GlassRose1500

Did some research - cases mainy. I meet this : "impossible for the disabled person, without assistance, to rise from a seated position and from a stooped position (fingers to toes position) and to maintain postural stability (the pelvis upon head of femur)." (can't get up fm seated position without assistance from another, can't touch my toes anyways, and require stabalization for the brief time I stand while transfering) But it is because of derangement of the nerves and atrophy / reduction of strength through lack of use, not:"severe damage by disease or injury to muscle group XVII" It seems in some of the appeal cases I read this type of derangement, atrophy, weakness, and loss of sensation is accepted as "disease," so I understand why the LOU buttocks inquiry was included by the Rater in the Examination Request. I'll let you know how it turns out.

Thanks for posting the language on the buttocks - the Rater asked the C&P Examiner to answer the question, but it was based on my loss of sensation - I have no, er, sensation related warning of incontinence, and over sensation - often my cheeks are on fire as if I was sitting in hot water, or buring with pain. Interesting.

Thanks for the reply :) I have from my PCP the form that says I require A&A and am housebound in fact. Also one of the C&P is for A&A. I would, under this scenario, qualify for statutory housebound as well. My VSO is not able to assess what the SMC results might be, in terms of how things would get bundled and stacked. I confess despite the copious reading I've done, I cannot hazard a guess either.

An update, asknod - and I hope it finds you well. I have been decidedly unwell to the point I gave up caring about all this. Some recent developments raised my curiousity, and I found enough energy to fill you in. As always, I welcome your thoughts (as well as any of the other amazingly empathetic and knowledgeable veterans on this forum). My NOD late in 2014 included disagreement with ratings for SC Knee and Migraine conditions, and also asked that the SMC evaluation be performed, as per a bunch of regulations which I won't rehash here. The DRO carved out SMC as a NEW claim, saying 1) it was not interwined with the other issues, and 2) since SMC had not been adjudicated, the DRO had no jurisdiction. I wrote a very compelling response with lots of case law, which my VSO and the Local VA Rep discouraged me from sending, saying that it was compelling enough it WOULD work and the new claim would be reunited with the NOD, but that that would work counter to my interests, as the NEW claim was already in preparation for decision, and my NOD and records clearly made the case (in their opinion) for A&A. The trade off was that I'd have to likely ask for a reconsideration of the effective date, and that the whole thing might get reconfigured if the DRO elected to increase the ratings for knees and migraines. That was a few months ago. The NEW claim (SMC only) went back to gathering evidence recently, and I am scheduled for four C&Ps this month. The C&P request form from the VA to the C&P office (which they very kindly offered when I asked what the exams were for) asks for the examiner to weigh in on Depression (I've had a few incidents since the original rating, but have not asked for nor do I believe I warrant an increase for MDD, despite these events), Incontenance issues related to medications and sedentary lifestyle (wheelchair bound fm SC disabilities), Loss of use of LE & Buttocks from Spine and Knee issues, Re-eval of Spine and Knee issues for rating purposes, and A&A and Housebound related to any of the above. No exam for migraines (though this is extraordinarily well documented so maybe they'll use those records). My VSO feels my case has been handled with incredible speed and that the questions being asked seem to imply a positive SMC outlook. If he had to guess based on medical records and what he and the local VA fellow can see, he'd say the following - I'm not even going to try to figure out what this might mean, in terms of SMC. 100% SC MDD 40% SC Lumbar IVDS, etc. 20% SC LRE Sciatica 20% SC LLE Sciatica 70% SC Migraine R Knee 20% (5828)+10%(5828 associated pain)+10% (5003 limitation of movement) L Knee 10%+10%+10% (as above) LOU Creative Organ LOU LEs LOU Buttocks bilateral Fecal Incontenance due to SC related Sedentary and Meds A&A, Housebound in Fact

Great suggestion, on hold with Peggy now. Also drafting the NOD amendment and pulling together the new supporting evidence. Will take it to my DAV and BVA guys as soon as its finished. Thanks for the suggested language, big help : )

I was fortunate that my local VAMedCenter has a representative who works for the BVA out of the local RO office. He has the ability to scan it in directly, and he did. My DAV representative (also located at my local VAMedCenter) is also capable of having it scanned in locally by calling his guys at the downtown office which is located right next to the BVA office. BOTH of these methods BYPASS Georgia. Just because they CAN doesn't mean they will. Especially if you don't ask. Good Luck! GR

I'll get right on researching that. Thanks for pointing me in the right direction. I want to ensure DRO review w/face to fave stays on track. It may be I chose the path of new and material evidence at some future point w loss of 2012 date. Tks. My fellow Night Owl...

Apparently I do have the IQ of a pet rock because I missed these unadjudicated issues completely... the NOD I filed was timely. An amendment would not be, unless you are saying the form you referenced would permit the amendment so long as the initial nod was timely?

I was looking at my(VA form 21-438) fm early 2012 to quote some language, and found three unadjudicated claims for SC / Comp, including lower left radiculopathy related to SC IVDS/DDD, and Cervical Spine Condition with bilateral upper radiculopathy. I cannot believe I didn't catch that - I was so focused on what they did address I forgot to look at what they didn't (and they didn't - in any way shape or form - not as deferred, just no mention). The NOD is in, and doesn't include any info about these unadjudicated issues, but as I understand it they will remain open until adjudicated, so there is no ticking clock. The NOD as it is written seems to going FAST (went from stamped (Nov 21, 2014) to Under Review (like, three weeks later), then Gathering Evidence (in about a week)). So I'm inclined not to complicate things with unadjudicated stuff. Think that's the right call?

@asknod Hmmm, yes, our temperatures would be a problem for you from October through parts of March - though not today. It's raining... Thanks for your analysis AND your kind words - I'll let you know how it goes. It does seem to be going a little faster than it should, by rights. It was submitted on Nov 21st, picked up for review mid-December, and a few days ago it went into gathering evidence. My VBA said it's already with a DRO (he called what for him is his home office). I am not going to hope for anything less than 2 years, because that's the going duration, but when I learned that it had been picked up by human hands so quickly I panicked a bit and tried to get a grip on the SMC component. But really I think I'm better off just presenting my case. They honestly have been pretty good to me thus far. My apologies (to all) for getting frustrated last night.

p.s. asknod - very sorry to hear about your PCT diagnosis. Come live in Ohio - I believe our lakeside city has the fewest sunny days in the nation - or we're a close second.

Don't want MDD @100. Shouldn't be. So I wouldn't ask for it. Would like my life back. Would like my husband, also a Marine to have what he deserves (and I don't mean a stipend, I mean a WIFE). Thanks for taking a look. I think it's best for me to not care about it or try to understand it any longer, at least for now.

The spine, sciatica and legs are SC, the MDD is a 70%, right where it should be. The stuff in blue in my long long long post is from two different court cases where they awarded SMC A&A on appeal with that language embedded in the analysis (that TDIU satisfies 100% in the criteria for A&A). I respect both of your opinions greatly, but am confused by the discrepencies between your thoughts and what I'm reading from appeals cases, and what both the DAV and VBA guys have advised, but I think the real problem is you can't see my entire case. My life. And it's way too much to ask - to ask you to weigh in with only a partial picture. So I'm going to put this down for now - I can't. I can't even look at it any more. The thing is, my husband is my caretaker, and has no life. I'm early gulf war, so no stipend for him. He's 47 with a lot of things he could be doing with these good years. It makes me sick what he has to give up EVERY day. I have the A&A document from my VA PCP, and they even did an A&A C&P with favorable language. And they send home health aid and a nurse out for 20 hours per week. I have a million THINGS and like, 22 MEDICATIONS in my house to help me make it through each day. I hate every one of those meds and things and I hate ... everything. On the advice of some folks on this site, the DVA and VBA guys the NOD is in, and in evidence gathering phase. Eventually I'll put what I have in front of a DRO and trust they'll make the call that is according to the law and where my condition fits within it.

Since I was previously rated TDIU and that rating would have supported SMC, the increase in rating to schedular cannot negatively impact the veteran's benefits. I'll find the case and put it in... I think Berta shared it with me.

@asknod. Thank you for taking the time to analyze my situation. I had SMC mapped out a totally different way, so thinking about loss of funtion without aids (e.g., knees with rigid bracing AND walker or wheelchair as a K, or two Ks, since bilateral) is a complete departure fm my previous analysis and will require a good deal more thought on my part. Here was the basis of my analysis. The main question is are SC disabilities that necessitate A&A specified? I was led to believe they were NOT (rather, "need for A&A, in fact") and therefore could be utilized as I described in my first and third posts. Here was my thinking: I am currently TDIU, predicated on one condition (MDD @ 70%), and therefore qualify for SMC Initially, a single disability rated as 100 percent disabling under a schedular evaluation is generally a prerequisite for entitlement to special monthly compensation by reason of the need for regular aid and attendance. Any lesser disability would be incompatible with the requirements of 38 CFR 3.352(a). See VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, Topic 44, Block b. However, as noted above, the Veteran was awarded TDIU that can be based primarily upon his service-connected MDD disability. As the TDIU award is premised on a single service-connected disability, the TDIU award satisfies the requirement for a single service-connected disability rated at 100 percent. See again Bradley, 22 Vet. App. at 293. I meet the criteria for A&A 38 U.S.C. 1114(l) (3) because of "need for A&A, in fact", not because of an accumulation of Ks. (is this a major flaw in my analysis? is A&A always predicated on one or more SC conditions?) Special monthly compensation is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Factors to be considered in determining whether a Veteran requires such are the inability to perform activities of daily living (dressing, cooking, eating, attending to the wants of nature, cleaning, and personal hygiene), a need for assistance in adjusting orthopedic or prosthetic devices, and requiring care or assistance on a regular basis to protect oneself from the hazards or dangers of the daily environment. 38 C.F.R. § 3.352(a). I require aide dressing, donning rigid knee braces, getting in and out of the shower (which is in a tub), sitting and getting out of a sitting position, preparing meals, performing basic household chores, walking without a walker for short distances, and a wheelchair for long distances. The VA has supplied prosthetics, a hospital bed (positioning for spine pain), handles for toilet, handles for bed and couch, cane, walker, wheelchair, tens unit, migraine hot/cold mask with water reservoir, portable toilet, hot/cold pack, analgesic cream, lidocaine patches, back brace, poles with hooks, a grabber, tools to put on socks and shoes. When I am alone, I must stay in bed or on the couch because of these conditions (pain and risk of fall), and therefore receive 18 hours of Home Health Aide care for when my husband, who is my primary care giver, is away. They help with ADLs, escort me whenever I walk a few steps, help me with transfers, prepare meal and bring them to me, usually in bed. A VA Nurse comes to the house twice a week for an hour each visit as well. I am transported via wheelchair van provided by the VA for all of my medical appointments, and I have, on average, 4 – 6 appointments per week. I believed that because 38 U.S.C. 1114(l) (3) "need for A&A in fact" is the basis for L, I could then apply the conditions that were 50% alone or in combination, because: “In addition to the statutory rates payable under 38 U.S.C. 1114(l) through (n) and the intermediate or next higher rate provisions outlined above, 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 or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114” Based on several posts and responses to my SMC questions as I tried to figure SMC out, I believed all such conditions could be used in this way, even those that were the basis for my A&A (technically spine, radiculopathy and bilateral knee) If that is incorrect, can MDD (70%) and Migraine (50%) be utilized in this way, as they were not factors in the A&A, if A&A must be predicated on one or more SC condition? This should yield a rating of M, with K added on? I'm going to head on over to BVA decisions to learn how I might apply my loss of function correctly in the SMC framework. Thanks again for your time and patience.