SMC H.B. OIG- INVESTIGATION WILL HELP LOTS OF VETS!

[Berta]

I have read OGC reports for years.

They often focus on errors in TDIU awards.

If the VA creates an overpayment (their fault) the veteran usually never has to pay back that amount.

But this is a legal issue and depends on each individual situation. A VA VSO long ago at the local VAMC asked me to opine on a situation he had regarding a serious large overpayment that the VA insisted the claimant was aware of herself (widow's claim) He had filed for an administrative review.Unfortunately he lost the AR because the VA held that she knew an overpayment had been made and did nothing herself to tell the VA of it.

But in other cases the VA will not attempt to collect something that results from their errors.

What bothers me about these OGC reviews is that only a small part of claims are reviewed at each VARO from time to time and I have no idea if the RO goes ahead to correct errors OGC finds that were financially detrimental to the veteran or widow.

I take these reviews and investigations with a grain of salt.

Even if the directive involves a M21-1MR  change on SMC adjudication.

(if VA could read M21-1MR properly they would not even have to have a directive)

I feel every veteran who has had a TDIU or 100% award ,with any additional SC disabilities or might have become HB or SMC eligible at time of last award or since..should look over those older ratings.

My 1998 rating sheet for DIC OBVIOUSLY warranted a SMC award.Even with the wrong 1151 ratings on it.

My rep said because 1151 awards are ';different' -I should not NOD the decision.

That decision bothered me for 5 more years to feel confident enough to file CUE on it.( 4 separate CUEs in all appeared on the Rating sheet- all awarded- and I bet VA since, has made many errors on SMC issues ,at every RO.

 

 

 

[FormerMember]

One error many Vets make is how they add up the 100% plus 60%. Please remember that the extra sixty percent cannot consist of SC conditions that are part of the 100% (or TDIU) part of your rating. If you get 100% for DM2, you cannot ask for SMC S based on 60% of peripheral neuropathy related to DM 2. I have found this out from several claims I helped on. The extra 60%  rating(s)you use as the SMC S "kicker" has (have) to be completely unrelated to the underlying 100% rating that preliminarily entitles you to consideration of SMC S. 

Most folks I have helped on a SMC S based on only the 100% and nothing more need a pretty shiny letter from a doctor and a 21-2680 that goes into great detail. Remember always that VA will  almost always say your "housebound in fact" claim rests on non-service connected diseases or injuries. Be prepared for a long appeal on these. Yes, you can win- but never at the AOJ. VA doesn't want to appear too "soft" and a pushover. 

The error rate in SMC is phenomenal. I've had one (at the CAVC now) where the Vet was SMC L for A&A and they declared loss of use of lower extremities. Bingo- SMC R1, right? No sir. The VLJ declared he gets one SMC K for each leg. He'll win but it graphically shows even the BVA is out to lunch. 

[broncovet]

IF the VA "reduces" (cuts) your SMC S, then fight it as a reduction.  Remember, VA has to jump through all the hoops to reduce you, and going from 100% plus SMC S, to 100% is a reduction in rating.  

File a nod to said reduction, if it happens, and argue that VA did not comply with this, below:

 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

 

If VA argues they made CUE in awarding said SMC S, well then make them show it was UNDEBATABLE, that you did not qualify for SMC S.  For example, did they do a C and p exam where the examiner said you were definately "not" substantially confined?  They would have to have medical evidence that you DID NOT meet SMC S eligibility, and the burden would be on them to prove you did not meet it.  

Also, if the VA made 2 or 3 decisions, and continued your SMC S, then VA is admitting they THOUGHT you were entitled to SMC S, therefore, its not undebatable..even VA is not clear on it!!  

Cue is tough for us, make it tough for them, too.  Use their words and ratings against them.  

[Buck52]

I don't know if the examiner said that or not? I'll pull up that PTSD C&P Exam Report and check that.

I'll copy these Regs broncovet put up and keep them in my file  & award for the 70% PTSD & SMC-S

I read that the OIG is targeting the IU Veterans with a 90% rating  and then another rating added up to the criteria of SMC  IF THE Veteran was not 100% with initial rating   then the SMC should not have been Awarded.

Actually at the time of the 70 % PTSD Rating I was 90% combined rating and 10% for tinnitus...but over all I just had a 90% rating  and they used the extra scheduler (b) to give me the IU with the P&T because of my unability to work and said my disability is of nature and no future exams schedule.

now on e benefits  it says my Rating is 100% with SMC'S

I only got 70% for the PTSD and I notice on myhealthyvet notes  they call it Chronic PTSD..After 16 months of theraphy and taking the meds.  which also I believe the PTSD Has caused me to have ED..Or lack of sexual drive...simply because I can't perform.

Damn I hope they don't reduce me  I've ''Hadit'' with the VA.

Only thing that ''might'' help me these ratings are seperate...Hearing loss  and tinnitus  and Chronic PTSD . which I think they made a mistake in my PTSD Rating  ..in my opinion it should have been rating 100%  I had all the systoms but the bad hygiene part.  but no TBI..

so actually if I can prove the PTSD Meds caused or aggravated my ED then  the VA Robbed me of my sexual pleasure and my loss of use of organ to reproduce ..by prescribing the PTSD Meds.  They just need to leave me alone...grrrrrrrrrr I was not this way before taking the PTSD Meds.

jmo

..........................Buck

 

Edited October 2, 2016 by Buck52

[Buck52]

Also I might add, I go for a Heart Catheter Test the 13th of this month b/c VA did a Nuclear Heart Stress Test on me 13th of Sept (last month) the test came back with a couple of Abnormality's ??

The person that read the test (some Dr I presume) mention  ICH

I don't understand this shit at all?  this was taken from my  myhealthyvet notes imagining reports.

''Stress tomographic images show a small, mild reversible defect is noted in the distal inferior wall, consistent with mild ischemia in the distal RCA territory. No other additional lesions are noted. Rest tomographic images demonstrate expected radiotracer distribution throughout the left ventricular myocardium with no defects.. Findings are confirmed upon review of NAC images. Respiratory motion artifact is noted on the CTAC/transmission data set. Quantitative analysis reveals a SSS of 2, SRS of 0 and SDS of 2.. Gated images show no regional wall motion abnormality. ''

Anyone understand this?

...............Buck

Edited October 2, 2016 by Buck52

[Buck52]

Anybody?