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jvretiredvet

Senior Chief Petty Officer
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Everything posted by jvretiredvet

  1. Well, taking the additional records to the C&PE does not always - ok, rarely - mean that the RO doing your claim got the records. When you file for the temporary 100%, I suggest you also send those additional records to the RO. They may - or may not - make any difference in the initial rating. Please note that anticipated surgery in and of itself is not one of the criterium in evaluating a heart valve problem, DC 7000, or heart valve replacement, DC 7016.
  2. Folks, we should be reading regulations for what they state and not for what we want to read. As another poster opined, the area of SMC can be complex. However, the issue in this thread is not all that complex. Please follow along: 1. The OP for this thread carries SMC-s. 2. 38 CFR 3.350(f)(4) http://www.benefits....ART3/S3_350.DOC specifically states: "In addition to the statutory rates payable under 38 U.S.C. 1114(l) through (n) " . Please note that SMC-s is not mentioned. BTW, this applies also to 38 CFR 3.350(f)(3) 3. Based on what the OP wrote, I do not see how this paragraph applies to the OP, until/unless he achieves SMC-l. I hope that not-too-many troops now have this too-fanciful interpretation.
  3. In answer to your your specific questions: Now I have been awarded 100% Ischemic Heart Disease Any Idea how nthis will affect my SMC Rateing There will be no effect. You will remain at SMC-s. and I was told, ( Do not Know how truthful it is) What you were told is not all that correct. that housebound should have given me SMC L. No. "Housebound-in-fact" is SMC-s . SMC-s also is the 'statutory' housebound, where the veteran has total disability (a single schedular 100% or TDIU for a single disability) with additional combined 60%. Now my curiosty is up wondering what they will award with the new 100%. No change in the rating or the level of SMC. However, the additional service connected disability may be helpful in the event of your demise, either with DIC or the higher death benefit.
  4. OK then, DC 7016, 100% for 6 months after discharge from the hospital with another VAE. It seems strange though, that someone with 'only' a 30% evaluation for a heart condition necessitated a valve replacement. Did your condition worsen in the period between the CP&E and the date of the Rating Decision? Or, was this a medical decision to prevent things from worsening? Are you now part-pig or do you have a 'clicker'?
  5. You've got almost everything correct except for the statute of limitations for refunds. Prior to June 2008, the SOL was in fact 3 years. The HEART Act (PL 110-245) changed the SOL somewhat for retroactive VA disability determinations, either for retired military or for those who received a military lump-sum disability severance pay. That act allowed me to amend my 2002 return in 2009, but that was an exception for us old farts. Special statute of limitations. In most cases, under the statute of limitations a claim for credit or refund must be filed within 3 years from the time a return was filed. However, if you receive a retroactive service-connected disabil- ity rating determination, the statute of limitations is extended by a 1-year period beginning on the date of the determination. This 1-year extended period applies to claims for credit or refund filed after June 17, 2008, and does not apply to any taxable tax year that began more than 5 years before the date of the determination. So, depending on dates, we're either looking at a usable Statute of Limitations, or conversely Shit Outta' Luck.
  6. Well, the intent was noble yet incorrect on many issues. To have a service-connected disability re-evaluated you should submit a VA FM 21-526b and send it to the VARO in your state. The OP can go through the agony of a 526, but I'd recommend using VA Form 21-4138 . This link http://www.vba.va.go...21-4138-ARE.pdf allows you to type into the form and print it out. But, the local VARO is a real good idea. You are entitled to a special monthly compensation of 100% if your convalscence is longer than 21 days. First, it is NOT special monthly compensation of 100%; it would be a temporary 100% evaluation. Second, a period of convalescence has to be for more than 1 month; the period of convalescence must be either medically directed or statutory directed by the Rating Schedule. As this troop appears to be service connected for IHD, I presume he had coronary artery bypass surgery, evaluated under Diagnostic Code (DC) 7017 http://www.benefits.......4_104.DOC . A VA examination will be scheduled towards the end of the 3 month statutory convalescence. You will need to obtain a letter from your Doctor stating the following; date of surgery; type of surgery and days that the Doctor has given you for convalscence. Send these two forms to the VARO in your state. The address will be at the top of your rating decision, page 1. Send as much as you care to. But, if you are service connected for IHD and the surgery was a CABG, notification of the surgery with operative records should be sufficient. As always, please seek out the assistance of a veterans service officer in your area to assist you. I hope you are not a VSO.
  7. In addition to the emergency generator, will you request an automatic start-up and power transfer system? How about fuel for the generator? Seriously though, my suggestions: 1. Either buy or ask the VA for an Uninterrupted Power System (UPS), such as the type used for home computers, electronics, etc. The UPS sitting in my lap right now has enough battery power to power a CPAP for in excess of 8-10 hours. 2. If your local power system is so crappy, complain to the local power company.
  8. At this moment I am not inclined to go into the Internal Revenue Code so I will respond with references from IRS consumer guides. But if you want to go to the source: USC 26 http://www.law.corne.../uscode/text/26 . Section 61 discusses what is taxable income (basically, eveything is taxable unless specifically excluded by law). Section 104 covers disability. A statement was made that this only applies to disability severance? Yep, purt' much so. The 2011 IRS consumer guide Pub 17 Page 53 http://www.irs.gov/pub/irs-pdf/p17.pdf states: However, you must include in your income any lump-sum readjust- ment or other nondisability severance payment you received on release from active duty, even if you are later given a retroactive disability rating. Can the tax I paid last year on involuntary separation pay ($25k) be recouped as well since the VA is taking the non-taxed amount back ($75k)? I really feel taken for having to pay taxes on money I don't get to keep. The technical answer is that you did receive the entire $100k package, of which $25k was Federal income tax withholding (25% is required on all such lump sums). Remember, unless specifically excluded, it is taxable. Depending on your other income(s), filing status, exemptions, deductions, and your true marginal tax rate, you might have already received some part of that $25k back as a refund. The only recourse I can see is for you to somehow change the actual circumstances of your non-disability discharge with severance pay to a disability discharge with severance pay. This would be a long shot in any case.
  9. Are some here suggesting that procedures should be ignored when it seems convenient and one "knows" what the answer will be? It appears that many here want a decision before evidence. Unlike those here who know absolutely how easy and clear cut all VA claims always are ... here is my take: All claims are addressed on three bases for service connection: Direct, Aggravated or Presumptive, 'Direct" being the oldest and perhaps preferable (I'll ignore aggravated for this specific discussion). Even if the RVSR might 'know' he/she will be granting service connection on a presumptive basis, the RVSR still needs to address direct service connection based on the actual evidence (or actual lack of it). The letter was generated by a non-decision maker and was required by the Veterans Claims Assistance Act (VCAA); I'm sure that someone here might have heard of VCAA, I'm equally as sure that many here would complain vehemently if VCAA had not been been given, even though s/c had been granted because well, well it is an 'error' and veterans want to point out errors. In an official review, lack of VCAA would be an error even if service connection had been granted with spot-on effective dates and evaluations. If the veteran "knows" that service connection is going to be granted on the basis of presumption and he/she receives such a letter, there is no requirement for the veteran to provide anything more. Send in a letter/4138 that states all evidence has been submitted and to proceed with a decision. For the OP ..... WRT (3) Evidence showing that I have a skin disease contracted within one year of my last exposure to agent orange in 1968. (NOTE: Apparently the Atlanta VARO thinks multiple myeloma is a skin disease instead of a blood cancer). ... well, it could be a lack of knowledge, or a mis-type, or ... are you absolutely sure that you never mentioned anything about a skin condition in one of your letters to the RO? If you mention something even without specifically claiming it, is the VA to presume that you are or are not claiming it. Jest sayin'
  10. Certainly, check with the resources already listed. Here are some other possibilities: Many areas have something called "Independent Living Center" that assists folks to stay in their homes. There might be some financial assistance available through them. Check on your city, county or state disability office. For a short-term solution, try changing out the door hinges with these hinge extenders (sometimes called off-set hinges) http://www.disabilit...cgi/search.html . Some on-line sites sell a three pack, 'cause most doors anymore have three hinges. Due to the hinge off-set, you get an 'extra' 2 inches of usable door opening and sometimes that will work. Not optimum, but an interim solution.
  11. I have found many references that imply combat related service connected disabililities are exempt from disability severance pay recoupment. That's the way it is - now. The 2008 National Defense Appropriation Act Section 1646 http://www.govtrack....4986/text made this change. However, the effective date of the change was January 28, 2008 and it was not retroactive. Am I exempt from serverance pay recoupment since I am service connected for the injuries while deployed to the Persian Gulf? I understand that you took a lump sum disability severance way back ... is that correct? Furthermore, you are not drawing Ch 61 retirement pay ... is that correct? If so, I don't see how you can get around recoupment. However, if you are drawing Ch61, you can apply to your service for Combat Related Special Compensation (CRSC) and the service would make that determination. here is an application form: http://www.eglin.af....-080905-039.pdf Under current rules, you can draw CRSC as well as VA disability compensation - but only if you are retired under Ch 61 or are retired with over 20 years service. You also must remember that something that occurred while you were in a combat zone and something that occurred as a direct result of combat may be two different things.
  12. Remember, I am doing a great deal of this from memory, so be gentle ... In the May 11, 1999 issue of the Federal Register http://www.gpo.gov/f...df/99-11768.pdf , the criteria for Diagnostic Code (DC) 6260 were changed somewhat. Per page 25206: The previous rating schedule provided a 10-percent evaluation for tinnitus, DC 6260, with the criteria being: ‘‘persistent as a symptom of head injury, concussion or acoustic trauma.’’ We proposed to remove the requirement that tinnitus be a symptom of head injury, concussion or acoustic trauma and that it be persistent and instead provide a 10-percent evaluation for recurrent tinnitus. The change resulted in: 6260 Tinnitus, recurrent ......................... 10 Note: A separate evaluation for tinnitus ]may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes. While it would seem to indicate that there would be a single 10% evaluation for the condition "tinnitus", neither unilateral nor bilateral was mentioned specifically. Now, dredging up from memory ... In the May 14, 2003 issue of the Federal Register http://www.gpo.gov/f...df/03-12038.pdf , clarification guidance specified that a single 10% was warranted for DC 6260, whether unilateral, bilateral or within the head. I think the rational for the clarification is pretty much valid. In close proximity with this clarification, there was a lawsuit alleging that a separate 10% evaluation for each ear was authorized (or, perhaps better to say 'not unauthorized'), and there were a fair number of new claims and claims for increase for bilateral tinnitus. I do not recall the decision year or the name of the decision. The upshot? Those veterans with an extant claim for bilateral tinnitus at the time of the judicial decision were authorized separate 10% evaluations. So, there likely are a few folks still out there with "schedular" 10% + 10% for tinnitus.
  13. 2012 Annual Retiree Statement and Form 1099-R Available December on myPay http://www.retirees....sp?id=123328004
  14. I am going to file the NOD .... To be honest, I don't think that this NOD would be successful. However, it is your right to appeal if you want to. ... if it was service connected it should go back to my first filed claim, right? Not necessarily. Am I screwed because this was a re-open of the claim with new evidence? I don't know that I'd say you were screwed at all. You filed a claim in 2009 that was denied on two bases: Direct and Presumptive; that claim became finalized because you did not continuously 'prosecute' your claim. In 2012, you filed to reopen your claim with New and Material Evidence. Based on that evidence, service connection was granted. In this case, the effective date would be per the opening paragraph of 38 CFR 3.400 http://www.benefits....ART3/S3_400.DOC
  15. Unless the notification letter format has changed dramatically ... Look at your notification letter. There is sort of a table there, pretty close to the top. One column of the table is "Monthly Entitlement Amount". Another would be "Payment Start Date". Multiply the monthly entitlement amount by the number of months from the start date to the present. This should give a ballpark retro amount. Again, unless the notification letter format has changed dramatically.
  16. Generally speaking, retroactive education benefits can be paid for up to 1 year, but not earlier than the effective date of the award of Chap 35. You might have to provide some documentation through her school's VA benefits office. Any retroactive payments will count against the total.
  17. Well, there is no % increase per se because, after all, you are at 100%. However, I suspect you are really asking if there would be any increased compensation ... Without any additional information, like what the first 100% is for, I'd say that you'd qualify for SMC-s.
  18. On an aside, there's a great deal of Peculiar stuff going on in Cass County. Now, on to you ... While researching my files and medical records I believe I should have been rated completely differently on medical discharge. My original rating is scratched out and hand written in is the 10% rating. (I have quoted material that leads me to this conclusion in this forum previously) You cannot always use the current Rating Schedule for a Rating Decision done in 1992. While Rating Criteria for some conditions have not changed at all through the years, some/many have. For example, 38 CFR Pt 4 Appendix A http://www.benefits....pp_a.DOC shows that criteria for DC 6602 were changed in 1975 and 1996. And, COPD (DC 6604) as a separate issue was not even in the Rating Schedule until 1996. If you want to see the DC 6602 criteria in effect in 1990/1992, I suggest you look at 40 FR 42539, Sept. 15, 1975; or, perhaps 41 FR 11300, Mar. 18, 1976. Whether that 10% evaluation was correct or incorrect depends upon, guess, the Rating Criteria in effect way back when. And, as I earlier wrote, the door for an NOD closed sometime in 1993. While going to the CFR on your pyramiding concerns I am still a bit confused. COPD and Asthma are very different things. (snip) Thank you so very much for the education. However, it is moot. Although you refer to pyramiding, you apparently did not consider the other reference I provided, 38 CFR 4.96a. http://www.benefits....PART4/S4_96.DOC . Now remembering that the Diagnostic Code (DC) for asthma is 6602 and COPD is 6604, here are the salient points of 4.96a: (a) Rating coexisting respiratory conditions. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. ... (snip) ... A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. (snip) If you have a problem with this, I suggest you contact your Senators and or Representatives, share your knowledge with them, and ask that they propose changes to the law. At the date of my medical discharge at the age of 26 my FEV-1 is the same as my last PFT/CP Exam taken in 2011. Which is the basis for a COPD diagnosis. Again, you need to refer to the criteria in the Rating Schedule in effect in 1990. To restate what I mentioned earlier, I see no purpose for me to find that for you. I guess what I am confused about is why after all of these many PFT exams did not an examiner note, notice or figure it out. It wasn't diagnosed till 1988 but I was still given all the meds related to the COPD, several of which are almost exclusively for COPD since almost the date of discharge. The fact that DC 6604 was not a separate DC until 1996 may be a clue. Also, I believe that 38 CFR 4.96a has some bearing.
  19. My question is why wasn't I rated with both COPD and Asthma in 1992 when diagnosed? I cannot tell you why you think that you were not service connected for both in 1992. However, I suspect that the narrative in the Rating Decision from 1992 stated that both were service connected, with the 10% evaluation based on the then current tests. Also any other insights into this situation would be appreciated. As another poster noted, there may be (actually, read that there is) a problem with pyramiding (38 CFR 4.14 http://www.benefits....PART4/S4_14.DOC ). Additionally, I direct you to 38 CFR 4.96.a. http://www.benefits....PART4/S4_96.DOC . The Diagnostic Code (DC) for Asthma is 6602 and the DC for COPD is 6604. So, you will not receive two separate ratings, though the next higher step per 4.96a may be coming into play here. Whether or not there was an incorrect evaluation back in 1992 depends on the Rating Criteria in effect then. Although I don't care to dig that up, I suspect they would be very similar to today's criteria. I have yet to file a nod etc.. The current evaluation appears to be correct. If you are contemplating a Notice of Disagreement for the 1992 evaluation, you are far, far too late: that window closed in 1993. Your only other recourse would be the Clear and Unmistakable Error (CUE). Though, before you go firing that gun, you need to find the 1992 Rating Criteria and review the examination or other data that justified that 10% award in 1992.
  20. Right off-hand, based on the recent completion date and with no further information, I'd suspect that your file is undergoing a Systematic Technical Accuracy Review (STAR).
  21. can the DRO request to see the vet before making decision? I am not aware of anything that absolutely prohibits this. If so, what are the pros and cons of the vet declining this request if the vet feels his new and material evidence is sufficient and nothing good can come of giving the DRO more grounds to circumvent the IMO and C&P results. If you truly believe that there is sufficient evidence to get what you want, turn down the request. However, I'm not sure I would if I were in your shoes.
  22. So roughly 2400- 2600 monthly? I dunno ... what does the Compensation Rate Table say? That is through VA? Sure, why not. then my retired pay on top of that? Yeah, that'd be real neat as well. so about 1000 more then I get now? See my first answer. Gee, I love it when someone discovers the money tree.
  23. or can you tell me where to find them at? I could be really snarky and merely say '... Look in 38 CFR Pt 4 ...' , but I won't. Requirements for a diagnosis of chronic fatigue syndrome are at 38 CFR 4.88a http://www.benefits....PART4/S4_88.DOC . Rating criteria for CFS are at DIagnostic Code (DC) 6354 at 38 CFR 4.88b http://www.benefits....ART4/S4_88b.DOC Stricture is evaluated as DC 7204 at 38 CFR 4.114 http://www.benefits....ART4/S4_114.DOC . GERD is rated under the criteria for Hiatal Hernia, DC 7346 at 38 CFR 4.114 . IBS is rated under DC 7319 at 38 CFR 4.114 You can receive separate evaluations for esophageal stricture. You cannot receive separate evaluations for GERD and IBS. For why, read the intro to paragraph 4.114. I doubt that you'd get separate evaluations for CFS and mononucleosis.
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