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asknod last won the day on November 12

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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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    USAF/ Air America
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    VA Nonattorney practitioner VA #39029 POA Code E1P Accepted to practice- Court of Appeals for Veterans Claims (CAVC)

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  1. asknod


    Dustoff 11- You must belong to the Vietnam Dustoff Association. If so, why didn't Bruce, Mike or Neal tell you about me? I did a presentation to the group at the annual meeting down in San Diego back in 13?/14? I've worked with Bruce helping his Vets since 2012. Alex Graham USAF/AirAm RVN/Thailand/Laos 5/15/70 -5/15/72
  2. There seems to be some continuing confusion here at Hadit on SMC requirements for Aid and Attendance. SMC L covers A&A. Look at §3.350(b) and you see: (b) Ratings under 38 U.S.C. 1114(l). The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance. The only other rating for aid and attendance is R2 which is "a higher level" of A&A. It is covered in §3.352(b): (b) Basic criteria for the higher level aid and attendance allowance. (1) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p). (ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section. (iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. (2) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section. (ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. I think the problem arises with the VA Form 21-2680 which is a form used by a VA examiner to investigate qualifying for SMC S as being substantially housebound or the need for A&A. Note my use of the word "or". SMC S is essentially a two-part test for a) 100% + an additional 60% separate and distinct from the 100% or b) being substantially housebound in fact. There is no mention of a&a in SMC S under §3.350(i) nor would there be as it is rated as SMC L. As I like to point out, SMC is very complicated. Just when you think you have it figured out, you discover you don't. Imagine VA examiners. They need a M 21 calculator to figure it out and then cannot even accomplish that. I've had to fight for every SMC O leading to R1 or R2 except for one (R2) in Manila. It took a long fight at the local VARO level because they kept trying to use a PN DBQ to deny LOU of the lower extremities. Their view was if you could get out of bed, pivot and fall back into a wheelchair, you did not suffer LOU of the lower extremities. Jensen v. Shulkin (§3.809) put paid to that insanity.
  3. The true crux of this discussion is still unknown. Ray AO has failed to answer and illuminate us as to whether the SA is secondary to the PTSD. The Diagnostic Code (DC) for SA is 6847. As BroncoVet points out, the rater can go either way on one of these. SA is a totally different Diagnostic Code from DC 9411 (PTSD). As such, it can be rated either separately as a stand alone rating or it may be secondary to the PTSD in the instant case. It all depends on how it was filed and claimed. A Confirmed Rating Decision (CRD) ,which VA doesn't send you with your decision, explains each diagnosed illness and the Diagnostic Code. If you SA is secondary to the PTSD, the DC would be a compound DC under §4.27. In this case, if it was secondary, the DC, it would be 9411-6847 and the the CRD would list it as a secondary. If so, it would be a crap shoot as to what the rater would do. Most will deny the SMC because they use what's called a SMC calculator which is shorthand for "deny". The SMC calculator is pathetic and always ends up in VA's favor against you. As for being substantially housebound under §3.350(i)(2), VA will use anything and everything they can summons to deny on that sub-section. God forbid you went to the VAMC every month for medical treatment. That would be proof you are NOT housebound in their minds. I have a rating for Hep C at 100%. I have a lot of secondaries relating to it which add up to 60% or more and VA won't give it to me based on them. However, I have a separate 100% for Porphyria Cutanea Tarda (from AO) rated as dialysis due to the need for frequent phlebotomies so I obtained my SMC S from that. The general rule is what the CRD states. I attach one here below for members to review. I see a lot of BVA decisions cited on these HADIT pages. Please remember that unless the facts of the case mirror your case in every respect, they are useless to cite to- i.e. they are useless for precedence. However, they do give you an idea how the BVA will rule because their Purple Book demands stare decisis. In my Vet's case below, the VA threw everything but the kitchen sink into the SMC S rating (which is illegal) but it's immaterial as I got this Vet SMC L for loss of use of his lower extremities. As I say, each case is unique and each rater is an unknown quantity. That's why we often have to appeal to get it corrected. This was the first time I ever won a Loss of Use at the RO (WACO) without a fight up to the BVA. Johnny Vet CRD redacted.pdf
  4. asknod

    SMC-O ?

    Currently, the M 21 1MR forbids what MrPain7 alleges as being possible via regulation or statute. DROs regularly forbid what you describe. In fact, they only permit one 100% "bump" under §3.350(f)(4) OR one 1/2 step bump under §3.350(f)(3) but never both and certainly not multiple applications. IV.ii.2.H.6.a. Proper Application of 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4) Apply the provisions of 38 CFR 3.350(f)(3) or 38 CFR 3.350(f)(4), whichever is appropriate, only once in a rating decision. Important: Concurrent entitlement to SMC under both 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4) is prohibited. However, the Secretary's regulations say no such thing. Notice the use of the plural of "permanent disabilities" in (f)(3) which is missing in (f)(4). (3) Additional independent 50 percent disabilities. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized. (4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. This is what we call a matter of first impression legally. It has never come before the CAVC or CAFC yet and many of us eagerly await a case. I repeat- you can have SMC L and have one 100% rating independently ratable that will advance you to SMC M. You will never get a RO to grant an additional 1/2 step bump to M 1/2, nor will you ever get to O this way except from N. SMC O is very explicit on what you need. Note below there is no provision for advancing to SMC O by simply throwing more 100% ratings at SMC L. If you qualified for N, then you could get the (f)(4) 100% bump to O but the requirements for N are pretty rough. You can get to SMC O also by having N1/2 + a SMC K. (e) Ratings under 38 U.S.C. 1114 (o). (1) The special monthly compensation provided by 38 U.S.C. 1114(o) is payable for any of the following conditions: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less. (iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. (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. I'd welcome anyone to show me a proven BVA or CAVC case (not just hearsay) where the VLJ or Justice awarded both entitlements or even multiple entitlements of both (f)(3) and (f)(4). It's easy to just baldly state how this works. It's quite another situation entirely to give examples proving your point. Simply put, if what you said was true, MrPain7, we'd all know about it. I've asked for both bumps before for several Veterans but my clients ended up with R1 so it mooted the point of the claim for (f)(3) and (4).
  5. asknod

    SMC-O ?

    In order to obtain SMC at the O rate, you need two SMCs between L and N. An example would be the need for aid and attendance at the L rate and loss of use of the upper or lower extremities at the L rate. The only other way is to be in receipt of SMC N 1/2 with at least one SMC K award. VA DROs tell me we are only allowed one "bump" under §3.350(f)(3) or (4) based on the M21-1MR. However, the Secretary's regulation doesn't say that. It will be a matter of first impression at the Court should any Vet arrive there with this unique confluence of disabilities. SMC is one of the most difficult concepts to absorb. I studied it for almost 5 years before I even began to feel proficient enough to do one of these. I would guess there are probably no more than 10 VA attorneys who do this successfully. A good friend of mine (Robert Chisholm) of CCK law firm is the absolute master of SMC. You could have 20 100% schedular ratings but would still only be entitled to SMC S. To try to understand this, I always suggest reading this article explaining it. https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/ SMC is the only rating system which actually allows pyramiding of disabilities to "leapfrog" ahead to SMC R1 from SMC O.
  6. asknod

    SMC l

    You sure can qualify for SMC L. You just need a nexus opinion from a Doctor saying you need the aid and attendance of another as you are a danger to yourself or others. PTSD at 100% can be extremely mentally disabling. You might make poor decisions such as walking away and leaving the stove on after making a grilled cheese sandwich. You risk burning the house down. Look at the requirements to attain 100% for 38 CFR §4.130 DC 9411 (PTSD): 100% Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. I've helped several attain SMC L in combination with other deficits. Getting the appropriate doctor's letter (nexus) is the way you accomplish it. You will never be awarded this with less than a true 100% schedular rating. I'm sure others here may have a different take on this. My advice is based on my litigation experience with Vets I represent. Best of luck.
  7. VA Claims Insider is not accredited. The VAOIG and VA Accreditation are both preparing to drop the hammer on all these fly-by-night "Vet Helpers". Expect to see a Congressional Statute in the works soon making it illegal to poach Vet's compensation checks.
  8. Here's a good one. Fresh off the VBMS Computer. Thailand Vets can win. It takes finesse. https://asknod.org/2019/11/11/veterans-day-2019-udorn-rtafb-my-band-of-brothers/
  9. Great win. Never enjoyed helping a Veteran more than this one. https://asknod.org/2019/10/31/born-to-be-wild-the-newest-100er-club-member/
  10. This one is simple. Remember to research and you'll find everything. §3.350(a)(2)(i)(a),(b) (2) Foot and hand. (i) Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example: (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved. (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. VA is adamant that you have a doctor state in no uncertain terms that "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance." Even then, VA will fight you on this. I've had doctors state it in haec verba and still have to appeal to the BVA to win them. VA doesn't like granting the higher levels of SMC- especially LOU of both lower or upper extremities. It's easier with Parkinson's. Just get your neurologist to state you have an immense fall danger and that endangers your perambulation. You can also rely on Tucker v. West; Jensen v. Shulkin; §3.809(b); §4.10 and a few others. Remember, the injury has to be separate and distinct from any other disease or injury to try to get to SMC o/R1/R2.
  11. Some people are adverse to relinquishing all their information so it is not odd that Ms. Bracey might have neglected to supply a link to a BVA decision. It's entirely possible she is unaware of the BVA decisions site and thus would be oblivious its presence on the internet. Not all of us have the same computer skills. It strikes me as equally odd that Ms. Bracey divulged her location (North Carolina) and some opined by pulling up up BVA decisions from St. Pete and Houston with dates which do not comport with her adjudication date or the requested EED of 2010. I sometimes read where some contributors are incensed that no one reads through a complete thread before commenting (inappropriately) about a possible legal strategy. I understand their angst. The AMA is rather murky about what happens after the BVA and rightfully so. Many of us accredited litigators (and I know that grates on a certain contributor's ears here) fears were put to rest at the Portland, Oregon NOVA conferences last week. Although the CAVC is an Article I Federal Court outside the purview of the DVA, the path to a supplemental claim now exists rather than the former (and only) appeals avenue to the CAFC. In essence, if you comply with the suspense date of one year following a BVA or CAVC denial, you can keep your EED claims alive. I'm convinced you can pursue both paths simultaneously but I haven't yet tried the technique-e.g. file a Notice of Appeal at the CAVC while simultaneously filing a VAF 20-0995 with N&RE. Nowhere on any VA website will you find CAVC information because it has nothing to do with VA. I did see a link to the AMA possibilities mentioned but some folks are loathe to do their own research. I will refrain from any more diatribes about being very careful when you offer advice because that merely irritates certain contributors here. Additionally, I won't comment on the futility of dragging up extraneous BVA decisions that are irrelevant or have no bearing on the question. Offering advice is often a crap shoot as most of you should know. Ms. Bracey contacted me via email as any of you can. I called her back the next day and listened for 5 minutes to her plight. It wasn't complicated or hard to comprehend. She was the victim of well-meaning Veterans Service Organization folks who have no legal training-and worse-have no desire to learn. They refused to file it for her! Attorneys who graduate from law school actually have to park their learning at the door and begin over when they enter the VA litigation arena. This is why we see novitiates fresh out of prestigious law schools who are hired by big gun outfits like H&P, Attig Steele and CCK arrive every spring and fall on their company's dime for a nouveau education on VA law at the NOVA conferences. VA law is to law as Military music is to music. Unlike most of you who use a moniker, I have a name and am easily found in the VA's Accreditation search. My email is listed on my person data here. I get over one hundred queries a month. I answer every one as soon as possible. Some here have implied I use Hadit as a resource to find clients. The very last thing I need is more clients. I refer almost all who contact me to other attorneys I trust. But, like most of you, I am a Veteran first and foremost. I adhere to Theresa's Prime directive- Leave No One Behind. A bit of advice to those of you thinking of calling up attorneys and asking for advice. Many outfits (big ones especially) insist their attorneys and agents actually work on claims. They do not have the luxury, as I do, to discuss these issues with a potential client seeking advice. They have intake personnel who screen you to determine if your claim is even remotely viable before they refer it upward. They do not offer advice, however. Hence, it would be impractical, not to mention impossible, to call Chris Attig up and discuss it with him. I talked to him last week at the conferences and he stated his practice now is almost exclusively devoted to the CAVC. In addition, his practice now spans multiple offices in different states. I admit it's different for NOVA folks. We have the ability to call up our opposites at other outfits like CCK and talk directly to attorneys we know. I occasionally seek advice there (CCK) from my friends I know. Some of you here feel I come across as condescending or officious. I learned this all the hard way over 30 years of doing my own claims. I know what works and what doesn't. Reading unwise advice grates on my sensibilities and I tend to respond with sarcasm. There is no such thing as a "template" for any VA claim other than a VA form. I try to impress on all that each of your claims is horribly unique to you only. No two Veterans have the same exact history. How else could I take a Vet who admitted snorting cocaine post-service to the BVA and win his claim for HCV? Everyone at NOVA told me it was a fool's errand. I consider myself fortunate that I did not attend law school. I have no preconceived ideas on how to present a claim. In fact, I have an attorney for a client who chose me for that selfsame reason. Her plaint about attorneys was the analogy to the drug commercial of the 90's- i.e. "This is your brain" (an egg). This your brain on a Juris Doctorate" (egg frying in a pan). With all due respect to my many friends who have JDs, I find the analogy apt. For the record, I think the most cogent remark made in this thread was the very first reply by GBArmy. It induced Ms. Bracey to reach out to me. Bingo. Problem solved in a 10-minute telephone call without 14 pages of conjecture. Perhaps some of the big Poohbah commentators who opine here regularly (no names necessary) would be more helpful if they chose to provide their contact information to better help their fellow Veterans less knowledgeable in the art of VA law. I'll leave you all with that thought to ponder...and that thought alone.
  12. I don't think the BVA decision cited is the right one.( https://www.va.gov/vetapp18/files4/1820956.txt ), Ann informed me all the adjudications occurred at VBA 318 (W-S) not St. Pete's( 317). The decision cited says: In January 2010, the RO received a request from the appellant to reopen the issue of entitlement to DIC based on service connection for death of the Veteran. The RO reopened the DIC claim in an October 2010 decision and granted the appellant DIC based on service connection for death of the Veteran with an effective date of January 27, 2010. The appellant filed timely notice of disagreement and Form VA-9 to appeal that determination. Ann told me BVA, not the RO, granted DIC in 4/2018 back to the date of reopening of the most recent DIC filing which was in 2012.The bone of contention is the proper EED which Ann feels should be 2010-not 2012. The above decision deals with an EED of 2000. Further, the disease he died from was not in §3.309(e). However, the BVA judge, based on an IMO from his doctor and the autopsy results, chose to imply that it (the disease) fit roughly into the §4.124 DC 8004 Paralysis Agitans category. The rest of the evidence shows he was working on the perimeter of Korat RTAFB constantly which established his legal presumption of exposure. I sure don't see any need to take this up to the CAVC. But, for argument's sake, let's say she lost at the Court. Her legal option then is to return to the RO and file a new 20-0995 within one year to protect her entitlement to 2010. Or... she could skip all that CAVC malarky at the outset and just return to the Winston Salem RO now-today- and refile the 995. Same legal difference except she'd lose a year at the CAVC waiting for a denial. With the exodus of Schoelen and Davis, we do not know what we'll be getting for replacements. Falvey, Toth and Meredith are all proven to be virulently anti-Vet. As it stands now, you have a 36% chance of drawing Allen, Pietsch, Bartley or Greenberg. With the new AMA, why bother? If you can still create new and relevant evidence, you can keep your claim/appeal stream open forever without losing the EED. That's about the only plus in the new system.
  13. Ann tells me her most recent denial is August ?, 2019 for a Motion for Reconsideration. I'm not sure if that is from the BVA or the Regional Office. Based on the new AMA, she has one year to file a) VAF 10082 or b)VAF 20-0995 to preserve her claimed EED of 2010 (or possibly 2000 if I misunderstood the date of death of 2010) for SC for the Parkinson's -like disease and her entitlement to DIC. As of 2/19/2019, unless one foolishly opts to stay in Legacy, there is no VA9-only the 20-0995 as a possible panacea. She did not discuss any NSSC cancer of the lung so I cannot comment on that. By operation of law, the earliest effective date for a herbicide-related disease is the date of filing-regardless of whether the NIH recognized the disease later in 2010. In Ann's husband's case, his filing prior to the VA recognizing Parkinson's as a presumptive guarantees his earliest date of entitlement as his 2010 filing. The 2018 BVA decision only granted 2012 as the effective date of accrued benefits and DIC-ergo it is in error due to the earlier filing in 2010. For the record, DIC for two years would equal about $36,000. Were it me, I would file for it. For the record, Ann tells me her husband was a Thailand Vet stationed at Korat RTAFB and had no service in Vietnam so I do not see where that is germane to the discussion here.
  14. I think the answer is simple on this one. Mr. James G was just awarded 100% SC for his heart (The award letter (received Sept. 5th 2019) say's they will schedule says they will re-exam me between April & October 2020 !!!) 100% is an extreme rating for a heart. The note under §4.104 DC 7000-7011 says: Note: A rating of 100 percent shall be assigned from the date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia or for ventricular aneurysmectomy. Six months following discharge, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. The Examiner discusses April to October-well within an acceptable re-examination period for a final rating after the temporary 100% rating is over. September 5th plus six months is... March 5th.
  15. The answer is no. Your SA is secondary to your PTSD so VA will not count it as separate and distinct. 20+20+10= 42% which rounds down to 40%. Which is not to say they won't make an error and give you SMC s. It will create an overpayment and VA can recoup it at any time. P.S. As others have commented about the possibility of a grant of SMC at the (s) rate predicated on §3.350(i)(2), I will address it now as well. I presumed Ray AO would have discussed he had agoraphobia of other psychiatric disabilities (or potential risk of harm to himself or others due to insomnia or hypersomnia) had he wanted information on that potential entitlement facet (substantially housebound). As he specifically asked if he was entitled under §3.350(i)(1), I addressed that question as to whether the sleep apnea would qualify, not if he was substantially housebound. It would appear very clear that Ray AO is more than acquainted with 38 CFR than others give him credit for. He knows the potential disqualification of secondary conditions such as sleep apnea if they are not separate and independent. Ray AO would need to submit a VAF 21-2680 Housebound form signed by a doctor stating he is substantially housebound in order to be granted entitlement to SMC (s). I chose to read the complete post from start to finish. Ray AO clearly and unmistakably cited to that which he was inquiring about - entitlement to §3.350(i)(1). Nowhere in the four corners of his post could I ascertain anything else. "I’m going directly to the point after this. Do I actually qualify for SMC’s1??"
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