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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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  1. <<<I believe a CUE can be claimed any time on appeal. SMC is just like any other claim. Once it is denied, and the claim is closed, if an error is discovered then it can be reopened any time and corrected.>>> Well, now. Here we have a possible problem in wordsmithing. Believing a CUE can be claimed "any time on appeal" is a wide open statement. Yes and no. Remember, we live in the AMA world now. Each contention (read claim) is a stand alone item. If you list on your VA form 10182 that you should be awarded a higher SMC rate than the one they gave you, that is an appeal based on case or controversy. The 'case' is case law-i.e., what does the regulation (§3.350) and statute (§1114) say? Does either support your contention? The 'controversy' is over what you are rated at now and your contention as to what higher SMC rate you feel you deserve based on your subset of disabilities. Let's say they give you SMC L A&A and you have an independently ratable 100% condition as well. They automatically will go to §3.350(f)(4) in most cases if they even catch it at all. So, you end up with an M (SMC P). But under Buie precedence, they are required by law to maximize it under §3.103(a) without any prodding. You feel you should get a separate aid and attendance for your other 100% rating so you file an appeal. If the VLJ agrees, you'll get SMC O and the bump up to R1 and, if you're really hamburger helper-maybe even R2. Depends on the circumstances but that (r2) isn't germane in this discussion. If I understand this correctly, Mr. PWRSLM suggests that if one gets a supplemental rating denial for SMC L through N, s/he can suddenly allege CUE in the 10182 raising CUE for the first time on appeal. Wrong. You cannot raise CUE above unless it's been denied and now on appeal. Read the next paragraph as to why you cannot. But as Mr. CUE pointed out, why would anyone choose to fight VA with one hand and one leg tied behind their back? Remember what you lose- no benefit of the doubt. No introduction of new and relevant evidence. And the error has to manifestly change the outcome. It doesn't have to be that hard. SMC is a unique kind of law exempt from statutory time constraints to appeal. First, you do not need to file a claim for it- or you shouldn't have to by law. Secondly, You can claim entitlement to it back to 19__ without resorting to using CUE-again, by operation of law. What you cannot do in AMA is allege CUE while on appeal where you are arguing case or controversy under §3.350(e) . CUE is a separate matter under §3.105 based on error. With SMC, there is no "expiration date" or suspense date. SMC is due and owing at any time the medical evidence supports it- even if it is in your record from 2002. Just because VA disremembered to give you SMC L through N or R1/2 when you were entitled to it doesn't mean you have to file CUE. You just file a 526 or a 995 and say "Looky here. You owe me." VA will, of course, say ''no we don't''. You file the appeal, sit back and watch General Hospital or whatever for a couple of years. If you insinuate CUE occurred in the supplemental claim on appeal or in the body of your legal brief on appeal, the VLJ will note it in the decision and inform you or your representative that s/he is remanding the CUE matter back to the AOJ (Agency of Original Jurisdiction) for proper development (and filing) in the first instance. The AMA is structured so that each adjudication is compartmentalized. If you disagree with the SMC rating, your path diverges into three choices. 1)You can refile a new 995 "clearing up" the controversy. 2)You can ask for a HLR or 3) you can file a NOD (the 10182 we now consider the appeal mode rather than a VA 9). Or, I suppose if you prefer to choose the path less-traveled and more arduous, you can claim CUE. What you cannot do is belatedly raise an allegation of CUE during the pendency of the 10182 on appeal about how you got shafted below in Omaha. For that, if you wish to, you can actually do two things. In this crazy upside down world of AMA, you can file a CUE over it at Omaha while at the same time filing the 10182 NOD to the Board based on case and controversy. Personally, I disagree with how this AMA thing works. I liked the old Legacy system far better. It's merely an assembly line denial process now and so much for the 125-day adjudications they promised us in 2015. For the record, I dissent as to anyone's belief that SMC is 'just like any other claim'. That's just my personal belief based on my own experiences. Best of luck to all of you fighting for the higher rates.
  2. <<<<If there is a clear and unmistakable error (CUE), do not state so in this round, but instead detail the error step by step referencing M21/CFR/USC so that there is no question about what you state is true. CUE can only be claimed once, so instead of doing it up front, leave it for appeals. >>>>>>> Please be careful when handing out advice. Whoever said that clear and unmistakable error can only be claimed once is incorrect. §3.105 and its corollary in §20.1400-14.03 (and the federal courts) do not explicitly forbid filing a CUE more than once-as long as it is based on a different factual basis for the allegation of the alleged error. Please remember that each of you who offers advice is a Hadit "ambassador" and your advice can either help or harm a Veteran's claim. I'm sure everyone has a "pet" theory about how they would accomplish any given denial but in 30 years, I've discovered one truth-every claim is distinguishable and has unique fact patterns unlike any other Veteran's. Based on that, each claim has to be treated as one that has never been encountered. There simply is no such thing as a template for a VA claim. Trying to do it long distance looking through a pair of binoculars without the claims file in front of you is a fool's errand.
  3. asknod


    SMC is unique in that it is paid from the day the medical evidence supports the entitlement-not the day you file for it or the day the Dr/RN filled out a 2680 saying you qualify. I've gone after VA on a few of these and gotten earlier effective dates-sometimes back as far as 2002. If VA turns you down on a separate a&a for the incontinence, you'll win at the BVA. If you do not, I'd love to know why. As a matter of fact, SMC, by operation of law, requires no filing whatsoever. But then, VA pukes are not renowned for being self-starters. Frankly, I see two forms of justice that can only be explained by who represents you. If I file an appeal at the BVA, they generally grant assuming it holds water and the local yokels can't figure out (or won't) that you're entitled. My legal briefs are replete with the necessary cites. VSOs pretty much go in there naked with a 646 and say "Please sir. Give the Vet the BOTDoubt." Remember, SMC is very complicated. If you just say "I'm entitled." w/o any substantive argument, the VLJ's staff attorneys will not perform due diligence and deny based on your failure to illuminate why you're entitled. Half of winning is being able to explain to an idiot why they are required to grant.
  4. asknod


    SMC P (or P1, P2, PX etc.) is an amalgam of ratings which are oddball combinations. Read up on it here. I've been tampering with this article ever since I wrote it in 2013. https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/ SMC P can be SMC L +K, SMC M 1/2, SMC N + K or whole host of other combinations of things. Think of SMC P as a combination of anything between L and N with a K added in some cases. SMC L, all by itself, is not SMC P. If you add a SMC K to it for LOU of an eye or ED, it gets labeled P-1. If you got a bump to M (plus the existing K for the eye) from the 100% for incontinence, that becomes SMC P-2. Under the SMC P-1, the Code sheet will say effective from 1/01/2021 to 9/21/2021. The SMC P-2 will say "effective from 9/21/2021" without an end date. As for the number after the Letter (i.e., SMC P-2), that merely identifies the number of times you have been awarded the lettered SMC. For example, Let's say you got to 100% for PTSD and then had an operation on your SC knee(s). You'd get the 100% temporary bump for surgery for six months and VA would (in a more perfect world) infer the ancillary SMC S rating. That would be labeled S-1 on the code rating sheet. After six month temporary surgery 100% rating, you'd lose the SMC S bump and be reduced down to the final rating for your knee(s). If, at that time, the combination of your other independently ratable SC disabilities equaled or exceeded 60%, under §3.350(i)(1), you would once again be awarded SMC S. This would be labeled SMC S-2. If VA came back and reduced you for something else in the future and your independently rated disabilities dropped below the magic 60%, VA would take away the SMC S and you'd have to refile to win it back. If you succeeded again, that would become SMC S-3. Ad nauseum. Were the shoe on the other foot, Mr. Brinson, I'm sure you'd try to impart this same knowledge to me were I to inquire. SMC is the hardest thing to comprehend that you will ever encounter in VA land. VA raters use a "speshull" SMC computer to do this which is always wrong. r a
  5. asknod


    I'm unsure of how much you know about SMC, Mr. Brinson. Here's the situation you face. You basically have 4 shots at SMC L. You have LOU of the LEs so that's one. You have a 100% rating for incontinence but you're using it to get a full bump from L to M. If the incontinence rating has nothing to do with the LOU of the lower extremities, then you can use it as the basis for a new filing for A&A. See See M21-1, Part IV, Subpart ii., Chapter 2, Section H, Topic 8, Subtopics a-c. Specifically, the M21 indicates that a single disability evaluated at 100 percent disabling may be required for a grant of aid and attendance, and that without such a total disability, referral to the Director of Compensation may be warranted for extraschedular consideration. See also the VA ADJUDICATION MANUAL, M21-1MR, Part IV(ii), Ch. 2, § I(58)(e) notes “veterans entitled to SMC at the [(o) rate or (r) rate] are, by definition, very seriously disabled” and the rater should “apply a liberal interpretation of the law in determining the need for A&A”. Now, if the 100% rating for incontinence is not related, I would file for A&A based on anything you cannot do in the way of activities of every day living (ADLs) as summarized in the examples listed in §3.352. Most importantly, you should never imply that your loss of use of the lower extremities provokes the need for aid and attendance in itself. Read this precedential decision on Breniser and it will give you a better appreciation for what I suggest re the a&a. https://www.courtlistener.com/opinion/817365/breniser-v-shinseki/. Mr. Breniser didn't have a case and he lost based on pyramiding. Your case, as all cases are in SMC, is different than Mr. Breniser. You have the extra 100% solely for the incontinence. If, and only if, the incontinence is not related to the loss of use of the legs such as paraplegia, then by all means file and cite to the M 21 cite above. However, if the incontinence is related to the loss of your lower extremities, all is not lost. Simply use §3.350(e)(2) (SMC O): (2) Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. Helplessness is, of course, the same thing as the need for aid and attendance of another. Either way, you are taking a positive path to R1. If you're using a VSO, I suggest you try this one without their help. They are not taught the intricacies of SMC and will somehow manage to screw it up. Bon chance, sir.
  6. 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.
  7. 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.
  8. <<<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.
  9. 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
  10. 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."
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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
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