rakkwarrior

John999 You don't have to be convinced with what I stated, many people aren't. I went into work today for about 6 hours, not on OT to write legal briefs for veterans whose cases will be going to the Board of Veterans' Appeals (BVA), three of the five listened to us and have an excellent chance of seeing their cases overturned, the others thought they knew what they are doing and were just a bunch of "lazy dolts who don't do anything but push paper for them". Their briefs were written by us in detail regardless of their opinions, we set our personal opinions aside in the best interest of those we served with, those who came before us, and those who continue to serve. My discussions here are not for inflammatory effect, rather I think if I can educate those interested in helping themselves and others then maybe I can be of benefit to those outside of my office, and outside of those I train in VA Law and Regulations as professional attorneys-in-fact. Again, you don't have to be convinced, but I thought I would bring these legal provisions to light.

Regarding Pension and schedular requirements under 4.16(a): §4.17 Total disability ratings for pension based on unemployability and age of the individual. All veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. For the purpose of pension, the permanence of the percentage requirements of §4.16 is a requisite. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. While pension and Bradley v. Peake (2008) have no relation, the percentage requirements needed to obtain a total disability rating for pension purposes is equally requisite. All issues under either program are to be computed under §4.25. In regard to protected Ratings, under Title 38 C.F.R. §3.951 Preservation of disability ratings. (b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. (Authority: 38 U.S.C. 110) This protection applies to conditions which have been rated as an schedular evaluation of disability, not additional entitlements such as dependency, TDIU, or other provisions providing an evaluation in excess of the schedular evaluation. We have vigorously prosecuted this issue in the past, and protection extends only to schedular evaluations. I don't agree with this interpretation, but unless the Court opines otherwise, it stands. Mind you it's easier to obtain a continued evaluation than to take the reduction and fight it to CAVC for a precedent setting opinion. Many of our arguments on the issue stem from the veteran's failure to return a VA form 21-4140 which is routinely required to maintain a TDIU rating, even if rated as P&T for 20 years or more. The Secretary's authority to require periodic findings of continued eligibility stems from Title 38 C.F.R. 3.652(a) "Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist." This legal requirement is effected and enforced under Title 38 C.F.R. §3.501(f) "Employment questionnaire, failure to return. Reduce award to the amount payable for the schedular evaluation shown in the current rating as of the day following the date of last payment."

Berta posted it, the first paragraph spells it out quite well....;-) Posted Today, 10:38 AM I found this case while answering a post by Chu Lai. "Additionally, while the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran's remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that "combined ratings to satisfy the second requirement but not the first"). "

Chu Lai has it exactly correct.

A very thorough and well thought out posting, I am impressed and equally encouraged at the tenacity in which members of this forum have contributed. Just as a matter of clarification however, I wanted to note the following: After receiving a 100 percent evaluation, or TDIU for one other condition, with additional disabilities independently ratable at 60 percent via common body system, etiology, body system, or otherwise six independent 10 percent disabilities, I am providing an example where the rating code sheet states: DC 9411 PTSD 70 percent from 12/1/2009 DC 5237 Lumbar Spine 10 percent from 12/1/2009 DC 5237 Cervical spine 10 percent from 12/1/2009 DC 8517-peripheral nerve disease, secondary cervical spine (left upper) 10 percent from 12/1/2009 DC 8517-peripheral nerve disease, secondary cervical spine (right upper) 10 percent from 12/1/2009 DC 8520-peripheral nerve disease, secondary lumbar spine (left lower) 10 percent from 12/1/2009 DC 8520-peripheral nerve disease, secondary lumbar spine (right lower) 10 percent from 12/1/2009 Overall combined evaluation would be 90 percent with a bilateral factor of 3.9 TDIU granted from 12/1/2009 in the basis of PTSD The bilateral factor and combined evaluation for the other (cervical/lumbar spine and secondary conditions) disabilities independently rated aside from the PTSD would be 50 percent with a bilateral factor of 3.4. Whether or not bilateral factors are or are not present, 6 ten individual percent evaluations do not add to a finding for SMC "S" under Bradley v. Peake (2008). However, an increase to 20 percent for any of the conditions, to include the cervical or lumbar spine would result in an overall combined rating of 60 percent with a bilateral factor of 3.4, this would indeed require a finding of SMC "S", and to not do so would be a CUE. In the first instance it would be a CUE because it was promulgated after the Court's precedent opinion was rendered, and secondarily because of the misapplication of the laws in existence at the time of this decision. I cited elsewhere, that 4.25 is not optional in combining the degree of disability (in any instance except where the disability is considered "total", i.e. 4.29, 4.30, and I think this matter of application is well established. All of the people here remind me of my NSO's who work for DAV, always looking for and analyzing the laws and regulations for loopholes and for ways to ensure their clients get every benefit they would otherwise have been entitled to. Just think if you did this not only for your own cases but thousands of cases a year, and did it because you wanted to, in spite of your own disabilities. Recently I had to tell a good friend that the claim he was doing for a family member was not in fact a CUE. He was crushed, and initially angry with me for being honest. I was a very hard thing for me to break to such a good friend, but integrity should ascend above allowing someone to become so emotionally engaged in something they are applying incorrectly so as to cause additional heart break, and years of frustration. I believe there are issues which can be argued before the Court in regard to standing law and regulation, and the Court was established to set aside those decisions which are "arbitrary, capricious, and an abuse of discretion" and not in accordance with the law or Congress' intent. Often times when judicial analysis is conducted they refer to the history of the regulation in question, which in most cases begins with the 1933 rating schedule for disabilities, amendments thereafter, and regulatory revisions or changes. I know some here may view my postings as being somehow critical, or otherwise discouraging. I attempt to educate my hundreds of clients a month the same way, it can be exhausting, and sometimes I wonder if I should allow those people who don't want to listen the opportunity to lie in the bed they have made for themselves. I have my own issues, and we all seem to forget that event those who do this professionally are only putting on a veneer which obscures the chronic pain, their own combat trauma, and/or other issues which affect them. I am intimately aware of all the crap that veterans must endure for a fair shake by VA, and our individual circumstances. I definitely don't contribute to this or other Boards because I am bored and have nothing better to do. I hope this helps clarify. Thanks for reading.

See here: for a more thorough discussion:

Well yes they are combined using §4.25 in conjunction with § 4.16(a)(1)(2) and (3), and all conditions which are secondary in nature are considered as one disability (38 C.F.R. §3.310). No where in the regulation does it state to set aside §4.25 in combining disabilities except for specific areas of Part 4. I will explain in plain and conscise language, I am not writing a legal argument here, but merely to clarify, 38 U.S.C.§ 1114. Describes rates of wartime disability compensation, and accordingly states, "has additional service-connected disability or disabilities independently ratable at 60 percent or more, or," citing paragraph (s). Title 38 C.F.R. 3.350(h)(3)(i) effectuates Congress' intent under the following provisions, (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." Title 38 C.F.R. 4.25 plainly states, All disabilities are...to be combined as described in paragraph (a) of this section. The conversion to the nearest degree divisible by 10 will be done only once per rating decision, will follow the combining of all disabilities, and will be the last procedure in determining the combined degree of disability. (Authority: 38 U.S.C. 1155) As you are service connected independently for PTSD at the 100% evaluation, and you secondary conditions are considered for rating purposes, one disability, referring to, "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." citing 38 C.F.R §3.310. They would then be combined for their independent evaluation under § 4.25, which if combined to 60 percent independently, would warrant SMC "S". In an early Veterans' Court precedent opinion, the Court held, "Regional Office of the Department of Veterans Affairs must follow guidelines listed in the Code of Federal Regulations; it has a duty to ensure that all of the relevant sections are fairly and impartially applied to each veteran's claim in order to ensure that the veteran's claim receives full and evenhanded consideration." Sawyer v. Derwinski, 1 Vet.App. 130 (1991). In Stezel v. Mansfield Fed. Cir. 2007, the Court held, "The determination of overall disability rating is not a matter of simply adding the individual ratings for each component disability. The overall rating is determined according to the Combined Ratings Table codified at 38 C.F.R. §4.25." So in any instance, there is no CUE, A request for revision based on CUE is not a claim for benefits in its own right; rather, it is a collateral attack on an otherwise final benefits decision on the basis of a specific allegation of CUE. See Livesay v. Principi, 15 Vet.App. 178-79 (2001) (en banc). To succeed, a claimant must show (1) that the decision was undebatably flawed because either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied and (2) that had the error not been made the outcome would have been manifestly different. See Livesay 15 Vet.App. 165, 173-74 (2001) (en banc). Bales v. Nicholson 22 Vet.App 72 (Table ) (2007). So unfortunately I think you are wrong, and I believe in this instance, the Court has ruled on issues parallel in nature insomuch as the application of §4.25 is plainly stated. I truly hope this analysis helped clear the air.

The PTSD Rating cites dates which discuss from X date to X date. There is no CUE here, and while an S award may be forthcoming based on filing claims for.increase in the diabetes related condition, you would have to combine these independently under 4.25 to combine to 60 to get the S. Berta is exactly correct. SMC S awards are pretty straight forward based on disabilities independently ratable in excess of 60 percent. In your case, SMC S could also be awarded on a factual basis consistent with 38 CFR 3.352. "incapacity, physical or mental, which requires care for assistance on a regular basis to protect the claimant from dangers or hazards incident to his or her daily environment." Which should be the basis for your appeal. Mind you, this is a medical determination which will require support from your treating doctors.

See my CUE template on failure to assign SMC "S" awards.

Also see 38 CFR 3.351/3.352 for factual determinations. SMC "S" can also be combined with a TDIU rating, see Bradley v. Peake (2008). SMC "S" is discussed, as cited by Veldrina under 3.350 and U.S.C. 1114(s).

SMC "S" is considered under 4.16(a)(1)(2), and (3). See also 3.310. These regulations govern common etioloy and body system, they also should consider paired extremities. Secondary service connection is noted as the second condition becoming part of the original condition.

Yeppers, he's a good guy. ;-) Very knowledgeable.

Zeldrina...I really like your style, we'd get along just fine...your analytic ability and rationale are on POINT! I wouldn't argue with a 70% one bit, given the past medical history is good. I'm always a proponent of 4.1, 4.2, and 4.7. Do you know Howie?

Some Raters do the right thing and see the case for what it is. Your in good shape, ask your VSO if they had anything to do with the Ch.35 being assigned. Sounds like they were trying to reassure you. Be careful though, DRAFT decisions can always be mandated to be changed. Hope the person isn't a RVSR trainee. Most VSO's would know better than to rely on a trainee's DRAFT and advise a client.

Sledge what are you on appeal for? Looks like you have TDIU, are you looking for an "S" award? Or is it retro pay? Let me guess...they didn't award you when you became schedularly entitled at 70% and weren't working many years ago, or you made less than $10,000 a year and they said you were gainfully employed. You feel as though they should ge back, but they said it was the date you filed the formal application...maybe? If so, I got something for that. Hopefully, not for something that they can reduce or take away. You probably know better than to do that.

Nope I was attending, had a few mins to squeeze one in at a Yellow Ribbon event as a guest speak before about 250 troops who just got back home from Iraq. It was a great time, a lot of outstanding people out there both soldiers and the cadre. rakkwarrior, on 27 February 2011 - 11:37 PM, said: Sorry for the Z...on my cell right now. Please, tell me you are not also DRIVING a THREE THOUSAND POUND AUTOMOBILE, while texting? You are absolute correct regarding the Fully Developed Claim (FDC) process, it requires you to have all of your ducks in a row, locked and loaded prior to firing off the claim. Leaves little room for the VA to wiggle if your doctor will render the proper opinion, it's also great for claims for increases (w/ med evidence according to rating criteria), presumptives (38 C.F.R. 3.307, 3.309(e), and claims regarding combat (CIB, CAR, PH or awards with a "V" device) such as PTSD, and TBI. Although, the latter can become complex later in the process. However, they'll spit you out if you submit one additional piece of documentation in the majority of cases.

Glad you got that, my phone is so sloppy with the voice recognition stuff. Guess I should just type it. It's just easier on a laptop.

Phil the court is saying just the opposite, rather than to allow a position to cop out, with what relying on opinion that states they cannot resolve the question "without resolving to mere speculation" requires a more a substantive opinion giving a rationale as to why. On remand you should obtain hey very strong in substansive medical opinion stating why you're unemployable, to buttress your position. Doing so well in sure that even if the RO or AMC does blindly and typically upholds the denial, the veterans law judge will have ample room to grant.

Sorry for the Z...on my cell right now.

Zeldrina, VA gets hit on production and percentages, management is rated in part on that basis. Giving notice to a coach that a case is nearing the 1YR mark is a tool, as is having it worked on OT. Is is your RO ambivalent to that type of suggestion?

Your case sounds ripe for a Congressional Inquiry. That is about the only way you's be successful in getting it expedited. Give them a copy of the BVA Decision.

"A suggestion of a mere speculation opinion isn't an opinion at all.This type of VA BS might not help a claim but might not hurt the claim." Thus the reason the VA can no longer merely cite, "cannot provide an opinion without resorting to mere speculation" without providing a rationale as to why "mere speculation" is the basis for the opinion. The Jones decision is crucial because as you said an adequate medical opinion, or series of medical opinions will lend incredible weight to a favorable decision. Keep in mind the Court's precedent in Nieves-Rodriguez v. Peake wherein the Court provided (citations not omitted), "Both VA medical examiners and private physicians offering medical opinions in veterans benefits cases are nothing more or less than expert witnesses. While the Federal Rules of Evidence are not binding in this Court, nor on the Board, the rules on expert witness testimony provide useful guidance that has been exhaustively vetted by both the Rules Advisory Committee and by the U.S. Congress. In U.S. district courts, expert testimony may be received from a suitably qualified expert under the following conditions: (1) The testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. See FED. R. EVID. 702. The Court agrees that these are important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence, and that this Court's review of the Board's evaluation of competing medical opinions will be enhanced by their application." Note the discussion of the Federal Rules of Evidence-702, The Court then opined, "In this inquiry, the claims file is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a decision on a claim. There are other means by which a private physician can become aware of critical medical facts, not the least of which is by treating the claimant for an extended period of time. See, e.g., Kowalski, 19 Vet.App. at 179 (holding that the Board may rely on a private medical opinion that is based on an accurate medical history offered by the veteran). Review of pertinent medical literature may also furnish information relevant to diagnostic and nexus issues." "The mere statement that one physician did or did not have access to a claims file is of little use in providing adequate reasons or bases for a decision where the Board fails to explain what information in the claims file was important and necessary for a competent and persuasive medical opinion, and why the absence of record review detracts from the probative value of the opinion of a physician." The relevant discussion here is that A REVIEW OF THE CLAIMS FILE does not automatically hold a VA examiner's opinion presumptively greater value than that of a private provider, given the provider is duly informed of the relevant facts necessary to support their ultimate conclusion. An excellent tool is to consider the independent medical opinion's values in accordance with the Federal Rules of evidence, while not the gold Standard in prosecuting cases under VA law, you will never be penalized for having a more thorough opinion conforming with the Rule, than an opinion which does not conform to said rule. In the end, even the newest VA adjudicator will have to consider the application of Nieves-Rodriguez, especially if this is brought to bear during the initial claims process. We at DAV do often provide such written argument so that it will not be overlooked when the claim is an issue of controversy, and the medical evidence is incontrovertible and fully justifies a grant for the issue as sought. Be careful however, when prosecuting claims as due to exposure such as Agent Orange where presumptive provision have been applied to some conditions, where other have been ruled out. See the CAVC's opinion in Povolick v. Shinseki (2009).

To become an NSO a veteran only needs to be an honorably discharged service-connected disabled veteran with at least 16 months eligibility under Voc Rehab, Ch. 31. We do a local interview, recommendation, and they are then asked to attend a panel interview in Washington D.C. with our National Service staff. If selected they will begin a 16 month OJT program. Other than the aforementioned, we do not require anything more than aptitude and behavioral testing/assessment to ensure they have the basic qualities we are looking for.

I spoke in another thread regarding precedent court decisions. Here is a link to the Veterans' Law Review. this will guide the reader into the implications of such precedent decisions and how they will affect the VBA in the coming years. Some of the Court cases I spoke of in my other thread, are found here. http://www.bva.va.gov/docs/VLR_VOL3/1-Allen-TheLawofVeteransBenefitsPages1-66.pdf Feel free to comment, this is an open discussion. I am not an "expert" in VA law, I am a student of the ever developing system which affects my comrades...brothers and sisters. I firmly believe no matter how much you, know, or how degreed you are, when you stop learning and think you "know it all" you have lost the war, no matter how many fights you have won henceforth.

Side note: PVA as a rule has excellent NSO;s who know how to prosecute SMC issues and Rating Criteria specific to those disorders which potentiate the loss of use. I would run your ideas by them, you can even take them my posting, they should be able to understand and explain quite well what is required. Remember NSO's/VSO's have access to your prior decisions at their finger tips and can analyze the issues quite efficiently.