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FormerMember

Former Member
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Everything posted by FormerMember

  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. 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. 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. 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. 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
  15. 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.
  16. 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
  17. 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.
  18. 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
  19. 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
  20. Buck, you would have to have a LVEF of less that 50% to get any $ or a METS stress test showing 7-10 METS. You're looking good. Sometimes us old farts have a heart hiccup and the PCPs get antsy because we are Vietnam Vets. You'd also have to have a diagnosis of IHD and you do not-just what looks like symptoms that needed to be investigated. Look at DC 7005 under §4.104 for ratings percentages and requirements.
  21. I like to lay punji pits for VA. Here, I found a failure to rate after doing a Blue Water Claim. Vet had filed for a slew of AO claims in 2002 under the SHAD criteria. He lost. I won most of it back to 2002 but VA lowballed him out of his concurrent receipt. So.... I filed a CUE for the MDD and EED. I got the CUE for the MDD but no dice on the EED. Off to the BVA and 28 days later he's now 80% from 2002. They owe him $411 K. Shoulda granted it when I filed and then the poor Vet wouldn't have to pay me 20%. I begged them to and they politely told me to F O & Die. Redact CUE RD 2-25-2021.pdf Redacted EED for MDD.pdf
  22. FormerMember

    SMC’s

    I believe if you lose your leg below the knee it is a 40% rating. Not so. DC 8520 rates total loss of foot at 80%. Plus you'd be awarded SMC K. Once you get SMC L for loss of lower extremities (plural), you'd get a bump up to L 1/2 if one was useless above the knee. Total loss of use of an upper extremity is DC 8515 -70% on the dominant side; 60% on the nondominant. The short answer is no, John. You do not need total paralysis to attain loss of use but it helps greatly. The break point is how much are you endangered by even trying to perambulate with defective legs? The fall danger is immense and a good neurologist/ IMO writer would exploit that defect to say that for all intents and purposes you have loss the "effective" functional use of the lower extremities. It makes no difference if you are not all the way up to the highest schedular % available on the lowers. Think about it. VA always low balls us so that's not unheard of. Retired MP (above) is going to need to do a lot of §3.350 reading to ever get a grasp on where he should be. I hope his atty. is up to the task. From what he describes, any advice will be premature as there is no way to determine what his current posture is from what he has posted. Best of luck.
  23. Just got this from NOVA. https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000173130/2021-05-10-Memorandum-of-Changes "Compensation Service established an integrated project team consisting of regional office personnel (quality review specialists and coaches), as well as representatives from within Compensation Service’s other staff groups, the Offices of Field Operations and Administrative Review, and Pension and Fiduciary Service, all of whom collaboratively examined means for making the M21-1, Adjudication Procedures Manual (M21-1), a more consumable and navigable resource. The primary recommendations of the project team were to reorganize the M21-1’s content in a manner consistent with the progression of the claims process and to group content on special issues in a single, consolidated location. This document describes the plan to reorganize the M21-1’s content. This reorganization effort focuses on improved accessibility of content and does not aim to revise or substantively change guidance. "
  24. Fat, the question is how much time is your "friend" willing to wait. An appeal of this to the CAVC needs "sufficiency" to even get a vacate and remand. That means finding an error of case law or insufficient reasons and bases for denial . If the denial of the BVA appeal for increase to 50% was legitimate, you aren't going to get any sympathy at the CAVC. That isn't a "CUE" determination-it's a legal determination. Did the BVA judge do it correctly? If so, going to the CAVC is a waste of time. My suggestion is if you really want to win this rapidly, there is only one way. First, your friend must use a cpap all the time by dr.'s orders to even qualify. That will get him to the 50% legally. Since the denied appeal is in the AMA system, you have a year to refile and preserve your old filing date. If you go to the CAVC and lose, you can preserve your effective date but you'll still have to go back down and refile a 995 supplemental with new evidence and work your way back up. Here's the absolute fastest way to win: File a supplemental at the local RO now and only submit a 4138 (new and relevant evidence) saying you feel you deserve 50% because you wear the mask every night. Let them deny you again and then file a 10182 under new evidence venue back up to the Board with the doctor's letter saying you need the mask every night. Wait a year or 16 months and you'll win. Benefit of the doubt. VA says you don't qualify. Your doc says you do. It's in equipoise. You will not win at the local level right now. They are denying everything-even with private nexus letters. BVA backlog is building up to 200,000. They're granting everything that has legs, remanding duty to assist appeals back to the ROs and denying the rest. I don't see a need for an attorney. Going to the CAVC will burn up a year easily and then another year down below on a brand new 995 refile. You want to win it while you're alive. You want to preserve your effective date if possible. That's the beauty of the AMA-you can keep a claim open forever as long as you keep throwing motions and filings at them within a year of any denials. Lastly, because of this pandemic, all the VSOs closed down for a year. They are overbooked and overworked. Trying to get an appt. with one is challenging. Same for attorneys and agents. When the VSOs shut down, our telephones started ringing off the hooks. I've referred hundreds to other agents and attys. and they (Vets) all are getting the same answer-"we're overbooked". Everybody has a way to skin a cat. Some methods are faster than others. The CAVC route nowadays with the new AMA is rather archaic and time consuming. It should only be used for matters of first impression as to whether you can (and should) get 100% for OSA. Best of luck, sir.
  25. This thread is a hoot. I'm currently representing an attorney. She came to me for representation precisely because I'm not a lawyer. She contends folks who graduate from law school suffer "attorney brain" ever after. Attorney brain is like the drug commercial with the egg frying in the pan (This is your brain on drugs). No aspersions being cast here. Just a synopsis of all I have read. <<<"So, tell me, if you go into the room for a C&P and a doctor who is distracted for some reason or exceptionally incompetent in the practice of her profession writes things that are absolutely false and exceptionally negligent and it costs you to loose [sic] your home, why would you not be able to sue her.">>>> Well, let's count the reasons why Mr. Otrgypsy cannot sue her irrespective of the fact that he did not hire her- for starters. 1) S/he is not treating you for a medical condition. She is a "bystander" called a clinician hired as a subcontractor by VA to offer his or her opinion on your condition. 2) S/he is not offering you medical advice on how to treat your disability, prescribe drugs or otherwise direct the course of your medical treatment. 3) She is not your treating physician. Nothing she tells you can be acted upon by you to cause yourself to become more disabled. 4) Ever hear of estoppel? It's a legal concept. Did you depend on the c&p clinician's ignorant erroneous diagnosis(es) to your physical or medical detriment? Since your decision is on remand, no error has transpired (yet). 5) Did you lose your home or were you in danger of losing your home due to your disabilities solely because of her error or will VA, who will soon be your judge and jury, be at fault? 6) Explain the legal theory behind how VA can be at fault for you losing your house. Seems the disabilities you suffer are the primary cause of your financial fragility-not the (free) defective medical opinion VA obtained for you. Will you sue VA as an accomplice after the fact? As Mr. Hamslice pointed out, in the VA poker game, your legal recourse is to obtain your own IMO/nexus letter to correct the record. The CAVC has hundreds of precedential cases where the law states unequivocally that you have to defend your claim in a court of law. It is described as "a two-way street". You are free to rely on VA for a nexus just as you are free to supply your own. VA cannot be held negligent for not supplying you with a positive opinion. You may, by operation of law, file a request with the VHA for a curriculum vitae of the offending physician within sixty days of the docketing of a BVA appeal. You might even use the CV to contest the professional qualifications of, say a proctologist, to opine on neurological disfunctions. Personally, I find it takes too long (up to a year) to get the CV. Its far easier to throw $2K at it and get your own probative, independent opinion which will win. Most Vets do not have the luxury of time to wait it out. As for suing a subcontractor in this scenario, you're grossly uninformed. Did you personally pay for the erroneous medical opinion? No, so you had no expectations of a correct professional opinion for any monies spent. Were you depending on it to win? No. It could have gone either way. Did VA commit error? No, they relied on a hired subcontractor- thus insulating themselves against your potential FTCA filing. As an attorney-former or current- your legal reasoning is deficient. No offense intended. You filed a claim for benefits with VA. You agree to play by their rules. It's their money and their poker rules. If you suffer neurological deficits which impair your ability to represent yourself cogently, you are free to seek competent legal help. If you do not, that also is not actionable. We live in America. When I said I was signing up to go to Vietnam in '69, My dad said 'you have the right to remain stupid. Nobody can take that away from you.' If you file a SF 95 seeking FTCA money, I have a gigantic newsflash for you. Assuming you win, VA will cut off all your compensation money until you repay the FTCA winnings. You're far better off going after §1151 money and getting it for life. Any Veteran-let alone someone who aspires to represent themselves- should know that. It's VA Law 101. Advice can be useful if it benefits you. Following others' advice is not always helpful. Over the last 32 years of doing this, I've found there are no two identical VA claims scenarios. Each one demands its own repair order. The worst advice is what you determine by yourself. Shakespeare was right in that regard. Coming here for legal advice is like using Wikipedia. I suggest Westlaw or hiring a NOVA attorney if one will accept you. Otherwise, go pro se and use your extensive legal acumen. A wealth of advice has been supplied to you free for the taking. Each offering, while offered by acknowledged novitiates-and even a 'pro se' attorney- is viewed by you as a suspect gift horse. Frankly, after 14 pages of conjecture, nothing of substance has been accomplished here. Nothing. Absent a remand c&p and a new RD, everything proffered to you hinges on "if they do this, then I would...". I never waste my time on all the 'what if's' of VA jurisprudence. It's pointless and my time is far more valuable. Relying on VA to supply positive c&ps supporting your position and/or expecting them to be "independent" is idiot's delight. That's like getting t-boned in an intersection and the guy who hit you says "Dude, let's use my attorney. We can get a better deal if he represents both of us." As for expecting top-drawer legal help from a VSO, well, we won't go there. I know a lot of good, hard-working VSOs who are besmirched by the actions of their ignorant brethren. Vet service organizations don't teach their reps law-just how to lick the stamp. You take umbrage with the idea that VA and their assigns might not have your best interests at heart. This is why Veterans have forums like this-to vent and to teach. In that respect, you certainly came to the right venue. Best of luck, sir. I mean that from the heart.
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