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WAC-Vet75

First Class Petty Officer
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Everything posted by WAC-Vet75

  1. Yes... I've been using USC instead of CFR a lot lately....sorry!!! Yep, was rated 100%TDIU P&T, 1993.... never was told anything concerning SMC, never received anything in writing, concerning SMC, didn't know anything about SMC back then. They apparently (according to page I have from award) had my medical records, which it states they used in reaching their decision. I still have a copy of the letter, sent to the Adjudication Officer (who signed the award), stating my housebound status (didn't use the word housebound, just explained wasn't able to leave house, and when I was able to, had to have assistance). Sure does seem like they owe me quite a bit of retro...... I agree, I do believe Bradley v Peake applies...gee, do you think the VA will see it that way? The fight is on! This should keep me going for a few years......... lmao
  2. Thanks PR.... As soon as my file is out of the rating board, I'm going to be doing a LOT of filing! BTW, all the sources I've contacted concerning the 100% + 60% keep referencing 38 USC 4.25.... even the VSOs! Have they not read that regulation? "The VA never adds the percentages" is the most recent VSO response... well, did you ever think they were doing it WRONG, and they have NO law/regulation to back them up? lmao... our time is coming!!!
  3. Oh, I intend on reviewing my C file! I can't wait to see what all they screwed up on!!!
  4. Well, I would have a CUE for the SMC s, as they rated me only TDIU, never considering the housebound rate, correct? This is where I'm a tad confused, my letter inferred housebound, and when I am able to travel the 2 hours to the VARO, I will see my C file, and medical evidence. CUE has to go back to when the evidence warrants it, but doesn't an inferred claim only go back a few years? Thank you, I KNEW I needed to be slapped! Duh, I still can't believe, after all these years, I still called them! Can I blame it on my MS, or just sheer STUPIDITY?
  5. Thank you soooooooo much Berta! I needed that laugh more than you could possibly imagine!!!!
  6. Berta, I really think I should get a swift kick for even calling the 800#, as I KNOW better!!! I can only find the last page of my 100% TDIU from 1993 (I went through that, "I'm tired of this sh*t" stage, and unfortunately trashed a few things I shouldn't have many years ago). The last page does state, "In reaching this decision we considered the following evidence: your outpatient treatment records from the VA medical center in Martinsburg from January 7, 1992 to May 22, 1993: the hospital summary from April 26, 1993 to April 27, 1993; the VA examination from June 24, 1993 to June 29, 1993: the VA Form 21-8940 dated May 4, 1993; VA Form 21-4192 dated July 15, 1993 and July 19, 1993." I am in possession of a copy of the letter, dated 6 Aug 93, sent to the Adjudication Officer, himself (mentioned in first post here). On the last page that I have, it shows enclosures(s) VA Form 4107, so I am assuming this actually is the last page of the decision. I need to get a copy of my C file, but want to wait until after my other two issues are adjudicated. It's also funny that they call one of my disabilities a "stomach condition", when in reality, I was diagnosed with a gastric ulcer, esophagitis, and reflux within 3 months of military discharge. Not once have they rated the GERD (another CUE in the works). In 2009, I was given another endoscopy, and was told I had a hiatus hernia (apparently it's a slipping one and hence was never noticed before?). During my hospitalization in 76, they even made me part of a study for a new drug for GERD...... Sorry, I digress..... The A&A is presently being adjudicated. Though the Doctor listed that eyesight was 5/200 each, I am not service connected for my eyes, and figure they will disallow that portion. I have MS, and have great difficulty performing certain tasks, many times I am totally unable to perform certain tasks. I had paid someone, for a year, to assist me, but now my daughter has taken over as my caregiver. She has to wash my hair, helps me dress (damn buttons have gotten tricky over the years), prepares meals, I even go through periods that I can not turn a damn door knob (I'm planning on getting them all replaced with levers!). I informed the C&P Doctor of my difficulties, and his report noted it. That's also when I read that horrible word referenced to me...."frail"! So, don't you agree that I need a slap in the head for calling the 800#?!
  7. Ok all, I need a good head slapping! I know better, but STILL I had to call the 800# (duh). Philip, I sooooooooo feel your pain! Here we go.... When I have called, they would tell me that I am 90% combined. I've been 100%TDIU P&T since 1993 (granted P&T in 2008, dated back to 93, according to the 800#). Today, when I questioned why I am being shown as 90% combined, instead of 100% plus the additional disabilities, I was told that I am not 100%, I'm 90% combined. I questioned the TDIU, and it was agreed I was 100% TDIU, so I asked why the other disabilities weren't considered for SMC. I was told because I didn't have a 100% rating! I was then told that the 100% TDIU was a SEPARATE rating, and that in addition to the 100% TDIU, I have a combined rating of 90%! UGH!! When I questioned WHY I did not receive, or was even informed eligibility to SMC was possible, I was informed that I had to ASK for it! I questioned that the 70% that was used for the 100% TDIU, and was informed (a number of times in the conversation), I was told that the TDIU is another rating, separated from the 70% (for which it was based). My ratings, as of 1997, are 10%+10% bilateral, 70% (used for TDIU), 20%, 10%, 10%, 10%, 0%. Erroneously combining (as the VA has been doing), would give me the 100% TDIU (based on single disability of 70%) with an additional 54%. The correct rating should be (according to 38 USC 3.350, 38 USC 1114) 100% plus an additional 70%. Yes, the additional disabilities are separate and distinct. So, the 800# insists that I HAD to ask for the SMC, that it is not the responsibility of the rater to either notify you, or to address the issue UNLESS you ask for it! How do you ask for something you have no idea exists? Back in 1993, 1997, I had no idea that you could be eligible for something called SMC? The 800# had a difficult time understanding that my present claim is for Aid and Attendance, telling me that is for pension. He informed me that my claim, that is pending, could rate me at the housebound rate (SMC s) for the A&A,. Housebound rate is A&A? My 1993 rating, should have been housebound, considering the letter I sent (and the reason I was granted TDIU) back in 1993, stated that I was housebound, could only leave the home with assistance (when I was able to leave the house). I do believe, that would have been considered an inferred claim (correct me if I'm wrong), an unadjudicated claim. So, who will be the first to offer the well deserved head slapping?! Philip, I'm right there with you brother!!!!!
  8. Actually, fee basis is responsible. I'm 100% P&T, since 1993, it was an emergency, and the closest private hospital is 30 minutes away (even with epi-pen, you have to get to the ER within 15 minutes). In the past, when I've been taken to the Army hospital, as an emergency, the VA picked up the tab, for the reasons I stated. 38 USC 1725, plus I am in receipt of the letter which outlines the VAMC's requirements.
  9. Philip: You know, and we know you are right, plus the letter of the law is on your side. Carlie is correct, if they didn't deny you, they would have to call CUE on ALL of their prior SMC 100%+ cases. How many times has the BVA called a CUE on something of this magnitude? They have to hope that another remedy can come about (more disabilities) so that it can't go through to the Court system. Unfortunately for the VA and BVA, it will eventually have to go to the Court. In the meantime, Veterans and their eligible dependents will die off, saving the VA from having to right the injustice. You already know how they work, but I understand your frustration, totally! You submitted the information around the 25th of Feb., and received your response in a relatively short amount of time, as they already knew what they HAD to do to "protect their money". They did NOT address the issue at all! They simply stated law/regulation, and did NOT address the issue of adding, as oppose to combining, the additional disabilities. I, personally, see that as a win. Now, had they expressly addressed the issue, they would have had to state the law/regulation referencing using the combined rating schedule for disabilities over 100%. They didn't, BECAUSE they CAN NOT! Though I filed my CUE, I have a feeling they may approve my other issues, which would make my CUE moot (date of entitlement may allow me to still go CUE). Using their combined rating, I would be at 100% plus 54%, so any rating they give me, other than 0%, would put me at their combined 60%. Get some screaming out, because they are withholding your money, but see this for what it really is, a win, as they didn't properly adjudicate the claim!!! PS: I would file the claim as an unadjudicated claim, as they never addressed the issue. I just reviewed 38 USC 3.2600 "(d) The reviewer may grant a benefit sought in the claim notwithstanding §3.105(b), but, except as provided in paragraph (e) of this section, may not revise the decision in a manner that is less advantageous to the claimant than the decision under review. A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision." 38 USC 3.105 "(b) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under §3.2600 without being recommended to Central Office" Going further 38 USC 3.2600 (e) Notwithstanding any other provisions of this section, the reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see §3.105(a)). 38 USC 3.105 "(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply" I see a slam dunk... they HAVE to state the law/regulation granting them the right to combine ratings over 100%! From what I was reading you have 60 days to file under 3.2600
  10. I have no other insurance.... The VA has no choice, they have to pay, according to their own regulations (that they sent in their letter of denial!). I do find it interesting that since I filed my CUE (100% plus 60%), I just happened to be the file that the audit team picked, especially since I"m approaching the 20 year mark. I have no worry, as my condition is permanent, won't get better, and now I have even more additional disabilities (and more CUEs) to include A&A. I guess the audit team picked the wrong file/Veteran, to send through the mill..... I not only make the grade, it would be impossible for them to find fault in it, according to the laws/regulations.
  11. I have to add.... I love the VA!! They offer me the opportunity to learn (reading opinions, BVA, CAVC cases, law), they give this old soldier a reason to live....FIGHT!
  12. I am presently fighting the fee basis program. I am anaphylactic to wasps, hornets, and yellow jackets. July 2, 2010, I was stung. The closest VA Hospital to me is 2 hours away (one way). My daughter rushed me over to the hospital on Post, and now the VA doesn't want to pay. The three requirements the VA listed were 1) Care or services were rendered for an adjudicated service-connected disability or for any condition of a veteran who has been determined to be totally and permanently disabled as a result of a service=connected disability; 2) Care and services were rendered in a medical emergency of such a nature that delay would have been hazardous to life or health; 3) VA or other federal facilities were not feasibly available. Ok, I'm 100% P&T, I'm anaphylactic to the stings, the friggin VA hospital is 2 hours away, and a military hospital IS a federal facility! I've been using the same VA Hospital for 17 years (been 100% since 1993, reaching that 20 year mark), and now all of a sudden, they don't have my 100% listed?! Just a little side-note.... I have been getting my venom shots (fee based allergist prescribed them) from the VA for the past 3 years. The VA clinic, on Post, has been administering them for almost a year, and when I went to get my shot, last week, I was informed I couldn't get them there. I called the fee basis office up.... I was informed that the "audit team" just happened to pick MY file (I'm Cueing 100% PLUS 60%) to audit and disapproved it. It was stated to me that such things (the venom) has to be from an approved VA provider..... Gee, the VA were the ones that picked out the Allergist, they've been paying her for 3 years, and they don't know that she's an approved VA provider???? Needless to say, I fought that, and they have to administer my venom shots. I actually have to file a NOD to get them to pay for my treatment at the military hospital!
  13. Hopefully, we can get them to CUE, for using the combined rating schedule, for ratings over 100%, so our comrades will get their rightful entitlement!
  14. OMG, they actually stated it!!! You have them! There is nothing in either of those laws/regulations stating "combined"!!!!! They are making an "assumption", interpreting the law how they want to, and legally, they can NOT. Now, the race is on...... Will their own Counsel pick it up, or will they wait until it goes before the CAVC? I would suspect that if there is any way they can get out of it going to CAVC, ie., giving you an increase in one of your other disabilities, they will, to prevent CAVC ruling on it. Yes, how many of our comrades have been ripped off of what they are rightfully entitled to?!
  15. Mine is still broken!! Darn, just when they were going to post that all my claims were granted!
  16. "Internal Server Error The server encountered an internal error or misconfiguration and was unable to complete your request. Please contact the server administrator, webmaster@osd.pentagon.mil and inform them of the time the error occurred, and anything you might have done that may have caused the error. More information about this error may be available in the server error log." Does this mean I broke it this time????
  17. "The veteran had additional disabilities totaling 60 percent disabling." I would love to see that case. Interesting that they didn't state, "the veteran had additional disabilities with a combined evaluation rating totaling 60 percent disabling", or "the veteran had additional disabilities totaling 60 percent disabling, in accordance with the combined rating table 38 USC 4.25", as the word "totaling" means sum up, as adding. "In October 2006, an RVSR increased a veteran's evaluation to 100 percent. The veteran had additional disabilities totaling 60 percent disabling. However, the RVSR did not grant statutory housebound benefits (special monthly compensation) in accordance with established regulations. Regulations entitle veterans with a 100 percent disability and additional disabilities rated at 60 percent or higher to receive special monthly compensation. Because VARO staff did not grant the special monthly compensation, the veteran was underpaid $20,800. The VSC manager agreed stating the prior evaluation was clearly erroneous and took action to grant the benefits." This was just from the sampling the OIG took, not every 100% case with additional disabilities! BTW, FRIGGIN AWESOME find Steve&Pat!!!!!!
  18. SheilaLundlee, look at our other threads concerning 100% plus 60% added....... we have plenty of ammunition for your CUE. Philip Rogers already had his case before the BVA, and now will hopefully be following through with the CAVC. Until someone gets this before the CAVC, the VA is going to continue to ignore the letter of the law/regulation, just like they have with so many other cases... Bradley v Peake is just one example where the VA, BVA, arbitrarily interpreted the law (though there was NO law/regulation to that effect) to THEIR advantage. File a NOD citing the CUE.
  19. PR.....looks like the fight is on!!! Did they state what law/regulation they used in the denial for the 100% plus 60%? NOW, it becomes a matter of what the law says, and giving good argument concerning the "intent of Congress".... this is EXCITING!! With the wording of the laws/regulations, concerning basic compensation rates, SMC rates, sure looks like you will be setting precedent!!!! They HAVE to follow the law/regulation, and they have not. Now, we have to hope that the CAVC finds this case as "interesting", and pulls it up on docket sooner.
  20. File for an increase in rating for the lumbar, file a claim for the cervical, and other conditions!
  21. I believe the VA use to figure, if they held things off long enough, the Vet would die and that would be that.... they relied on the grieving spouse to just be happy with any benefits he/she received....burial, headstone..... Well, they didn't figure on the grieving spouse taking up the fight, not just for their own benefits, but for the benefits due, in memory of their Veteran! Unfortunately, they may now figure, if they drag it out long enough, the Veteran AND dependents will all die off! It saddens me, knowing, that so many of our comrades died, never receiving what they were rightfully entitled to.
  22. I've not heard any word concerning troops we have stationed in Japan! I'm getting the claim check dt's... sure hope they get the stie up and running soon!
  23. Something is very strange, as I have not been able to connect to any of the sites.... I can get to va.gov, but no further in respect to claims, or even the myhealth site. The ebenefits site has been down since around midnight. At the va.gov site, you can go to insurance, go to sign up for 10-10EZ, but not to any of the sites in reference to claims...... very strange.
  24. PR, just in case, concerning the 100% plus 60%, I'm making some records for my children AND Grandchildren... knowing how long the system works, all of us fighting for the 100% plus 60% may be LONG gone, if it goes through the whole system, RO-BVA-CAVC!
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