The Double Whammy-2 A&As = R1

[FormerMember]

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

[Mr cue]

Great win I have been saying u can get two smc l aid @ attendance.

long as it's two different condition.

Proves i ain't crazy lol. 

[broncovet]

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

[FormerMember]

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

[broncovet]

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 July 10, 2021 by broncovet

[FormerMember]

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.

[broncovet]

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 July 11, 2021 by broncovet