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asknod last won the day on June 23 2020

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About asknod

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    E-9 Master Chief Petty Officer
  • Birthday 04/01/1951

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  • Military Rank
    Sgt. E-4
  • Location
    Gig Harbor, Washington
  • Interests
    VA law. Admitted to the CAVC Bar

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  • Branch of Service
    USAF/ Air America
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    VA Nonattorney practitioner #39029 POA Code E1P; Admitted to CAVC; Member NOVA; CAVC Bar Association

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  1. SMC L, which is described in §3.350(b), lists four "conditions" which merit an award at that SMC level. You need only qualify with one condition. Loss of use of the upper or lower (bilateral) extremities or one upper and one lower extremity. Total blindness @ 5/200 or less Permanently bedridden Need for the Aid and Attendance of another Once you qualify for SMC L, you have reached the "entry level" for additional higher-level SMCs above those in SMC K,Q or S. The SMC L conditions are often called the Breniser conditions after a famous case. You must have independen
  2. https://www.law.cornell.edu/uscode/text/38/1159 found it and came back to apologize/ present USC cite. Thanks for your confirmation PACmanx . I did believe It was protected but searched half the day for a CFR that says it. It's only incorporated in §1159 unless one feels §3.105 "covers" it. Unfortunately, it only protects the actual service connection, not a particular rating percentage. They can still reduce your rating after 10 years so it isn't any guarantee you'll preserve a rating like §§3.344; 3.951 insurance. I'm seeing more and more attempted reductions which are waaaay past 5 years b
  3. The HLR reviewer is mistaken. The only showing of a need for a 100% rating used to be SMC S... §3.350(i). (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, That requirement is a
  4. Not too be picky or rude but I've reviewed 38 USC §110; §§ 3.10;3.344; 3.951. Can someone cite case law, precedence, statute and/or regulation to support this ten-year rule granting immunity to service connection? I am unable to find it in statute or regulation. The only way to eliminate service connection for a disease or injury would be for VA to show you obtained via fraud. §3.105 governs this eventuality. Nowhere in the four corners of §3.105 can there be found a ten-year protection against removal of SC under any and all clear and unmistakable errors. §3.344(c) protects a ra
  5. I'm seeing or hearing this almost every week. With the corona virus in full swing, it was virtually impossible to meet with a VSO service rep to file a claim. Numerous VA telecommuting raters with nothing better to do at home, have been ordered to access the VBMS and began looking for claims for increase to CUE on old, out-of-date criteria. They are flooding the Vetsphere with these reductions. Everyone, even VA personnel in VBA, want to appear productive. Bingo. What's left to do? SOCs, SSOCs, dependency claims and reduction proposals. Now, the regulations concerning this are critical
  6. NOD, 


    Ebenefits just updated my benefits status with these Different SMC’s?


    Board of Appeals was completed by a judge on a (May 14,2019)  


    Judge  Granted :


    1). Compensation Issue

    2). Compensation Issue

    3). Compensation Issue

    4). Compensation Issue

    5). Migraines 


    Why 2 L’s?  Or just typo by ebenefits?







    1. Show previous comments  1 more
    2. taylor88be8


      Thanks GBArmy!   I’ve waited a long time for sure! 

    3. broncovet


      You are gonna have to wait for the envelope, guessing on ebenefits is rarely productive. 

    4. asknod


      SMC is recorded differently than any other benefits. What you have been awarded is SMC L 1/2. That's the SMC P you see. P is a catchall for a bunch of things and each is described in the regulation but they could never list every possible combination of disabilities in P which will cover all the possibilities.

      They have given you SMC at the S rate in the past but you have qualified for it again at some point-hence the S-1/ S-2 designations. They don't pay it to you twice. They have awarded you SMC at the L rate for being so helpless as to be in need of  A&A (L-1). In addition, you have a rating that is over 50% that is separate and distinct from whatever you got the L for. This "kicks" you up a half-step under §3.350(f)(3). VA classifies this as SMC L 1/2 + K or SMC P. If you had a separated 100% rating unrelated to the A&A rating, they would bump you up a full step to SMC M under §3.350(f)(4). 

      The SMC L-1 is for another qualification for A&A (possibly) but it would be pyramiding to pay you for it. Nevertheless, they still list it. As the other folks said, wait for the magic paper- but it will say SMC P (L 1/2 +K).

      Be safe. 

  7. I always trust the Veteran to tell the truth. Conversely, I always expect the VA to hamburger the discussion. TDIU is what we call an extraschedular rating and essentially equal to a 100% schedular rating. You can loose TDIU if you a) get better and they reduce your rating; b) start working again while on TDIU; or c) obtained the benefit fraudulently. Permanent and total (P&T) is an acknowledgement that you are just that. You're toast and your condition is never going to improve. Thus TDIU with P&T awarded is a dynamic condition at best versus a 100% schedular rating with P&T
  8. Reading comprehension is often the key to understanding. Sometimes it's right in front of your face. What I did was read the whole thread, sir. Mr. Kevin4993's original beginning post dated May 13, 2020 stated: <<<<<So I had a review for my mental issues this past week. I was rated at 70% prior to this past week, and with other combined service-connected issues I was rated 90% with TDIU too 100% This morning I logged onto e-bennefits to see if any changes was made. I looked at the disabilities listed and sure enough they have dropped my mental down to 50%, was
  9. Kevin4993's post w/ his RD is confusing. If he had TDIU before he got that decision dated 5/08/202, then look at the finding of fact. It says TDIU is established as of 5/08/2020/ This is the "reset" I've seen a lot of. They up one rating, drop another and call it good. If they drop it once, they'll be back. I see a lot of VA combining TBI w/ PTSD ratings-again just a simple readjustment but I had a guy with 70% PTSD and 70% TBI lose the TBI and VA say "Well, the symptoms overlap and we can't figure which is which so poof! Bye bye TBI @ 70% but not to worry. It won't change your paycheck." Ah.
  10. During this Corona madness, we are seeing a lot of reductions in ratings. Here's the gig. If they send you a reduction notice, you have 30 days to stop the action and request a hearing. If you do, they cannot adjudicate the reduction without doing a hearing. If you fail to respond within the 30 days, they will effect the reduction within six months. However, if you fight the reduction after the 30 day point, you get a total of 60 days to request the hearing. If you do not, the reduction stands and you have to file anew to get an increase back to where you were. I have a combat medic with
  11. Mitchell v. McDonald, 27 Vet App. 431,440 (2015) (Cases “must be decided on the law as we find it, not on the law as we would devise it”) And no, Loyal. The OGC Precedent is not on point. <<<ADDRESS A SPECIFIC ALLEGATION>>> refers to belatedly raising CUE in an adjudication already underway where CUE was never alleged below. Here's a piece of judicial wisdom given to me by one of the acknowledged masters of VA litigation: A Motion to Revise will always entail CUE Conversely, a CUE will not always entail the filing of a Motion to Revise. I guess
  12. An open letter to the readership of Hadit.com: I always prefer to respectfully disagree rather than attack. Semantics are ambiguous at best. I find it odd that BroncoVet has searched "ratings error correction" and cannot find it. Perhaps VA raters think they are above error. I included the exact quote from the Rosinski v. Shulkin decision in the post I put up to dispel any ambiguity on the term. You can read that decision here: http://www.uscourts.cavc.gov/documents/RosinskiDJ_17-1117.pdf Sadly, some of us disagree purely for the reason that they consider themselves cor
  13. You answer your own contention at the beginning of your thread with the M 21 cite: <<< M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions 1. Finality of Decisions - this discusses binding and finally adjudicated claims A finally decided claim is one that has been final for over a year-i.e. you have one year from a decision to appeal it by filing the proper form depending on it being in Legacy or the new AMA. Once a year has passed, it is unappealable and can only be attacked via the presentation of new service department records never be
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