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  1. Last week
  2. asknod


    Back in July, I had a Vet go in for an increase on his 50% PTSD. This has been a long fight from 2017 to now from 70% all the way to IU in a sheltered work environment and now for SMC S. VA has fought me like a rabid dog at each turn. The doorgunner jumped out of his Huey gunship at An Khe in 69 to run across the PSP for a smoke while they did a hot refuel. He got t-boned by a M 151 jeep going 35 MPH. He woke up at Camp Zama about a week later. He got out of Beaumant in Texas about a year later and signed up for a new tour in... Vietnam. Three choppers shot out from underneath him in three years In 2016, he'd fought for his TBI up to 70% but VA wasn't buying any more things like Tinnitus or headaches. After the exam (this time by a shrink (not a neurologist), Dr. Judas declared he could not distinguish the boundary where his TBI symptoms were also being compensated for by his then current PTSD at 50%. VA pulled a fast one. They wrapped both the TBI and the PTSD symptoms all together and called it TBI. Whoosh! There went a 50% bent brain rating up in smoke. I guess I don't need to tell you folks but that's against the law at all 57 Fort Fumbles across our fruited plains absent a heapin' helpin' of §3.344 due process. They could have called CUE on themselves- but they didn't. I carefully reread the QTC shrink's note and it said the agoraphobia was the only mutually overlapping symptom. Now I'm sitting on the Group W bench at 1425 I street waiting for a face-to-face hearing date. VA has been told to tighten up the budget to make room for our new 88,000 Blue Water 12-Miler Club alumni. Expect to see a lot of this: "Oh, my. It would be pure speculation on my part as the VA Examiner to say which is which. Giving the Veteran the benefit of the doubt, VA is not going to reduce your rating. We'll just combine a few under §4.124a DC 8045 with a few of the ones from §4.130 DC 9411, rename it 70% as residuals of TBI and call it good." Bye Bye, PTSD and SMC S and a whole lot more later when you need it for a SMC P combo. Expect to see a lot more of this. I like to remind you Hadit folks. When some Asst. Veterans Service Center REMF calls me up and gets all cuddly with me and says 'we just want what's best for your client', right off I put my wallet in my front pocket...deep, hang some trip flares from the concertina, cock the Pig, get on the horn and scream 'DEFCON I' RFN. If you dawdle 30 days or more without pitching a b****h, VA considers that implied agreement with their actions. To avoid the due process problem, they'll throw in an increase for something else from 10% to 30% so it doesn't hit the trip wire provoking a §3.344 action notification. Sound complicated? It is. This is far more than a lot of you folks are taught. Read your decisions word by word. That's where I find their errors. Often, it's what isn't discussed than what is. It's been called implicit denial. It's invisible. You can't see it. Welcome to the VA poker game.
  3. Earlier
  4. It seems we have too many threads going at one time here. First, look at SMC. It isn't JUST SMC K for loss of use of a creative organ or SMC S because you have 100% + 60% in separate ratings. It can be SMC L for A%A and SMC L for LOU of upper or lower extremites. It can be SMC L for blindness. Even worse, when you start combining SMC qualifiers, you need even more knowledge to figure out how to add them up to get the most out of it. Read this carefully. https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/ In order to understand SMC-all of it-, you have to comprehend what it is, when it began and what you need to get there. Take SMC Q. Used to be if you had two or more 0% ratings that caused you problems, VA would give you 10% for them. That is no longer the case. By the same token, you do not need a 100% schedular or TDIU rating to attain any SMC K. An SMC rating is merely the gateway to the higher SMCs like A&A, LOU of extremities, blindness, being bedridden, R1 and R 2/T. To get SMC S, you have to be legitimately housebound by your disabilities and/ or have 60% or more in separate ratings not related to the 100% schedular/TDIU rating. I see the flaw in some of you folks thinking. TDIU is awarded due to a disability which is less than 100% but causes you unemployment. When VA grants TDIU, it isn't a new rating on top of the 70% for PTSD. It is TDIU for the PTSD. So, if you chose to use a "combined pathway" to get to 100%, you would add up all your ratings from largest to smallest. The moment you cross over 100% combined, you are technically 100%. But if you had 70% 10 years ago for MDD and they granted you TDIU, they do not rebuild it in 2020 when they grant some new stuff and try to make a 100% combined rating out of it. They'll just leave you at TDIU. Until you reach a 20-year protection under 3.951, VA is always going to be snooping around trying to whack you down and reduce your rating. Their M 21 computer has it programmed in to checky check every once in a while to see if they can whack you. I have a really good friend dying of liver cancer right now. VA was snooping around in 2017-18 and found he said he'd shot up some heroin after separation to "self-medicate" for his 70% PTSD. Whoa, hoss. That's willful misconduct and they began the process to strip him of the 100% liver cancer P&T rating. I had to jump in and point out the Purple Heart, CIB and the transfusion from the GSWs. They backed down but what if I hadn't been there? His wife would lose the DIC and I'd have to begin another 3-year battle to get it back. I have attacked VA via a new claim for Vets saying "Hold the phone. Johnny Vet qualifies for TDIU solely for his 70% PTSD. Thus if he has a 60 for IHD, a 40% for DM II, 20% in all four quadrants for PN secondary to DM II, blindness in one eye due to diabetic retinopathy, Tinnitus and flat feet etc., Buie v. Shinseki says give him the TDIU for the PTSD and then add up all the extras to reach SMC S. As I said above, VA will always attempt to fence you out of SMC S if they can by trying to use the combined 100% rating path. This is the difference between TDIU P&T/ 100% combined P&T and 100% schedular. In most cases, if VA pulls the trigger on 100% schedular, a P&T will be permanent. If you have TDIU or 100% combined, they'll always be coming back trying to find out if something got better. They have to find it before you cross over the 20 year mark and become protected. SMC Ks are listed in §3.350(a)(2). You can get as many as you qualify for and you don't have to be 100% schedular/TDIU or 100% combined. SMC is extremely complex VA law. It's confusing and seems to double back on itself. I can "smell" SMC S just like I can smell dog doo-doo on my shoe. I've been doing this since 1989. There are about 10-20 NOVA attorneys who are experts in this. Other attorneys will blow you off and say they're too busy to take you claim. That's BS. They're too dumb to figure out SMC law and too lazy to learn it. That's why I get their referrals.
  5. It doesn't work that way. When you reach a combined 100% rating, VA automatically switches you over from TDIU and announces it. With a combined 100%, they will never have to pay you for SMC because you used all your smaller ratings to combine to just get to "100% combined". §3.103(c) says they have to give you the most they can support by law. TDIU for 70% from TBI as a stand alone should be the basis for a TDIU. Anything related 2ndary to the PTSD/PTSD/TBI can't be used to build extras needed to reach SMC S. I'll be honest and say few have a 100% schedular. Last I checked in '17 there were 111,500 or so at 100% Schedular and 103,000 at TDIU. Over the years a lot of Vets have come to me and said "Jez, I've had this batch of ratings for 16 years and they just reduced my residuals of Prostate cancer down from 60 to 30%. I got a letter saying I'm not TDIU and my new rating is 50%. What do I do?" What you should already have is your most recent "Confirmed Rating Decision". Each disability is listed with a Diagnostic Code (DC) number. When they write up the narrative that grants you your TDIU, it will say why they gave it to you by saying "the combo of this and that is the basis of our grant." If you're 70% all alone, they'd just say your PTSD or what ever was enough to prevent you from working etc. The most common TDIUs are granted for heart, mental or back/leg muscle injuries. VA sends us the Confirmed ratings sheet but never gives the Vet one. Who knows why. You never see the DC listed on the narrative decision. VA often lets you get really close to the 20 year total protection day and then springs a c&p on you for all of your current ratings. They whack you down below TDIU and it takes two years to get it all back. Or worse, they reduce you below TDIU percentages and make a decision to increase on something else to qualify you again for TDIU. The difference is you before this all started, you had 10-year DIC protection for your spouse. The reduction and the new increase/new TDIU resets the 10-year clock for her to qualify. VA can be very ugly. The rating sheet below shows my Vet qualified twice with heart and PTSD. VA tried to say his PTSD alone didn't rise to the level of TDIU. I had to stick their nose in it and say no, but with a bum heart for 60% added on, he sure did. A month later they agreed and he got the TDIU. Ratings sheet..pdf
  6. asknod

    How to File SMC (S)

    Using the first post for information, and the listed disabilities as the predicate(s) for potential SMC S, this has a simple explanation. VA likes to take certain groups of ratings "combined" that lead to TDIU. In truth, they are required to presume the Rice v. Shinseki law that once you qualify for TDIU {at 60% (or 70% here or 40% + others that combine to reach 70%)} they have to consider TDIU automatically. Buie v Shinseki then states they have to combine them in the highest manner possible to attain maximum SMC. Here are your listed ratings Major Depressive 70% but receive TDIU 100% Permanent and Total Stress Incontinence 40% Migraines 30% Scars 10% Lumbar 10% Tinnitus 10% Breast 0% Knowing VA's propensity to lowball or screw you, it's apparent they have combined the 40% for stress incontinence with the Major Depressive Disorder (MDD)(70%) and call the combination of those two disabilities the reason to grant your TDIU. Obviously the two are inextricably intertwined because the incontinence is caused by stress which is is provoked by the Primary diagnosis of MDD. Ergo 70% + 40% in VAland equals 80%. Or TDIU at the 100% rate. P&T is granted because you probably are not going to get better. For the SMC calculation, the combo of the rest of your disabilities is 30%+ 10%+10%+ 10%= 50%. You need an additional independent 60% to qualify and you only have 50%. This is why you will not qualify for SMC S unless, or until, you can obtain an increase on the migraines, painful scar or lumbar disorder. Your scars are static and can't be increased unless you want to complain of pain. It is now a separate rating (usually at 10%) for VA standards and stands alone. An increase of 10% would get you to 60%. Your 10% for tinnitus is already at max so that is not available. I've never argued an extraschedular for tinnitus but I suppose I could win one with a good, $2 K IMO. An increase for migraines from 30% to 50% would get you to SMC S assumming arguendo you qualify for the symptoms. Or... keep headaches at 30% and file for increase in lumbar from 10% to 20% - again-presuming you qualify. An increase of 10% to 20% would then combine to 30% +20% + 10% + 10% = 60%. I could add more % choices but not here based on the privacy concerns of the member's medical nature.
  7. Dear Sir, One fact is amiss here. Yous stated: "I filed new claim and was awarded a 10% rating for arthritis, which put me at 100% schedular, but the VA did not make me permanent and total. I have had my ratings for over 10 years, which include 70% TBI (ptsd, anxiety, and depression is lumped under my TBI rating), 50% Sleep Apnea, 30% migraines, 20% Horners Syndrome, and four 10% ratings for scars and arthritis. " I'm not trying to be picky but this is not 100% schedular. An example is DC 7354 100% for HCV. How about 100% schedular for DC 9411 PTSD. Not all ratings go up to 100%. Some, like a back injury, top out at 60%. If the "combined amounts" of your disabilities equals or exceeds 100% using the VASRD §4.25, then you have what is referred to as a combined 100%. TDIU is less that 100% but is granted as an "extraschedular rating" to help you achieve a 100% paycheck. P&T is a different "rating" than TDIU and is obtained-usually after a period of five years- based on VA viewing the disability(ies) as static with no improvement foreseeable. If you're a charcoal briquette and obviously P&T in fact, they grant it instantly with the TDIU. A fellow came to me in 2012 and had 15 10% ratings. It takes 22 ten percents to get to a combined rating of 100%. He will never get P&T going this route because the sum of the disabilities doesn't render him unemployable nor "totally disabled" as a doctor would define it. Never let ratings percentages convince you that you are qualified for P&T. I get a lot of my Vets total because one or two diseases combine to render you unemployable. I'll never get them to a true 100% schedular for any one disease but I don't have to reach that argument. best of luck.
  8. To get LOU of an extremity, you have to have a VA doctor say you would be equally well served by an elective amputation with suitable prosthesis. That doesn't mean you have to hacksaw it off to get SMC K for a bum foot. It simply means that you are so disabled that your LOU is equivalent to a Vet who did have his or her foot amputated and tries to hobble around on a prosthesis. VA also forbids "clinicians" to diagnose LOU. Oddly, it has to be dx'd by a VA examiner who has no medical training. Go figure. I get around that by getting the denial and then having my doctor(s) dx the LOU themselves to rebut VA. It's the old Caluza/Hickson/Shedden argument. Same applies for PTSD or other DC 9411 diagnoses of MDD. Let the VA deny using their own shrinks and then get your own IMO to rebut it. At that point, VA is hamstrung because they have already committed themselves and denied based on a specific reason (or reasons). They are forbidden to go shopping for more negative evidence (Hart v. Mansfield). That's why we call it VA poker. Remember, having drop foot can be from a multitude of diseases or injuries. The regulation says complete paralysis of the peritoneal nerve qualifies as LOU of a lower extremity. Many have severe-but not complete-dysfunction of the peritoneal and do not qualify. SMC is very exacting. On top of all that, there is the additional requirement that it be service connected or a secondary. It would be a stretch to say that foot drop under any circumstance could be a secondary of PTSD. This is what makes SMC law so complicated and why so few attorneys/agents take on SMC cases.
  9. §3.352(c) is not on point. It is only for R1 and R2. Tbird is going for SMC L A&A. The correct legal standard of review will be §3.350(a) only. Ignore (b) and (c).
  10. Check it out. https://asknod.org/2020/01/11/vba-fort-fumble-va-down-for-double/
  11. Look for a designated form to be created this coming year and an update to §§3.155;3.2501 etc. As it stands now, you could be in a VAMC as an inpatient and file it on a paper towel or Depends undergarment (unsoiled preferably).
  12. At our last NOVA conference (Portland 09/ 12/2019), AMO director David McLenachen suggested we start filing our client's CUE claims on the 526EZ as it captures the most data and ensures being uploaded. VA will accept it on the 995 because there is no designated form yet. In Section IV (4), under current disabilities, put in Motion to Revise the xx/xx/xxxx decision denying entitlement to (earlier effective date/ denial of DM II/ etc. If the decision has a "In Reply Refer To: 346/DEJ" designator in the top right of the denial letter, make sure you include that and the notification letter's date in the current disabilities area in Section IV. Best of luck.
  13. Paul, you have no idea how much they've earned it. We all have,assuming arguendo, we have legitimate claims. Vets who come to me have usually reached the end of their rope-both financially and mentally. This is why I chose primarily to help my Vietnam Veteran brothers over more recent Vets. Most of us got 0 to 10% when we came home for things you get 60% for now. It took me from 1989 to 2007 to discover why I kept losing. When I finished up in 2015, VA ended up paying me over $450 K in retro. That provoked me to get my accreditation to do the same for others. Being admitted to the CAVC to practice there was the ultimate honor to me. There are only 35 or so of us allowed to do this and most work for the OGC (027). There's no doubt I'm going to Hell for my shenanigans in Vietnam but I'm going to make life absolute Hell for the VA until I punch out.
  14. The regulation (§3.350(e)) reads that any two awards between the rates of L and N will yield SMC at the O rate. The qualifier for R1 is simply that one of those awards be for SMC L for A&A. I have seen several "Double A&A"s yielding SMC R1. R2 is not that hard to attain if you need physical therapy every day in your own home and are being followed by a licensed doctor or nurse or your caregiver is being supervised by one. I just won one (R2)in Phoenix with VLJ Michael Lane arguing that PT is one of the qualifiers. You don't have to have indwelling catheters or a caregiver plugging your IV into the PICC line.
  15. Here's another one. https://asknod.org/2019/12/31/vba-seattle-carry-on-my-wayward-son/
  16. Fifty years in the making. Five filings since 1971. Welcome home, Bob. A truly fitting Christmas present. Remember the magic words: " leave no one behind". https://asknod.org/2019/12/29/vba-portland-you-know-it-dont-come-easy/
  17. Merry Christmas, Berta. If you have a moment, please tell your attorney I still have not heard from him about our (Geeky Squid/you/me) "disagreement" over CUE versus reconsideration of error jurisprudence. I was expecting some sort of cease and desist order from you but have not seen or heard anything. All the best, Alex sends
  18. Here's a different view of CUE. To me, finding a CUE is easy. Proving it was such is the challenge. The higher the financial remuneration due, the harder the VA will fight it. This one is going to be a big one. It's like fishing with hand grenades. With access to the VBMS, your job of sorting out the claims file chronologically is done for you. https://asknod.org/2019/12/13/friday-the-13th-what-else-could-possibly-happen/
  19. <<My attorney requested direct review with no hearing with submission of new evidence.>> You have three choices: 1) direct review of existing evidence; 2) submission of new evidence or 3) request for hearing with submission of new evidence. Sounds like you took #2-new and relevant evidence (IMO). Each appeal is taken in turn regardless of how many contentions are filed. My record was 23 contentions and it took a 13 months even though it was advanced on the docket. (9/2018 to 10/2019). From the briefings we've been getting from Chairman of the Board Cheryl Mason, direct reviews and old legacy are the ones they want to get moving soonest. WW2/Korea/Vietnam Vets get a slightly higher priority aside from advanced on docket appeals. My guess is you'll see it within two years -by 3/2021. They hired about 400 new staff attorneys after the new AMA kicked in. Each VLJ has between 8-12. Obviously, the ones who ask for a hearing are going to wait the longest. I filed a 10182 asking for AOD and a hearing about April. I got a Jan.6th, 2020 face to face in DC with one. I expect it will be a year even with the AOD. VA miscalculated and figured everyone would go to the HLR-at least at first before a NOD to the BVA. Turns out Vets chose the BVA 5 to 1 over HLR so we have a bunch of HLR ROs doing nothing in St. Pete, Houston and Seattle. They call them DROCs -Decision Review Office Centers. But then when did the VA ever do something right?
  20. asknod


    Agreed on the newer Dustoff association. I was referring to the old Vietnam-only Dustoffs. Very different group. They have their own reunions every year with no one post RVN allowed. I get an honorary even though I didn't do that. I was FAC backseater/interpreter as well as a chieu hoi boy on the loudspeaker for Psy ops. VA said I was never in RVN-let alone Laos- from 1975 to 2007. And then one day I was. VA will pay for that bitchslap until I die. I figure I've cost them a billion or more by getting so many Vets IU or 100 schedular over the last eleven years.
  21. asknod


    Dustoff 11- You must belong to the Vietnam Dustoff Association. If so, why didn't Bruce, Mike or Neal tell you about me? I did a presentation to the group at the annual meeting down in San Diego back in 13?/14? I've worked with Bruce helping his Vets since 2012. Alex Graham USAF/AirAm RVN/Thailand/Laos 5/15/70 -5/15/72
  22. There seems to be some continuing confusion here at Hadit on SMC requirements for Aid and Attendance. SMC L covers A&A. Look at §3.350(b) and you see: (b) Ratings under 38 U.S.C. 1114(l). The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. The only other rating for aid and attendance is R2 which is "a higher level" of A&A. It is covered in §3.352(b): (b) Basic criteria for the higher level aid and attendance allowance. (1) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p). (ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section. (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. (2) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section. (ii) As a result of service-connected residuals of traumatic brain injury, 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 think the problem arises with the VA Form 21-2680 which is a form used by a VA examiner to investigate qualifying for SMC S as being substantially housebound or the need for A&A. Note my use of the word "or". SMC S is essentially a two-part test for a) 100% + an additional 60% separate and distinct from the 100% or b) being substantially housebound in fact. There is no mention of a&a in SMC S under §3.350(i) nor would there be as it is rated as SMC L. As I like to point out, SMC is very complicated. Just when you think you have it figured out, you discover you don't. Imagine VA examiners. They need a M 21 calculator to figure it out and then cannot even accomplish that. I've had to fight for every SMC O leading to R1 or R2 except for one (R2) in Manila. It took a long fight at the local VARO level because they kept trying to use a PN DBQ to deny LOU of the lower extremities. Their view was if you could get out of bed, pivot and fall back into a wheelchair, you did not suffer LOU of the lower extremities. Jensen v. Shulkin (§3.809) put paid to that insanity.
  23. The true crux of this discussion is still unknown. Ray AO has failed to answer and illuminate us as to whether the SA is secondary to the PTSD. The Diagnostic Code (DC) for SA is 6847. As BroncoVet points out, the rater can go either way on one of these. SA is a totally different Diagnostic Code from DC 9411 (PTSD). As such, it can be rated either separately as a stand alone rating or it may be secondary to the PTSD in the instant case. It all depends on how it was filed and claimed. A Confirmed Rating Decision (CRD) ,which VA doesn't send you with your decision, explains each diagnosed illness and the Diagnostic Code. If you SA is secondary to the PTSD, the DC would be a compound DC under §4.27. In this case, if it was secondary, the DC, it would be 9411-6847 and the the CRD would list it as a secondary. If so, it would be a crap shoot as to what the rater would do. Most will deny the SMC because they use what's called a SMC calculator which is shorthand for "deny". The SMC calculator is pathetic and always ends up in VA's favor against you. As for being substantially housebound under §3.350(i)(2), VA will use anything and everything they can summons to deny on that sub-section. God forbid you went to the VAMC every month for medical treatment. That would be proof you are NOT housebound in their minds. I have a rating for Hep C at 100%. I have a lot of secondaries relating to it which add up to 60% or more and VA won't give it to me based on them. However, I have a separate 100% for Porphyria Cutanea Tarda (from AO) rated as dialysis due to the need for frequent phlebotomies so I obtained my SMC S from that. The general rule is what the CRD states. I attach one here below for members to review. I see a lot of BVA decisions cited on these HADIT pages. Please remember that unless the facts of the case mirror your case in every respect, they are useless to cite to- i.e. they are useless for precedence. However, they do give you an idea how the BVA will rule because their Purple Book demands stare decisis. In my Vet's case below, the VA threw everything but the kitchen sink into the SMC S rating (which is illegal) but it's immaterial as I got this Vet SMC L for loss of use of his lower extremities. As I say, each case is unique and each rater is an unknown quantity. That's why we often have to appeal to get it corrected. This was the first time I ever won a Loss of Use at the RO (WACO) without a fight up to the BVA. Johnny Vet CRD redacted.pdf
  24. asknod

    SMC-O ?

    Currently, the M 21 1MR forbids what MrPain7 alleges as being possible via regulation or statute. DROs regularly forbid what you describe. In fact, they only permit one 100% "bump" under §3.350(f)(4) OR one 1/2 step bump under §3.350(f)(3) but never both and certainly not multiple applications. IV.ii.2.H.6.a. Proper Application of 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4) Apply the provisions of 38 CFR 3.350(f)(3) or 38 CFR 3.350(f)(4), whichever is appropriate, only once in a rating decision. Important: Concurrent entitlement to SMC under both 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4) is prohibited. However, the Secretary's regulations say no such thing. Notice the use of the plural of "permanent disabilities" in (f)(3) which is missing in (f)(4). (3) Additional independent 50 percent disabilities. 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, but not above the (o) 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) through (n) or the intermediate rate provisions outlined above. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized. (4) Additional independent 100 percent ratings. 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 independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent 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) through (n) or the intermediate rate provisions outlined above. This is what we call a matter of first impression legally. It has never come before the CAVC or CAFC yet and many of us eagerly await a case. I repeat- you can have SMC L and have one 100% rating independently ratable that will advance you to SMC M. You will never get a RO to grant an additional 1/2 step bump to M 1/2, nor will you ever get to O this way except from N. SMC O is very explicit on what you need. Note below there is no provision for advancing to SMC O by simply throwing more 100% ratings at SMC L. If you qualified for N, then you could get the (f)(4) 100% bump to O but the requirements for N are pretty rough. You can get to SMC O also by having N1/2 + a SMC K. (e) Ratings under 38 U.S.C. 1114 (o). (1) The special monthly compensation provided by 38 U.S.C. 1114(o) is payable for any of the following conditions: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less. (iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. (2) Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. I'd welcome anyone to show me a proven BVA or CAVC case (not just hearsay) where the VLJ or Justice awarded both entitlements or even multiple entitlements of both (f)(3) and (f)(4). It's easy to just baldly state how this works. It's quite another situation entirely to give examples proving your point. Simply put, if what you said was true, MrPain7, we'd all know about it. I've asked for both bumps before for several Veterans but my clients ended up with R1 so it mooted the point of the claim for (f)(3) and (4).
  25. asknod

    SMC-O ?

    In order to obtain SMC at the O rate, you need two SMCs between L and N. An example would be the need for aid and attendance at the L rate and loss of use of the upper or lower extremities at the L rate. The only other way is to be in receipt of SMC N 1/2 with at least one SMC K award. VA DROs tell me we are only allowed one "bump" under §3.350(f)(3) or (4) based on the M21-1MR. However, the Secretary's regulation doesn't say that. It will be a matter of first impression at the Court should any Vet arrive there with this unique confluence of disabilities. SMC is one of the most difficult concepts to absorb. I studied it for almost 5 years before I even began to feel proficient enough to do one of these. I would guess there are probably no more than 10 VA attorneys who do this successfully. A good friend of mine (Robert Chisholm) of CCK law firm is the absolute master of SMC. You could have 20 100% schedular ratings but would still only be entitled to SMC S. To try to understand this, I always suggest reading this article explaining it. https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/ SMC is the only rating system which actually allows pyramiding of disabilities to "leapfrog" ahead to SMC R1 from SMC O.
  26. asknod

    SMC l

    You sure can qualify for SMC L. You just need a nexus opinion from a Doctor saying you need the aid and attendance of another as you are a danger to yourself or others. PTSD at 100% can be extremely mentally disabling. You might make poor decisions such as walking away and leaving the stove on after making a grilled cheese sandwich. You risk burning the house down. Look at the requirements to attain 100% for 38 CFR §4.130 DC 9411 (PTSD): 100% Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. I've helped several attain SMC L in combination with other deficits. Getting the appropriate doctor's letter (nexus) is the way you accomplish it. You will never be awarded this with less than a true 100% schedular rating. I'm sure others here may have a different take on this. My advice is based on my litigation experience with Vets I represent. Best of luck.
  27. VA Claims Insider is not accredited. The VAOIG and VA Accreditation are both preparing to drop the hammer on all these fly-by-night "Vet Helpers". Expect to see a Congressional Statute in the works soon making it illegal to poach Vet's compensation checks.
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