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asknod last won the day on July 11

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About asknod

  • Birthday 04/01/1951

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    Sgt. E-4
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    Gig Harbor, Washington
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    VA Nonattorney practitioner #39029 POA Code E1P; Admitted to CAVC; Member NOVA, CAVC Bar Association

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    USAF/ Air America

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Community Answers

  1. In regards to IMOs for MDD or any other form of depression covered in §4.130, VA demands first right of denial at a MDD c&p for compensation purposes. In other words, if you've never filed for MDD and get your own IMO first to submit, VA will almost always deny automatically. After you are denied, and only after you are denied, you may seek an IMO from a private psychologist or psychiatrist and file it with the VA. VA demands an "in-person" interview-preferably a Zoom-type meeting rather than a telephone call. The psychologist must state as much too. Before Zoom, we used FACETIME. I get VA denials saying the psych. failed to use the DSM V or used the old DSM IV criteria. I have them deny based on the c&p exam not being conducted by the VA first when it was. I just move it to the BVA on appeal to accomplish this refusal to adjudicate the decision properly.
  2. Here's a good link to understand some of the changes to SMC most recently. https://department-of-veteran-affairs-warms.fandom.com/wiki/Section_H_-_Special_Monthly_Compensation_(SMC)_-_Updated_12/16/11 See also 68 FR 55467, Sept. 26, 2003; 74 FR 11483, Mar. 18, 2009; 83 FR 20736, May 8, 2018] I believe what the misunderstanding here revolves around was the creation of SMC at the "T" rate. SMC T is for exceptional TBI disabilities. Many Vets who got clobbered by an IED have extensive neurocognitive disabilities which, by themselves, would only result in a SMC of L. There would be no path via regulation or statute to allow them to advance the normal way to R1 or R2(if there is any way to advance normally). You do not need to obtain a SMC rating at the "O" rate to get T. Here's the regulation (§3.350(j): (j) Special aid and attendance benefit for residuals of traumatic brain injury (38 U.S.C. 1114(t)). The special monthly compensation provided by 38 U.S.C. 1114(t) is payable to a veteran who, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under 38 U.S.C. 1114(r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care. Determination of this need is subject to the criteria of § 3.352. (1) A veteran described in this paragraph (j) shall be entitled to the amount equal to the compensation authorized under 38 U.S.C. 1114(o) or the maximum rate authorized under 38 U.S.C. 1114(p) and, in addition to such compensation, a monthly allowance equal to the rate described in 38 U.S.C. 1114(r)(2) during periods he or she is not hospitalized at United States Government expense. (See § 3.552(b)(2) as to continuance following admission for hospitalization.) (2) An allowance authorized under 38 U.S.C. 1114(t) shall be paid in lieu of any allowance authorized by 38 U.S.C. 1114(r)(1). I do agree w/ Mr. CUE that SMC T should be awarded in extreme cases. Supervised in-home care in conjunction with the need for hospitalization in the absence of A&A is the gold standard to get to T. Well, in addition to a confirmed dx of mega-TBI. Of course public law is binding on VA. Public law is Congress' statutes-i.e. 38 USC Title 38. Why on earth wouldn't it be applicable to VA? VA serves at the behest of Congress even though it seems the reverse is the case in most instances. If you're still confused, review §4.124a and how they((VA) apply the criteria scale for degree of neurocognitive disability.
  3. <<<Alex is very good at SMC. Its obviously deliberatly complicated, Im not sure anyone completely understands SMC, and all of its nuances, except maybe CCK law, and maybe a few of the people at NVLSP who write the VBM. It obviously requires years, and reading thousands of BVA, CAVC, and Federal Circuit decisions to fully understand this mess. >>> Au contraire, ma cher. I do completely understand SMC, Loyal. It only took me 9 years to learn it backwards and forwards. There are probably 8 attorneys who are really good at this outside of me. Sadly, VA cannot plumb its depths no matter how hard they try. They utilize the SMC Ratings Calculator computer. Therein lies the problem. Garbage in-garbage out. I just returned from a mini-vacation last night and reread the final promulgation. VA screwed it up yet again. By moving the effective date for SMC L back from August 23, 2020 to February 12, 2020, they neglected to note he had 50% or greater ratings independently ratable until August 23, 2020 (§3.350(f)(3)) when the SMC M kicked in. That means the Veteran was entitled to SMC L 1/2 +K from Feb. 12 to August 23. It isn't much but every dollar counts when you're skating on bankruptcy ice. Remember, VA didn't concoct SMC- Congress did. VA just converted it into unintelligible regulations. I just contacted the CMA in Omaha this AM and told him to tell the Coach they need to sharpen their pencils and begin anew. Next? Why, R 1 of course. I just want to get the current problem repaired before I launch another torpedo. He agreed and sent it up the ladder.
  4. I fought VA all the way to the BVA for this A&A win beginning in summer 2018. When it was returned for rating in February 2020, Houston RO screwed up the SMC entitlement and effective date. It's taken me since 2/25/2020 just to fix this SMC rating. VA purposefully attempted to misconstrue what it was we filed for like a Three Stooges comedy routine. On Wednesday, I sent an email in VBMS to Denis the Menace McDonough, USB Tom Murphy, the Nebraska Director, every Tom, Dick and Jane DRO, Coach and rater who had even touched it and told them they didn't know how to do their job. I explained what is written in this CUE in one-syllable words so they could understand. They declared CUE Friday morning and then more in the PM. It was promulgated at 1659 Hrs last night before they turned out the lights in Lincoln. From February 2018 to August 27, 2021. Folks, that must be some kind of VA land speed record... On August 23, they denied based on he wasn't permanently bedridden. They cited all of §3.350(c) and said he didn't qualify for it. No mention of §3.350(f)(4). There's no business like CUE Business.... Redacted CUE on SMC M & EED.pdf Redact 8.23.21 RD denial.pdf
  5. Always remember, SMC is an ancillary entitlement based not on an actual claim but your medical/physical condition. If it is due and owing, VA is required to award it automatically. There is no "one year" to appeal a denial. Once you prove your entitlement to it, it's due and owing back to the day your medical records show it was due, never the day that your c&p doctor signed the magic 2680. Seems I end up appealing every one of my SMC wins to fix an error like §3.350(f)(3)(4). I doubt VA will ever understand SMC. It (SMC) doesn't follow ratings rules. Worse, VSOs look at you when you ask to file and dang near every one of them will say "What? Who told you that horse pucky? The highest you can get is 100% or TDIU. That's it. There's no more money to be had." When you say what about SMC? they hem and haw and say things like "Yeah, but you have to be almost dead or in a wheelchair before you can file for that."
  6. VA "intake specialists" subscribe to the theory of: "Has it been filed for yet or not?" So, if you have never filed for A&A, to them it's a new claim. Period. The fact that they were supposed to "infer" it as an ancillary claim by law is immaterial. To them, you have not filed for it yet. If you use the 995 supplemental path, they will do a look back for any prior filing for A&A and see nothing. At that point, due to a short between the ears, they will inform you that you have chosen the wrong form to file with and reject it until you send in the 526. I've played this game with them and even had a second letter identical to the first saying the form I used was incorrect and to review the AMA process on VAF 21-0998 to select the right one. At that point, I call up my CMA and ask her to fix it. As I pointed out, you can't ever go wrong by filing both forms and letting them play Phonics and sounding it out. Bon chance.
  7. If you could see your rating decision "Code sheet", it lists your ratings history, the Diagnostic Codes used and the history of each in increases with chronological dates. A combination of disabilities adding up to a 100% rating, even though it would probably add up to 270%, means you have a 100% combined rating rather than a true 100% schedular rating for one single disability. I see this TDIU conundrum surface lots of times now that they "part out" the decisions all over Hell's half acre (the National Work Queue). On the Code sheet it will appear as TDIU awarded xx/xx/xxxx followed by "moot due to combined ratings." I fooled around to see how high I could jack mine when I finally got my win after 20 years. I have two schedular 100%s, a 60, 40. 30, 10 and two 0%s. I'm half-tempted to add to my AO presumptives by filing for hypothyroidism just for poops and grins but it won't get me more dough so I won't. Yes, with the AMA now, it's important to use the correct form. 526s for stuff you've never asked for and the 995 if you've been previously denied. I file CUEs on both forms and send them both in simultaneously because as sure as the sun rises, they'll say the one I used is wrong. You have 50-50 of getting it right at best. Filing both blows their mind. They hyperspazz out for a week and finally delete the wrong one or play dumb. Folks here should realize the VA is in trauma right now. They aren't getting any guidance on the new AMA stuff and the decisions are all screwed up with both AMA and legacy terms and language. I just had a recent denial saying I hadn't submitted any new and material evidence. They even forgot to put any favorable findings of fact at the end which is a new requirement for all AMA stuff. It's the "Lost in Space" syndrome.
  8. First let's clear up your status, sir. You are TDIU permanent and total and being paid at the 100% rate for your compensation. Unless you have a rating of 100% for a single disability, your schedular rating will be less than 100%. That will not impair your ability to obtain SMC at the (l) rate for A&A. SMC is what is called an ancillary benefit and requires no filing... according to VA. Experience shows us otherwise. Please file a 21-526 EZ requesting entitlement to SMC under §3.350(b)(3). Have your girlfriend fill out a 4138 (and file) stating what you cannot do by yourself that requires the need for A&A. The VA will send you out for a c&p and the examiner will fill out the VAF 21-2680. Submitting your own is a waste of time. Use §3.352(a) as your guide as to which disabilities to list. By law, you only need one impairment of activities of everyday living to qualify ( Turco v. Brown, 9 Vet. App. 222, 224 (1996). Your authority for entitlement is vested in Akles v Derwinski (1991), Bradley v Peake (2008) and Buie v Shinseki (2010). SMC is due and payable from the date the medical records first show unequivocally that you needed A&A. Period. VA will attempt to grant based on the day of the c&p for the a&a. That is incorrect. You can file anytime. You are not limited by it being over a year since you were granted Chap. 35 DEA ((p&t). Best of luck.
  9. Vync and all Veterans beware- Please think twice when filing SF95/FTCA claims. If you are SC for any disability and receiving compensation, and they grant the FTCA with a monetary award, your VA compensation will cease until they recoup the money they paid you in the FTCA settlement. It falls in the §4.14 clause about no pyramiding, technically. Basically, you can only be remunerated once for your disability(ies) with govt. funds. I had this happen to a client before they sought my representation. They received a $100,000 FTCA settlement and poof- VA comp. ceased until the amount ($100,000) was recouped (about 3 years) whereupon the VA comp. began again.
  10. asknod

    SMC-L & L1/2

    File SAH form https://www.vba.va.gov/pubs/forms/vba-26-4555-are.pdf and a photocopy of the Rating decision awarding the grant and send in to the EIC in Janesville, WI
  11. I'm not sure why anyone would have a problem finding these. They are all readily accessible in the BVA decisions matrix. Double A&A: https://www.va.gov/vetapp18/files8/18126101.txt 8/14/2018 " " : https://www.va.gov/vetapp97/files1/9703147.txt 2/12/1997 " " : https://www.va.gov/vetapp04/files/0404466.txt 2/27/2004 " ": https://www.va.gov/vetapp15/files6/1552412.txt 12/23/2015 " ": https://www.va.gov/vetapp18/files8/18125531.txt 8/09/2018 " ": https://www.va.gov/vetapp18/files3/1814284.txt 3/14/2018 " ":https://www.va.gov/vetapp19/files3/19118790.txt 3/14/2019 " ": https://www.va.gov/vetapp19/files4/19125607.txt 4/04/2019 " ": https://www.va.gov/vetapp19/files11/a19002711.txt 11/02/2019 " ": https://www.va.gov/vetapp21/files2/a21003790.txt 2/18/2021 While the use of non-precedential cases are normally not accepted as bright-line rule, the inclusion of non-precedential cases may be cited for the probative value when the fact scenario is virtually identical. The Court “may take judicial notice of facts not subject to reasonable dispute,” Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) (citing Federal Rules of. Evidence 201(b)), Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The Court has suggested that factual findings from a prior final Board decision may be binding in the absence of new and contradictory information. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55-58 (2006); Wilson v. Shinseki, No. 09-0166, 2010 WL 3623570 (Table), p. 5, fn. 2 (Vet. App. Sept. 16, 2010). The BVA ceased use of the Purple Book recently and now subscribes to an "Operations Manual" which I've FOIA'd and await. Nevertheless, the principle of stare decisis was honored if all things were equal (as here) in a Board Appeal. Obviously, absent regulatory or statutory construction which explicitly forbids an award of two A&As for disparate disabilities, the law is, ipso facto, dispositive of its applicability. That these awards for double A&A SMC exist more than once is further proof the concept is legal. Hence, their mere presence in past VA adjudications is precedence in its own right. The reason you have not seen these in Court cases is simple. It's established law. In the event of BVA error, you can nip it in the bud at the Rule 33 conference. OGC will generally chieu hoi at that point anyway. P.S. Forgot to add: I do not believe in luck. With the 5 Ps described above, you do not need luck. If you want to find double A&A BVA decisions, you have to use the right Booean search engine. I suggest Westlaw. In lieu of that, try the BVA decisions site. It's free.
  12. To BroncoVet et al. To address the above rejoinder, I don't have an incessant need to be right. I argue the law and the VA, the BVA (or the Court) makes the decision as to my correctness. Fortunately, I'm blessed inasmuch as I don't suffer any problems with my self-esteem or self worth. I'm content in my own skin-replete with all my many idiosyncrasies. However, I cannot let an obvious misunderstanding of the conclusions of law stand. My job is to ably serve my clients and turn over every legal rock in search of benefits for them. I come here to teach how, not brag or put feathers my cap. I strongly disagree with this being viewed as winning a lottery, baseball statistics or mumbo jumbo about alphas, omegas and God. It's not precedential but that isn't the teaching moment. The idea is to convey the possible. This isn't a quirk of law. Robert Chisholm did this in 1992. I assure you winning a claim is never luck. It's predicated on decades of work learning how to do it and putting forth a cogent legal argument. I'm guessing there are many who are legally far more knowledgeable than me. I have never said I was Mensa material. I report. The VA decides. It's as simple as that- not some narcissistic infatuation with being right. Considering the vast amount of knowledge you have in this field, Loyal, I find it incongruous you are not accredited and doing this for others too. As for 10 people viewing this decision and coming up with 10 different interpretations, that's the wrong legal analogy. All I need is one interpretation from one VA law judge-not a panel of ten "people" (complete with dissents) on Hadit. VLJ Peters decided it purely on its legal merits, not a roll of the benefit-of-the-doubt dice. For the record, I have not "bested" you, sir. I merely point out your error in reading comprehension that led you to insist the Vet was awarded LOU of the BLEs where he clearly and unmistakably was not. Veterans advocates-accredited or not- certainly don't want Veterans coming here and being misinformed. Perish the thought. I don't have to prove I'm right. In fact, I'm not allowed to. VSRs, RVSRs, Veterans Law Judges and CAVC Judges make that call-not me. As a matter of fact, I utilize your preferred technique you once vocalized to me at my dinner table one night in 2010-"Proper preparation prevents poor performance". I consider it my North Star and it guides me. As I often tell VA employees-"This isn't about you and me. It's about the Veteran." VA has an acronym which I rub their noses in frequently. ICARE stands for Integrity, Commitment, Advocacy, Respect and Excellence. My va.gov email signature below my name states "We are the 'A' in ICARE." Sadly, VA cannot claim any such accolade. Here, in this thread, Russell v. Derwinski's ultimate precedence comes to mind- "Either an error undebatably exists or there is no error." There simply cannot be two correct answers. And that's all I'm going to say about that. Bon chance
  13. A decision has many parts. Try reading the whole thing. If that fails, focus on the findings of fact (#1) and the Conclusions of law (#1). Nowhere does it declare the Veteran had loss of use. Page six unequivocally denied my client's entitlement to LOU of the BLEs- e.g., "the medical evidence does not show the latter resulted in loss of use of both feet". or "Therein, the VA examiner specifically found there was not functional impairment of an extremity such that no effective function remained other than that which would be equally served by an amputation with prosthesis. That's VA shorthand for you do not have loss of use of your lower extremities. I'm not sure what you mean. I think it would be very unusual if a BVA decision conflicted with itself. Of course I argued my case. That's my job. I argued two different theories- §3.350(b)(1) and §3.350(b)(3). the Judge denied (b)(1) and granted (b)(3) which is aid and attendance of another for leukemia. I'd already won A&A (§3,350(b)(3)) for the Parkinson's back in September 2019. To get to (r)(1), all you need is two SMC Ls but one has to be for A&A. Judge Martin awarded me a second one. Game. Set. Match. No LOU of extremities. No blindness. No permanently bedridden. Just two A&As. I'll put up a redacted code sheet when the OAR issues it next week to illustrate it on paper for you.
  14. Jez, Loyal. No offense but your reading comprehension is a bit deficient. Please note that on page three of the BVA decision it states, and I quote: "The appeal period before the Board stems from receipt of the Veteran's service connection claim for Parkinson's disease and associated disorders on September 3, 2019. According to the February 2020 rating decision, the Veteran was in receipt of one rate of SMC under subsection (l) based on the need of regular aid and attendance and loss of use of a creative organ due solely to his service-connected Parkinson's disease complications as of the date of the award of service connection for such (emphasis added)." Okay. Stay with me. That's SMC L #1 for Aid and Attendance. I contended he should get SMC L for loss of use of the lower extremities secondary to his service-connected Parkinson's. That contention was denied. My client is not rated for loss of use of any extremity unless you consider a creative organ an extremity. However, VLJ Peters states on page seven: "Upon review, the Board finds the medical evidence dated as of February 8, 2020, indicates the Veteran's service-connected leukemia, independent of his Parkinson's disease and associated disabilities, markedly restricted his ability to care for himself. In particular, the aforementioned treatment records show the Veteran became hospice eligible based on his new ADL needs. Therefore, the Board resolves all doubt in the appellant's favor and finds the Veteran's service-connected leukemia resulted in his need for aid and attendance of another person. Consequently, the criteria for a separate rating of SMC under subsection (l) based on the need for the regular aid and attendance of another person were met as of February 8, 2020." That is SMC #2 for Aid and Attendance based solely on his b cell hairy leukemia.. You certainly don't have to believe me but VLJ Peters' decision is unequivocal in this regard. My client has been rated SMC at the (r)(1) rate as the conclusion of law states based on two (2) rates of SMC at the (l) rate. Since at least one rate of SMC L is for the need of aid and attendance of another, He automatically advances from SMC at the (o) rate to (r)(1) unless hospitalized at government expense which would cause him to be reduced back to SMC at the (o) rate for the duration of his inpatient stay if more than one month. SMC is very complicated and confusing. This is precisely why the Seattle chuckleheads screwed it up. See this: https://asknod.org/2021/07/09/bva-down-for-double-why-we-serve-vets/ Again, no disrespect intended. I just wish to correct the record. I do this for a living now and I certainly would never allege something that was untrue. I do agree with you VLJ Peters appears to be a Veteran friendly judge insofar as I have only had one hearing before him. TTFN
  15. It's not often I can snag a double SMC L for 2 A&As. Here, the Veteran was going down the tubes with just the Parkinson's. The A&A was a no brainer. With his inability to perambulate without falling down, he should have gotten LOU of the BLEs. I couldn't convince Judge Peters on that one because the VA C&P troglodytes made sure they put in that "He drove himself to the Emergency room." I might point out his wife had been in a traumatic automobile accident and hasn't driven in over a decade. Maybe I should have filed a NOD on just the 20%ers for the BLEs but he would have been dead before that even made it to the docket. When he got the b cell, hairy leukemia, that's all she wrote. I'm glad I drew Judge Peters. I have another R1 appeal before him right now. It feels like they've assigned him solely to SMC cases or me personally. Nah. Just kidding. Anyway, this decision illustrates that you can obtain two SMC Ls just for Aid and attendance in order to get to R1. That's the point of this. Onward through the fog. Win or Die. 2 A&As = R1 BVA redact.pdf
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