What “Do a Little More” Really Means
Between all the fussing and fighting I do with the VA, I do plan to slow down a little this week. Spend some time with family, reflect, and gives thanks. This year has been enormously great to me. I have been able to help more Veterans than I ever thought possible. That brings me a great joy. We are also on the cusp of the semi-quincentennial. That’s America’s 250th birthday for you folks in the peanut gallery. Don’t worry, I have to say it slow myself. That’s pretty awesome if you think about it. Pictured here is John, a Korean War Combat Veteran. At 90+ years old, he is looking pretty darn good if you ask me. This Thanksgiving, though, John may be eating charbroiled ribeye instead of turkey. Why? After two trips to the Court, the Board finally got wise and gave his 2007 appeal to another Judge. The result? 3 cherries for sure.
A Tough ‘Ole Bird
John is a tough ‘ole bird. He’s a true Marine. While serving in the Korean theater, he took incoming fire—and this is straight from his STR jacket right here—“a shell exploded and he sustained an injury to the right knee and back. He was taken to a field hospital where he was treated and given first aid…He then returned to active-duty for one year.” What a good looking young man. He certainly did not fib on his enlistment papers to go off to war a wee bit shy of age 18. And to this day, the VA definitely does not think he is two years older than he really is. Shut the door. I am just kidding, of course.
And check this out—wouldn’t you know, on his original DD-214, they forgot his Purple Heart and CAR. Don’t worry though, he is rocking them loud and proud these days. No stolen valor here, and they appear in order too. Some senators can’t even get their ribbon rack right.
Naturally, John had a bad knee the rest of his life. Korean shrapnel bits will do that to you. But, like m̶o̶s̶t̶ all men of his generation, he wasn’t greedy, didn’t complain, and was grateful for what little bit he had been given by his government. When he got his discharge papers, he was thrilled with his 30% rating from the VA, effective June 1, 1953. You don’t see those dates often. Fast forward to 2001, and John’s knees were getting worse and worse. Between the shrapnel injury and the frostbite from Korea, his lower legs were shot. Like a turkey—stick a fork in me! So, he goes back to the VA, looking for a pinch more. By this time, he couldn’t work anymore, so he was looking for anything the VA had to offer. Wouldn’t you know, the VA gave him TDIU and sent him on his way. Nothing further for you, friend. And so John, like the men of his generation do, again said thank you to his government.
Horse Tradin’
John is getting along as best he can once he got his TDIU/100% from the VA. Things were going as best they could. Though, in the spring of 2007, his knees had gotten just totally shot. It was to the point where he couldn’t drive worth a lick. So, he asks the VA for that sweet automobile and adaptive equipment grant to help outfit a ride that he could get in and out of. Naturally, the VA wanted to check his knees out first. So, they set him up for an exam and issued a decision “confirming” his knee rating and denying the automobile grant. So, John got his VSO to fire off a Notice of Disagreement.
This is where the horse tradin’ begins. Back in the day, when you disagreed with a decision, a Decision Review Officer would first take a look see and if he could fix it, if not, then they’d issue a Statement of the Case to get your case to the Board. So, in the most VA fashion, this DRO calls up John and starts bartering with him. According to this guy, since John was already getting TDIU, them increasing his knee rating wouldn’t do anything. So, he asks John, how about I just grant the automobile, and you agree to drop the knee issues? “Informed Veteran of decision to grant entitlement to adaptive equipment. He understood he did not qualify for the auto grant. He also understood that he was 100% and would not receive more compensation unless he develops loss of use…Asked [Veteran] to fax me a satisfaction statement.”
Now, boy do we have some problems with this right here. In order to be eligible for the automobile grant, by definition, there has to be some loss of use somewhere. Otherwise, you just don’t qualify for it. Now read the second part there. “He also understood that he was 100% and would not receive more compensation unless he develops loss of use.” Do what now? How can you in one sentence grant the automobile claim, which by definition requires loss of use, but not grant loss of use for the knee? Hmmmm. Why is this important you ask? You see, the granting of the automobile claim is an acknowledgment that John suffers loss of use, which opens up the door to some sweet SMC, which is paid on top of the 100%. But John, for the third time, told his government thank you and went on his way, brand new vehicle and all.
Doing a Little More
They say that the third time’s the charm, but for John, it was going to take a few more tries. John went back to the VA a fourth time in December of 2022. This time, John got wise to the SMC thing, and filed a claim for aid and attendance. With age comes wisdom. The VA promptly shut the door on that idea 3 months later, with a decision denying aid and attendance, but also found “You require aid and attendance. The VA Form 21-2680 demonstrates that you have a need for aid and attendance.” Clear as mud. After that, John hired me to help get things moving for him. We had a hearing with a Judge, did the whole 9-yards. Sure enough, we got a grant of SMC.
The problem? The VA was only trying to backdate it to 2022. So, we had to do a little more. I kept studying over that 2007 business. Something wasn’t sitting right with me. According to the VA, back then “[c]alled [Veteran] and he states that entitlement to auto adaptive [equipment] satisfies his appeal and to drop all issues on appeal. He no longer wants to pursue them.” But what a minute? That isn’t a legitimate withdraw of an appeal. If you are going to withdraw an appeal at the VA, it has to be clear as day, in writing, and clearly list out the issues you are withdrawing. Lesson learned. Don’t horse trade with the VA. So, I started sending some emails to the VA. I explained that legally, that supposed withdraw wasn’t worth the paper it was written on, mainly because it wasn’t on paper, it was just a memo of a phone call!
If there is one thing I have learned about doing battle with the VA, if you just aggravate the you know what out of them, they will eventually somewhat do what you are asking for, just to make it someone else’s problem. So, I kept e-mailing the VA, asking for a Statement of the Case. Sure enough, in August of 2024, we got a Statement of the Case, listed as evidence, “Report of contact (invalid method to withdraw appeal for right knee).” Hot damn! We are in business. Now to get his case before the Board, someone else’s problem. Off to a Judge it goes, to explain that they need to backdate that SMC for John, back to 2007 when they granted the automobile adaptation. Well, we hit a roadblock. The Board dismissed the appeal, saying that John’s appeal was clearly withdrawn over a decade ago. “For reasons that remain unclear, 14 years after the Veteran withdrew his claim and VA closed his appeal, the AOJ issued a Statement of the Case (SOC) addressing the Veteran’s right knee.”
The problem now? Some Judges at the Board forget the VA system is meant to be Veteran friendly. That means the VA—including the Board—have to give you an opportunity to be heard before doing stuff like, oh I don’t know, dismissing your appeal. An opportunity to respond in advance and say here is why it shouldn’t be dismissed. Guess they didn’t check their tip of the day e-mail or something. So, we ran John up to the Veteran’s Court, where the VA Office of General Counsel quickly agreed to send the case back to the Board. That way John would have the opportunity to explain himself—something he should have gotten in advance.
So, it got back to the Board. Wouldn’t you know, they sent it back to the same Judge, the same Board attorney, who said no again, just with more vigor this time.
You can tell by now they are getting irritated. No more money for this Korean War Combat Veteran!
Back to the Court we go. Only this time, VA’s Office of General Counsel wanted to defend the Board’s decision. They finally said no in the correct why. After briefing the case, John got a full reversal at the Veteran’s Court. I pause here to discuss the difference in a reversal and a remand. A remand is when the Court sends your case back, because the Board made a mistake, but perhaps there is some plausible basis for it. That isn’t a strict legal definition, but you get the point. In other words, the Board didn’t explain itself. How did it come to this particular conclusion?
Copy of John’s Memorandum Decision, reversing the Board’s decision.
Whereas, for the Court to reverse something, the Court, “after reviewing the evidence of record, the Court is left with a definite and firm conviction that a mistake was made.” So, the Court was so convinced the Board made a mistake, they reversed the whole thing and put the kibosh on the Board.
John Gets a New Judge
So, we get ready for a third decision from the Board. By now, I guess the Board was tired of getting embarrassed—probably not, but who cares. They took John’s case away from the Judge and Board attorney who cut the paper on the first two decisions, and assigned the case over to a Judge I respect very much, Veterans’ Law Judge Jonathan Hager. So, in September of this year, Judge Hager cut a decision giving John SMC, all the way back to May 23, 2007.
Copy of Judge Hager’s decision. Notice how some Board Judges just sign their name J. Doe, instead of John Doe. Judge Hager, and all the really respectable Judges at the Board sign their full name to BVA decisions. I wonder if Congress should require all Board decisions to have the full name of the Veterans’ Law Judge? Some people take pride in their work and aren’t ashamed to sign their name to something.
Anyways. So, there you have it, John is due some serious dough. When a Judge grants backpay like this, it still has to go the regional office to get “implemented.” They usually sit and chew on it for a few weeks, making sure they really do have to pay it out. It took them about 2 months to finally pay John. They released it, just this week—just in time for Thanksgiving.
On a Personal Note
Cases like these are why I love what I do. I tried to “do a little more” for John. He deserves it. The cherry on top was calling his daughter this past Monday and letting her know the VA released all of John’s backpay—just in time for Thanksgiving. I am immensely grateful for Veterans like you, like John, and so many others. They are what keep this Country moving, always free, always blessed. I know John would have been happy if we’d just stopped with backpay to 2022. But, I saw there was more that could be done, and I tried to “do a little more” for John. I am glad I did. It is going to help him be comfortable. He has many more years left in home. Afterall, Marines are not allowed to die without permission.
Now that is a Happy Thanksgiving story.
Godspeed.
