Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

FormerMember

Former Member
  • Posts

    1,694
  • Joined

  • Last visited

  • Days Won

    115

Everything posted by FormerMember

  1. Let's cut to the chase. There is no CUE here. A subcontractor/clinician from QTC/VES/LHI has been trained to ask you when you come in for a c&p : "How are you today?" Most folks will answer neutrally or say something to the effect that they are "Fine, and you?" This is a pleasantry normal people exchange with one another. VA, however, will always weaponize it to extrapolate it to mean you are stating you are fine and denying anything is wrong with you. I've been watching this phenomenon ever since it happened to me in 1989. VA has a finite bag of tricks to deny with. They can legally say that you went to a psych c&p and no diagnosis was rendered of a mental disorder or your claimed disability of ________________ (fill in the blank). Right there at that point if you had obtained a private nexus letter (IMO) from a shrink saying you had bent brain syndrome, you would have prevailed. Ditto right foot pain. But, as you say, you did not know how the dog and pony show worked back then. Most Vets didn't and still don't. You didn't appeal and that was fatal to revisiting this denial now in 2022. As Berta pointed out, you can never argue how the evidence was decided in CUE. As for §3.156(c), do you have relevant medical records which show a real, bonafide dx of MDD while in service which has never been made a matter of record? If not, that theory goes down the drain. Anxiety/GAD/ PTSD/MST/Bipolar etc. are a group of major depressive disorders (MDD) adjudicated under §4.130. Pyramiding prevents an award for each one. There are 31 different forms of MDD. As with all claims, I almost always find that someone "diagnosed" a Vet w/ MDD in-say 2005. But the diagnosis was done by someone with a MHS (mental health specialist) "degree" after their name. No dice. It has to be a psychologist with a real degree in psychotherapy-not a six month degree out of a Crackerjacks box. They'll have Psy.D after their name. I think everyone reading this knows you got screwed. The repair order is extremely limited. You say you got the 70% in 2015. Unless you're still litigating that as an active justiciable appeal, it, too, is a final decision which could only be overturned by a clear and unmistakable error of law. I've had claimants say at a c&p that they think they got Hep. C from a jetgun. Bad idea. You are not a doctor so that is off limits. But what you will often see is the clinician state that you admitted to a history of illicit drug use and that explains it. Of course you didn't say that but how do you negate that statement? It's too late. Sure, VA is not allowed to do it but they do. That's why Theresa invented this gig. We teach you how not to step on your necktie. In your case, I think that ship has already sailed but without a review of the claims file, it's impossible to say with any certainty. One trick I've learned to reopen these as a §3.156(c) claim is to go back to the NPRC and ask for any "inpatient records" if you were ever admitted to a military hospital. These records are kept separate in another building at NPRC and are almost never included in any SF 180 request. I went back three times and got a new tranche of records each time. If any of these are pertinent to your 2005 claims, then you can get a can opener into an earlier effective date. It's perfectly legal to get a retrospective IMO and have a dr. opine as to what your mental state was back then when you're doing a §3.156(c) claim. Best of luck.
  2. As I am accredited, I am not permitted to conduct business on an open forum for fear of divulging PII. If you would, please send me an email with the scanned .pdf you mention attached to gagraham51@gmail.com. I would be happy to take a gander and see if anything jumps out and bites me on the eye. Please explain in the email the case or controversy contention, the cite/reg/statute you rely on and which VA violated and the outcome-determinative error if it isn't adequately explained. r a
  3. Mr. CUE--- Here's the meat of Akles v Derwinski: Specifically, the Veteran asserts that the Board’s June 2001 decision failed to infer a claim for SMC from the evidence then of record. The Veteran has emphasized the U.S. Court of Appeals for Veterans Claims (CAVC’s) earlier 1991 holding that a claim for increased disability compensation may include the “inferred issue” of entitlement to SMC, even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). The Veteran maintains the Board failed to apply the holding of Akles to the evidence then of record. The Veteran notes that the June 2001 Board decision found that the Veteran’s service-connected knees were incapable of bearing weight, such that he was confined to a wheelchair, and asserts that such factual finding “undebatably” supports the Veteran’s was incapable of performing acts of balance and propulsion due to his service-connected knees. In essence, the Veteran contends that the Board had already made all of the requisite factual findings necessary to establish entitlement to SMC based on the loss of use of the lower extremities, but ultimately failed to explicitly adjudicate such issue to the detriment of the Veteran. The Veteran asserts that had this CUE not occurred, the outcome of the Veteran’s case would have manifestly been different - in addition to being granted the increased ratings for his bilateral knee disabilities, he would have also been entitled to SMC based on loss of use of his legs preventing natural knee action under 38 U.S.C. § 1114(m). Both the CAVC and the Federal Circuit Court have held the RO's failure to address an implied claim is an action that can be challenged through a motion for CUE. Evans v. McDonald, 27 Vet. App. 180, 185 n.3 (2014) (en banc); Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). When presented with such a request, VA must first give a full and sympathetic reading to the claimant's prior submissions to determine whether such a claim was reasonably raised. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). If it is determined that a claim was reasonably raised, VA must then determine whether such a claim is pending or whether it was adjudicated as part of a final decision. If such a reasonably raised claim remains pending, then there is no decision on that claim to revise on the basis of CUE. In that situation, the pending claim must be adjudicated by VA. However, if VA determines that the claim was adjudicated, and is no longer pending, then the claimant may collaterally attack the resulting decision on the basis of CUE. Richardson, 20 Vet. App. at 71-72. Stated another way, the Secretary’s failure to adjudicate a reasonably raised claim can be the basis of the CUE motion as to a final decision of the Secretary where the issue was relevant to a decision actually made. Ingram v. Nicholson, 21 Vet. App. 232, 254-55 (2007). VAOPGCPREC 4-2004 (May 28, 2004) SMC may be granted to Veterans who are so disabled that they require regular aid and attendance or are housebound. Prejean v. West, 13 Vet.App. 444, 447 (2000)
  4. A review of your listed disabilities would be broken down by VA for SMC S purposes thusly: Your cardio problems fall into The Cardiovascular System (§§ 4.100 - 4.104). Aortic aneurysm is rated as 100% under DC 7110. Hypertension, if due to a heart issue is rated under DC 7007. If due to a vascular disease process such as Diabetes Mellitus type II, under DC 7101. Regardless, both are considered part of the cardiovascular ratings. Your ischemic stroke with right homonymous hemianopia is, again a product of the cardiovascular system. I suspect it is rated as an intraocular hemorrhage under §4.79 DC 6007. On this one, VA may say it's a part of the stroke which would again still be in the cardiovascular arena but since it is rated at 30%, I expect it could be an eye rating under §4.79 DC 6007 for intraocular hemorrhage or for loss of visual field. In addition, you have lower extremity scars bilaterally, presumably due to your peripheral vascular disease. Scars are rated under skin (a separate and distinct issue from a cardiovascular disease) involving a different bodily system. Skin is rated under §4.118. Lastly, you have tinnitus which is rated under §4.87 DC 6260. In sum, you have 30% for the eye, 10% for scars plus 10% for De Luca Pain bilaterally and 10% for the tinnitus. Using §4.25, you can see 30% + 20% + 10% = 50% Without a doubt, due to the cardio issues all being part of the same bodily system, you will not have enough to reach 60% or more based on separate and distinct ratings from the cardio. Which is not to say you couldn't file for other disabilities secondary to the cardio such as a MDD which is separate and distinct (mental under §4.130). Personally, I don't see anything that could ever rise to the level of a CUE here. I've done hundreds of SMC CUEs and every one of them was a failure to infer the highest SMC entitlement under Akles v. Derwinski precedence without having to be prodded with a pitchfork by the Vet to grant it. VA generally will declare CUE on themselves when I catch them at it and then write a new rating decision granting the proper SMC. In your case, you simply don't have enough ratings that are separate and distinct that equal 60% or more to qualify. Best of luck, sir.
  5. FormerMember

    SMC-S multiple items

    That's where the VA and I digress. VA likes to throw anything and everything associated with a disease into the same basket. The actual language, as parsed in numerous CAVC cases, is the unique language used in §3.350(f)(3) and (4)- - must be separate and distinct and involve different anatomical segments or bodily systems. Based on this, and all the cases I've won citing to this interpretation of the language in the regulation, psoriasis is rated under §4.118. Arthritis is rated under Musculoskeletal (§4.71a) between DC 5002-5010. As such, they are two separate and distinct disease processes/ bodily systems. This is what I always argue at bar. With that said, look at DM II or Parkinson's. VA tends to lump everything together. DM II gets PN and DR (diabetic retinopathy) thrown in on top. Sometimes even renal deficits. I've won L using that argument. Parkinson's gets the same full meal deal treatment with all the extremity deficits combined with facial muscle sag, trouble swallowing, etc. I've won using this argument too. What VA does with the SMC S will in large part control what happens some time in the future with an a&a rating. VA will definitely argue the psoriatic arthritis is secondary to the psoriasis under §3.310- which it is. But, for rating purposes under §4.25(b), they are separate and distinct and involve different bodily systems. Trust me when I say someone will come along and disagree with me on this subject but my experience is based on actual hands-on litigation for clients-not speculation and conjecture about what VA might or might not do. SMC is very difficult to fathom. My advice is to stress that the two diseases are not one. Best of luck, sir.
  6. An interesting perspective. Everything there is to know about CUE has already been archived here. All of you just need to look up the accrued wisdom from the CUE meister. Can it be that VA CUE law has been clarified like butter? Maybe. Maybe not. I do hope someone comes along to help you LJL. That is the purpose of the website from what I've been told. Maybe things have changed in this particular subforum. Best of luck.
  7. FormerMember

    SMC-S multiple items

    Well, you have it right for the most part, sir. The only qualifier that you don't "sound out" is that the balance of the ratings that constitute your extra 60% (or more) must all be independently ratable and be separate and distinct from your psoriatic arthritis disability. You'd need to employ §4.25 to add them up. You cannot use anything "left over" from your psoriatic arthritis ratings to fill in the 60% to get to SMC S under §3.350(i)(1). Obviously, an alternative, but far more arduous path to get to SMC S would be to get a diagnosis of being "housebound in fact" under §3.350(i)(2). Best of luck.
  8. The enemy of knowledge is not ignorance. The enemy of knowledge is the illusion of knowledge Stephen Hawking
  9. Statistics, extraneous references to miscoding, Links to other websites etc. Let's parse what the Veteran's actual question is without sending him on a wild goose chase for footnotes or debate what or who represents suitable legal representation. There are other venues which address these issues. This venue is devoted to SMC. Mr. White asked: "i have been awarded loss of use for both feet and both hands due to parkinson's. they gave me an effective date of oct. 2021 when i filed my claim but my medical records show symptoms back to 2016. should they have made the effective date 2016 since parkinson's falls under nehmer law." My first reply addressed this conundrum three days ago. If the Veteran filed a claim for Paralysis Agitans (or Parkinson's) in 2016, that would be the date of his Nehmer-class herbicide exposure claim-regardless of if he lost, refiled in 2021 and won. See §3.816(c)(2). Any SMC award for loss of use of any extremity or extremities, upper or lower, can be no earlier than his date of claim. (§§3.1; 3.400(a)). I suppose if the Veteran is still confused after reading all this, it would do no harm to seek counsel from the NVLSP, the Veterans Pro Bono Consortium or even private attorneys such as those mentioned above. Advice is generally free from these sources. But to avoid confusion in my answers to others, I always quote regulation or federal precedence. I suggest others do too. It's easy for a Veteran learning this to find and confirm what another Hadit member is talking about. Vague references to what a guy at NVLSP who is the Director of Training and Publications (not the head Nehmer lawyer according to the roster-https://www.nvlsp.org/about-us/staff/) said in a footnote is not what the Vet is looking for-especially someone so severely disabled by Parkinson's. He seeks an answer about the effective date of his claim. He confuses it with his date of entitlement to SMC. They are two different dates and two different facets of VA law. Date of claim here is controlled by §3.307(a)(6)(ii). SMC effective date is controlled by what date he met the requirements of §3.350(e)(3). Let's clear the air for the Veteran. Assuming the rating authority did this correctly, the Veteran is rated at R1 (at a minimum) due to loss of use of all four extremities. You can confirm this entitlement by reading §3.350(e)(3) in its entirety. " The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis [Parkinson's], will not preclude maximum entitlement. Further, if he's rated for Parkinson's, it's axiomatic he is a Nehmer class action member. I think we can all agree that pretty much goes without saying. Shoot. Maybe not... The only thing after R1 is R2 which is nothing more than an increase of R1 based the need for a 'higher level of care' described in §3.352(b)-not §3.352(a). §3.352(a) describes regular aid and attendance and is extraneous to anything of or having to do with R2. The only way to attain an earlier effective date for his R1, as I explained in my first reply to this thread, was to file a 20-0995 supplemental (or a BVA 10 182) and show, by new and relevant evidence, that a doctor had diagnosed him with LOU of the extremity(ies) due to Parkinson's prior to October 2021. If the evidence is deemed sufficient, that will be the revised effective date. If he's pro se, he can do it himself. If he has an accredited representative, they are presumed competent to file it. I don't see why he should seek counsel from anyone, personally. Seems he's doing a pretty bang up job so far with whomever he has considering there are only 4,650 Veterans rated R1 in the entire VA compensation system. The entrance into the higher SMCs (L-P) begins with a single disability rated 100% schedular like IHD or a combination of disabilities due to one condition such as Parkinson's or Diabetes. You cannot become eligible for SMC at the L rate for aid and attendance without this. For those of you who like to cite to the M 21, look it up in WARMS-IV.ii 2.H.8.b. As for NVLSP filing frivolous claims or appeals, I have not, and did not, imply as much. Reading comprehension is essential to avoid misconstruing my or others' comments. I referred strictly to the Veteran filing the appeal or hiring another to do so (such as NVLSP). Only he is aware of his medical history. If he has no supportive medical evidence entitling him to an earlier effective date, it would be considered frivolous for him (the Veteran), or his counsel (or someone acting sua sponte) to seek the EED. That is prohibited by operation of law. It's called an act of omission or commission in §3.105. Look it up. If you commit fraud, you lose your benefits. Would any of you want that on your conscience? Does that make any sense to anyone learned in VA law here? As for the wrong "coding"- meaning the wrong diagnostic code being assigned from Part IV VASRD in a prior rating decision, I made sure to enunciate the pertinent regulation ( §3.816(c)(1)) concerning that eventuality at the outset in my first post. It's far easier to look up the regulation than to go on safari to look up the original 1989 Nehmer stipulations and any applicable footnotes. It confuses Veterans when we offer them contradictory advice which doesn't even touch on their question. VA law is confusing enough without offering advice which simply provokes more questions and searches. Besides, when you write up your 995 or 526 or 10 182, you better be citing to the controlling VA regulation and not Nehmer Settlement footnotes. SMC law is very, very unique and exponentially more confusing than any other facet of VA law. There is usually a simple answer to a SMC "what if?" This is why Theresa set up this subsection devoted exclusively to SMC. If you don't practice SMC law, you stand a strong chance of offering inaccurate advice which can irrevocably harm a Veteran. As they taught us long ago, keep it simple, stupid (KISS). I adhere to that precept. If you are somewhat versed in SMC, try to explain it via the written regulations in §§3.350; 3.352. If, not, wish them good luck. When it concerns both SMC and herbicide exposure claims, it really doesn't change the circumstances. A code rating sheet and a claims file would easily reveal an earlier filing for a disease or injury later added to §3.309(e). That's Sherlock Holmes 101 or should be in this business. NVLSP doesn't have a corner on that market. I wager a hundred dollars that half (or more) of Vietnam Vets don't even know they belong to a special class known as Nehmer. Conversely, 100% of us who were there simply call it Agent Orange exposure. That's one of the reasons why they invented the VVA. Let's do all of our members a favor and concentrate on providing an answer to SMC questions posed in this queue. Try to provide the controlling regulation if possible. By extension, do them a favor and refrain from drowning them in minutiae which is irrelevant or fails to answer the question as posed. I'm sure they will appreciate it. We have many knowledgeable members here who can answer questions. That's why Veterans come here to Hadit. Remember, we're here to answer their "how come..." questions. Oddly, I get BVA SMC decisions back where the VA's staff attorneys can't even figure it out. It's that difficult. Let that sink in.
  10. As VA representatives, we are forbidden to launch frivolous appeals with a "throw the spaghetti at the wall and see if anything sticks" mentality. By operation of law, if Mr. White or his representative can show by the new and relevant evidence standard that he does indeed have a medical doctor who had specifically opined (at some earlier date) that his functional impairment of the lower(and/or upper) extremities was such that "he would be equally well served by elective amputation and use of suitable prostheses.", then by all means he should file a supplemental claim post haste. But...if he doesn't have that earlier diagnosis, any appeal would be frivolous on its face and squandering scarce judicial assets better reserved for more equally deserving Veterans. I know Veterans who offer advice here are very proactive and encourage litigation. I commend them for their efforts. But in doing so, one has to put it in perspective. Egging a Veteran on to file frivolous appeals which are futile is counterproductive and clogs up an overloaded system. It would be better to inform them of what they need to prevail successfully than the telephone number for the NVLSP. Mr. White appears to be ably represented as witness to his award of R1. Jumping ship to a new representative in the middle of a winning streak would actually be ill-advised. Our job is to help Veterans by giving them the best advice we can here at Hadit. That's what this is all about. I think the right approach would be for him to instruct his VSO or counsel, whoever it may be, and ask them to do a thorough longitudinal review of the claims file back to the time frame mentioned to find medical evidence to support the contention for an EED. Others here may disagree with me but that's okay. Everyone has a different opinion on how to litigate. Or not to.
  11. When you play VA SMC poker, never leave any money on the table. I know this is chump change but my client might feel different. Win or Die. redact BVA SMC K win 1.6.22.pdf
  12. Jez, Buck. I didn't know I wasn't supposed to let my clients look at my VBMS feed. I did the TRIPS check ride on VBMS and CASEFLOW back in '18, and they sure didn't forbid this. It's the Vets' information so I cannot fathom why they would not be allowed to see it in real time. Unless, or until someone with authority calls/emails me and tells me not to, I intend to continue. As for what VSOs have for a VBMS access level, you got me on that one. Level 6 was enough to get into VistA and CAPRI. Level 7 seems to allow me to view MAPS, CWINRS.exe and TIMS printer default functions I couldn't get into earlier. One thing you have to understand, all we can see is our own clients' files- no others. I'm too busy to go on safari and rattle VBMS' doors.
  13. Two things are at play here when a rating for a presumptive is involved with a SMC L loss of use determination for an effective date. 1) A claim for a herbicide presumptive can be no earlier than the date of the filed claim-claimed under any scenario. So, if you filed for Parkinson's in 1990 (long before it was added to §3.309(e)) and were denied, and you you refile for it in 2021, your effective date would be 1990. Now, be realistic. Look who you're dealing with. They don't go looking for you to see if you filed in 90. It's on you to point it out. I had to do this in 2020 for a blue water Navy guy who was late to the AO party due to Procopio. He filed for IHD, DMII and PN of the lower extremities based on radiation testing at Bimini Atoll. VA denied. I spotted it in the VBMS record after we won and called them on it. They granted but tried to give him the zeros for heroes program. Got it bumped to 60 and it's back from the BVA and awaiting a local rating in Seattle. They're doing what's called a Fenderson staged rating from 2002 to the 2019 final P&T grant. 2) According to Akles v Derwinski ( 1990?) and its later progeny, your earliest date for an SMC award for your LOU of the bilateral upper and lowers will be the date your medical records sustain an entitlement. But.... 3) The effective date for the SMC LOU of your upper and lower extremities cannot precede the award for the Parkinson's (§3.1). §3.310 allows you to go back to your successful filing in 2010 and claim it as a secondary to the Parkinson's. But... nowhere in the four corners of the claims file will you find a doctor who recited the magic incantation "Mr. White would be equally well served by amputation w/ suitable prostheses." prior to the December 2021 c&p. Thus, the date you filed for it will be awarded which was in August 2021. VA doctors are anal about not giving away the farm. But, let's assume you filed for something similar before 2021 that could have been confused with Parkinson's like restless leg syndrome, for example. One thing you could do would be to invoke §3.816(c)(1): (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. Your query above confuses the date of award of Parkinson's with the date of diagnosis of loss of use of upper and lower extremities. They are two separate subjects.
  14. I'd add one comment to this chain. I was told I would never be granted access to my own file in VBMS back in '16. Just for S--ts and grins, I put in a VAF 21-22a on myself and bingo-I was in 4 days later. I don't think they dialed in on it. Most of us are granted what's called Level 6 clearance in VBMS. I had a glitch preventing me from seeing a client's file last month and my point of contact here in Seattle bumped me up to a Level 7 which is as high as an asst. RO director. We can see rating decision ready for promulgation. We can see all the ratings decisions, code sheets, c&p exams and the medical opinions. We have access to VHA's VistA computer records on the client. We can see the rater's notes and the rationale for deferrals of claims. We cannot change anything in VBMS but I can change things like a Veteran's current address in VACOLS or upgrade an incorrect POA in CASEFLOW. Best of all, we are given a VA Outlook email account which comes with an address book of every VA employee from a janitor to a nurse... or a DRO or a rater and his/her title, email address and telephone number. Even Denis the Menace' number and email. A tech answering the 800 Dial-a-Prayer number has about a Level 3 and is extremely limited in what they can see. Oddly, my POC here in Seattle says they (VA employees) are not granted access to CASEFLOW. Period. It's like VACOLS and only deals with BVA appeals. I've also been told we can't access VACOLS but I haven't told them I can and do frequently. We can "see" a BVA decision grant or denial roughly 2 weeks before it's published and mailed. One of these days VA will grant Vets access to this system in a very limited way. The operable phrase is "one of these days". Here's a partial screenshot of my landing page in VBMS. Each item under Document type is a .pdf we can open to view. There are approximately 3500 Attorneys accredited in this business. Most do more than just VA claims. Oddly, of the 1200-odd NOVA attorneys/agents who only do VA claims and appeals, only about 500 have VBMS access. It's not an arduous process but you have to pass a stupid idiot test for VSOs to get started. Then the fingerprints and the CBI. Then the six month wait as only the VA can make you wait. If I didn't know any better, I'd think they didn't want me nosing around in their computer. Having VBMS access is a godsend. You can react almost as quickly as they publish it. Since they postdate the letters they send out, some of my §5103 acknowledgements arrive before the date they are mailed to me or the client. That really messes with their minds. Happy New Year to all the Hadit crew and all you wonderful Vets. Spor.asknod22010414490.pdf
  15. How 'bout them apples. The VA wunderkind at the Seattle DROC (RQRS) did a quality control check and spotted the 2014 error denying her R 1. I guess we don't even have to worry about the second BVA CUE determination now. Nice. A R1 grant back to 2014-87 months of R1. It's like winning Powerball- but tax free. But wait... Another one popped up in VBMS while I was typing this. Too cool for school. Never had that happen. I am truly blessed to be allowed to do this for Veterans. redactR1 RD 1.4.2022.pdf redact R1 RD No. 2 1.4.2022.pdf
  16. Here's a great win for a gal who's fought for 8 years to get her R1. I am honored to have been the one she chose who finally got her over the top. What's an absolute hoot is that she sought me out precisely because I was NOT an attorney. Even more strange, she is... or was, until the disease consumed her both physically and mentally. How wonderful it is that this blessing arrived on the cusp of Christmas. I reckon if you believe in God, this is pretty strong mojo to prove it. https://asknod.org/2021/12/18/bva-smcr1-you-make-my-dreams-come-true/ Merry Christmas to you all and may the VA bless you with a favorable decision soon.
  17. ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^what he said.^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ If 8th & IMarine is actually 100% schedular and p&t (and not TDIU w/ SMC S), he has no worries about reductions. If he's 20-year protected for each of the items requested, c&p exams would be superfluous. However, do not ever misunderstand. Each disability has to be 20-year protected- not just the 100% p&t rating in toto. If you got rated 10% for tinnitus in 2015, it is not protected until 2035. Further, VA-contracted outfits like VES have the discretion to use the ACE process and do it on records review alone. If the rater feels there isn't enough to rate on, he can ask for a clarification of the exam or an actual eyes-on. Nowhere in this procedure do you get to dictate the terms. Presumably, by being granted p&t, they conceded his disabilities were static or at best, not better. The act of shotgunning all the disabilities for increase is not nefarious in its own right. It's SOP. SMC grants above S are what VA considers "serious". Once they let you in, if you get worse, they're going to have to keep giving you more SMC if it's SC. A grant of a&a is a favorable finding of fact and irreversible unless obtained by "omission or commission". They are not going to grant a&a without examining you under a microscope. But it's also true that if you don't show up for a c&p, VA has two alternatives. 1). Deny the claim for a&a. 2) Reduce anything they want because they don't know whether the disabilities have worsened...or gotten better. When you apply for disability, you agree to play by their rules. As several others have pointed out, you don't get to tell them what you will or will not do. Go to the exams. Get your decision as all of us do, and then plot your next move. Or don't... If you're that gun shy about what VA might do, I'd withdraw the a&a claim and roll up. In VA poker, you go big or go home. I think I speak for all of us in wishing this will have a positive outcome. But, from experience, we know missing a c&p is anathema to a decision.
  18. FormerMember

    Bone Cancer

    VA considers a disease or injury separate and distinct if it involves a different bodily system. Look at the ratings in Part IV of 38 CFR. A muscular issue is a ratable "condition". An eye condition is separate and distinct from a muscular condition. A skin disease is different from an eye condition. A gastroenterological condition like GERD is obviously separate and distinct and a different bodily function than brain cancer. See? There are separate and distinct parts of your body like the lungs (pulmonary) or heart (cardio) that have nothing to do with prostate cancer. It appears in SMC ratings to prevent pyramiding of ratings: (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate[...] In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) If you are 100% for prostate cancer, and you have bone cancer, it may be secondary to the prostate cancer but it (bone cancer) involves the bones and is a different bodily system separate and distinct from your prostate gland. Or your heart. Or your lungs. Or your kidneys. Or your eyes etc. Once you are awarded a 100% or TDIU for a single disease process, you become eligible for A&A. If you have two 100% ratings (or a TDIU and another 100%), you are technically entitled to another a&a as long as the second 100% is separate and distinct from the first and involves a different bodily system. All you have to do is show the second disease/injury also requires the need for a&a. You can have more than one a&a. This the "backdoor" way to get to R1.
  19. No offense, sir, but what you are doing is going to add a lot of time to this project. VA is an insurance co. They have boxes to check off. It' done with a computer. You're asking them to go analog and off the grid and do your claim "speshull". It doesn't work that way. You come to them hat in hand and ask for whatever it is that floats your boat. They in turn ask you to comply with their protocols. It's a two-way street. Your refusal to comply with their requests will result in the claim being denied because you refuse to play VA ball. VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Asking VES to send you paper might work if you're deaf. If you have a phone, they'll use it. You don't get to tell them what you're willing to be examined for at a c&p either. VA tells them. You're heading for a train wreck but you do not have to believe me. Let's revisit this thread in six months and you report back on how it worked out for you.
  20. FormerMember

    Bone Cancer

    The legal standard of review is simple. Prostate cancer is rated under DC 7537 followed by rating under a voiding dysfunction six months after chemotherapy is completed (§4.115a). Obviously, Jbo's prostate cancer never resolved. During the intercurrent phase, they rate at 100% for a period of time (usually six months). If the prostate cancer never resolves or goes into remission, the 100% rating continues permanently. I had one Vet who eventually died from it (with the bone cancer, too.) He received 100% under DC 7538 until he died. However, more importantly, Jbo must understand that bone cancer is a separate and distinct disability even though it is secondary to the prostate cancer. Thus, it gets a separate 100% rating by operation of law. I filed my Vet for SMC L for A&A under §3.352, SMC L for the loss of use of the lower extremities under §4.71a DC 5012, SMC O for two SMC Ls (one of which was a&a) under §3.350(e)(1)(ii), and R1 (§3.350(h) because the prostate cancer so thoroughly disabled the Vet that he needed a higher level of A&A for it. I also asked for and received an advancement on the docket under §20.900(c) which I urge BJbo to do as well. See attached BVA decision- https://www.va.gov/vetapp18/files9/18139787.txt. Sadly, he died four months after I won the R1 for him. I think this decision might be more on point for Jbo and illuminate what he might want to consider filing for to get the most bang for the buck. For the record, any time one of you gets a Stage 4 dx on anything, I strongly suggest you file for SMC L a&a at a bare minimum. If the cancer is secondary to an existing 100% schedular or TDIU under §4.16(a), and causes an additional need for a&a above and beyond the index disability, file for a second a&a or loss of use- whichever is appropriate. As for filing for all that other small potato stuff like diabetes 2, neuropathy, sleep apnea and tinnitus, it will not increase the R1. The only way to get to R2 would be to need a higher level of medical in-home treatment such as PT, insertion of catheters or administration of injections. There are other requirements under §3.352(b) but I need not discuss those here. I'm confused. I don't see what this has to do with an AO claim in Thailand. As a Vietnam Veteran like myself, he is not required to show a medical nexus for his prostate cancer- or the bone cancer for that matter. It's presumptive. Period. Just my two cents.
  21. I have to side with BroncoVet on this one. I just filed a Parkinson's Vet for LOU of upper and lower. It was a sketchy chance but it puts a lot of pressure on them to review the whole file. Sure enough, they threw in an increase c&p for his MDD anxiety due to the Parkinson's that I did not ask for. The exam was Friday morning. He was at 30%. The shrink said he was totally bugf--ky and gave him 100%. He went to the c&p at 1000 hrs. By 1330 Hrs, the DBQ was posted in VBMS. You can see what's coming. They're trying to head off the R 1 by munificently granting the a&a for bent brain instead of granting two LOUs and R 1. Of course, in this case, I'll just use it to get R 1 anyway. His current TDIU has been in effect for over 5 years. If anything, the a&a should be granted for the sum of the Parkinson's ratings alone -not the bent brain. So, the takeaway discussion that you shouldn't entertain VA shopping an increase solely because you fear a reduction is a product of too many VSOs telling you not to be greedy. This is VA poker. Never be afraid to seek what you are due. After 30 years of this, I think I've seen everything. VA is not your friend but never take a glass-half-empty approach. Go big or go home. If they reduce, 9 times out of ten they do it illegally and you just win with §3.344 and say it's a single c&p. To reduce, they need two c&ps in order to prove you can sustain the improvement forever. I do not know of many disease/injury processes that improve with time-if any. Best of luck.
  22. First, VA rarely, if ever, "infers" entitlement to SMC above S. The law reads that once you attain a 100% schedular or an IU, they are obligated to review for SMC. (Akles v. Derwinski). They say they do. Experience and the number of times my office phone rings per day tells me they don't. SMC will never be extended (outside of K) to anyone who isn't 100%. Period.
  23. I foresee VA will let the claim continue as is. They'll send you a c&p date. When you go, they'll ignore your contention about not wanting to file for increase. They will probably increase something small upwards about 10 % and call it good. Maybe they'll grant a&A. Maybe not. Can't see your Code sheet. One thing I've learned in this is they do not pay any attention to what you want. In this case, you're asking to enter the higher SMCs. That entails an in-depth examination of all your disabilities and the inferred responsibility to try to grant you the highest and best rating they can. The problem is they tend to try to find something to reduce you if you are not p&t. Seems a lot of Vets think VA is on a constant mission to reduce you. VA gets this idea from records produced at VAMCs. So if you use the VA for your medical, you leave yourself wide open to getting whacked. Once you are p&t, you can apply for SSA/SSD and get your medical outside VA. Then they cannot see your purported "improvement". VA doctors always report wrongly most times or fail to convey the level of a disability. I have a gal with MS who came in to Hampton VAMC for her monthly infusion for multiple sclerosis. The nurse writes "pt. is ambulatory". Yep. She sure was. Her husband was holding her left arm and her right leg was riding on a knee scooter. Somehow that didn't get into the record. Only the VA would record something like that-never a civvie nurse. Did you know if you go to their lab for blood work and they do a urine on you that the urinalysis includes a drug test? Shoot. Some things get better. Granted, most do not. If you live in a sub-TDIU rating world or are not p&t yet, you are always a sitting duck. Don't give them the ammo to reduce you by saying stupid things at c&ps. No smiling. No Happy chat. Never diagnose yourself or they'll use it against you. At a Vet's c&p for status post encephalitis symtoms, his spouse said he had "anger management issues." The c&p guy immediately accepted her nonexistent psychology degree and used her testimony to say the guy's anger wasn't due to TBI symptoms . Boom TBI gets reduced to 0%. Learn VA's tricks before they use them against you. Happy Thanksgiving.
  24. A lot of ideas, a lot of conjecture and a lot of suggestions. Let's look at VA's more recent views on SMC. First, for the higher rates (SMC L and above), the M 21 has tried desperately to conjure up a requirement for a 100% or TDIU rating as the entry ticket to even be considered for the SMC. So, in this case, The Veteran (8th&IMarine) is applying for a&a. A&A doesn't require a 100%/TDIU rating to enter the lottery. Look at §3.151(c)(3): (c) Aid and attendance; criteria. The veteran, spouse, surviving spouse or parent will be considered in need of regular aid and attendance if he or she: (1) Is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) Is a patient in a nursing home because of [SC] mental or physical incapacity; or (3) Establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a). (Authority: 38 U.S.C. 1502(b)) A Veteran can always go for the extraschedular path to get there, too. But let's look at what we have here. 8&IMarine seeks a SMC L for a&a. He has to prove he cannot accomplish one or more of the activities of everyday living listed in §3.352(a). VA, by operation of law, is going to investigate what particular disability(ies) are responsible for the A&A. S/he is asking VA to determine if s/he is eligible. Akles v. Derwinski and its progeny demand they investigate any and all of his/her SC stuff to determine if they can grant more than just the A&A (or deny). This is open and shut "inferring" a claim for increases that should be rated. Maybe not. A good 2680 ( the eleven page, inward-facing VA DBQ) would be essential here if completed by your private physician. In any case, as BroncoVet points out, it's a §3.103(a) argument-by law they have to maximize your rating. They don't. What I encounter nowadays is an "everything but the kitchen sink" mentality. VA can (and will) say you need a&a for all those disabilities. So, what happens if you get worse on one of the musculoskeletal issues later-like up to 100% worse? You file for a&a for that one separately and VA says ''sorry charlie-you're using that for the #1 a&a. That would be pyramiding''. I spend an inordinate amount of time trying to de-link these things and get a separate 100% disability rated under SMC L. I always end up at the BVA, too. Say you went the 100% + 60% and got your SMC S. If you file for a&a and they grant, $100 says they throw all your SMC S stuff into the a&a and deny you any 1/2 step bumps under §3.350(f)(3) or a full step bump under (f)(4) for a 100% rating separate and distinct from the a&a. By law, they can't call something separate and distinct and independently ratable in 2017 and then come back in 2021 and say it's all one disease/injury process. VA does this to head you off at the pass in the future. They sure don't want you scheming to get R1 if they can cram it all into one a&a rating now. And, it's illegal too. My advice, for what it might be worth, is to let this ride and see what they develop. You can always NOD and say you never filed for the claims-ergo they are void ab initio. If you file for a&a, try to be specific in your request ("My arthritis makes it impossible to button my shirts or tie my shoelaces." or" My PTSD causes me to forget to take my medications.") If you do not, you'll get the kitchen sink treatment. When, and if, your PTSD does get rated at 100%, you'll want to be filing for a&a for that alone later. You don't want it inextricably intertwined as one of the partial ingredients for the kitchen sink grant of a&a in the present claim. Since the claim is open currently, you could submit a 4138 or the newer 21-10210 version and testify your a&a need is based strictly on your SC ______________. Get your PCP to write up the 2680 focusing strictly on the disability that provokes the need for a&a. A lot of Vets do not get this. Filing two A&As is not pyramiding. It's two separate paths to get there (r1) and both are legal. So what if your need for a&a because of your PTSD appears to duplicate your need for a&a due to your Parkinson's? This is the anomaly of SMC. It permits pyramiding primarily because its a quality of life issue, not a ratings percentage of disability. If you have two totally disabling illnesses/injuries, each separately is a qualifier for a&a. Always think big. Do not confine your SMC thinking to the four corners of §3.350(b)(1-4). Happy Veterans Day.
  25. <<<I recently file for basic regular aid and attendance 3.352(a) but was denied for a higher level of aid and attendance under 3.352(b). >>> Let's analyze this, Mr. Brinson. There are two different levels of Aid and Attendance as you note. Regular A&A is awarded under the aegis of §3.350(b)(3) and the criteria for qualifying is described in §3.352(a). Actually there are three "types" of A&A. VA considers SMC S to be an inferior version of A&A which it is not. It's Housebound. From the above and the prior thread, it sounds like you feel you should be awarded R 2 automatically without climbing the SMC ladder to get there. §3.352(b) describes the criteria for entitlement to the higher level of A&A known as SMC R 2 which is described in §3.350(h). First, let's clear the air on A&A at any level as it applies to your case. You have a rating for LOU (loss of use) of your lower extremities which entitles you to one SMC L under §3.350(b)(1). A careful reading of §3.350(e)(1)(ii) describes the requirements to first attain SMC at the O rate. It informs us that we need two (2) awards of SMC at the rates between L and N or a single rating of SMC N 1/2 plus a K rating to reach SMC O. You have one rating of SMC L and seek a second SMC rating of L for A&A. As §3.350(e)(1)(ii) states in no uncertain terms, a second award of a rating between L and N must be independently ratable apart from your current award of LOU of your lower extremities. In simple terms, it means you are forbidden from claiming a need for A&A due to your loss of use of your legs. That would be pyramiding. You can claim, and I would, that your 100% rating for incontinence is separate and distinguishable from your loss of use of your lower extremities. By operation of law, VA cannot combine your incontinence with a LOU of anything unless it involves paraplegia under §3.350(e)(2). We discussed this in a prior thread on this subject several weeks ago. You indicated then that your incontinence was not a result of the LOU of your extremities. The catch on obtaining entitlement to the "higher level of A&A" (R 2) as described in §3.352(b) is simple. As I described in §3.350(h) above, you need to have two ratings between SMCs L and N to get to SMC O. Having a rating of SMC N 1/2 plus K will not get you to R 1-just to SMC O. Once you obtain what VA refers to as the "maximum rate" of SMC O, if one of your two SMCs between L and N includes A&A at the regular A&A rate (§3.350(b)3)), then and only then are you "promoted" to R 1. You cannot get there any other way. You cannot simply say you need the higher level of A&A under R 2 or that the sum of your disabilities argues in your favor. Once you reach SMC O, entitlement to the higher rates begins. There is no way to "jump" from SMC L to R 1 or R 2. To attain R 1, you will need two things essentially. The first is that you have been awarded the SMC O rate. You have not been awarded SMC O yet. Test #2 is that you need one of your two SMC rates that get you to SMC O between L and N to be the regular A&A awarded under §3.350(b)3) and §3.352(a). You do not have this yet either. If you had these two SMC rates, this would only entitle you to R 1. At that point, you would need to qualify further for R 2. In order to move up from R 1 to the "higher level of A&A" or R 2, you would need to fulfill all these requirements in §3.352(b)(3): (3) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. (4) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(3) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. (5) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. (6) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial. (c) Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. Where many Vets run afoul of R 2's provisions is overlooking §3.352(b)(1)(iii): (iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. I win the vast majority of my clients' R 2 claims by showing some things that most would overlook. Note the discussion in §3.352(b) about what constitutes the meaning of "personal health-care services". I frequently rely on the physical therapy codicil. If my client doesn't employ a personal health care service for the client's physical therapy, I have them hire one. As long as they are under the supervision of a doctor or the equivalent, it meets the R 2 requirement. One spouse met this by taking her husband to the local community pool in her neighborhood several times a week and swimming with him to increase his muscle tone. Because she began doing this in 2015, The BVA Judge awarded the R 2 back to 2015. If you begin the physical therapy route tomorrow morning, that will be the effective date of R 2 absent any other considerations. So, in summary, Mr. Brinson, you could prove A&A is in order due to your inability to attend to the wants of nature to qualify. Just being able to to get to the water closet doesn't mean you can transfer without the A&A of another. Remember always, you do not need to meet each and every requirement listed in §3.352(a). One deficiency in the activities of everyday living will do. If you have a nasty case of PTSD or TBI, you can also cite to that saying you need to be protected from hazards or dangers incident to your daily environment. What if there was a fire? Would you be able to escape without the help of another? You cannot use the argument that if you fall out of a wheelchair that you would not be able to regain your seat without the help of another. That is considered part of the loss of use and would be pyramiding. To most easily grasp the idea of what I'm attempting to impart, try reading Breniser v. Shinseki. Breniser explains "condition" as used in §3.350(b). There are essentially 4 conditions which will get you to R 1 or R 2. I also use the two A&As technique wherever applicable. It will require the baseline requirement of the disability in question (incontinence) being rated at the full schedular rate of 100%. You meet that requirement so the next question is probably "Why did they deny my SMC L for A&A"? Simple. It would lead to O and R 1 and they are not inclined to grant that without a pitched battle. You can win this yourself but it will require going to the BVA on appeal because no one at your Local Fort Fumble wants that on their resume. And secondly, no one at the local level probably even has the intelligence to even know you can do it legally. Best of luck.
×
×
  • Create New...

Important Information

Guidelines and Terms of Use