm not allowed to. VSRs, RVSRs, Veterans Law Judges and CAVC Judges make that call-not me. As a matter of fact, I utilize your preferred technique you once vocalized to me at my dinner table one night in 2010-"Proper preparation prevents poor performance". I consider it my North Star and it guides me.

As I often tell VA employees-"This isn't about you and me. It's about the Veteran."  VA has an acronym which I rub their noses in frequently. ICARE stands for Integrity, Commitment, Advocacy, Respect and Excellence. My  va.gov email signature below my name states "We are the 'A' in ICARE." Sadly, VA cannot claim any such accolade. Here, in this thread, Russell v. Derwinski's ultimate precedence comes to mind- "Either an error undebatably exists or there is no error." There simply cannot be two correct answers. 

And that's all I'm going to say about that. 

Bon chance 

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Alex...Even my lawyer admitted, it is in fact, often the luck of the draw on "which judge" your case is assigned to.  If memory serves me right, you too, have admitted a liking for one or more judges, not so much the others.  You got lucky and got a Veteran friendly judge.  Its happened to me, also, but other times, well, with a less Veteran friendly judge (this includes CAVC, BVA, and even rating specialists at the VARO), I get denied.    Legal theories may actually be less important than the judge you draw.  

As far as me becoming an accredited agent, while its an honor you asked, its not for me.  Im looking for "less stress" especially dealing with VA, and certainly not more.   I help Veterans exclusively for zero pay, and see no need to reach any further certifications.  I already have a college degree, Bachelors, and that is enough education for me as I will be 70 next birthday.  I have enough difficulties keeping up with Vets who ask questions on hadit, in light of the fact that I soon will have 10 grandchildren, and one wife, and one church to look after also.  

Since the 38 CFR's, as well as M21 Mr are apparently "silent" on how many A and A's you can have, then apparently the decision maker can decide that issue on a case by case basis.  I have not checked the VBM, I dont have a current version..mine is 2014 I think.  The default number, for many decision makers, in the number of A and ' A's you can have would appear to be ZERO.  A few others would allow ONE.  It would be a rare bird, indeed, to find those who grant multiple A and A's.  Berta indicated she could find no others.  

Perhaps if you run into another Veteran seeking multiple A and A's, and you get denied at the Board, maybe you can represent them at the CAVC..who knows, maybe you can establish a precedence.  I presume you already checked and cited precedential cases that you deemed most relevant, since I wasnt privy to your arguements.  

If you did find CAVC (or Federal Circuit) precedence, for multiple A and A's kindly enlighten us.  Otherwise, multiple A and A's is not fire tested and open to interpretation(s) and this disagreement is rather moot.  

Edited by broncovet (see edit history)
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I'm not sure why anyone would have a problem finding these. They are all readily accessible in the BVA decisions matrix.

Double A&A: https://www.va.gov/vetapp18/files8/18126101.txt     8/14/2018

"                " : https://www.va.gov/vetapp97/files1/9703147.txt       2/12/1997

"                " : https://www.va.gov/vetapp04/files/0404466.txt        2/27/2004

"                 ": https://www.va.gov/vetapp15/files6/1552412.txt       12/23/2015

"                 ": https://www.va.gov/vetapp18/files8/18125531.txt      8/09/2018

"                 ": https://www.va.gov/vetapp18/files3/1814284.txt        3/14/2018

"                 ":https://www.va.gov/vetapp19/files3/19118790.txt         3/14/2019

"                 ": https://www.va.gov/vetapp19/files4/19125607.txt         4/04/2019

"                 ": https://www.va.gov/vetapp19/files11/a19002711.txt       11/02/2019

"                 ":  https://www.va.gov/vetapp21/files2/a21003790.txt      2/18/2021

While the use of non-precedential cases are normally not accepted as bright-line rule, the inclusion of non-precedential cases may be cited for the probative value when the fact scenario is virtually identical. 

The Court “may take judicial notice of facts not subject to reasonable dispute,” Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) (citing Federal Rules of. Evidence  201(b)), 

 

Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).

The Court has suggested that factual findings from a prior final Board decision may be binding in the absence of new and contradictory information.  See DiCarlo v. Nicholson, 20 Vet. App. 52, 55-58 (2006); Wilson v. Shinseki, No. 09-0166, 2010 WL 3623570 (Table), p. 5, fn. 2 (Vet. App. Sept. 16, 2010).

The BVA ceased use of the Purple Book recently and now subscribes to an "Operations Manual" which I've FOIA'd and await. Nevertheless, the principle of stare decisis was honored if all things were equal (as here) in a Board Appeal. Obviously, absent regulatory or statutory construction which explicitly forbids an award of two A&As for disparate disabilities, the law is, ipso facto, dispositive of its applicability. That these awards for double A&A SMC exist more than once is further proof the concept is legal. Hence, their mere presence in past VA adjudications is precedence in its own right. The reason you have not seen these in Court cases is simple. It's established law. In the event of BVA error, you can nip it in the bud at the Rule 33 conference. OGC  will generally chieu hoi at that point anyway.

 

P.S. Forgot to add: I do not believe in luck.  With the 5 Ps described above, you do not need luck. If you want to find double A&A BVA decisions, you have to use the right Booean search engine. I suggest Westlaw. In lieu of that, try the BVA decisions site. It's free.

Edited by asknod (see edit history)
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During this  3 years fight for smc benefits I can say the VA don't like granting that smc o and r.

I have been to the cavc 2 times just got the second remand from the court.

I think its more on if the judge follow the law. 

I receive smc l aid and attendance for my physical condition.

I had a dro hearing were I was send to a mental health comp exam to see if my mental health effect my adl. 2019

Favorable exam.

Well it's been 2 years they will not address the hearing or the exam. Because this give the 2 a&a smc o.

With my in home care pay by hospital would grant the smc r.

So yes getting the smc r is a fight. Even if you have the evidence.

 

 

 

 

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4 hours ago, Mr cue said:

This was good  info on how to fight for the two smc l a&a for two separate disability.

This give the veteran smc o.

Than smc r.

 

 

I received aid and attendance smc l for copd and then received another smc l for major neuro cognitive disorder. I was then advanced to 0 and then r1 on account of 2 smc l. 

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Man my  fight to get the other smc l has been crazy.

The last denied was your mental health doesn't effect your adl. So you don't have two condition that effect your adl.

That was it.

Cavc just remand it back to bva to address my favorable evidence.

Let see what they come with it

Here the crazy part I had a dro hearing and was send to the mental health adl como exam. They have been refusing to address this.

I already have the smc l for my upper extremity.

The smc l for my mental health will give the smc o.

I receive in home care based on both.

But I am have the hardest time In the world getting a proper decision that address it.

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Ok I woke up today with new energy to fight the VA for my smc benefits.

I was at the point of it is what it is.

After reading all the bva decisions posted in this thread for smc o and r1.

Based on the two smc l aid and attendance.

It got me to feeling maybe the next bva decision on my 2nd cavc remand will address it.

The smc l for my mental health and the smc o and r are with one bva judge right now. Waiting for decision 

Last time I had the smc l for mental health with one judge.

I had the smc o and r with a different bva judge 

The effective dates for smc s and l for my upper extremity was with another bva judge process ama appeal.

when I never opt in or requested to be removed from legacy 

3 Different bva judges rule on a smc benefits. 3 different bva decision appeal to Cavc.

 

this time they are trying to make it two different bva judges decision.

by trying to remove the smc effective dates from legacy appeal to ama again.

which has different rules for effective dates. Less retro under ama. smh.

well the smc o and r and smc l for mental health and my loss of use is with one bva judge.

let see how they handle this.

I am still waiting on the cavc judge to rule on my petition for relief.

I never requested or opt in to ama.

THe VA can't just remove your appeal from legacy appeal to ama appeal system.

the VA has been try to remove my effective dates from legacy for a year.

I have a cavc order to merge my legacy appeal back together. 5/27/2022.

And when the cavc remand it again August 31.

The bva removed it again from legacy.

Just told the court I am wrong they can't merge the two appeals.

Because one is legacy appeal and one is ama. Smh. Never address how it got removed or the court order.

So now I sit here waiting on the cavc judge to address this again. After she order all my appeal my appeal merge back together 5/27/2022.

The same cavc judge has the petition.

I beat that the cavc will not even address anything an tell me the petition is moot. Again happen last time.

How end up with 3 bva decisions last time.

I will have 2 this time getting closer to one. Guess next year.smh

When you ever seen a smc benefits claim treated like this.

 

 

 

 

 

 

T

 

 

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