FormerMember

SMC is due and owing from the date it can be established that you qualified. Thus, if you got TDIU in 2008, technically you would qualify. But.... Bradley v. Peake (2009) did not decide the matter of TDIU being the equivalent of a true 100% rating for SMC purposes. You would not use CUE because that is far too hard to prove. It would rest on Bradley not having been decided when you qualified. Since the law, as it was known and accepted in 2008 did not recognize TDIU as a true 100% disability for rating purposes, CUE is decidedly NOT the route to pursue. Rather, send in all the ratings showing entitlement to SMC S in 2008 based on the TDIU plus an additional 60% unrelated to the COPD and see what they say. You would file it on a 526EZ as that is the only way to get in the door these days. Most assuredly, avoid the use of the phrase CUE and concentrate on entitlement based strictly on ratings. It may be they would only grant from the date Bradley was decided by the CAVC, too. Bradley was decided Nov. 26, 2008 but it would be retroactive to the filing date of Mr. Peak's claim. Some feel Congress made the point clear as far back as 1994 so that is food for thought. Nevertheless, you can see why they suddenly gave you the SMC when you hit the 100 for COPD. They immediately recognized their error. SMC is one of the least-understood of benefits administered by VA and errors are common and frequent.

They do not hand out mobility devices like riding lawnmowers/ golf carts/ small tractors anymore (since 2012) but that was never legislated in the Federal Register. I guess too many Vets were using them to ride down to their VFW bars to get drunk and avoid a DUI. Remember, they also said I didn't qualify for a greenhouse because I had one already. Then one morning I woke up and they said I had three. The little buggers procreate when you aren't looking, I guess. Be wary, sir. They really need to do a workup on your documented needs and you would normally state what you desired and why ahead of time in an interview where you supply a wish list of several items. Remember also this is like a claim in that you need a "nexus letter" from a Voc Rehab counselor (preferably a private one -not VA) stating what you need and why it is necessary and vital. Otherwise, they show up, measure you for grab bars at toilets, an electric can opener if you have peripheral neuropathy and the like. VA OGC Precedent 6-2001 threw in the "necessary and vital" clause that makes a nexus letter a must. Otherwise, a VA counselor will merely give you the rubber stamp saying no to a computer or other device. Remember, I fought all the way to the BVA for the greenhouse. I must have heard the word 'no' about 50 times-even after I won. They will begin breaking ground here in 30-40 days. Read the 28-8872 IILP document very carefully as to what you agree on. They will sneak extras in like having you report monthly to a RO for a medical checkup to make sure you are "healthy" enough to continue participation. You have the right to use your own doctor instead of a VAMC. I would. If your disability is PTSD, I'd ask for a woodshop or a photography suite to do video production (amateur). They will deny anything above a computer automatically anyway. Or.... a greenhouse. The new M 28 says if you haven't been doing what you want for a year previously, then no dice. That was added in March 31, 2014 but again, it was never approved by Congress. It is merely the VR&E's way of reinventing ILP denials. I think my request for a $150 K greenhouse made them revamp the prerequisites for big dollar grants. Best of luck. Keep us posted on the bait and switch. clear prop.

You would need to apply under the ILP program to get one. Hell, we all get computers, tablets etc. out of them. I don't see why you can't say it's necessary and vital to you for taking meds, keeping track of appointments etc. Best of luck. File a VAF 1900 and begin the process.

The CUE does not rest on the fact that you are incapable of testimony as to what comes to you via your five senses, sir (Layno v. Brown (94). It is because you need a risk factor or testimony from a medical person with medical training in hearing to state your defect is service connected. If you had no risk of exposure in service, then you cannot point to any relationship it is service connected. It is not necessary to always have a medical record to win a tinnitus claim, but it is essential to have a MOS or AFSC that supports exposure to acoustical trauma. CUE is a difficult concept for even a skilled VA attorney which is why most won't touch them unless they can see the error as glaring. Read this one and then come back and present your theory anew. Perhaps you can shed more light on it after a nuanced reading of why it isn't CUE. I often play devil's advocate and argue against my own contentions to see how VA might view it. https://asknod.org/2014/05/02/cue-the-quintessential-elements/

I'm somewhat like Berta. VA short-sheeted me so many times I became accustomed to the negative expectation. In this case, I suspect, short of some major reason like homelessness or medical exigency, a feeling that they are lip-whipping together a quick denial unless it's an open-and-shut case of VA dumb. For every 85 claims they screw up, we know they get 15 right statistically the first time out. Yours may be one.

Let's be realistic. I do not believe anyone could fake a PTSD comp. and pen. exam for any number of reasons. If your stressor(s) are flaky, they're going to run you through the Minnesota Multiphasic and a few other 'put the round peg in the square hole' tests. Anyone trying to pull the wool over the shrink is going to step on his necktie on one facet or another because s/he will be constructing something out of whole cloth. Bob Walsh's Vet, Keith Roberts, was unfairly, as far as we can determine, convicted of this in 2004 and did several years in jail. Turns out he was unfairly accused and was somewhat exonerated by virtue of actually having two stressors-not just the one he claimed. The witnesses OIG found admit they were never queried as to Mr. Robert's presence. It was a trumped up trial with very shaky evidence. It was done illegally with no due process. It had its desired effect and all the VSOs used it to scare the wits out of Vets for years. This is where a lot of the negative admonitions come from nowadays when your DAV rep says 'Don't rock the boat. Come back in ten years and I'll get you that 10% for tinnitus. Right now, just hold your water and take the 0%. We don't want to appear greedy. Besides, they may reopen your psoriasis claim and reduce you.' I wrote the blurb for humor since several of you have brought me such rich stories. Like Berta, I had a fellow who came to me in 2008 and I built his claim on falsehoods. He said he'd never used drugs other than to sniff some white lady and never shared his straw as he had an obsessive-compulsive disorder about cleanliness. Turns out I got scammed. I found out he was former junkie biker and bragged about how he'd scammed the VA out of a 60% rating for hepatitis c. All it takes is one to spoil the apple barrel. As Berta says, I believe the majority of you have legitimate claims. However, I do see many "reach" to connect a disease or injury out of ignorance. Sleep apnea has become a problem claim for many, regardless of whether it is a legitimate claim, because so many have begun to claim it. 50% for using a cpap device is a mighty big temptation for some. If you gain a hundred pounds after discharge and begin snoring, there may be other reasons for it besides PTSD. I've been attacked over my 290% of claims by several VSOs I've had the occasion to encounter. Most argue I'm still technically at 100% since you cannot go over that. Many think I lied or cheated to get them. I can assure you that a doctor diagnosed each and every one and stated with complete confidence they are secondary to or a direct result of injuries received in the military. Had VA given me my legitimate ratings in 1994, I would not have kept filing to get to the magic 160% for SMC S. As it turned out, I finally won and then won via the second path I was constructing. My filing for 100% on just my porphyria was done to set a precedent for all that follow. Before I did, most never got past 40% for phlebotomies. VSOs ignore or are unaware of 38 CFR 3.350 and Special Monthly Compensation. Or, they are extremely ignorant. I think VSOs should have to take the Agent's test to serve in the capacity. I believe it would help Vets as well as protect us against Vets with bogus claims-however few they may be. Filing or teaching how to file a claim is serious business. I try to impress that here on Hadit. You have the power to wreck a Vet's claim when you offer poor advice. Having the OIG on your ass for teaching how to scam the system is not what you want. Considering the OIG can't find their own ass with a methane detector set on 'high', your (or my) chances of being convicted of that crime or even being accused of it are slim to none. If the OIG can't find 45 dead Vets were disenfranchised at the Phoenix VAMC for an appointment scam, I'd say I'm safe. Nevertheless, there is a substantial body of evidence that Vets on the verge of separation from the service have been reading our boards because they are filing more and bigger claims that most of us older Vietnam-era Vets did when we were discharged or retired. Knowledge is power but with it comes the duty to be honest and forthright. I will never believe anyone who was motivated sufficiently to sign up to serve his or her country in war would purposefully do so with the express intention of filing fraudulent claims. There will always be a few but it is statistically insignificant. Most make a stab at it, fail and cease their efforts when they realize the enormity of the task and the time involved (sometimes measured in decades) to prevail. Being inherently lazy, they move on to some more lucrative scam like faking a fall in a Safeway store. Some who win smaller claims like tinnitus or hammertoe might be emboldened to file for Sleep Apnea based on a sincere belief (right or wrong) that it is related to service. If you're heart's pure and the record supports you, you'll prevail eventually. VA doesn't make it easy for obvious reasons but by the same token, they shouldn't make it hard for extremely obvious cases. Always remember that a VSO's duty to serve is to the VA-not you. Unlike a VA attorney or Agent, they profess their allegiance solely to the Veterans Administration. That's why they get free rent, free telephones, free heat, free electricity and free coffee at VAROs and VAMCs across the fruited plain. That should be printed on a disclaimer when you sign the VAF 21-22 giving them your POA. Remember also, VSOs have fought to keep legitimate attorneys out of this since the War of 1812. Congress let us begin doing this in 2007 over their loud objections and Vets have finally begun winning in substantial numbers-but not by cheating. Green smoke. Cleared in Hot.

The SMC S codicil is simple. If you have a 100% disability, either composed of a 100% true single schedular disability or one composed of a a TDIU rated as 100% for compensation purposes, you may qualify for SMC S based on your medical condition essentially "trapping" you in your own home. This would not be the same as a Vet with a 100% schedular or TDIU who has an additional 60% or more of combined ratings, none of which are similar to the predicate 100% disease/injury. Do not confuse the two concepts. 100+60 jurisprudence is explained better here: https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/ For example, you cannot add up a bunch of DM2 stuff and then throw in all but one of the 20% Peripheral neuropathy ratings to get to TDIU. Saving one 20% PN extremity rating to add to the other diseases causing them to add up to the 60% or more would be forbidden as the peripheral neuropathy naturally is part and parcel of the DM2 TDIU P&T. Your true extra 60% or more gives you a kicker that Congress intended to reward due to being more severely disabled as to "keep you home from working" even if you could. If the disability is truly medical and not rated 60% or more above the TDIU/100%, you still get the second shot at it. BroncoVet's argument is confusing. His case parallels Buie versus Shinseki rather than Bradley v. Peake in that he disputes the order in which they were awarded. Had he won the TDIU in 2002, the extra 100% for MDD in 2009 would be that 60% (or more) kicker giving him his SMC S.

A VSO came to my site and admonished me for teaching Vets how to cheat. It figures.

This is an important guide everyone should read. https://asknod.org/2016/11/02/how-to-ace-any-va-compensation-pension-exam/

Or a letter from a doctor on VAF 21-2680 stating you are effectively housebound medically (i.e. no driver's license, incapable of driving/ambulation). Of course, if you are in a wheelchair and on A&A this is a moot question. You'd already be on SMC L. Proving medical housebound using a medical hypothesis instead of the normal 100% plus 60% for other disabilities unrelated to the 100% ratings is not hard. You just have to have an IMO letter saying as much.

VA most always in this particular situation, reverts to 38 CFR 3.351(b) and subsection (c) is just the highway sign to go to 3.352. 3.351(b) uses what VA will concentrate on even though it is a nebulous term. (b) Aid and attendance; need. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria set forth in paragraph (c) of this section will be applied in determining whether such need exists. As long as you realize this is the yardstick VA is going to measure you by, you can choose how you wish to present it. I doubt you'll have to worry about any of the higher SMCs. None of them have the beginner aid and attendance "helpless" codicil so they would not apply.

When applying for SMC L using Aid and attendance as the predicate, certain disabilities (but not all listed) are what is needed. In order to get the VA rater to see your disability picture as so great as to render you in need of Aid and attendance, you will have to support that proposition. Look at all the reasons you might qualify. Here's the list from 38 CFR 3.352 (a) Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance (§ 3.351(c)(3): >inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; >frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); >inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; >inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. >“Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. When you ask for reconsideration or an earlier effective date for A&A, you must pick a date that you can point to with medically supporting documents and declare that is the day you qualified for SMC L. You will need a favorable, completed a 21-2680 from your PCP supporting your hypothesis. Your wife cannot make that determination unless she has medical credentials (RN at a bare minimum). Even with that, they will still call you in for extensive workups. Lay testimony here is not what will carry the day. Your current list of disabilities (40/20/20/10) equals 66% rounded up to 70%. As no single disability is greater than 40% and the combination is 70%, you will have a hard time painting a disability picture that will reflect that necessary to attain A&A. Mind you, I am not trying to dissuade you from attempting it. I merely point out the inevitable roadblocks. I'm 290%. My upper and lower extremities are finally beginning to succumb to peripheral neuropathy. I must file first to get them SC due to my Hep C and/or porphyria from Agent Orange or even I will never get SMC L. I could have total loss of use of the legs but if they are not SC, I cannot claim SMC L. Similarly, if I can still pick up a fork or spoon or operate the bidet, I would not qualify for SMC L under the A&A codicil. A C&P exam will delve deeply into your arm and leg strength and perceived radiculopathy. Pain alone on excursion, is not a defining requirement to attain A&A. They give you things to squeeze to see what your grip strength is. Trust me, they are trained to spot fakers. A test for peripheral neuropathy in your extremities, including an EMG, will reveal if your muscle responses are genuine. A DBQ is merely a report card-not a confirmation of need for aid and attendance. There is no DBQ specifically for A&A. One thing I've seen is a Vet saying he can no longer wipe his butt after defecating. VA usually solves that by giving him a bidet. That's way cheaper than A&A. They can give you an electric can opener under the ILP program to aid you in eating and preparing your own meals. You have no idea what you are walking into yet. If you are not at SMC S with a 100% or TDIU, plus a 60% rating for another unrelated disability, or if you are under 55, VA is going to make you work for it. Dr. Bash or Dr. Ellis might even have a problem writing an IMO for that one. Another thing will be SAH/SHA improvements to the home or a vehicle grant. Often, absent these, they will not even discuss SMC L under any perceived entitlement-be it loss of use of lower or lower/upper extremities or A&A. If you still have a driver's license, they'll say that proves you are capable of ambulation and do not need A&A. I would have a doctor opine as to your abilities with a 2680 before approaching the VA. Even with that, if you can walk and are not considered housebound in the truest medical sense, you may not prevail. SMC is reserved for the most egregious cases otherwise you would see more of us receiving it.

Something most Veterans on BOTH coasts of America might not realize is that when you abandon any claim with VA, you are, in essence, agreeing with their assessment of the denial- be it for a disability claim or a request for IL services. If you apply for the IL Program and then drop out, you are most assuredly allowed to refile a new request. I just did it right on top of the greenhouse win in April of this year. I asked for two years of the LexisNexis VBM for $350 a year ($700 total). They granted under pressure to finish ironing out the greenhouse IILP, I admit, but they granted. Making a claim/request for anything at the VA (or the VR&E) should never be done if you do not intend to pursue it to completion. It tells the VA you are spineless and the request was not necessary and vital as enumerated in VA OGC Precedent 6-2001. This why I advocate for a Win or Die approach. If you do not believe in what you are fighting for, you stand little chance of winning. VA isn't stupid. They read these boards, too. They know Vets are using the VR&E "infeasible for work letter" as a springboard to TDIU so it's a matter of time before they alter their behavior and start saying a VR&E decision has no weight in an IU argument for an extraschedular rating. Vets are adept at finding loopholes and VA is just as adept at coming back around to back fill them. If you apply for anything with the VA and do not appeal it, you are, in essence, saying you were not entitled to it and the request/claim was not substantiated. There is absolutely no reason why you cannot get a letter from VA VR&E saying you are hors d' combat for a Vocational pathway to a job and still keep your irons in the fire for an avocational ILP grant. The whole purpose of Form 1900 and the initial intake assessment is like a preauthorization for a mortgage. Either you qualify or you don't. Once declared infeasible, get out the Cabela's catalog and start browsing. By all means, ask for the letter stating the infeasibility of you being a candidate for 'Vocational' training and file it with the DRO but do not let your ILP aspirations lapse or agree to relinquish them. States vary in what they will accept as proof of 100% disability. In Washington, you need a 100% or TDIU rating from VA or a determination from the Social Security folks. A simple letter from VR&E saying you've been turned down for vocab rehab training won't get you any sympathy at the Tax Assessor's office or relief from any quarter-including the Dept. of Motor Vehicles. Over the years, I've watched what VA does with TDIU. Folks in Rocket 1949's predicament with a hearing loss do not get the sympathy that a MDD-Vet with a major SC back problem would get. Or a DM 2 for 40%. Or peripheral neuropathy in all four extremities for 10 or 20%. VA considers anything less than dang near stone deaf in both ears like Buck to be a minor inconvenience. A job taking orders at the Jack in the Box Drive thru window is right out but selling widgets on line for 8 hrs a day using a computer is often feasible work in their eyes. If you are 64 years old, you're far more likely to get IU than if you're 38. Numerous things go into an IU determination for extraschedular. And, since the Director of Comp. and Pen. is at VACO in DC, it matters little which coast of America you're closest to. On the other hand, in ILP programs the opposite is true. Most VR&E outfits here in the west deny anything past grab bars. My left coast greenhouse is the first in decades. I did get a gal a hoist for their swimming pool to haul grandpa (Korean Vet) out. It was expensive and they cried a lot but they caved in.

R/T. The "infeasible for work" assessment will be the first hurtle. The VARO sometimes make a determination that the sum of any one disability at 40% or greater but less than 60%, combined with others to make 70% or greater is the threshold measure to IU-but it isn't. It's merely one of the requirements to get there to be considered for IU. PTSD @ 50 % is not a disqualifier for work, per se. Combined hearing loss with a 40+10 hearing rating (basically all one disability) again, is not a single disqualifier for work. Look at all the ads for "Work at home and make $12 K a month". VA uses that logic- "the sum of the two disabilities, either together or singly, are not so onerous as to preclude work". If you have any college credits or a degree, bingo. You can work. No IU for you. Always remember that IU is an extraschedular rating and has to go through a whole new assessment by the Director of Comp. and Pen. who is notoriously a tightwad. Think like your enemy. Assume a worst case scenario. Like my friends with the funny green beanies used to say, Always have a plan to kill everyone in the room-friend or foe. Make sure you have tactical superiority in law and regulation that permits or entitles you to what you seek. Never go fishing for a higher rating. Go for it because they owe you and maybe they just forgot. I call that my Benefit of the Doubt rule. Win or Die

To clarify, once you are identified via the 28-1900 intake for ILP, they will do the needs-based assessment. When they write up a "ILP plan" it will be on the VAF 28-8872 Individualized Independent Living Plan or IILP. This will discuss what you will be given. Since you still haven't supplied me with any assessment of what your rated disabilities are, I find it impossible to advise you on what the VR&E folks will do-or can do. Remember also, the new M 28R is defective. I just proved that. They said a greenhouse was never going to happen in 2011. Chapter 9 revised says they have limited "avocational" assets. It's simply not true. There are 2,700 slot authorized every year with no dollar limit. My greenhouse is going to go over $150,000.00. Last year they only used up 1,426. Each year, the ILP grants go down. Congress authorized this in 1980 for us Vietnam GI Joes missing some paint and parts.Nothing has changed. Congress has never said you cannot have a mobility device such as a tractor or riding lawn mower. That is a fabrication of VR&E and unsupported by statute or regulation ( 38 CFR 21.160-.162). Know the law and recite it back to them when they say no. I'd say you have an excellent chance of getting a digital photo lab or the like if your disabilities are physical in nature. Not so much if it's PTSD but one never knows. You have to shape your claim to the circumstances of your condition-i.e. you are not going to have success asking for a bass fishing boat if you're a paraplegic.

Start with the early posts on ILP here. https://asknod.org/category/independent-living-program/. There are 106 blog posts on the subject. I published every denial and every part of the appeal process. The answer is yes. I know quite a bit about the ILP. If they find you infeasible for training, you go to Plan b (ILP). They'll try to go into grab bars and sock puller uppers if you have back problems. I'd start with a new computer so you can " communicate with other Vets in your community". You can get that fairly easily even if you have to ask for an Administrative Review in DC. Since I do not know what your avocational interests are, what VARO you are working out of, or what you are disabled from, I obviously cannot suggest fishing gear or a metal detector.

The VA must be practicing Catholics. They subscribe to the theory of Immaculate Recovery.

The ages-old repair order is what you need, Buck. You need that magic paper that says "It is at least as likely as not that the medications Mr. 52 is eating are having an extremely deleterious effect on his winky." VA likes to use the panacea path- "Hey, we gave you the blue pills and Winky came back to life so you have no claim. Go find a flat rock and piss on it. Next?" It doesn't work that way. Any disability has to be observed (and rated) before the efficacy of any medication is taken to resolve it. Simply put, you do not rate on the residuals after taking the pills. VA knows this and there are several good precedental cites from the CAVC (Jones in 2012?)saying exactly that. Too bad VA can't spell CAVC.

Be prepared for one thing. In all my CUE adventures, I have won none at the RO level. VA raters have consistently denied based on decidedly flawed logic. I ended up taking one to the CAVC as an Ex Writ in January 2015 leaning entirely on equitable tolling. It's mighty hard to answer a SOC when you're belly up in a VAMC. Without batting an eye, and surely not admitting CUE, they hurriedly revised it 41 days after the filing. It was the difference between awarding SMC S in 2007 versus 1994. VA will twist the regulations around to read something entirely different just as they did on my ILP greenhouse request. I agree with Berta. Nothing ventured, nothing gained. However, in your case, having a C&P that uses language clearly and unequivocally entitling you to a certain rating that they admit they lost is a pretty damning document. Think of the Presumption of Regularity as a philosophy. It is presumed (never assumed, however) that VA personnel are adept at their profession and always do the right thing. To rebut that presumption, you have to use the Rizzo/ Butler test. What appears regular-is regular. But what appears irregular is irregular. It would be irregular to ask for an additional C&P within two years if you just did one. If they lost the first one, that rebuts their hallowed presumption. The whole adjudication must be thrown out and a de novo review performed. I can almost bet that VA will initially go down the CUE denial path and say CUE can never rest on how the evidence was decided in retrospect. You may have to go higher for justice but what the hey. You have all the time in the world. This also reinforces what I've been hammering on Vets for years about. Get the c-file. This is the document VA is using to deny you with. Since they pretty much manage to step on their necktie 67% of the time, what makes your individual case immune to that statistic? The only way you can unearth the error is to have the file to examine in minute detail. Don't expect VA to be the stand up guy and go back to find and fix it. That's how you got in this pickle the first time-probably without a good representative guarding your best interests. Win or Die

If DM2 makes Winky quit working, then yes. You would get a K award for Loss of use of. Even if you have to munch Viagra like M&Ms, you always rate the symptoms before medication

CLE doesn't trump the CAVC and the CAFC. When, and if, you get there you'll find that out. The CAVC, especially, has many cases that eviscerate the M 21 and grant it no deference. As an example, read the new M 28 R. It says avocational pursuits are extremely limited. There are 2,700 slots open to ILP each year. Last year, only 1.426 were used. Never presume anything with the VA. I caught them lying to me in 2008 when they suggested filing new claims after I had 100% P&T was "foolish because there is no higher rating". This came from a RVSR verbally. If they are so legally challenged they cannot read the Statutes and Regulations, why would a Manual improve the process? The fact is, the M 21 is computer-generated in most cases of adjudication. Thus the old adage, Garbage in, Garbage out holds true. If you input the wrong parameters, you answers will be incorrect. 67% of all VA adjudications are either wrong or partially so.

You forget one thing. 38 USC is the statute concerning the benefit. 38 CFR is the regulation promulgated enforcing the statute on a day to day basis as interpreted by the Agency and Secretary. M 21 is merely a manual on how to employ 38 CFR. It is given absolutely no deference on de novo review by the Courts. In law, if the regulation is too vague, it will be interpreted to the Veteran's benefit. It is presumed that the Secretary knows how to write his own regulations. It makes no difference what the M 21 says. You should read the M 28 R which is packed with many contradictions to CFR and USC. All you have to do is prove ambiguity of 3.350(f)(3)(4). If there is no guidance, M 21 cannot be used as the predicate. It becomes a matter of first impression at the Court once presented and boy howdy would I present it just to get precedence if possible. Loopholes like that close shortly after being revealed. I have two 100% schedulers and an addition 60 for anemia or cryoglobulinemia and a skin rating for 30 that would give me an extra 50 so I'd sure be interested if they read it leniently. (f) Intermediate or next higher rate. An intermediate rate authorized by this paragraph shall be established at the arithmetic mean, rounded to the nearest dollar, between the two rates concerned. (3) Additional independent 50 percent disabilities. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above, additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized. (4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. (i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114 (l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use. (ii) The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized. I'm an optimist. All I see is that your two one hundred percent ratings cannot form the predicate for the 50% nor can loss of use of lower extremities be counted as a 100% schedular if you try to use peripheral neuropathy of any extremity. Everything must be separate and distinct. Hearing and tinnitus ratings could be combined to get the 50% but you cannot add six disabilities together to get a 100% aggregate. As for any language forbidding the award of both (f)(3) and (f)(4) simultaneously, I see no bar to it whatsoever. Which is not to say you won't have to appeal.

There is also a case afoot at the CAVC of a claim I helped develop for a fellow Vet last year. His attorney maintains he can have several bumps up using the 38 CFR 3.350 (f)(3) and (4) bump method. For instance, If he has a separate and distinct 100% schedular for IHD and another for 50% on a completely unrelated disability, that he is entitled to both the half step and the whole step bump. He already has SMC L for A&A. I do not see any language forbidding the technique. It should be an interesting ruling. They're still haggling at the early stages and a judge(s) have not been assigned yet. VA OGC blew off the Rule 33 conference about five minutes before it was due to commence. Dumb.

TBI is rated in the same vein as PTSD. The deficits associated with it are predominantly mental from VA's standpoint. Getting a designation of being infeasible of attaining and/or keeping a job is a VA technique to fence you out of VR&E in any form. The law is clear. The Independent Living Program is for those of us who fall into the infeasible category. VA has purposefully allowed the ILP to fall into disrepair and now only hands out trinkets like grab bars at showers/toilets, can grabbers and electric can openers. No more metal detectors for a hobby on the beach. No more toy tractors for small-scale farming. Some of you discovered the back door. If you are not trainable, then you are unemployable. Bingo. TDIU at 100% right? VA is now trying desperately to plug that loophole. ILP was headed to extinction until I asked for a computer and greenhouse in 2011. I kept pushing and finally got the computer in 2012 but no dice on the greenhouse. I filed my NOD in fall 2012. They sent out a SOC about a month later with more denial babble. I filed the VA 9 a week after that in 11/2012 and they "lost" it. After 60 days, they declared the claim unappealed and dead. I produced my green card and showed receipt of the VA 9 in 3/2013. They reinstated the appeal but refused to answer my SSOC rebuttal or issue the VA 8 certifying it for appeal. They must have figured I was a dumb Vet and would give up. I filed an Ex Writ at the CAVC demanding they do the appeal in January 2015. Got my VA 8 a month later on February 17th. Got my BVA travel Board Hearing April 29th. The Judge was appalled and granted me an advance on the docket. Got my win on the greenhouse 4 months later on September 4th, 2015. I finally filed for a new Ex Writ at the CAVC in June 2016 asking them to quit screwing around and build it. Then I wrote Secretary Bob a long letter. I fought until yesterday to get them to give me what I needed. The VR&E Officer finally threw in the towel at 0930 and agreed to everything I had asked for-hydroponics and high pressure sodium lighting/propane heat in a 20 X 28 ADA greenhouse (slab on grade with rubber mat fall protection). I was feeling pretty lucky so I decided to see how far I could stretch this. I told we had a deal if he'd throw in a $1,750.00 composting portapotty due to my short bowel syndrome. Who wants to empty a portapotty full of poop? It stinks. He cried/denied and then emailed and agreed to it about 1330. Feeling even more emboldened, I asked for a two-year subscription to the Lexis Nexis Veterans Benefits Manual (VBM) to do pro bono work to help my Vet buddies for $350/year. He refused and then called back and relented about 1500 hrs. I said we had a deal if he'd throw in the propane, electric bill and the hydroponics nutrients for a year. He absolutely refused and said he was sending it up to DC and it would take forever to get the ghouse. I said "So be it, sonny." That broke the camel's back until 1620 hrs. He called back and said 90 days on propane and nutrients and that was his final offer. We shook hands over the phone and I told him to get his sorry ass over on Monday so we could sign around on it. He thanked me profusely and promised to be here with bells on at 1000 hrs. And that, ladies and gentlemen, is how you deal with VA. Always get to the high ground first and defend it. Unconditional surrender is the only technique. MacArthur taught us that in 1945. The ninety day suspension date ended at 1630 hrs and we got his ILP completed with ten minutes to spare. I'm guessing he was calling VR&E Services in Washington DC and getting authorization for all these little extras at the last moment because his voice was beginning to crack when he agreed to the VBM. Sometimes you have to be prepared to stand and fight. I'm sure you all learned that concept when you did your combat training. I spent five and a half years getting here but I proved a point. The M 28 means nothing. The VR&E Officer is the OIC. He makes the decisions. Mine complained for five and one years and told me I'd never get it. In the end, he was agreeing to anything and everything just to meet 38 CFR 21.98(b) and the CAVC deadline for compliance. I was thinking about asking for a refrigerator to keep the beer cold out there too. It's going to be 70 degrees in there and hydroponics is thirsty work. The best part is I can now go in to talk to him and tell him to give a Vet a tractor or metal detector because he did it for me. Being a VA Agent now also allows me to roam the VARO or call and talk with the Director about "problem" VA employees.

This guy has the beginnings of potential to be an elder. His grip on SMC is phenomenal. As long as the loss of use of one foot.one hand has nothing to do with peripheral neuropathy, you're good to go. You cannot use any rating to attain A&A that was used in the formulation of the first SMC L as that would be pyramiding. I.E., you cannot build a case based on neuropathy and all the other disabilities to gain A&A. It would have to be predicated entirely on the heart thing and the kidneys. If the kidneys are part and parcel of the DM II, it would be best to leave it at the M plus a K because you'll end up with A&A and they'll remove the Loss of foot/hand and roll that up in the new A&A. Chances are you might get there in the future if your heart thing became the predicate for the A&A. Then you could move the neuropathy into a single disability picture and get LOU due to the sum of the DM II ratings. Bingo-two Ls and on to O> R1 While VA is certainly obligated to fit you with the "highest and best" rating they can ascertain, you have to watch out for their logic circuits burning out. I've seen them award two SMC Ks to avoid giving a L out for LOU of both feet- and the same scenario where the Vet already had A&A. They will stop at nothing to avoid O/P and into R1. I had a guy who could stand momentarily to make a transfer from wheelchair to bed. Bingo. The man can walk. He doesn't have LOU. He also has grand mal seizures. He went from M + K to R 2. You have to build them carefully. The pieces have to fit like a jigsaw puzzele- virtually an L1 +L2 = O. If L1 or L2 = A&A, then proceed to R1. clear prop