FormerMember

CUE claims are never "combined" with other claims for new ailments or increases. VA has four "lanes" for claims now- new claims/increases, Appeals and CUE (which includes §1151 claims) and lastly, Special Operations like homeless/ medical exigency. I didn't include VR&E or dependency issues in adjudications discussions. One facet VA will hammer home is that you had an opportunity to file a NOD and object to the decision made in 2009. Ignore that argument. Remember, you are not a doctor. There is no MD after your name. Even though Clemons v. Shinseki was not case law at the time, you can cite to Espiritu v. Derwinski for the proposition that you are not one (an MD) and are not expected to be able to phrase your claim for benefits precisely. It's enough to file the claim imprecisely and let VA deduce what it is you are asking for. Once read, the medrecs will illuminate even the most dense rater or his supervisor. By law, VA is required to examine your claim and "infer" or deduce what, exactly, you are attempting to say or file for. For instance, if you'd filed for a SFW that wrecked your eyeball, they are obligated to infer whether there are peripheral claims associated with it (residuals) such as retained metal fragments which can never be debrided and the possibility of a permanent disability. VA tends to look strictly at refractive error after it heals and ignores 38 CFR §4.1 through §4.10. They studiously avoid any in-depth investigation even when they have §4.84a DC 6009 (eye, injury of, unhealed) at their fingertips for application. And, much like Mr. Clemons in the above decision, they are more that willing to open a whole new claim for DC 6009 in 2017 because you mistakenly filed for SMC K for loss of, or loss of use of, one eye or DC 6029 Aphakia. Always remember who you are dealing with. Think GEICO. They would rather pay you for a little bondo work and an Earl Schieb touch up paint job rather than a whole new left front quarter panel. They purposefully try to minimize the scope of the injury and focus myopically on what you claimed-not what you actually suffer from. When you object, they proceed to argue something totally irrelevant. It's like herding cats. When doing CUE claims, I'm anal about focusing on case or controversy. I lay out §3.105 at the beginning and then proceed to point to the error over and over again. Redundancy is often required to keep them on subject.

Something few Veterans realize is that a properly constructed IMO for any disease can be related back to CL claims as well as AO ones or fuel/chemical exposure to JP-4, toluene, MEK etc.. The only metric that needs to employed is a well-reasoned thesis on not just the "at least as likely as not" but also peer-reviewed articles or the Merck Manual that attributes certain exposures to well-documented cancerous side-effects. A Veterans Law Judge is allowed great leeway in deciding an appeal. If the evidence presented by you is not rebutted by a BVA-requested IME, you will invariably win- assuming it isn't too far-fetched or involves Internet articles. Always remember, the VARO denies your claim 85% of the time. When you go to the BVA on appeal, VA rarely shows up to rebut any new evidence you present unless it's a CUE claim going back to the 70s-90s. You can insulate yourself against a time-alligator remand for more VARO opinions if you file a request to waive review of the new evidence in the first instance and keep it at the BVA. With the huge backlog, they are under the gun to resolve these appeals ASAP. One of my VLJ friends tells me they are required to crank out 1.25 decisions per day. That can be a remand, a grant or a denial. Obviously, if you present new and material evidence that properly and cogently encompasses the three Caluza elements, the Judge is going to grant your claim. I should add there are certain appeals that are too far-fetched to be believable. I've read BVA decisions where Vets tried to turn a cold annotated in their STRs 40 years ago into evidence of chronic COPD. You need a good 40-year paper trail for that to fly.

Special Monthly compensation was granted by Congress and they're pretty stingy unless we're talking about their paycheck. As for us, disability is a variable open to VA's interpretation. I find fighting them is like herding cats. They'll do anything they can to appear dense and dodge the problem. If cornered, they order up the wrong DBQ or do x rays and "forget" to look for SFWs-but manage to look for old broken bones. SMC will always be a fight. Getting what is properly owed is due to ignorance and oversight. Few raters are even familiar with it and often overlook obvious entitlement. SMC S, due to our efforts here and my site, is at an all-time high now. VA simply never looked to see if we were entitled to it. The M 21, which is supposed to "detect" it, never does. As for the higher SMC ratings, unless the disability is blatant, VA won't grant it until you point it out. Even then you stand a long battle establishing the true date your entitlement began. VA generally grants SMC the day you ask for it but the true date is medically determined by the evidence of record-often years before you discovered they'd been funning you over it.

Try this one on for size-- https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/ There is no benefit such as you describe specifically for a Vet with two 100% schedular ratings. I have two 100% schedular ratings myself. Here's when the SMC benefit you are describing kicks in. If you become helpless as defined in 38 CFR §3.350 and §3.352 for A&A, you qualify for a "bump" up from 100% to SMC L. This applies independently of if you are already entitled to SMC S. Alternatively, you could have loss of, or loss of use of both lower extremities or loss of, or loss of use of one hand and one foot and qualify for SMC L as well. But... once you qualify for SMC L, if you have an additional 100% (real scheduler-not TDIU) rating unrelated to your first 100% schedular rating, you get a bump up from L to M. Concurrently, if you have any singular rating 50% or higher or a combination of ratings entitling you to 50% or higher, then you would qualify for a half step up from SMC M to SMC M 1/2. You could have three 100% schedulars and get a bump from L to N and then pile on the 50% or greater extras. You can see you cannot get on this "bump" wagon until you qualify for SMC L-even if you are getting SMC S. If you have SMC L for helplessness (Aid and Attendance) and you have loss of use of lower extremities (or hand and foot), you automatically advance to SMC O. The party doesn't end there. You are then also entitled to SMC R(1). As far as I know, this is one of the few examples of legal VA pyramiding to get a higher rating.

Actually, the compensation rating for someone over 20% is reduced to 10% sixty one days after incarceration and not restored until after release to, at a minimum, a half-way house or parole. If comp. payment is 10%, then you get paid 5% from day sixty one on. See 38 CFR § 3.665(d)(1),(2). a

Buck, one of my first and oldest laws of war was to ascertain the enemy before I pulled the trigger or announced "Misty 21 is cleared in hot on heading 272. Weapons are free, over". I would hate to see this site get the same reputation of Peggy's Pink Site and see a bunch of Vets arguing with each other. If I say something that even seems offensive to you, and this goes for all Hadit members, I would hope you would ask for clarification or illumination of my comments before sounding off. Hadit is one of the premiere sites for quality information with no slant to it. No one prejudges another here or, at least, should not do so. I now find myself able to represent any Vet who is eligible. I have to pick and choose because a hemorrhoid is not as lethal as IHD and a heart attack as I mentioned before above. As for TDIU, it appears the subject is mute again (unfortunately). It needs resolution and Vets need more security in their ratings. Imagine some "undocumented visitor" from another country getting your SSN and using it illegally to hand to an employer. Bingo. VA gets a report you're working due to activity on you SSI earnings. You get pole-axed by VA on your TDIU until you get it cleared up. I want change and I see a lot of problems here. Not all of us are pure as the driven snow regarding VA claims. There are always a few who want a paycheck for life who haven't earned it or are not quite as disabled as they seem. As an agent, and even before over the last 25 years of this, I have encountered a few who carefully built up their ratings to get into that magic window of 70% combined with a 40% or better rating to qualify for TDIU. I helped them in spite of my misgivings but I find I can no longer do that now. These Vets give us a bad name. Fortunately, they are few and far between. I work closely with DROs and raters and they expect me to be a professional- even if they are not. Please do not allow your emotions to rule you words. This site is valued by all for it's easy, helpful info with no "opinion" attached to it. You will notice I do not censor comments on asknod.org unless there are 4-letter expletives used. I consider it a family-oriented site just like Hadit. Our sites are designed to help Vets. If, in the process, we find VA has been unethical or disobeyed the law, I have no problem calling them out. However, I cannot in good conscience represent someone who claims to be totally disabled by a bad back who owns an off road dirt bike and rides in poker runs cross country every weekend. You and I share a sacred brotherhood of having served in Vietnam. There are 850,000 of us left and we're falling like flies. VSOs are little use to us and shunned us when we returned home. 99% of the reason I decided to become accredited was because of Vets like you and me. Nobody offered to help us when we came home. VFW turned down my application because Vietnam was a "conflict", not a war. Our friendship is more important than our differences ever will be. Remember that.

Sorry if you think I'm down on Vets, Buck. I don't know where you get that. I offer my help to any that ask-most all of the time for free. I always have and always will. I even gave you a bit of advice for free a while back. I didn't judge you or talk down to you. I do radio shows to help Vets here with Jerrel and John. Have you ever heard me talk down to or demean a Vet? I take donations folks send and buy food and pay power bills-sometimes a whole month's rent. I don't ask for it back either. If someone is dying of Hep C and asks me to rep him so his wife won't starve, you're telling me to say screw off- I have to help Johnny Vet with a hangnail because he got here first? If and when folks here start telling me who I can or should rep, and in what order, you won't have to worry about me ever being your rep. If I accepted no more today, I have a lifetime of claims waiting to do. These are claims for Vets I already helped who are now personal friends. I help the sickest ones first before they die. I guess I don't expect you understand that. I have to triage my Vets. Only the sickest get on my Dustoff. I'm sorry you are having trouble understanding what I wrote and mean. Ask a friend to read it to you. It's fairly obvious you do not understand what I am saying. I said nothing mean-spirited. I insulted no Vet. Yes, some Vets aren't honest. That's a big problem if I take them on as clients. I've had four that lied to me about their claims. I got 100% for one. Then he told me he was a junkie and he'd smoked me. He seemed to be pretty proud of himself. I did not turn him in because he's a Vet and it happened before I got my license. If it happened tomorrow, I could not let it go. The other three lied about the degree of their injuries and one tried to hire me when he already had an attorney. I assume all who come to me are truthful. If I catch them in a lie, it's very, very difficult to ask to be removed from the claim. My only defense is to make sure I'm not getting hornswoggled. President Reagan said it best-Trust...but verify. You don't seem to understand how this works. I don't file claims. I file NODS and VA9s. I'm not allowed to help until after you lose. I fight for you and I win. If any of you think for a moment a NSO is smarter, better and has more legal training, then fly at it. Please understand TDIU was once a good idea but the Courts have opened it up and it's causing the system to crash. Wouldn't it be easier to just declare a diagnostic code for 100% based on multiple disabilities and call it good? Why keep a system like TDIU where some Vets will exploit it to win the top rating? If you're totally disabled, you're toast. Why the big VA dog and pony show and jumping through hoops to get the IU 100%? We Vietnam Vets are now the oldest except for a few holdouts from Korea and WW2. Our generation is the one most at risk and the one who got the short straw when we got back. Those are who I owe my services to because they have the least time on this earth to get it done. If that pisses you off, I apologize. I'm one guy, not a office full of agents. I stand behind my statement that I will never ever knowingly file a fraudulent claim. If I so much as smell a rat, I walk away. And you, sir, may also take this post however you want to.

Very simple fix anyway. If you are "totally disabled" then VA needs to grant a 100% rating-not this IU fustercluck. Brevet Major General Custer was actually a Colonel for pay purposes after the Civil War. Everyone took a cut in rank and pay. His rank could not be reduced and he was legally allowed to continue wearing his two stars. Most of them eventually were promoted to their rank before retirement. My whole argument is why construct a chutes and ladders game out of it? Call total disability what it is -totally disabled. Don't put a smiley face on it and add the painfully obvious 8940 "and I can't work" requirement. However, to qualify via percentage, I don't think little things like tinnitus, flat feet, ingrown facial hair, or dermatitis on less than 5% of your exposed body parts should add into a "totally disabled" combined percentage assessment. I represent Vets who have really big problems- Agent Orange, IHD, Hep C-things that kill you. Most are naturally 100% from their misadventures. VA often doesn't agree. It's my job to make them see it our way. It sure doesn't help if I try to file TDIU claims for Vets who arguably can find some kind of work but have enough ratings to qualify. I lose my credibility at the RO with the DROs. And by law as an officer of the Court, I'm forbidden to file fraudulent claims. There are two ways to look at TDIU. Continue to save it for the most needy and obvious cases and ration it or apply it liberally to each case where you can legally qualify via a combined percentage of 70% or more like SMC (s) at 100 + 60%.

Here's a conversation starter (or not)... https://asknod.org/2017/06/14/tdiu-shulkins-new-albatross/

So which disease/ injury is ratable at 100% schedular. I'm lost.

Oh just wait, Berta. I'm hatching my opus- SMC S to April 1970. They gave Johnny Vet 10% for eating a 60mm mortar (One (1) SFW moderate wound) and a handful of zeros for hearing, eyesight. No exam or x-rays.No investigation of TBI/PTSD or organic Brain injury. No neuro workup. Ten minute c&p without auscultation. I responded to the NOD with 167 pages of service medical records under 3.156(c). They never went back to St. Louis to see if there were more STRs. This is the world-class RO legal team you're up against. This is why you'll always win with proper guidance. VA cannot do anything right. You have to find the error, exploit it properly and timely, and take it to the CAVC to win it. If you're adroit, you can get an agreeable DRO and strike a deal before you even turn on the mic in the hearing room. Johnny Vet still has to sign off on it, too, but these folks are as eager to put paid to it if it benefits the VA's interests. Of course, when you have them by the short hair, don't even bargain. I never gave anything up of value as a token to meet in the middle until the ILP Greenhouse last winter. I accepted a 20 X 28 instead of the 24 X 48 but I got two years of Veterans Benefits Manual, a 240 Volt incinerating portapotty, and expensive indoor LCD grow lights. I don't think I sold out. In fact, since they're still lollygagging around and haven't even built it yet, I filed another Extraordinary Writ May 13th. CAVC 17-1450 ( assigned to Bartley again). She did my #16-2098 last year. Coming up on two years. I asked for a panel to revisit Erspamer. Check out my groveling bow from the waist attached below. 2017 CAVC Greenhouse filing in pdf .pdf

After 23 years of fighting, two CUEs, five BVA decisions and three trips to the CAVC, I finally forced VA to acknowledge and fix the correct effective date ( March 1994) for my second 100% schedular rating for porphyria cutanea tarda. No more money but they can never reduce me or take away the rating. VA is fond of waiting until you're at 19 years and 6 months and then requesting a new c&p exam to show you got better. Bingo, Out goes the 100% and in comes 60%. 260% of my 290% is now 20-year protected and can never be reduced or rescinded. It was never about the money. They pissed me off forever when they said I was never in Vietnam. You can call me late for dinner but never call me a liar. With this last and final correction, I officially end my VA claims filing career.Well, until the next disease or injury pops up.

See VA General Counsel Opinion 8-2004 page 5, paragraph (c). All your kids are eligible as well as your wife. She has to take advantage of it within 12 years. The kids are all eligible even if they go past the 26 year age limit. 45 months of financial assistance @ about $970 per month. Most states also offer free tuition so it nets out as a free college education. Congratulations.

the Number to call in is 347-237-4819 after you get in just hit the number 1

SMC L---$3,790.43 per month.

Not all VA attys. opt in to this system. I was going to until I saw the mountain of paperwork and the annual recertification. It requires a separate computer at home that isn't used like we do normally. You have to attend a "security school" at the VARO to do this. You have to go through annual recertification as well. It is time consuming and a lot of work to keep up to be legal. Smaller attorneys/agents opt out of it like me. If I want it, I send in a 3288 to the RMC via Janesville. I get them in about six weeks. To be anally correct, there are two different systems- VBMS and Virtual VA. All you get is access to read-only VBMS of your c-file in real time. And for the record, the only representative that will lie to you is a VSO representative. We, as private attys/agents are officers of the court and required to serve only the Vet. We cannot accept any offer or settlement from a DRO without running it by the Vet. Period. Look at 38 CFR 14.628-.634. VA will tell you there is no such thing as off-the-record bartering. I've done it several times. Appeal for 10 things and then accept a deal for 4 and give up on the tinnitus, hemmorrhoids and flat feet in a trade for TDIU to 2008. VA raters get points for wrapping this crap up that drags on for a long time-especially appeals. VSOs settle for 0%. With greedy attorneys or agents like me, they assign a Asst. VSCM or asst. RO director to you who mainlines your requests. I filed POA March 20th for a Vietnam Vet for 100% rating for his heart on IHD. I got a call from the Vet Eval folks this AM at 9. They are expediting his C&P exam to next week. The squeaky wheel gets the fix pronto. The more obnoxious I get, the more they treat me nicely. Off to Texas for NOVA conference.

Berta and I need to take a class in prescience. For the record, if you got a 10>100<60% in one rating, what you have is an increase from 10 to 100 as a temporary rating and then 60 as a permanent (for now) rating. That is, technically, a Fenderson Staged rating but not quite. A true Fenderson would be a retroactive grant either via a CUE correction or a 3.156(c) decision. This would generate a gradual increase over a number of years based on available medrecs from the contemporary time involved. Any time you see a 10 go to 100 and back to 60% with no proposed reduction is due to a filing you sent in. Did you ask for an increase due to a surgery? Temporary total 100% schedulars are handed out, on average, for 3 months- maybe six if the injury is slow in healing. The follow on rating you perceive as a reduction from 100 to 60% is based on the residual medical evidence of disability. A proposal to reduce always allows a 60-day window for response. No proposal to reduce would ever be preceeded by a temp. total increase to 100%. It helps to include as much evidence as possible for us to ascertain what it is you are trying to comprehend. Perhaps a description of what the 10% was for would help. Timelines are very helpful also. As for a CUE, there can be no true "CUE" if the decision is less than a year old and not final yet. You have 365 days to file a NOD with a decision. VBMS only recognizes three things these days in Benefits land- The 526 EZ, the 21-0958 NOD and the VA 9. DBQs are recognized but that is a medical issue. 21-4138s float around in virtual space now. I had one client's from Oakland end up in Atlanta for a filing. DAV used the 4138 instead of a 526. The computer didn't know what to do. So, if you get a screwy decision, you file a NOD. There is no "reconsideration" mode or form. VSOs claim there is but all they do is refile for the reconsideration on a 526 and begin a new claim. You lose your earlier filing date this way. If you find an error on a decision from three years ago you never appealed, then you file for CUE. CUE is technically only for final claims. It is used loosely here to mean error at any point of the claim but an active claim cannot contain CUE but rather errors that have yet to be pointed out to the ignorant asshat doing the claim. You use the 21-0958 for that. Period.

The basic answer is this. A psychiatrist works for VHA. Unless he is performing a c&p exam, his notes are not binding on a VA examiner who works for VBA. Having a 50% rating in 2009 when the notes were entered would have no preclusive effect on a rating less than 100% or IU. As for CUE, that is a horse of a different color. Absent your c-file, I would be loathe to venture a guess.

Sorry, but that is incorrect. Here's how this works. Housebound, as defined by a shrink, is immaterial. VA rates you, based on your percentage, for SMC S (Housebound). Once you are rated as 100% disabled for bent brain, the next level of compensation above that is SMC S. Thus, you did not "qualify" for SMC S until you attained the 100% rating. Now that you have it, your SMC S effective date should, by law, be the date they granted the 100% -or May 2015. SMC is unique. You do not have to file for it. It is paid from the day you can medically prove you qualify for it-even if it is far in the past. Several years after I won my 100%, I also won an additional 60% (and more) retroactive to 1994. VA had to pay me the SMC S all the way back to that filing date. I have one Vet I'm working with who filed for seizures relating to 16 meds for PTSD in 1989. He finally won in 2013 but filed a NOD for an earlier effective date. VA never finished it back in 89. We'll win, I'm sure, but his effective date will be 1989 when we do.

SMC (t) goes up to $2100/month. SMC R2 caregiver is $8,344.00 a month. SMC (t) is graduated usually into separate tiers of entitlement. Rarely is it paid at full freight.

<<<Don't let filing Appeals interfere with filing additional SC Claims, big costly mistake.>>> Yes and no. If your claim(s) have been certified and a VA 8 issued, then what Gastone offers is good advice. On the other hand, if you have a NOD or VA 9 filed on a claim or claims, and you suddenly add new claims to the mix, the RO will develop all the claims together and certify them at one time together. This can result in 2014 claim(s) being "held back" until the newer 2016 claim(s) are developed to appeal status. They then package the whole enchilada up and affix the VA 8 to the combined appeal. The BVA does likewise. Occasionally, they'll remand a claim back to correct a deficiency or ask for a new c&p exam. The rest of the appeal sits on hold until the remand is complete and they adjudicate it all in one bundle. You can force them to do it by asking for a waiver of review in the first instance and requesting an up or down decision on the pending unremanded claims. Sometimes they listen and do it. Sometimes not.

To get to R2 from S, you will have to meet all the requirements of SMC O or be totally disabled and have the last name of Shulkin. Being married to his daughter might work, too. I think I'd be concentrating on making the leap from SMC S to SMC L based on the need for Aid and Attendance as a preliminary goal. Use VAF 21-2680 as a template for feasibility.

I carry an old Walther PPK .22 with H/Ps and extra clip on the holster now. Fits in you pocket too and has a double action. A .22 is pretty hot round close up. At a max of 10 feet, with a semi, you can do about as much damage as one 12 ga. with 00. Actually more as the .22s have far higher muzzle velocity than shotgun pellets. My ears already ring too much now.

Exactly. I was wounded in 70 as well. In 2006, my biopsy showed Stage III, grade 3.

Each stage (0-4) in the METAVIR scale is 10 -14 years depending if you drink/drank a lot of booze. More booze means shorter stage. A very moderate drinker who has stage two probably got it anywhere from 20 to 30 years ago. Stage indicates age/ grade indicates how fast it is turning your liver into hamburger helper. Grade One is slow damage Grade four is balls to the wall. The good news is after you do the new Harvoni cure, your liver actually starts to regenerate somewhat over time. Studies suggest it may retreat one whole stage over 10-14 yrs. post-infection. One thing I can say is your energy level will go up afterwards.