DOGE Alert: My $1,000 appeal Cost the Government $15,000
Perhaps the memo hasn’t reached the BVA. This administration is all about conserving scarce government resources. As the saying goes, there are three fights with the VA. The fight for service-connection, the fight for the right rating, and finally, the fight for the correct effective date. What if the VA gets your effective date wrong by just one month? It is only 1,000 bucks. Should you file an appeal? Well, we did just that, and it costs the government well over $15,000 to get a lesson in Special Monthly Compensation (“SMC”) effective dates.
Scarce Resources
We hear about it a lot since January 20, 2025. If you didn’t know, our country is in the hole to the tune of 37 trillion dollars. How does one even write that out in numbers? 37,000,000,000,000, or 3.7 × 10¹³, according to Google. So, with all that debt, the current backlog at the Board, you’d think there would not be much of a fight over $1,000? Guess I am just naive. “John” came to me sitting at a cool 50% overall, due to his back and radiculopathy. He had a problem, though. He had twice been shot down for his Coronary Artery Disease. This joker even had a built-in defibrillator. So, he wasn’t just making up the heart issues. John wasn’t in Vietnam. So, it wasn’t a regular presumptive claim. You see, John’s back was bad off. I mean really bad. Over the years, he thought you took ibuprofen, acetaminophen, and the likes like you did popcorn—by the handful. But, you can’t blame him. He was in 24/7 pain. One day, John started having some heart issues. The doctor immediately asked him how long he had been on these painkillers? Years was an understatement. The doctor immediately said no more of those painkillers, its what caused this whole mess!
Nonsteroidal anti-inflammatory drugs and heart failure
Yet, the VA wasn’t buying it. So, John hired me to help clean up the mess. We were able to quickly get his heart failure service-connected, which brought him up to 100%. Then came the battle for the SMC. John needed help with nearly everything. He relies on his wife to help administer therapy, drive him to appointments, the cooking, the cleaning. John’s heart just wouldn’t let him. Even if his heart would, his back was too bad off to do anything. So, we began the SMC game.
Chutes and Ladders
The SMC game really is just that—a game. You apply, get denied, run up to the Board. Get a little bit granted, run back down to the regional office. Back to the Board. This process usually is a wash, rinse, and repeat 3-4 times on a true SMC case. Shoots and ladders. Up and down. So, we began the dance with the VA. Now, as soon as the VA learns you know what SMC is, or that it exists for that matter, their favorite thing to do is grant housebound (SMC (s)). They throw you a bone. An extra $435 on top of your 100% and pray you go away. Sure enough, that is what happened. Since John was over seventy-five, his appeal would be automatically advanced on the Board’s docket. So, we fired off a Notice of Disagreement. Now, I will be honest, I was expecting the Board to throw us another bone, SMC based on aid and attendance (SMC (l)) and hope we go away. To my surprise, they granted SMC (r)(1) right off the bat. John went from around $4,430 a month to $9,700, with just one appeal. Not half bad?
Of course, the Board never does the heavy lifting and assigns an effective date. They leave that up to the Regional Office. Of course, the Regional Office flubbed up the effective date. They made his (r)(1) effective September of 2023. A total thin air, made up, date. Back up the ladder we go. Our second appeal to the Board for an earlier effective date. Oh, I should mention—what is John doing during this time? Well, this isn’t my first rodeo. The second I get a Veteran to (r)(1), I have them use some of that newfound wealth to hire some in-home care. In other words, we set the trap for (r)(2).
The $1,000 is Born
It is during this second appeal that the train ran off the tracks. You see, based on John’s date of claim, here is what things boiled down to. His back was service-connected, effective December 2022. His heart was service-connected as of January 2023. Those dates were right. Recall, though, that he was only getting (r)(1) effective September 2023, and was getting no SMC prior. I explained to the Board that he couldn’t get (r)(1) back to December of 2022, only to January, since he needed the heart to be the kicker (no pun intended) for the (r)(1). However, I pointed out that he could and should get SMC (l) for his back, beginning in December of 2022. Easy enough? Let’s first talk a little math. The Board’s budget in 2024 was $287 million. In 2024, the Board issued 116,192 decisions. So, if you take the Board’s total budget, divided by the total number of decisions issued, it costs the Board, on average, $2,470, per decision. Let’s keep that figure in mind. In John’s second appeal, the Board granted an effective date of January 2023 for (r)(1). So far, so good. However, the Board denied an effective date of December 2022, for SMC (l). The actual dates boiled down to forty-two days earlier, or, $1,000.
The Appeal
There you have it, the $1,000 appeal is born. Aside from the fact that the Board cited to records from August of 2022, as evidence suggesting he didn’t need aid and attendance (months prior to December), I just couldn’t let a wrong go uncorrected. So, up to the CAVC we go. The good thing about filing an appeal to the CAVC is it costs you, the Veteran, nothing. Instead, if we are successful, myself and my very good buddy, Ben Binder, of Binder & Watson Law Group, get to send the VA a bill for our time. It doesn’t come out of John’s backpay. It comes from a different pot of money, as part of the Equal Access to Justice Act. It literally costs John, or you, nothing to be represented at the CAVC. Now, if the VA had any commonsense, the second they saw the notice of appeal, they would have folded up shop.
Even if that had decided to defend the case, it would cost over $1,000. That is literally all that is in dispute. Now, thankfully, the VA chose not to defend the case. At our Rule 33 Conference (think of it as a miniature mediation), the VA offered to remand (send the case back) to the Board for further consideration. Sounds great to me!
Redacted Joint Motion for Partial Remand
That appeal alone, after my time and Ben’s time, cost the VA $6,524.65. They already paid for one Board decision. Since the case is getting remanded, they will have to issue a second Board decision. The price tag is already up to $11,464.65 (our fees, plus the cost of two Board decisions). All this over $1,000. But, I couldn’t let a wrong go uncorrected. They owed it to this Veteran, to John, and they were going to pay it to him. I haven’t even calculated the expense the VA incurred having an attorney say “yeah, we should send this back to the Board.”
Back at the Board
When a case is sent back to the Board from the Court, the VA must send a Veteran a letter stating so, and provide them 90-days to submit additional arguments. What’s another $1 in postage? Make that $2 since the VA has to send me a copy as well. Actually, let’s round that up to $10. The price to have an employee draft a letter, print out, mail it, to myself and John. Then, I have to prepare a second written argument, send it to the VA, where an employee has to process it, upload it to John’s file, etc. Once that is done, the Board prepares to spend another $2,470 to crank out another decision in John’s appeal. Now, thankfully, the Board got it right this go-round, and ended up granting what we wanted: SMC (l), effective December of 2022.
All that, to give John $1,000. But, of course, it gets better, yet. You see, when the Board grants an appeal, it still has to go back to the Regional Office to implement the Board’s decision. I use the analogy of a Judge signing an arrest warrant. The Judge doesn’t go arrest the person—you still have to pay a sheriff’s deputy to go do that. That requires yet another VA employee to draft something implementing the Board’s grant. Of course, another letter to myself and John saying ‘we are implementing the Judge’s order.’ Oh, and for whatever reason, they mail out a copy of the Board’s decision, again, to both myself and John. So, 4 copies of the Board decision is an extra 56 pages being printed (yes, it took the Board 14 pages to say here is your $1,000). 56 extra pages being mailed, on top of the decision implementing the Board’s grant. All this for what? You know it, $1,000.
“Other Matters”
I think I will close with a note from my post-remand argument. Remember, you get 90-days after a case is sent back from the Court to tell the Board why they were wrong. I explained that to the Board in about 8 pages. The last ‘chapter’ in my letter was titled Other Matters. So, I will leave you with this to chew on.
Lastly, [John] finds it worthwhile framing the question in one final fashion. His current effective date for SMC (l) is January 27, 2023. He seeks an effective date of December 16, 2022, or 42 days earlier. The Board will be forced to invest more time and resources in order to issue a second decision, the time and efforts of the Court, the office of general counsel, and the EAJA fees incurred by the government—all for an effective date dispute of 42 days, during a time when the Bord’s backlog continues to grow, and Veterans are in dire need of relief.
This Veteran, and all Veterans, seek no more than they are due; but they will accept certainly no less.
Before I close, I should clarify that my $15,000 estimate is probably an underestimate. I know for certain it costs at least $11,464.65. Factor in the cost of transmitting John’s records to the Court, the cost for the VA attorney to prepare for the Rule 33 conference, the Court Clerk’s time spent docketing the appeal, processing the filings, the mail, the list goes on and on. You can see how it would quickly add up to well over $15,000.
And that’s all I have to say about that. John, don’t spend all your money in once place!
Godspeed.
