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WAC-Vet75

First Class Petty Officer
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Everything posted by WAC-Vet75

  1. First off, I apologize for taking so long to composing this, and also for the length of this post. I felt it necessary to address issues, concerning this topic, of adding additional disability ratings in excess of 100% for SMC rating, instead of using the Combined Rating Schedule. Now, I will present it and ask if anyone sees any other issues, in respect to this topic, that needs to be addressed. My responses are in red. ********************* It is my contention that additional ratings over 100% should not be combined, using the Combined Rating Schedule, but should be added, according to 38 CRF 3.350. Thus a person with a 100% rating, with additional ratings of 10%, 10%, 10%, 10%, 10%, 10%, according to the letter of the law, establishes entitlement to SMC, at thee housebound rate, as long as they also meet the other requirements. ********************* (From 38 CFR 3.350): (i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and, (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, " This shows the requirements for SMC in respect to this issue: 1) SC disability(ies) 2) Independently ratable 3) separate and distinct from 100% 4) involving different anatomical segments or bodily systems Exception for 100% plus 100% is TDIU consideration. "additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployables" ********************* 38 CFR 4.25 Combined ratings table : Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity" The "concept" of the combined rating table is to determine the "efficiency" percentage left. Having a rating of 100% gives a 0 efficiency, according to 4.25. To combine additional ratings, over 100%, offers a negative efficiency. ********************* § 3.323 Combined ratings. (a) Compensation—(1) Same type of service. When there are two or more service-connected compensable disabilities a combined evaluation will be made following the tables and rules prescribed in the 1945 Schedule for Rating Disabilities. This goes with 38 CFR 4.25, which does NOT address efficiencies once 0% is reached. ********************* M21-1. Part I, Appendix A: SPECIAL MONTHLY COMPENSATION UNDER 38 U.S.C. 1114(s) - 38 CFR 3.350(i) TOTAL PLUS 60% OR HOUSEBOUND SMC Code 48 (change 37) S-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and additional service-connected disability(ies) of (**) , independently ratable at 60 percent or more from (date) . S-2 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and being housebound from (date). *Cite disability rated 100 percent under regular combined evaluation. **Cite disability(ies) establishing entitlement. Though the above is not a law, it IS a VA Manual. Note that the 100% rating states "under regular combined evaluation, but is NOT stated for the 60% rating. ********************* 38 CFR 3.350 (f)(4)(i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114(l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use. This references disabilities that may be the result of conditions such as arthritis, or injuries that cause multiple disabilities. Example: Due to arthritis, a Veteran has LOU of upper and lower extremeties, for which he/she is receiving SMC rating. If that Veteran receives a hip replacement, as a result of arthritis, receives an additional 70% rating due to that hip replacement, the hip replacement not being the cause for the LOU, satisfies the requirement for higher SMC benefits, in accordance with 38 CFR 3.350. Another example of this: Due to a service connected MVA, a spinal cord injury has left the Veteran without use of both legs, and both arms, as a result of that MVA, also received an elbow replacement DC 5052 rated at 30% and a wrist replacement DC 5053 rated at 20%, neither of which caused the LOU of arms or legs, would not prevent that independent rating of 50%, from being applied in accordance with 38 CFR 3.350 for an increase of SMC benefits. 38 CFR 3.350(e): "(3) Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of being permanently bedridden and being so helpless as to require regular aid and attendance without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement." This CLEARLY states that "must be based upon separate and distinct disabilities" is a separate requirement, and can not be included with the wording "independently". As I previously stated, there are other requirements, in ADDITION to the requirement of the rating being "independently ratable". "Involving different anatomical segments, or bodily functions" is self explanatory.. "Combined evaluation rating", reference to the combined rating schedule, nor "disability(ies) with a combined rating" aren't used, yet "independently ratable" is specifically used. ********************* 38 CFR 3.350: (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. The underlined section in the above paragraph, clearly disallows a bilateral rating, combining to 100%, from being used for this requirement. Two of the requirements here are 1) Single permanent disability 2) Independently ratable at 100%. The bilateral factor of the Combined rating table allows for bilateral rating to be used as a single disability. Unless one of the bilateral disabilities is INDEPENDENTLY rated at 100%, the bilateral factor can not be used as it would not be a "single" disability independently ratable at 100%. It would have stated, "a permanent disability". Congress is aware of the bilateral factor, yet chose to specify "single". ********************* 38 CFR 4.26 Bilateral factor. When a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor in this section will be treated as 1 disability for the purpose of arranging in order of severity and for all further combinations. For example, with disabilities evaluated at 60 percent, 20 percent, 10 percent and 10 percent (the two 10's representing bilateral disabilities), the order of severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and the 68 and 20 to 74 percent, converted to 70 percent as the final degree of disability. A Veteran who has been awarded SMC, for LOU of lower extremities, could have a hip replacement DC5054 rated at 70% AND a knee replacement DC 5055, rated at 60%, both fulfilling the other requirements of separate and distinct, different anatomical segments, or bodily function. These two disabilities, according to the Combined Rating Table, would be combined, then using the bilateral rating factor, would be 96.8%, rounded to 100%. Neither disability is independently rated at 100%, and thus does not fulfill the"single" independently ratable part of the requirement. ********************* *****this is the updated section**** BVA:Citation Nr: 1021990 Decision Date: 06/14/10 Archive Date: 06/24/10 DOCKET NO. 03-25 209 “For purposes of 38 U.S.C.A. § 1114(s), an award of TDIU may satisfy the 100 percent schedular requirement if the TDIU evaluation was, or can be, predicated upon a single disability. VBA Fast Letter 09-33 (July 22, 2009). See Bradley v. Peake, 22 Vet. App. 280 (2008). However, no disability can be considered twice in calculating the percentage requirements to ensure that the prohibition against pyramiding contained in 38 C.F.R. § 4.14. Thus, the additional service-connected disabilities ratable as 60 percent disabling must be separate and distinct from those warranting the TDIU evaluation. The Veteran is currently service-connected for PTSD, rated as 70 percent disabling effective February 12, 2004; status post left knee replacement, rated as 100 percent disabling from October 19, 2004 and 60 percent disabling since December 1, 2005; residuals of left common peroneal nerve injury, rated as 10 percent from May 15, 1970, 20 percent from June 10, 2002, and 40 percent from July 27, 2005; left knee subluxation rated as 10 percent disabling from June 10, 2002 to October 19, 2004; organic brain syndrome, rated as noncompensable from April 1, 1980 and 10 percent disabling from June 10, 2002 to February 12, 2004; scars of the left eye brow and eyelid, rated as noncompensable from May 15, 1970 and 10 percent from April 17, 2003; and vertical diplopia of the left eye, rated as noncompensable effective June 10, 2002. At the outset, the Veteran has been awarded entitlement to TDIU, effective June 10, 2002, primarily based upon his service-connected acquired psychiatric disorder. Effective June 10, 2002, the Veteran also met the criteria of having additional service-connected disability independently rating at 60 percent or more (left knee degenerative joint disease rated as 30 percent, left knee subluxation rated as 10 percent, and left common peroneal nerve injury rated as 20 percent). As such, the record establishes the Veteran's entitlement to SMC benefits under 38 U.S.C.A. § 1114(s) effective June 10, 2002.” Organic brain syndrome, is rated under mental conditions, and thus can not be used in determining entitlement, under 38 CFR 3.350(s) as it must be separate and distinct, involving different anatomical segments or bodily functions. As the requirement states, “single disability” independently ratable, the BVA noted that the TDIU was “primarily based”, meaning that the TDIU rating requirement could well be based on just the single, 70% rating for PTSD. This BVA decision based the additional 60% rating on independently ratable percentages, as required according to 38 CFR 3.350, and not erroneously using the combined rating schedule, for which there is no legal basis to use, in ratings over 100%.
  2. I just went to ebenefits to check on my claim.... Somehow, without logging in, I was able to go to "claim status", noticed that the dates were wrong, then looked and saw I was signed in as Dennis Houser, NOT me, and the claim is in Philadelphia, NOT where I live, nor where my claim is pending! I wonder if someone is presently accessing my records.......
  3. They never considered SMC s when I got my 100% (TDIU, one disability), back in 1993..... I directly "inferred" housebound in the letter submitted to the VARO, the letter which I was told was what actually got me rated TDIU. Oh wait, I was able to make VA appointments, even though I had to have someone go with me, as I couldn't leave my house alone. Hell, I even wrote how I would hide when someone came to my door! Nope, SMC was never even mentioned........ Well, my A&A and Lupus claims are now in notification, as of this afternoon. Once I learn the outcome, I will be able to file for SMC using my statement against them using combined ratings! I tried calling the 800# to see if I could glean any information, but I guess it was just too soon. I did learn that something went on June 7th, I just don't know what, but it has to be reviewed now. Either way, I will be submitting my statement for SMC, using addition, not combined evaluation rating. The fight begins again!!!.
  4. PR, did you ever get a call back from NVLSP? I sent them an email, applicable regs with responses, but have not heard a thing from them so far.
  5. I also have surgical clips..... a CT showed one by my right kidney...asked the Radiologist about it and she said it was from my kidney surgery... funny thing is, I never had kidney surgery! I had gallbladder surgery. Though those clips showed up, I have what seems to be an extra one.... One Doctor told me that the clips can migrate, so just have to wait to see if it causes any damage.
  6. Lesions can show up in the spine or brain. I have lesions in the brain. I have MS. My left leg has gone "dead" many times. I have "unexplained" pains, that are actually the brain getting confused, due to a short circuit from the nerves to the brain. Right now, I'm experiencing horrible shooting pains in the right forearm! I am not saying you have MS, but you do need to be made aware that your symptoms may not be related to your DDD.
  7. Exactly how do you file an 1151? Is there a time frame you must wait? My surgery was over a year ago, I'm still in pain, and now being told I'll have to go to pain management (aka, dope up the Veteran clinic).
  8. Have you had a MRI done of the brain, and one of the spine? Just a thought, lesions can cause the symptoms you described.
  9. WAC-Vet75

    Ao Award Ft Mcclelland

    Here's another interesting Ft. McClellan case http://www.va.gov/vetapp07/files5/0740357.txt decision date:12/21/07
  10. My C&P was in Nov 2010, went to rating board Dec 2010, still waiting 31 May 2011. Hope to hear something by 2012!
  11. I sent NVLSP my statement concerning the VA's use of combined evaluation rating concerning SMC. As soon as I get a response, I'll let you know. I did ask that they give me what argument against my contentions, less the "VA always did it that way", they could. I did some "tweeking" to it and can't seem to find any argument against it, so I'm hoping if there are, someone at NVLSP will find it.
  12. "Accordingly, a determination for entitlement to SMC at the (s) rate must be made in all TDIU cases where potential entitlement to SMC (s) is reasonably raised by the evidence." This is most interesting..... now, the questions are, would it be retro to the date the TDIU was granted, but should have been SMC(s-2)? Should the Veteran be penalized because the VA did not interpret the law/regulation correctly? Is the VA notifying previous TDIU Veterans of the possibility of being eligible for SMC?
  13. I've yet to hear a VSO or VA employee tell me about SMC either.... I learned about A&A when I was searching the internet seeing if there was any help I could get, due to my limitations from s-c disabilities. I've paid, out of pocket, for caregivers, since 2008. Couldn't afford trained ones, so I hired people that I knew to help me. During my search, I ran across military.com (I believe), and read about A&A. Since then, I started really reading over the laws/regulations, and all the BVA and CAVC cases I could find. I was shocked to find out that the VA was using the combined evaluation rating, for ratings over 100%. I remember reading (decades ago) that a Veteran could not be paid in excess of 100%. With the language of 3.350, and knowing the highest disability rating a Veteran can get is 100%, you can imagine the shock finding out that they actually were combining the ratings for Special Monthly Compensation! So, you are paid for being 100%, then the SMC is the way of compensating a Veteran for additional injuries/diseases/conditions that causes a loss of quality of life, since you can not be more than 100% disabled, according to the basic rating schedule. For SMC (L) the rate is $654.00, regardless of marriage, or number of dependents, whereas marriage, and number of dependents does matter for your basic rating! So, once you reach 100%, you are paid at the highest basic rate allowable by law. Why should they continue to combine the rating, other than to cheat Veterans out of SMC, that Congress intended them to have!
  14. If, the VA added up, as oppose to using the combined rating evaluation, then they would not use the bilateral factor. Since they are apparently using the combined rating evaluation, they have to use the bilateral factor. What are they developing? Veteran FRUSTRATION, of course!
  15. They didn't infer a potential to SMC for 100%TDIUs..... I am sure there are many who meet the requirement, yet aren't receiving SMC(s)! I have known many 100% mentally disabled Vets that ARE housebound... but never even heard of SMC.
  16. PR, I will also be going for an inferred claim for my s, back to 93. Wish I would have known more about such things then, as I would have NOD'd right away. It's fortunate, for our younger comrades, that we have gone through all of this, as we should be a help to them getting what we had to fight so hard for! I am most curious as to the VA's reasoning for trying to combine ratings after the 100%. Here is a very interesting read http://www.va.gov/op..._Lit_Review.pdf page 55 states, "The legislative history for this law does not explicitly state a rationale for the extra awards. Although one might infer that the extra awards are to compensate for loss in quality of life, without a clear statement of Congress' intent, this is speculation." It is clear that Congress specifically stated, "independently ratable", as oppose to "combined evaluation rating of..."! Basic disability ratings are rated from 0%-100%, and are subject to the combined rating evaluation, as the pdf explains. Under the VA's present system, unless you have one, single, disability rated at 100%, the highest rating a Veteran can receive is 100%, no matter how many disabilities, or percentages given. Even with TDIU, the VA continues to combine all the ratings. As an example, a Vet with 40% PTSD, 40% hearing loss, 40% left knee, 40% right knee (bilateral factor added), 40% right hand, 40% left hand (bilateral factor added), 40% DDD, would still only be 100% combined! The highest disability rating a Veteran can be awarded is 100%. SMC is SPECIAL MONTHLY COMPENSATION, not basic compensation, and should not fall under the same combined evaluation rating as basic compensation. PR, I don't know if I asked this question before, but when you talk to the VA, do they state your percentage as 100%, 200%, or a combined rating of 100%? I wonder how they state the percentage of those with SMC......
  17. Just to note..... If, ratings in excess of 100%, are to be added, as I and other believe to be so, and not combined, I would venture to say that the bilateral factor could not be used. The bilateral factor is used in connection with the combined evaluation rating, and would not be considered "independently ratable". The BVA has ruled for SMC using addition, as oppose to combined evaluation rating, and also used combined evaluation rating..... I believe the BVA has not been directly challenged on this law/regulation. I am presently waiting for claims to be rated (in rating since Dec), then I will be challenging the interpretation of the law. I should have been house-bound since 1993, and additional 60% (50% for half step), since 1997, not including my present claims. I believe PR already has his claim in, challenging the interpretation.
  18. With ChampVA, where private insurance leaves off, even instances of having Medicare affords eligibility, then ChampVa kicks in, so isn't that combing insurances? I called the ChampVA office up, and they don't seem to know the answer either! There are Veterans who use the VA and have private insurance. They can use VA or civilian medical services, or both, at will. I do know you can not use CITI, and use outside Doctors through ChampVA, that a choice has to be made for only one. Trying to get health insurance coverage, when you're 100% disabled, is financially prohibitive. To deny a person ChampVA, because they happen to be a 100% disabled Veteran, MARRIED to a 100% disabled Veteran, surely seems like such a couple is being penalized, discriminated against. Will be interesting to find out how they decide this one!!
  19. I have an interesting scenario.... two 100% disabled Vets, married. Can they also be eligible for ChampVA , so that they can see a "civilian" Doctor, to get a second opinion from an opinion by a VA Doctor? Too difficult to get a second opinion from another VA Doctor, as one will NOT go against the other, especially if an error is found.
  20. Athena2, have they "ruled out" Lupus? Lupus can affect the gallbladder (I'm a fine example of that), and any organ in your body. Lupus is presumptive within 1 year of discharge, though it can take years to get a positive diagnosis, as your ANA can go positive and negative, many times. Also, see if they are willing to do a MRI of the brain and spine.......
  21. Due to surgery, a year ago May, I've been experiencing on going pain and discomfort. General surgery sent me for a CT scan on the 18th of May, and "discussed" the results. General surgery was talking about removing a permanent stitch, they felt was causing the problem. I went in early on Tuesday, picked up a copy of the CT scan from release of information. Since a numbing shot didn't work, and actually caused more pain, they decided not to do the removal. Not once did any of the Doctors mention that a spot was noted on my lung, nor did they mention that I have abdominal aortic calcification, more significant before the bifurcation. Both conditions can actually be a sign of a life threatening condition, yet not one of the Doctors mentioned it, much less suggest I see anyone for it! I understand it was General surgery, but I would think, considering THEY ordered the CT scan, they would actually look at any and all possible medical conditions a patient should be informed about! Had I not gotten a copy of the CT scan, I still would have no idea. My Primary transferred to the hospital, from the clinic I go to, so at the present time I do not have a Primary Doctor. How would I have found out about these conditions? I am NOT a happy camper, as they did this same thing back in 1977, leaving me untreated for decades for another serious condition! Make sure you get copies of any and all procedures!!
  22. I agree with getting your claims folder! I, unfortunately didn't, and can't until my claims are finished. I am so angry at the VA right now I could spit nails. Not only didn't they notify me of the results of the CT scan, other than concerning the hernia repairs, now they just want to put me on pain killers instead of correcting the problem! With the VA, it seems, when in doubt, dope up the Veteran to keep his/her quiet!
  23. Sidney, I went through a similar thing quite a few years ago. I was dx'd with MS, via BAER, and MRIs. I put in for the problems the MS was causing. When I went to put in for the MS itself, and not just the results of the MS, I was told by my VSO, that I shouldn't as he felt it pointed more to Lupus. Well, it just so happens I have MS AND Lupus. I now have my claim in for Lupus (which the VA actually dx'd back in 77), and will follow with having the MS directly listed later (Lupus and A&A in rating board since Dec). I have learned not to always listen to the VSO, but more follow what you learn in the laws/regulations, and what is actually in your medical records!!
  24. I wonder if they pay the yearly subscription to keep the Medic Alert number active? I bought 2 Medic Alert bracelets, one for every day, one for dress. Wish I had known the VA would supply them!
  25. WAC-Vet75

    Smc Overload

    If, you receive TDIU for one service connected disability rated at 60% or more, and have additional disabilities rated at 60% or more, separate and distinct from the disability that afforded you the TDIU, AND involves different anatomical segments or bodily system(s), then you would be eligible for SMC s. You would have to have medical evidence that you can not obtain, or maintain employment due to your knee condition, and apply for TDIU for it. I would venture to say that the VA would then schedule a C&P. I did not have to have a C&P for my TDIU, as my medical evidence, provided by VA Physicians, my employment record, and my statement was sufficient to establish TDIU.
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