Question For "interested"

[Pete53]

I am receiving SMC S and asked for a higher SMC rating cause I have read and feel that I should have a higher rating. The VA pays an aide to come to my house to help me bathe 3 times a week and a nurse to check vitals and help me with meds. I am housebound due to agoraphobia. I also have been prescribe by VA for cane and a rollator even more criteria. I am going to ask for reason and basis I was awarded a HISA Grant for walk in shower.

At the bottom of this there are thousands of Veteran due benefits that are clearly shown in their records but if they do not ask for it they will never get it.

Good Luck to all.

[Philip Rogers]

Thanks, Interested, I appreciate your efforts!! Yes, I am quite familiar w/4.25(b) and I agree this has nothing to do with the benefit of the doubt issue. I also feel that you've sort of avoided answering the question, but then, that's just me. Are you familiar w/how the VA adjudicates the SMC "s" award when the claimant is 100%+20%+10%+10%+10%+10% and, if so, how would they do it?? Once again I thank you for your time, as I'm sure you have better things to do, other than dealing w/my stupid questions.

pr

Did anyone bother to read 38 CFR 4.25(b ) http://www.benefits....PART4/S4_25.DOC as I suggested? For those who didn't use the link, I'll make it real easy for y'all:

(b) Except as otherwiseprovided in this schedule, the disabilities arising from a single diseaseentity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc.,are to be rated separately as are all other disabling conditions, if any. All disabilitiesare then to be combined as described in paragraph (a) of this section. Theconversion to the nearest degree divisible by 10 will be done only once perrating decision, will follow the combining of all disabilities, and will be thelast procedure in determining the combined degree of disability. (emphasis added).

The only exception that I am aware of is the bilateral factor from 38 CFR 4.26.

It seems pretty clear cut to me. I don't see it as a benefit of the doubt issue at all.

[Philip Rogers]

John - I believe the issue has already been decided by the court and I believe it was in that recent case that changed/clarified the TDIU/Total issue.

pr

The word independently could have more than one interpetation. Do you think the VA would do this to us???

For example this could actually backfire and cost many vets money. For example, you are receiving SMC S with a single 100 or total rating but have several smaller ratings to add up to 60. Since there is no combined table for this and the word independant shows up, they could argue that you have no independant or single 60 percent rating. thus the veteran does not qualify.

J

[Interested]

Although it prolly won't change the outcome, please clarify what the 20%+10%+10%+10%+10% disabilities are.

Thanks, Interested, I appreciate your efforts!! Yes, I am quite familiar w/4.25(b) and I agree this has nothing to do with the benefit of the doubt issue. I also feel that you've sort of avoided answering the question, but then, that's just me. Are you familiar w/how the VA adjudicates the SMC "s" award when the claimant is 100%+20%+10%+10%+10%+10% and, if so, how would they do it?? Once again I thank you for your time, as I'm sure you have better things to do, other than dealing w/my stupid questions.

pr

[Philip Rogers]

To answer you question: PTSD 100%, Diabetes 20%, Tinnitis 10%, Hypertensive Vascular disease 10%, Sciatic nerve paralysis (Right leg) 10%, Sciatic nerve paralysis (Left leg) 10%, bilateral factor 1.9. Thank you, again!

pr

Although it prolly won't change the outcome, please clarify what the 20%+10%+10%+10%+10% disabilities are.

Edited September 21, 2011 by Philip Rogers

[broncovet]

I humbly disagree that this is not a BOD.

http://www.bva.va.gov/docs/VLR_VOL2/Copy3--RoryRiley.pdf

Page 4, states that the BOD extends to interpretive doubt. Specifically,

18 See Brown v. Gardner, 513 U.S. 115, 118 (1994) (stating, in the context of statutory interpretation, “interpretive doubt is to be resolved in the veteran’s favor”); Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (stating that “[t]his court and the Supreme Court both have long recognized that the character of the veterans’ benefits statutes is strongly and uniquely pro-claimant” and describing “the historically non-adversarial system of awarding benefits to veterans”); Trilles v. West, 13 Vet. App. 314, 325-26 (2000) (describing “the pro-claimant environment created by the general VA statutory scheme”); Moore v. West, 13 Vet. App. 69, 74 (1999) (Steinberg, J., concurring) (describing “the pro-claimant nature of the VA adjudication process”).

IMHO, there are two ways to interpret this, of which we have argued. The VA says the ratings are COMBINED, and Wac Vet, among others, makes a good case for them being added. Its called "interpretative doubt", and is to be resolved in the Veterans favor.

BOD does not apply JUST to evidence, but to interpretation of the laws as well.