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]

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.

 

 

[FormerMember]

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 

[broncovet]

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 July 12, 2021 by broncovet

[FormerMember]

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 July 15, 2021 by asknod

[Mr cue]

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.

 

 

 

 

[Mr cue]

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.