Philip Rogers

Just my thoughts but . . . . I'd only supply them with info that is probative to your claim. The VA will pickup on any reason to deny!!! Remember they accepted you as A-ok, when they took you! You need not provide them w/any evidence that is not favorable to you. jmo pr

Thanks, Berta!! I wasn't able to hear it live but was able to hear it about 0100 hrs this morning. I'll be contacting them later today. pr

tbird - I'm a-okay now - all is good!! Whewwwwwwwwwwwwww!!! Thanks!!! And a special thanks to Carla for me!!! pr

Thanks, kiddo!!! It'll be headed to the court and we should have an answer in just 4-5 yrs. pr

I would ask "can (or does) the VA use the combined ratings table when considering an SMC "s" award (ie: 100+60), for a claimant who is either 100% schedular or TDIU for a single disability??" And if so, doesn't this wrongfully penalize the claimant by considering them a "whole person" again, rather than a person who has zero residual capability left, from their 100% or TDIU disability?? pr

evandc - as it stands now, the VA "usually" uses the combined ratings table when adding up the additional 60%. pr

wings - That is what was sent 1.5yrs ago and is what they just denied. I'm going to talk w/Bergmann & Moore, this wk, I hope, and maybe some others. I'm definitely going to the court, if only to address the 100+60 combined ratings table issue. Thanks!!! pr

I thought I did and yes, it is confusing! pr

Carla, yes, they did but they didn't "add" up to 60% until July, 2010 and they never sent me an award notice on 3 of them, when they awarded them. pr

Kody.usaf states "I am in the USAF." I suggest he contact a nearby Vet Center, for counseling and help. I would also check w/the local VAMC and see what care he can get there. As for the Article 15, I hope you fought it. If not, I'd see if there's anyway to appeal it now. Sounds to me like it wasn't willful but they may have convinced you to accept it. jmo pr

jvretiredvet - Okay but thanks, anyway. pr

Having those SC disabilities over 5 yrs w/no improvement, being 55yo or older or the SC disabilities being static are reasons for P&T. Five yrs w/no improvement makes them static. pr

Why does it say peacetime incurred??? The VN era (police action) ended officially in May 7, 1975 and as such you are a wartime veteran, even tho you may not have served in VN. pr

Thanks but if I recall correctly WAC-vet75 gave me most of my ammo. Actually, I truly don't remember, as I submitted it about 18 months ago but I don't think I could have done something that good by myself! ;-) I do think it is a compelling agrument. Thanks again! pr

My BVA decision link: http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp99/files3/9926102.txt pr

Thanks, Teac!! Of course, I tend to be a little biased about my claim but when you see how they word the denial, it's hard not to be. I do agree I'm not bedridden, nor blind. I can brush my teeth, wipe parts of my body that need that, for the most part dress myself, however I don't keep myself as clean as I used to, nor do I change my clothes as frequently as I probably should. I have hearing aids, that I rarely use, as they are difficult for me to install, when I do remember them. My medication schedule is frequently forgotten w/o me being reminded. I never "play" on the computer. When I'm on the computer, it's either here, at Hadit, or researching for another vet, or just responding to emails. Their argument just doesn't hold any water. Thanks for your opinion(s)!!! pr

Again, thank you!! Just think how many claims should be re-adjudicated, just based on this case! pr

Thanks again, Wings!!! You found the case I'd been looking for! pr

"38 U.S.C. § 1114(s) does not state disability(ies) “following the combined rating schedule“. The combined rating schedule, according to 38 CFR Book C, Schedule for Rating Disabilities, 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. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in table I opposite 60 percent and under 30 percent.” Once a Veteran reaches ‘0%’ efficiency, it is not possible to rate disabilities in regard to a Veteran’s “efficiency”, otherwise a negative efficiency would be created. 38 CFR Book C, Schedule for Rating Disabilities, 4.25 does not afford negative efficiencies, nor does it allow for disability ratings over 99% which would be rounded to 100%. 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. Note that the 100% rating states “under regular combined evaluation, but is NOT stated for the 60% rating. M21 clearly states INDEPENDENTLY ratable at 60 percent or more, further it notes **Cite disability(ies) establishing entitlement., yet the 100% rating directly states “under regular combined evaluation”. Independently rated, does not imply that the rating must be “independent” of the disability that created the 100% rating, as 38 U.S.C 3.350 (i) directly states, “separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.” Thus there are 3 requirements: 1) independently rated 60% 2) separate and distinct from the 100% sc disability 3) involving different anatomical segments or bodily systems. Congress knew how to express itself differently, had it intended to permit results to the contrary. Thus, if a Veteran is rated at 100% for MS, receives an additional rating of 60% for dysfunction of the bladder, due to MS, the Veteran meets the first requirement but would not be meet the second requirement under 38 U.S,C 3.350(i) as the 60% rating was not separate and distinct from the 100%. If a Veteran was 100% due to MS, received a rating of 40% for a heart condition, 20% for bladder dysfunction, due to MS, 10% for injury to knee, and 10% for scars, the Veteran would be entitled to SMC(s), as 60% of the disabilities are not associated with the effects of MS, and meet all three requirements as set forth in 38 U.S.C 3.350(i). I further contend, that if the SMC (s) 100% plus 60% required the additional 60% to be a combined evaluation, as oppose to an INDEPENDENT rating of disability (ies) wording that is used in M21-1. Change 423 Appendix A: “CODE 18A. GRANT-When total disability ratings are assigned in service-connected disability cases under the authority of paragraph 16, of the rating schedule, add, immediately preceding the service-connected combined evaluation, the code phrase.” would also be used in the before mentioned M21-1 (change 37) coding. It is not. Congress was very careful in it‘s language in respect to SMC evaluations. Since a Veteran can not receive compensation in excess of 100%, Congress created SMCs. No where does it state that ratings in excess of 100% are to be combined using the combined rating schedule. Had Congress wanted all ratings in excess of 100% to be combined using the combined rating schedule, they would have so stated. Not only must we infer that Congress knew how to express itself differently, had it intended to permit the contrary result, it would have made such previsions in 38 U.S.C 4.25. Since combined rating is determined by remaining “efficiency”…ie. According to combined rating table 99% disability leaves an “efficiency” of 1%, any additional disability ratings would have to be deducted by percentage from that 1%, thus a person with an “efficiency” of 1% who is further rated at 90% + 90% would have an “efficiency” of 0.81%. Theoretically, no one would ever be entitled to SMC 100% plus 60% . Therefore I have a well grounded claim for SMC (s)" Please feel free to comment either favorably or unfavorably. (I really don't bite, no matter what you may have heard or feel!) pr

Teac - That's a standard definition for "substantial" but I cannot find a "legal" definition. So would substantial be more that 50% of the time? 70%? 80%? 90%? Let's say based on 90% of the time, that would be 21.6 hrs of each day. So, a HB claimant could spend 2.4 hrs away from their home daily, or 15+ hrs weekly, and still be substantially HB. Just because someone is able to attend occasional medical appointments, weekly PTSD group sessions, shop once weekly and maybe eat out every 2 wks does not make them "not housebound." How about working?? Part of the HB issue is the ability to leave the house/home and earn a living. That would need to be 40 hrs a wk. Just by definition a 100% schedular evaluation includes the inability to work or adjust to a worklike setting. Just for curiosity sake, have you ever worked "for" the VA, not that it matters?? Just curious, as you sound like someone who has. No offense intended! Thanks, pr

Wings - thanks for noting that "substantially" info. Technically, to my knowledge, there is no legal definition for the word substantially, that is that I can find. I'm going to contact Bergmann & Moore, or whatever their name is, this week. Time to leave it for the lawyers. At worst I lose and if I win I get between $1 and $60k+. I've a better chance of winning w/the VA than I do any lottery, which I play about twice a yr. pr

Just to clarify some things. This claim has been under constant prosecution since 1999. I was originally awarded 30% for PTSD, in 1989. I appealed, eventually getting 50%, then 70%, then TDIU in 1997, and then in 1999. I finally won my appeal retro to 1989, getting 100% schedular for PTSD, alone. At that time I was denied HB & A&A (as inferred issues) At about 11 months after the decision, I applied for HB, figuring I was essentially HB because I rarely left my house, due to the anxiety it caused. I've never applied for "agoraphobia," however do believe I have it. If the claim is won, it will/should go retro to 1989, which "I believe" is part of the reason they continue to deny. In 2010 they added the additional disabilities, which total 60%, using simple addition. We should not discuss simple addition vs the combined ratings table in my case, as the court needs to decide that issue and I am headed there. Much of their reasons and bases are false. I've had a pin in my knee since 1971 (after a suicide attempt - m/c vs auto) and haven't had a "normal gait" since 1971 and about 12 yrs ago was told I need a knee replacement. My gait these days is akin to Walter Brennan, in the TV show he had yrs ago. As for walking I doubt I could do 200 yds, w/o much pain and resting every 30-40 yds. I don't fly!!! I have a severe fear of crashing, so I don't. Probably relates to my having to jump outta my first plane rides (yup, Airborne, all the way) Duh!!!! The important part to me, is that I could "lie" and win but I am always truthful, to a fault. So their calling my credibiliy at issue really irritates me, especially when they accept everything else, "if it's favorable to them." We'll see what happens. pr I also need to add that I was found TDIU in 1997 and again in 1998, by a DRO, but my 1999 retro win, for 100%, superseded those TDIU awards and made them a non-decision or moot. There are numerous other errors they make but I'm not going to take the time to spell them out here. Please note that the BVA judge specifies I have been "unemployed" versus "unemployable," even tho there are many references to me being unemployable by my counselors and caretakers. In fact, enough that the original BVA judge awarded me 100%, in 1999, due to those statements. I was found 100%, for PTSD, based on the 38 CFR 4.16©, that was in effect prior and changed on 10/8/96, as when a rule changes, during the appeal process, the claim is adjucated based on the rule that is most favorable to the claimant.

An "educated guess" would be 30% or 50%. But the VA usually lowballs. jmo pr

Teac - thank you for your input and don't take it personally but I disagree, obviously, otherwise I wouldn't be pursuing it. I meet A&A just on the protection of oneself aspect. Additionally I need someone to remind me to take my meds. As for the HB issue, I have been unable to leave my house "to work," meaning 5 days a week, eight hrs a day, 40 hrs a week, for over 23 yrs. Just because someone eats out once in a while, attends medical appointments and picks up groceries, doesn't mean they aren't HB. The key word is "substantially" housebound which doesn't mean all the time but means frequently or for the most part. I did note that we were not "credible witnesses," however, they accepted that I "allegedly stated that I was flying to NC to buy homes." First off, I don't fly, period. I had purchased a home, in NC, and was going there for the winter. Someone else drove me here. There are too many inconsistencies, in their reasoning. Anyway, at this point it's about the 100+60. Thanks again for your input. pr

world_wide - yes, they are usually very accurate. Your award letter should follow very shortly and you should watch your bank account, for the deposit, as it many times arrives before the official VA award letter. The VSO's are notified first so they can pretend they won it for you and get you to join their organization. Don't waste your money(jmo). pr