FormerMember

Sailorman, Please disregard Lemuel's post as it isn't applicable to your case just yet. If you are remanded to the Agency of Jurisdiction (AOJ- your Regional Office) or the Appeals Management Office (AMO) your claim is still at the regional level. If, and when, the RO re-examines you and rerates you, only then will they return it to the BVA Judge. Right now, he "controls" it. If, and when he denies you, you can appeal it up to the Court of Appeals for Veterans Claims (CAVC). They will decide it. If, and only if, they deny you by affirming the BVA decision would you be in a position to obtain review at the Federal Circuit Court of Appeals. This Federal Circuit is what Lemuel refers to in his post. You are a long way (4 years) from getting to that stage of your appeal at the moment. Might I suggest you file a Waiver of Review in the First Instance with the BVA of initial review of any evidence at the Agency level to avoid future remands? best of luck. a

Berta- While building a really excellent §3.156(c) appeals argument for the oral at a Travel Board last Thursday, I ran across this one. The VLJ stopped the hearing and said 'Whoa, hoss. MacWhorter? I gotta look that one up." VLJ was Cherry Crawford, a senior judge and supervises a lot of the newer VLJs. She began there in 2005. I had her for three terminally ill cases Tuesday, Wednesday and Thursday. We were like peas and carrots by Wednesday. Here's MacWhorter. Pretty good ju-ju for those jackwads when they forget to rebut you. I used it because the DRO surrendered on a SSOC and gave me a VA8 instead. She had the IQ of my pet rock. I rhetorically insinuated the M 21's non sequitur into my oral by saying ' The VA examiner stated the M 21 demands ...". She whacked me in mid-sentence (as I expected) and said "The Board doesn't use the M 21." I acted stupid and nodded. I hope she remembers that next month when she signs the grant. "But see MacWhorter v. Derwinski, 2 Vet.App. 133, 136 (1991). “Yet, "[w]here [an] appellant has presented a legally plausible position . . . and the Secretary has failed to respond appropriately, the Court deems itself free to assume . . . the points raised by [the] appellant, and ignored by [VA], to be conceded.” I also like to use that daisy from Comer v Peake where they said "The VA appeals process is not meant to be a trap for the unwary etc." The more we know, the more dangerous we become.

This forum is unlike any other in its civility, respect for one another and general helpfulness. Learn everything you can so you can pay it forward for others. Always remember, there was a time when I was dumber than the dumbest of you. Sadly, I remained that way from '89 to 2007. I summarized it crudely in the beginning with the logo Win or Die. Now we know how to win so there is no reason to die trying. My website teaches by finding really excellent examples of common errors. I respect each and everyone here for their interest in helping. Always temper that with the suffix "correctly". Collectively, using this site and mine, there is no reason to lose. Your contentions may fall on deaf ears for a spell but eventually, at the next or the highest level, you'll prevail. We always do or you'd see more folks here with never-ending sob stories--- after we gave them advice.

Think about that history. He applied for benefits. They call him in for a C&P. He doesn't report. The claim then turns into one for "If you don't come in and let us examine you, we're going to 86 you." He doesn't go in for the c&p and they revoke the SC. It could be more innocuous than that but if you do not report, the poop will hit the rotary oscillator. Usually they reduce you to 0% until you show up. It does say severance which means JCRUR might have finally caught up with him.

Gastone, my friend I'm afraid you misspeak. Even though I personally do not need the money due to my being blessed, think about this a little more deeply first. There is always a "back story" no one considers unless they walk the walk themselves. When I began doing this after accreditation, I had many waiting who wanted me to help them. A brand new lawyer would not have that luxury. He would hang his shingle out and begin accepting clients. But remember... to get that Juris Doctorate degree, he had to graduate from a four year college and then graduate from three years of law school. My son just did this. VA paid the first 4 years- sort of- at about $925 a month.. He had to rent, eat and pay for electricity/water/trash/car insurance, gas, cell phone service-and whiskey. After graduation, he had to study 4 months and sit for the bar exam. Then find a job. If he'd gone into VA practice solo, he'd have to come up with the $ to lease a place, hire a secretary and equip an office with copy/scan/fax and VBMS access. He'd have to advertise, too. And have to take two weeks of training for VBMS to "graduate" and then 6 weeks for the Criminal background investigation etc. It took me a year from my VAF 21 filing. I had to prove I was medically and physically capable. My son has a Pell grant for his education. It's about $200,000 @4.8% interest annually. A monthly payment is huge- like another house payment. Don't tell Cupcake but I "loan" him $ every time I see him. He can't even afford cable tv yet. Now let's talk about making money. From my first client, a 94 yr. old Marine Infantryman who had PTSD since 1944, I filed a NOD for increase from 30% to 100%. That was after I filed his claim for free. I won with a private shrink IMO six months later. That was another $2 K out of my pocket temporarily. VA makes you wait 60 days just in case the Veteran files a complaint that the lawdog screwed him. They take two weeks after that win date just to enter it into VBMS to begin the 60-day start date. About 70 days later, I call up my CMA Tina and ask when I'm going to see the $. A week later, she calls me back or emails and says I should be hearing from the Attorney/Agent Fee Coordinator (AAFC) soon. A week later I get that call. Dennis says there's a time lag from the time he "certifies" that it is a valid "Debt" the govt. owes me until I'm gonna get the $. Turns out, he just certified it before he called me- but only because Tina assured him it was overdue. Time lag now? Another one month and one week average to seeing it deposited in your account. Oh, and I forgot. VA deducts $100 from us for "VA processing and handling charges". So, from the day of the client's win to the day I see it in my acct. is 107 days -give or take a week. That's just one client sir. I won one at the BVA on 3/18/18. VA rated him 6/27/18. I don't even see the payment to the Vet entered yet. I'll be lucky if I get that by Christmas. Getting your $ out of the VA, if you're a leagle beagle, is like pulling teeth out of a live alligator. Imagine having to call twice a week and remind them they owe you $. That subtracts time from representing other Vets. Trust me when I say the attorney or the agent needs the money just as much as the Veteran does. If it goes on appeal to the BVA, it's going to be four years from the day you filed the NOD, if you're lucky, to get to the point where you wait that extra 107 days for the retro. And to be clear, you don't get the retro for the 107 days. You get 20% -less $100- from the day of the decision in the Vet's favor. And no. We do not get EAJA fees for representation at the BVA-only the CAVC. It's not all champagne and roses by a long shot. Personally, if I didn't have the VA comp/SSI, I couldn't even imagine doing this for a real peanut butter and jelly sandwich living. If I were a real attorney, I'd have to ask myself why I was struggling to get paid 20% 3 1/2 months after a four year delay in justice when I could charge 40% chasing ambulances and get paid two weeks after the insurance co. agreed to settle out of court- and without that stupid $100 donation to the VA Christmas Bonus fund. But I will say you couldn't pay me enough to quit doing this. I hate what they do to Vets. I will die with my fingers on my keyboard.

I'm sorry for not being clearer, Mr. Silver Dollar 22. What I was trying to impart to you, and by extension Berta, is that VA attorneys/agents do not, to my knowledge, try to take forever to help you win or try to drag out the appeal to get more "money, money, money" as you suggest. I even captured your plaint as a quote so you (and Berta) would recognize the thrust of my response. When I agree to represent a Vet, it hinges on several things. Has the Vet met with little or no success in seeking representation? Has the Vet, or, more often in my case, the spouse, lost due to poor representation at the AOJ or BVA level? And mostly is, or was, the Veteran, like me, a combat Veteran of the Vietnam War? Other representatives have different criteria. Money is certainly not my prime objective. Paying it forward is. It offends my sensibilities to have anyone impugn the motives of why a VA representative would choose to practice. Were I a run of the mill attorney driven by money rather than a lowly VA nonattorney practitioner, I would set my sights on ambulance chasing for 40% of the haul. One doesn't get rich charging 20%. Likewise, I would not spend my time here teaching my fellow Veterans (with a capital V) the ins and outs of successful claims presentation if I were avaricious. I would advertise heavily and hire a bevy of attorneys to generate a tsunami of money money money. VA screws up everything they touch, as if any of you folks haven't noticed. It's almost a conspiracy to remain stupid or misunderstand everything we claim. In Vietnam (and certainly where I was in Laos during "my" war), we referred to this situation as a target-rich environment. Every VA claim or appeal attorneys/agents take is usually a disaster area of stupidity by VA. Do they generate a large amount of money? I guess it depends on what you call large. When I finally prevailed in 2014, I won about $338 K. When I won my CUE in 2015, I garnered another $70 K. Were they large? Maybe. I'd personally rather have my health back, thank you. I sure don't have to search for mistakes-or clients to gouge. That is what I implied to you-nothing more. VA attorneys and agents are not greedy, sir. I sincerely apologize if you didn't "get it".

By the same token, I guess you could say "You know how Starbucks (Amazon, Google, McDonald's) look at things, money money money!" I prefer to be viewed as a Sherpa or a rainmaker. SD22's been listening to old wive's tales too much or he got "the VSO briefing" about us, Berta. I like the one where we enjoy milking it all the way up to 625 Indiana Ave. NW so we can double dip and get in on the high lodestar EAJA fees. I know I don't speak for all reps. but nothing gives me greater pleasure than putting another claims file in the done pile as quickly as possible- at the lowest level possible... only to have to make room on my desk for a new one from a grieving widow. When a prospective client asks how much I charge right off the bat, I always tell them "If you have to ask, then you're trying to make a value-based decision rather than one based on true need of professional services. Based on that, I don't think we can do business. Thanks. " I don't do this for money or I wouldn't be here writing this. Why, I'd be sucking blood out of another poor Vet. Besides, who buys all that copy paper, Priority Mail filings @ $6.70 a pop and a copy machine, phones and electronic fax? Ah, and rent, too. Jez, if I had paralegals, who would pay them? I use Westlaw. It's $59 a minute (even 45 seconds) to look up cites. Based on that, a VSO is a bargain. Well, except for the outcome. Sounds like I'm the first one they called if they don't even know the regulations on fees. Worse, everyone knows (or should), and the rules are inviolate- it's 20% and you can lose your accreditation charging more. If you wish, hire one of the big boy brand names on a private fee agreement for up to 33% but it better be a very difficult decision almost based on a matter of first impression. They're going to be under the OGC microscope for charging that much too. Talk to you later, Berta. I gotta wheelbarrow full of moneyx3 to go to the bank.

I can, and often do, bargain with a DRO- but only informally (off the record), as it's against the law. Thus, it's a Bozo No-No to do it on the record. A typical discussion goes " My client is willing to drop his claims for tinnitus, hammer toe, and hypertension if you can give us 70% for the PTSD and an IU. He's 68, I'm accepted to practice at the CAVC and I have Jesus in my heart for Veterans. Besides, I'll just get an IMO and win anyway at the BVA. This way we can all go home happy."

Lots of questions but no solid answers. Here goes: If it's a contracted outfit doing your c&p like VES, QTC etc. for the VA, then they (the investigatory company) may promulgate their rules as they see fit irrespective of any VA regulations. In the absence of any posted signs forbidding it on their property, county, city or state deference would then apply ( i.e. does recording require permission or not). If the c&p takes place at a Federal institution such as a VAMC or CBOC, they may or may not post signs forbidding the use of recording devices of any sort- audio or video. I take my cell phone in to DRO and Travel Board hearing and don't even ask for permission. I do politely turn the camera screen face down. As for C&P exams, when I take one of my severely disabled clients in- regardless of what it's for, I go in- no questions asked. If they try to stop me, I just hold up my VA-issued ID saying I'm accredited. End of story- Here's my Power of Attorney. Prior to accreditation, my wife always went in with me to QTC exams. There is no law against it unless--of course there's always an unless- your significant other is not your spouse. In that case, s/he would have no "standing" legally to you-i.e. s/he could never be eligible for benefits on your service. This only extends to legally married spouses, dependents under 18 or biological parents. Now, with that said, I do know it has been done (surreptitiously recording a c&p) but it has no evidentiary value as it's "forbidden fruit" legally. It is useful to re-energize your memory and transcribe it. At that point, you and your wife can offer lay testimony as to what you both recall was said and it becomes part of the record on review. It can be powerful evidence as long as your credibility is intact.

Gastone, there are numerous ways to skin a cat. I do not profess to know all the ploys but I've seen about 99% of them. Buie v Shinseki was a piece of work and gave us a lot of ammo for my comments above. VA purposely arranges ratings to deliver the very least they can in hopes you'll accept it and go home. Remember all the admonitions we get from VSOs to fold up and shut up for fear they'll take our 10% away for tinnitus if we file new claims too soon afterwards? I have a daisy I'm arguing the 19th in front of a VLJ here in Seattle. He has (had) myelodysplasctic Syndrome and a bone marrow txplant. VA rated him on residuals and dropped him to 10%. My Congressman asked me to step in. VA neglected to give him 60%, 40% for secondaries of Graft Versus Host Disease and a real rating for his MDS. It's pretty common medical knowledge GVHD is a side effect of a txplant. Accident? No, I don't believe it. I managed to pull out a TDIU that should be a 100% schedular and got $0 dollars for it, personally. They were all new claims I jammed in to get him out of the poorhouse and a well-deserved future DIC for his wife. They gave him the TDIU solely for the 60%. Now we fight for SMC L and beyond. The Travel Board hearing is to get him his 100% back to the reduction to 10%. Get this. They used the language in DC 7704 to deny an increase under DC 7703. Another accident? I don't quibble over gross VA ignorance. The fallout is what I have to deal with. Some have insinuated I do this for the bucks. Shoot, ask Loyal about my finances. You can see my house from outer space.The one thing I don't need is money. I need a new liver. That, my friend, you cannot buy. If wishes were Cadillacs, we'd all be riding in style.

But... if you were rated as TDIU solely for you PTSD, then the amalgam of your other ratings would qualify you for SMC S. Usually, one disease /injury rated 60% or more is sufficient to accomplish TDIU. Another would be a single rating at 40% minimum plus others that combined to make 70% or more would be a qualifier. Thus, if the PTSD or GERD alone got you to TDIU, an additional 60% made up of independently rateable disabilities would be the kicker for SMC S. As for SMC L, that's a much bigger, different discussion. SMC is a most difficult concept to grasp. We always suggest Mr. Potatohead...https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/

The law for agents is identical to attorneys. §14.628-34. I don't know of any representative that supplies free paper or filing fees. I, and 99.9% of my compadres, charge for airline tickets and hotel to fly back for a Travel Board Hearing at your RO. NVLSP is a pro bono outfit as is the Vet's Pro Bono Consortium. They're totally free. If you can get a rep to pro bono you, fantastic. Remember, I did this from 2008 to 2016 charging nary a dime. Cupcake and I now donate 80% of our wins to paying power bills for "underemployed Vets" , the food bank or rent help locally. That's called "paying it forward". In my case, it's called buying your way into Heaven with some good Karma. Seems I might be a little skinny on that after two tours in Vietnam. When a rep (agent or atty) gets your POA, s/he can request a copy of your c-file from the VA. We actually prefer to have the latest "edition" rather than one you have that may be a year or more older. However, why bother? I can see it on line in VBMS within a month of signing the POA. Obtaining a c-file is becoming an arcane exercise in wasted time in the new electronic universe. Every one of those agents are bound by the same regs I am. A VSO can lie, cheat and tell you to give him a $100 Home Depot card for his assistance. He might get counseled not to do it again. If I charged you 25% instead of 20%, VA would come down on me like a cheap new polyester suit and take my accreditation away-forever. I might get away with 33%-but only up at the CAVC-and only if it's extremely complicated in front of a panel or en banc. Speaking of which, I'm planning my trip back for oral arguments on 18-938. I decided to rep myself.

Here's something to keep at your fingertips, folks. I have to turn away about 90 % or more of those who come to me now because of my workload and prior commitments. However, there are a lot of my fellow agents who are eager for work. Sometimes it's just an inability to connect with the one that "fits" you. I don't advertise as I don't need to. I know if some of you who wish to hire competent legal help have this, you may consider some of these folks. What the hey. Nothing ventured, nothing gained. Alex #39029 VA Agents List 2018.pdf

I do. My fibromyalgia (40%) severely impacts my mobility, Loyal. I use a walker when it gets bad in winter. My gait ataxia also causes me to walk like a drunken sailor (no offense to the Squids here on the site). Sometimes I fall down. But also remember, you do not need for your disabilities to be SC. The regulation and Statute merely require you to be at the higher tiers of SC and be "severely disabled".

Getting your heart's desire in an ILP is elementary. You need the same ingredients as you do for a compensation claim. You need a service or a device to ensure you can accomplish ADLs, you need it due to your immense subset of disabilities (SC and non-SC alike) and you need a "nexus letter" from a licensed therapist pertinent to your field of desire. I went to some gal with about 20 initials after her name like MPH and RPM about three times. Medicare paid for the visits. I explained what I was doing and brought her veggies and fruit I produced each time as "examples". My situation may be a bit unique in that I have a skin disease from Agent Orange (Porphyria Cutanea Tarda) and cryoglobulinemia from my SC Hepatitis C which causes my blood to coagulate below 40 degrees. Add in severe fibromyalgia and you have the recipe for a heated ADA greenhouse. But that is not the end of the matter. §21.160 permits both SC and non-SC disabilities to be considered. Thus, my recent congestive heart failure, syncope and bad back from that aircraft mishap in 1971 all have to be considered. VA also destroyed my digestive architecture and my abdominal diaphragm in 2009-10 with 4 disastrous surgeries. I can't lift anything over 15 lbs. so I need hydroponic farming. If I sneeze, I sometimes have a 'Hershey squirt' accident. VA removed 95 cm. of my small bowel and food sails though at a pretty good clip. In 2014, VA VR&E tried to shrink the ILP down to one ILP per customer per life. Congress never wrote that. I took them to task and started piling on added requests after the BVA judge granted the greenhouse just to see if I could. About then, they decided to become vindictive and shrink the g-house down to a postage stamp. I fired back with the hydroponics, an incinerating portapotty due to incontinence plus a 15 lb.lifting restriction, and two years of the Veterans Benefits Manual. Remember. I help Vets so I need the latest in legal technique to be current in VA law. If one of you wants a computer, that's the absolute easiest one to win. You want to stay in touch with your brothers and sisters out there in Hadit.com land, right? Why, then, what better way than a brand new Dell with Dragonspeak (if you have PN)? Sure, expect some flak but they'll cave in. That's what VA OGC Precedent 34-1997 was all about-some old boy wanted a computer. He got it after a bit of a fuss. So did I. So did Gastone. I have an extensive ILP library of 'how to' on my site. Try these on for size if you're hitting the ILP wall. https://asknod.org/category/independent-living-program/ As you folks can imagine, I'm not on the Seattle VR&E's Christmas card list any more. I do suspect that if there is a s--tlist, I'm near the top with Phil Cushman and notables like Joe Fenderson and Roger Schafrath. My ILP motto has evolved over the last seven years. I've graduated from "Dare to be a Winner!" to "Dare to be an a--h---e". It seems to be working. Nobody can say I don't have their undivided attention now. My next project is to find a needy Vet who is mobility challenged and needs a riding lawnmower. As most know, VA decided one day we're not entitled to "vehicles" other than a powered wheelchair. Since I already have a Cub Cadet to run around my property with and a tractor for farming, I sadly cannot enter this fight... personally. Which is not to say another of you motivated folks could not take this to the CAVC and win it for all of us. My idea in 2011 was that a greenhouse win would pave the way for others who wanted one. Remember, there is no dollar amount for an Individualized Independent Living Program (IILP). It costs whatever it costs. No VR&E counselor can ever look you in the eye and say "Are you mad?" A tractor costs $15 K. Besides,VA ain't gonna buy you one so don't waste your time trying. We outlawed them in 2008. Vets were driving them to VFW bars in Indiana to avoid getting a DWI using their vehicles." And for Heaven's sake, remember, if you do win, to order a riding lawnmower like a John Deere with a decent beer holder that won't tip over when you hit bumps. My Ariens beverage receptacle sucks. I suggest going to the dealer and test driving one down to your VFW to be absolutely sure...

I used to build houses. It's a recipe- no more complicated than some. Read the blueprints. Reread them again if there is confusion. Go through each step and eventually voilà- you have a house. If you have to take your sawzall out of the truck, it means you did something wrong. Do it once. Pith is my stock in trade, sir. Nothing is gained by lip-whipping it to death.

I've just about memorized a lot of these things. Now I'm building a library of the perfect cites to CAVC law. I have a few daisies from the M 21 and the SOPs from the Segmented Lanes Model I cite to. I did the Evelyn Woods Speed reading course in 68. If you learn it and use it, you recall it. I also have a friend who can remember any good pertinent cite. He lives off the grid so its sketchy at times. He's also one of the magic 9 who have won an Ex Writ at the Court since 1989. For VR&E, look at 38 CFR§21.160-162; 21.92; 21.98 and those regs. They give you the authority to control the vertical and the horizontal. Never let a VA counselor dictate to you about what you will or will not do and what VA will give you. I put a gun to their heads at the end of the last IILP and insisted on two years of the VBM from Lexis Nexis ($350/yr) and a $3,000 240VAC incinerating portapotty. Smile when you flip them off.

VA OGC Precedent 34-1997 is your basis for the chair. Also OGC Precedent 6-2001. VA has only spoken to wheeled vehicles such as a riding lawnmower or a tractor. Ditto a Cub Cadet 4 wheeler. All that could change as there is no such thing in 38 USC §3120. VA can claim Chevron deference but that only extends to what Congress has forbidden as much as what it has approved. As such, there can be no strictures on anything-period. Remember there is no $ value to an ILP. The test is whether it is "necessary and vital" to you being able to succeed in your activities of every day living. To date, I've helped in a Tempurpedic bed, a $23,000 sling to get my Vet in and out of his 6X8 exercise pool, a walk in tub and my greenhouse. VA did choke and puke on the greenhouse and we're still in contention over what size and what's going to be inside it. A chair should be a cake walk. Get a good therapist to opine that it is a must for your well-being. Just because a VR&E "expert" has never heard of something being granted is not dispositive of your never attaining it. I spent 7 years on the greenhouse and went to the CAVC 4 times. VA variously stated 1) it was forbidden by law as being avocational rather than vocational; 2) that I had not one but 3 greenhouses; 3) that the one I did have was adequate even though it wasn't ADA; and lastly 4) that I filed my VA 9 more than 60 days after the SOC. Fat chance. I had the green card from the USPS to rebut that one. That's where it is right now. See #18-938, #17-1450 and #16-2098. Win or Die (trying).

The metric now is layered, First, for PTSD, you would have to be in a place where there was a reasonable chance of bodily harm-either by incoming ordnance or being attacked/overrun. Being in Saudi Arabia at an Air Base and getting PTSD from fear the Taliban was going to fly over to Riyadh, rent a car and suicide bomb you would not be considered a credible stressor. That would probably be to Afstan now, maybe Iraq. That is called your stressor. The JRRC will run you to make sure you were where you say you were. Step One completed ( VAF 21-0781). If it were a MST claim, you don't need proof of in-service event. Just the 0781. Next, I let VA's shrinks fly at it with the "independent medical exam" to discover... yep... not at least as likely as not related to service. You lose. I then get my private psychologists/psychiatrists hired guns to review all the records and I do mean ALL. C-file VBMS, Virtual VA, any paper, VistA, CAPRI- the whole nine yards including STRs/ combat medals, # of deployments/ time total in country. The psych opines yes but uses VA's exam to cite to what they (VA) did wrong or forgot to take into account. That's the art of rebuttal in the ex parte arena. You always make sure you-Johnny Vet- get the last word in. Figure out why you lost and rebut it. If VA tries to rebut you, you re-rebut them. Now you have equipoise. One IMO for and one against. Both parties have read the entire c-files and have no superior position. Mariano v. Principi says you cannot develop negative evidence against my client. Since the evidence for is in equipoise with to the evidence against, there is no need to gather more evidence. §3.102 is for application which gives you the benefit of the doubt and you win. That's really how simple this is. File. Lose. Figure out why. Hire agent/atty. or go pro se. Get IMO. File NOD and new IMO. Sit back and remodel the kitchen or convert the garage into a bedroom and rent out to Air B'nB. Win. Get new c&p to determine first rating File NOD with rating and ask for increase. Win higher rating but file new NOD for higher rating. Get SOC. File VA 9 w/i 60 days. Sit back and redo back patio. Put in waterfall and Koi pond. Opt in to RAMP (no new evidence) Win at BVA several years later. One thing I note. If you file for bent brain, you need, at a minimum, a psychologist. A medical doctor cannot opine on mental issues.

SMC, in its entirety, is a quality of life rating for daunting medical conditions far above and beyond the normal scope encompassed by the ratings schedule in the VASRD. I fight these battles for Veterans trying to attain the higher tiers due mostly to the effects of battle damage or Agent Orange side effects. As such, my grasp of TBI is imperfect and I readily admit it. Just as a doctor cannot possibly be a specialist in every field of endeavor, so too am I somewhat limited in how much I can absorb. To give some of you an idea of the parameters VA uses to grant TBI at various ratings percentages, I reprint DC 8045 below from the §4.124a schedule of rating neurological deficits. No other DC uses this convoluted method as a yardstick to grant (or more often deny) Veterans. I do have clients who have attained 70% ratings under 8045 and still have "rump" ratings for PTSD they attained prior. There is usually no pyramiding or overlap as the TBI deficits are physical rather than mental. There is much disagreement in this field and VA always errs in their own favor. This VA propensity to lowball is not unique. Thus, I try to push for the highest and best ratings under less subjective criteria where I can obtain the highest and best ratings with the least judicial effort. At this point, I'm sorely tempted to hire several attorneys to help me keep up with the influx. The reason I don't is elementary. The normal VSO rep has 250 Vets he "works" for and s/he cannot possibly devote enough time to any one Vet to make an appreciable difference. Hence, they lose 85% of the time. I'm 67 and "retired" -or was- due to my disabilities. I've gradually crept up to about 60-70 Vets and more knock on my door every day. It would be a great disservice to accept one of you ahead of others who have waited months-if not years- for me to help you. Worse, I take a personal interest in any Vet I rep. If one of my employees were to drop the ball, I would feel personally responsible for his or her errors. I have enough on my plate without that added burden. I would like to apologize to Eli as I tend to zoom through these posts sometimes without reading the thread in its entirety. He is correct that I have described two different compensation packages regarding this subject and essentially have lumped them into one subject. As most will never attain R1/R2/T for TBI without a knock down, drag out fight and exceptional legal assistance, I oversimplify sometimes or am guilty of lumping financial pathways to remuneration into one conversation instead of segregating them into their proper subject areas. Theresa might want to create a separate discussion for the Caregiver's stipend so as to help clarify the entitlement. There is a lot of misconceptions as all here can see. It would be logical to include here in the SMC heading even though it is vastly dissimilar from SMC as well as being administered by the VHA. Here's why it is so difficult to get T. Certain symptoms are like Tinnitus-only the Vet can report as to the medical deficits. We all know how much VA trusts us to report our own subjective complaints. Generally, if you can't measure it with a goniometer or a thermometer, you're malingering in their eyes. So too, PTSD. To give you an idea of how hard it is to qualify for the highest tier of SMC, read some of the cases just in 2018. https://www.index.va.gov/search/va/bva_search.jsp?QT=SMC+R&EW=&AT=&ET=&RPP=50&DB=2018 Most that are won are accomplished by my friends at CCK ( Robert Chisholm and Zachary Stolz). The number of attorneys (or agents) who can navigate this minefield and win can almost be counted on one hand. It took me over two years of reading hundreds of cases to grasp all the various pathways to win-and that was just for R1-R2-not for T specifically. My mission is to get my Vets every entitlement that can be supported by law. I take the path of least resistance to do so. If I have been remiss in reading this by coming in late and shooting from the hip, I sincerely apologize for my error. I assure you it was not born of arrogance-just expediency or laziness. So many Vets; so little time. DC 8045 Residuals of traumatic brain injury (TBI): There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings - mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc Evaluation of Cognitive Impairment and Subjective Symptoms The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Note (5): A veteran whose residuals of TBI are rated under a version of § 4.124a , diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR 3.114 , if applicable.

Vets confuse the two. A true SMC T is a R2 (or an R1) under the exact same criteria as the comp. rate for the appropriate R. I do not argue that. However, the universe of SMC T awards at the R2 rate can be counted in the low one thousands just as R1-2 recipients can be. It's rarer than hen's teeth. All the Vets I've encountered see the Personal Care stipend as an ugly stepsister to T at a greatly reduced rate. Here, we have two dissimilar discussions being combined--i.e. your comments re T when I was trying to explain a caregiver stipend to jfrei versus SMC L at the A&A amount. At any rate, you folks all miss the thrust of the conversation. SMC T is temporary under most circumstances because your gradually improve-but certainly never regain all your pre-TBI assets. SMC R1-2, invariably, is forever as it involves the loss of use of two or more extremities where TBI does not. Does that help?

Or by someone under the direct supervision of a nurse, doctor or other similarly situated individual.

Nice try, Eli. Try reading how to get to R-anything first (see below). Sorry but you don't get to R 1-2 with a note from the doctor. You get there because you are entitled, at a minimum, to SMC O. If, and only if, you have a SMC L for A&A, in addition to another L for some other disability, do you qualify, at a minimum, for R1. Please do not disseminate incorrect information here as it makes it immeasurably more difficult for others to know the correct interpretation. SMC R2 pays $8,676.60. You will never see that on a SMC T check. Besides, the VHA issues the check directly to the caregiver. They do not include it in the Vet's monthly compensation check. §3.350(e) (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. (3)Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. (4)Helplessness. The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness.

Remember §4.14 (pyramiding). You cannot be compensated for two neurological/mental disorders. VA classifies TBI and PTSD or any MDD as a mental disorder. Hence, you get paid for one regardless if you have both. In order to ever qualify for the higher levels of SMC (i.e. R1-R2) you have to be severely F-'d up. Here's the criteria and it's a steep hill to climb. 38 CFR §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)(2) 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) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. (3) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(2) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. (4) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. (5) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial. Think of having LOU of your upper extremities and trying to inserted a catheter 4-6 times a day. Or being a paraplegic lying in bed and needing to be flipped every 4 hours due to your bedsores. I mentioned the SMC O to R1 path as it is one way to get there but again, you need some mega-issues-i.e. two (2) SMC Ls and one has to be A&A. I'm doing a radio show this PM w/ Jerrell Cook and John. I'll be discussing SMC in all likelihood as I have 3 right now who I'm repping who are all terminal in that regard. One passed away 7/1/18 but the appeal will still go forward. Bon chance.

Good Lord, son. Are you mad? You want L. T is temporary. It was never meant to be permanent. It's in three tiers, not a forever $8,798.03 /mo. payment like R2. Never confuse it with anything of, or having to do, with Veterans Benefits Compensation. You're getting L for Aid and attendance forever. Why would you wish for a T rating at one, two or three thousand dollars for X months? L is $3,866.24. That's $730ish more than 100%. If they give you T, it would be for a finite period-not forever like SMC L. If your symptoms eventually cause loss of use of the upper or lower extremities or you develop Parkinson's secondary to it, you'll move up to SMC O with the R1 kicker. I think you need to crack the books to understand the SMC game a bit better.