ptsd A Well Founded Argument For Addition Of Ratings In Excess Of 100%

[Philip Rogers]

broncovet - too bad tiger wasn't as prepared on that other issue that caused him so many problems. WAC has done an excellent job and really nailed it. I feel it will still need to go to the court to get the VA to properly rate those 100+60 SMC "s" claims. The other boards will just say the BVA judge erred.

pr

Congratulations, Wac

You just bested "the other boards" best.

The BVA judge "has spoken" : Bradley VS Peake ratings are added not combined. VARO's are doing it wrong.

I am considering going back to the other board and post this decision, and rub it in their face, if someone else does not do it first.

This is what happens when you do a good job in preparation...well not all the time, but I could tell you had done your 5 P's.

I learned about the 5 P's from my brother's son. He races motorcycles. He was expected to win the race.

He started out very well, in first place. Then he ran out of gas.

He pushed the bike back into the pits. My brother said, "Proper Preparation Prevents Poor Performance"

He never forgot that. I haven't either. I heard Tiger Woods has a "Golf Swing Coach". I would not have thought he needed one, but then he is better prepared than I am.

[WAC-Vet75]

Comrades, thank you, but we still have a long way to go..... I still have a LOT of cases to go over, a lot of searches to do. If, my research shows inconsistencies in these ratings, the VA will have to address the issue, sooner, than later. It is always better to enter a battle with extra ammo, extra weapons! The more Vets who read boards like this, the more claims are going to be filed, the faster the VA will have to address this! I have to say it will be VERY interesting to read how the General Counsel addresses it in their VAOPGCPREC ! They can not just say, "this is how we always did it", I do believe they will have to address each law/regulation, as I have, but we are talking about the VA!

As for the other board, I believe they saw my challenge in a different light (adversary) than how I meant it (looking for correction). Even here, I want someone to go over it all, and show me where I am wrong. I want to know what I have not addressed, did I miss something, is there another law/regulation that could be applied, making my contention incorrect..... I come from a family that LOVED debating, and when we debated, we always challenged the other point of view among us, so that we could learn from mistakes. I am so exhausted, but so alive right now! I feel (in my mind) like a kid again... now if I could just get my body to cooperate with my brain!

[Pete53]

For anyone reading this thread comments about other boards or references to posts made on other boards is not allowed. Hadit stands on its own and respects the work of anyone who is trying to help Veterans.

But if you see something that you disagree with that is posted here please feel free to comment in a polite way and using evidence to support your opinions. If it is an opinion at least say so.

If you have posted in this thread and don't see your post than it probably was unapproved. If so please do not re-post. Moderators will not edit a Members post to remove something that violates the rules.

To be safe please leave comments about other Boards on their Board and not here.

This is a very important thread and several members have spent a lot of time and effort to provide information that can be used.

I want to thank Wac-Vet75, Philip Rogers, Berta , Carlie and Broncovet for their contribution on this thread and others dealing with SMC. If it just helps one vet get SMC it was very much worth it. I feel that it has opened a door and turned a light on an issue that few really understand.

Now lets continue the thread and help Veterans get earned benefits.

Pete

[rakkwarrior]

A very thorough and well thought out posting, I am impressed and equally encouraged at the tenacity in which members of this forum have contributed. Just as a matter of clarification however, I wanted to note the following:

After receiving a 100 percent evaluation, or TDIU for one other condition, with additional disabilities independently ratable at 60 percent via common body system, etiology, body system, or otherwise six independent 10 percent disabilities, I am providing an example where the rating code sheet states:

DC 9411 PTSD

70 percent from 12/1/2009

DC 5237 Lumbar Spine

10 percent from 12/1/2009

DC 5237 Cervical spine

10 percent from 12/1/2009

DC 8517-peripheral nerve disease, secondary cervical spine (left upper)

10 percent from 12/1/2009

DC 8517-peripheral nerve disease, secondary cervical spine (right upper)

10 percent from 12/1/2009

DC 8520-peripheral nerve disease, secondary lumbar spine (left lower)

10 percent from 12/1/2009

DC 8520-peripheral nerve disease, secondary lumbar spine (right lower)

10 percent from 12/1/2009

Overall combined evaluation would be 90 percent with a bilateral factor of 3.9

TDIU granted from 12/1/2009 in the basis of PTSD

The bilateral factor and combined evaluation for the other (cervical/lumbar spine and secondary conditions) disabilities independently rated aside from the PTSD would be 50 percent with a bilateral factor of 3.4.

Whether or not bilateral factors are or are not present, 6 ten individual percent evaluations do not add to a finding for SMC "S" under Bradley v. Peake (2008). However, an increase to 20 percent for any of the conditions, to include the cervical or lumbar spine would result in an overall combined rating of 60 percent with a bilateral factor of 3.4, this would indeed require a finding of SMC "S", and to not do so would be a CUE. In the first instance it would be a CUE because it was promulgated after the Court's precedent opinion was rendered, and secondarily because of the misapplication of the laws in existence at the time of this decision.

I cited elsewhere, that 4.25 is not optional in combining the degree of disability (in any instance except where the disability is considered "total", i.e. 4.29, 4.30, and I think this matter of application is well established.

All of the people here remind me of my NSO's who work for DAV, always looking for and analyzing the laws and regulations for loopholes and for ways to ensure their clients get every benefit they would otherwise have been entitled to. Just think if you did this not only for your own cases but thousands of cases a year, and did it because you wanted to, in spite of your own disabilities. Recently I had to tell a good friend that the claim he was doing for a family member was not in fact a CUE. He was crushed, and initially angry with me for being honest. I was a very hard thing for me to break to such a good friend, but integrity should ascend above allowing someone to become so emotionally engaged in something they are applying incorrectly so as to cause additional heart break, and years of frustration.

I believe there are issues which can be argued before the Court in regard to standing law and regulation, and the Court was established to set aside those decisions which are "arbitrary, capricious, and an abuse of discretion" and not in accordance with the law or Congress' intent. Often times when judicial analysis is conducted they refer to the history of the regulation in question, which in most cases begins with the 1933 rating schedule for disabilities, amendments thereafter, and regulatory revisions or changes.

I know some here may view my postings as being somehow critical, or otherwise discouraging. I attempt to educate my hundreds of clients a month the same way, it can be exhausting, and sometimes I wonder if I should allow those people who don't want to listen the opportunity to lie in the bed they have made for themselves. I have my own issues, and we all seem to forget that event those who do this professionally are only putting on a veneer which obscures the chronic pain, their own combat trauma, and/or other issues which affect them. I am intimately aware of all the crap that veterans must endure for a fair shake by VA, and our individual circumstances. I definitely don't contribute to this or other Boards because I am bored and have nothing better to do. I hope this helps clarify. Thanks for reading.

Edited March 18, 2011 by rakkwarrior

[Teac]

For anyone reading this thread comments about other boards or references to posts made on other boards is not allowed. Hadit stands on its own and respects the work of anyone who is trying to help Veterans.

But if you see something that you disagree with that is posted here please feel free to comment in a polite way and using evidence to support your opinions. If it is an opinion at least say so.

If you have posted in this thread and don't see your post than it probably was unapproved. If so please do not re-post. Moderators will not edit a Members post to remove something that violates the rules.

To be safe please leave comments about other Boards on their Board and not here.

This is a very important thread and several members have spent a lot of time and effort to provide information that can be used.

I want to thank Wac-Vet75, Philip Rogers, Berta , Carlie and Broncovet for their contribution on this thread and others dealing with SMC. If it just helps one vet get SMC it was very much worth it. I feel that it has opened a door and turned a light on an issue that few really understand.

Now lets continue the thread and help Veterans get earned benefits.

Pete

Pete,

I understand what you are saying,.. and I respect you opinion on the subject.. However, with all do respect, you should be consistant , I mentioned the same names and eluded to the same board as Broncovet did in this thread. I quote his post below:

WAC

I agree..and I think I even mentioned that on "the other board". You were thorough..gee I wish I could use you to write up my EED appeal.

The only comment I have is your use of the word "clearly". Attornies use that almost as much as they use the

word "claimant" or "petitioner". I will have to say that even tho I agree with your interpretation...of course, it does

not matter what I think..or what Vike and Cruiser thinks.

It only matters what the judge thinks...and I have found they dont always think "clearly".

As CC says, "Never Give UP".

I can't help but think you disagreed with my opinion and that was the reason you removed my comments..... and I fail to understand how bad information is going to help any veteran, or promote the intent of this board. And trust me no matter how well intentioned the opinion in this thread is , it is still misguided and full of bad information.

I would have PM you but I was not able to figure out how it works on this board. I do try to be low keyed on this board, as to avoid being accused of starting any problems.. but I just think you wrongly singled me out, and by deleting my opinion you haven't allowed both sides of the issue to be commented on.

[jbasser]

Teac click on the Drop arrow beside your name and select messenger. Then read your PM's

You were sent one early this morning.

J