FormerMember

Buck, You can have as many SMC K ratings as you are entitled to regardless of SMC S. Or L, M and N for that matter. When you hit O that's the end of the K party. Getting K for loss of or loss of use of a creative organ, be you male or female, hinges on whether it is service connected. Ergo, you get DM 2 and it boogers you up with vascular circulation problems. All of a sudden bingo. no more winky. That's SC so they write a K for it. If it screws up your leg and you get peripheral neuropathy and lose the use of it, bingo, another K. Say your right hand goes belly up from the neuropathy, then they have to give you an L for it because loss of one hand and one foot is a jump up from those individual Ks. They rescind the Ks and replace it with an L. You could lose and eye and get a K for that on top of L or S. When you hit SMC O/P, the K gravy train ends. They rate only on loss of or loss of use of after that and need for A&A(1) or (2).

No, hopefully I will be awarded it on Tuesday. I already did my 90 days hard time for disagreeing. That was on top of the one-year plus delay in implementing the BVA award. Or I just call Bob again and ask what part of the IILP they don't get. It would be one thing if they arrive with their own IILP but they are too lazy to even write one up. They seem to think I'm going to fold holding four aces. I have almost six years into this May 2011 filing. Why surrender when you've won the war?

One error many Vets make is how they add up the 100% plus 60%. Please remember that the extra sixty percent cannot consist of SC conditions that are part of the 100% (or TDIU) part of your rating. If you get 100% for DM2, you cannot ask for SMC S based on 60% of peripheral neuropathy related to DM 2. I have found this out from several claims I helped on. The extra 60% rating(s)you use as the SMC S "kicker" has (have) to be completely unrelated to the underlying 100% rating that preliminarily entitles you to consideration of SMC S. Most folks I have helped on a SMC S based on only the 100% and nothing more need a pretty shiny letter from a doctor and a 21-2680 that goes into great detail. Remember always that VA will almost always say your "housebound in fact" claim rests on non-service connected diseases or injuries. Be prepared for a long appeal on these. Yes, you can win- but never at the AOJ. VA doesn't want to appear too "soft" and a pushover. The error rate in SMC is phenomenal. I've had one (at the CAVC now) where the Vet was SMC L for A&A and they declared loss of use of lower extremities. Bingo- SMC R1, right? No sir. The VLJ declared he gets one SMC K for each leg. He'll win but it graphically shows even the BVA is out to lunch.

Yeppers. The VR&E pukes are now officially " stressed out and suffering high anxiety". They tried to saddle me with a padewan VRC -the last one in the office. Declined the offer. Now they are set to arrive on Tuesday the 4th. They want me to supply my own Individualized Independent Living Plan (IILP) and accept something smaller than what Farmtek designed for me. The whole thing is a dog and pony show. The greenhouse Farmtek determined I need is $140,000.00. VA is prepared to offer anything as long as it doesn't go over $15,000.00 to install it. Davis Bacon prevailing wages to install mine is $42,000.00 or $26,000.00 if a private contractor did it. This is like the Farmtek doctor telling you you need to do chemotherapy and then the VA milkman says "Man, I don't see it. I sure wouldn't take that crap. It won't help.Try this aspirin." One thing for sure is at the end of the Tuesday Meet and Greet they'll have 9 days left to play poker before I go back to the CAVC for a new Writ or a request to recall mandate on the August 25th order. I gave them another 90 days to get their fecal matter together July 13th. 38 CFR §21.98(b)(2) is pretty clear. So is 38 USC §3107(c). It sure isn't my fault if they can't read a calendar or add up to 90. The big problem is they use the M 28 R manual and ignore the statute and regulations. Unfortunately, the CAVC doesn't recognize the M 21 or M 28 since they rarely agree with statute and regulation. Guns free. Cleared in hot.

With 20 days to spare (October 14th), The VRC puke calls up yesterday at noon and begins to whine. I told him I've always been here waiting for a powwow. He tried to spoon feed me the 15 X 20 again with the 100 Watt porcelain pull chain ceiling fixture and a hose bib. We went over my "newer" subset of disabilities, both SC and NSC and about how they made me most severely disabled. I explained how hydroponics works and doesn't involve any lifting. He said there wasn't any money for "hydrophonics" and 1000 watt halides. I explained I now knew how they were trying to artificially keep it below $25,000.00 so they didn't have to admit defeat and let it go back to DC. The dogged me from Feb. 24th to July 6th before they finally spilled the beans on the bait and switch. After an hour and 18 minutes he asked for the name, rank and airspeed of Farmtek and my account number for the bid. Told him to look it up in my CER File. Lazy bastard.

Here's how this works. When you acquiesce to free medical at VAMCs, you create a record at VHA. When you file for compensation and submit your civilian medical records, you create a record at VBA. You create one composite .PDF file now which is referred to as the claims file. A VBA Examiner looking at your claim for PTSD, or, in this case, a VBA Vocational Rehabilitation Counselor (VRC) deciding a Chapter 31 entitlement, make a determination as to whether you can be trained "vocationally" or whether you are considered incapable of employment or that vocational training for you might be "unproductive" and your potential for future employment success highly doubtful. At that point, they declare you infeasible for employment and you are then eligible for the other side of the benefits-i.e. Independent Living Program under 38 USC 3120 and 38 CFR 21.160, 21.162. Or you can file a NOD and appeal this. Many here, including me, find it useful to "force VA's hand" into saying you are not trainable which, by admission means you should be on TDIU at 100%. Repair order? Get denial from VR&E. File for 4.16 IU based on VR&E assessment. As for HIPPA, that isn't for application. When you enter a govt. system like VA, all your records, both medical and compensation, are free game for VA to use to award/deny entitlements. VR&E is part of the VBA and has equal access to Virtual VA, VBMS, VACOLS and C/winnrs computer systems. That includes the VHA's VistA computer as well. To get a copy of your c-file, send in a VA 3288 and request one. To get a copy of all your VHA medrecs, go to a VAMC ROI office and ask them to print it up for you. Anything before 1995 is archived in microfiche and will have to mailed.

You'll win it based on Presumption of regularity of the mails being rebutted. Simple Case Law violation. No DRO or even the Director has that signature authority over $25 K either. They have to punt on 4th and long. Sadly, it's going to have to go to the BVA so no careers are ruined at the AOJ.

>>>>>38 CFR 3.303(c)---Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. Forget the antisocial personality claim. That dog won't hunt. Neither will "weight loss" as a stand alone claim. It isn't considered a disease. Prior to 2001 or so, you had to have certain things to support a claim. One was a nexus letter from your doctor tying a disease/injury to an event in service. I suspect you had none. As for VA going to get non-federal records, if the hospital didn't send them, you should have gone and gotten them yourself. VA has no control over civilian records. Most times the hospital or doctor's office want $ to reproduce them for VA. VA will never pay for records- ever. Duty to assist would only apply to military records you identify. Remember this is a two-way street. I don't see much hope in a CUE assault.

That's pretty much what I said in Post #4 of this thread. You cannot pyramid remuneration for the same disabilities. SMC S (or maybe L) or.... SMC T but not both.

Here's the law on representation. Once you have filed a claim-whether you win or lose it, you are entitled to use a VA attorney or VA agent from there on out on anything- appeals, CUE claims, increases. They are entitled to 20% minimum and up to 33% if it's extremely complicated VA law. June 2007 was when they let attorneys into the ROs. In VAland, you only have one claim. If you file for new stuff, it's still the same claim but with different items. Now, if you have a 90 % rating, you don't want to build a nightmare to get to 100% combined. Each one of those claim ratings is subject to reduction until protected at 20 years permanently- even if they get better. You want a 100% schedular for one single disease (whatever it is) that makes you unemployable to make it the cornerstone of your entitlement. If the balance of them adds up to 60% or more, you'll get Special Monthly Compensation S- and you can work legally. Combined total ratings are subject to reduction. VA usually shows up at about 19 years and 6 months to give you the C&P exam(s) that will screw you.

Here's a little history on ILP's beginnings so you can better understand how this works-or how it's supposed to work. https://asknod.org/2016/07/27/cavc-ilp-16-2098-this-ilps-for-you/ I hope this helps some of you to get there. Win or Die. Never give up. That's how I prevailed. Five years is nothing in VA time. Remember that.

In my heyday, if someone told me I couldn't get there from here, I took that as a personal challenge that demanded that I try to prove them wrong. That's exactly how I got my computer and greenhouse on appeal. I read here often that a VRC said "Ain't gonna happen". Do you believe that? You're talking to a gomer GS-11 with no authority. They are spouting the party line and M28 R. Let me explain. M28 is a manual-not a rulebook. It is a guide on how to interpret Chapter 21, 38 CFR. The law was laid down by Congress in 1982 in 38 USC 3120. There are 2,700 souls who are extremely disabled who entitled to ILP services every year. There is no limit on how many ILP you can have in a lifetime. Congress did not rule out greenhouses, woodworking shops or riding lawnmowers-VA's VR&E did-with no authority, I might add. This is a decision to curtail "freebies" to us that they think we do not deserve. You will find no law that says we are forbidden to get anything avocational. If you just roll over and accept what they say, you become another victim. When they told me I was never going to get a computer to use for Asknod.org, I filed an administrative appeal. Six months later, I had a state-of-the-art Dell with all the bells and whistles and a teacher for 2 months. I call this the Win or Die technique. Never give up. Eventually, they have to deal with you or they have to go to the BVA/ CAVC and explain to them why you don't get a woodworking shop. Sorry. The M 28 does not trump the BVA or the CAVC judge. I've proved that in spades. Follow the Yellow Brick Road.This isn't rocket science. Never accept no for an answer. ILP laws and regs were written to help us-not hinder. https://asknod.org/category/independent-living-program/

Just an update on the ILP Greenhouse. VA finally showed me their cards on July 6th. Turns out they'd been planning to give me a 15 X 20 with a water spigot and a 120VAC outlet and a 60-watt light bulb since back in January. I refused to sign the IILP when they showed up on the 13th with the blueprint and they gave me hell for 45 minutes. The two gomers went so far as to say I didn't "look" disabled and wasn't' cruising in a wheelchair so they questioned why I even needed a ADA g-house. By then they'd filed a knowingly false declaration at the Court under penalty of perjury that they had included me in the formulation of the project from the get go. Well, fellow Vets. You know I couldn't let that slide.... Here's what's in the cooker. Next up? They took it away from him on Tuesday morning and sent it to DC to be done right. I told the VA secretary by letter that with all the black on white violence afoot, I didn't feel comfortable with all the insults and that the VRE Officer's anger might spill over and he'd become violent. I told them he was forbidden to enter my property unless I had a police presence on hand to protect all involved. As Rambo once said: "They drew first blood, sir." Harry Callahan (Clint Eastwood) also had a good observation: "A man's got to know his limitations". Petitioner's rebuttal of Boyd fiction.pdf

Got the BBE with the official notice, Secret Agent number and POA code for on line viewing of c-files. Of course they got the phone number wrong. Sheesh. We're talking VA here. You're trying to get whiskey out of a bottle of wine? Onward thru the fog.

Here's the results of the nonadversarial, Veteran friendly meeting to mutually discuss the greenhouse size and location. Sad to say we hit a few bumps. https://asknod.org/2016/07/16/cavc-16-2098-ex-writ-respondents-response/

They changed the regulations as written and described in M28.March 31, 2014. It's now the M28 "R" Only problem is the VA hasn't changed the underlying regulations that control it in 38 CFR 21.160/.162. Nor have they consulted with Congress who passed 38 USC 3120 in 1982. They feel we are not entitled to "toys" and the like henceforth. From now on the metric is grab bars and can grabbers in the house. In ten years, absent any intercession on our part, ILP as we know it will be extinct. This is why I dove in and fought so hard from 2011 to 16 for a greenhouse. It sets precedence for all of you who come after. If you don't exercise that right, VA will erase it. For decades Vets got woodworking shops, greenhouses, riding lawn mowers, metal detectors and even small tractors or attachments to them. Starting in 2001, they began shutting it down saying it had to be "necessary and vital" to our independence in everyday living. Face it, ladies and gentlemen. The program is a word game. If you say the right things and get a vocational therapist to write you a nexus letter, and you have severe disabilities, you win just as if it was a regular claim for compensation.If you just send in a Santa Claus Christmas wish list without the rest of the ingredients, you get a "Sorry Charlie. You don't qualify" letter back. VA is so practiced at denials and most Vets are such wimps when denied on ILP that they never push back. Once upon a time up in Laos when someone told us we couldn't drop napalm without the US Ambassador's permission, we just waited until Friday and called it in. We knew he'd be in Bangkok chasing the fluffers. We snuffed 200 gooks and by Monday it had blown over. We apologized and promised we'd always ask for permission in the future. Two weeks later, we couldn't get an answer in time so we did it again. Sometimes you just have to ignore the way things are done and do it your way to get results. ILP is headed to extinction if we do not exercise the NOD lever and complain. I'm accumulating a nice package of the history of ILP for my Congressman. I plan a sit down with a powerpoint presentation of why it's important-especially for bent brains. It gets you interested in life and living again. It gives you a reason to get up in the morning. Personally, there's nothing more rewarding to me than to go out to the garden early in the morning when the birds are chirping and find a bunch of presents under the tree (free fresh veggies). Or a bunch of raspberries. Every month the presents change all summer long. The peaches are almost ready. Then the plums and apples. It beats the pants off a Thorazine/Valium haze. Since they haven't changed the statute, and the CFRs are still the same, it makes no difference what the M 28 R says. It's merely "guidance" on how to proceed. As such, it's grossly illegal. VA will keep doing it until they get their chain yanked and they clothesline themselves. That's how I got my greenhouse on appeal. They can't win because the regulations say I'm entitled to these things. Ignore the M 28 and quote their own laws right back at them. About the time you get to the BVA or the CAVC, someone finally agrees with you. How bad do you want it? Are you willing to throw down and fight? The last straw with VA for me was in 1994 when they told me I never served in country. Excuse me? Are you saying I got three combat Vs for doing an exceptionally good job scrubbing the barracks latrines? Now, when someone there says "You can't do that" or "VA no longer offers that program", I laugh. I get on the horn and call in the nape.You'll never get what you don't believe you've earned. Win or Die.

Look up VA OGC precedent 34-97. It promises a computer to any whose needs show it is necessary and vital. I had to go to Admin. Review in DC to win mine in 2012. VA is turning into a tightwad over this whole program.

Well, yes and no. I figure I had 25 of 28. I was a bit soft on Pensions. The questions are all "which of the following is NOT true? A-G in choices including a lot of A&C or A&B or A.C & D. 90 minutes to do it. I did it in 50 but reread every question three times to sound them out. Who cares now? I'm in for life assuming I do not let my credentials slip. I look forward to helping others but I can no longer talk about who, what and when as examples.

Hooooooooooooooooooooo, doggies. Look who has escaped off the reservation. https://asknod.org/2016/07/14/fyigmo-va-agent-status-approved/

VA is going to try a snow job. Relax. You are going to hear a lot of lies soon about what ILP is and isn't. Just breathe normally. I am finishing up a five year stint for this greenhouse. It took a year to get a free computer with alllllllllllllllllllllllll the bells and whistles. It's far easier than it looks.

I'd put in for permanent and total so your daughter can get Chapter 35 DEA benefits. VA could pay her schooling or up to $970/month for 45 months. Most states offer free tuition to Vets/dependents. I explained why you get SMC S. You have 70% for bent brain. They are treating it as total disability and paying you at the 100% rate. You have asthma and get 60% or more for it. The combo pays SMC S. If you get P&T before the daughter turns 25, she gets DEA. Your spouse has 12 years to use the same benefits ( 4 year college).

Personally, I would. I was ghost repping a couple down near Ft. Lewis on their SC for Hepatitis. They stlll had AmLeg on the POA but he was a regular no-show for everything. They went to the BVA Videoconference w/o him and he got pissed even though he was the one who blew them off. When we got the BBE with the 100 for Hep and another 40/20/20/20/20 on DM2 and peripheral neuropathy, he cold calls them. Says "Hey, how bout them apples? So when can you all drop down to the Post for some pictures for our trophy wall? No everyday a guy gets a Vet SMC S right out of the box. We're mighty proud of ourselves. We've never had a case quite so complicated like this one." I hate that when that happens. As for closing out a CUE claim, it sounds like it wasn't plead with enough specificity. Hard to say without seeing a complete file.

My email is asknod@gmail.com. I have about 90 posts on the subject of ILP on the website (asknod.org). You begin by filing a VA form 28-1900 and they will get in touch with you about a face to face and a short assessment of what you do and do not qualify for. You then make the formal application for ILP and ask for whatever it is that floats your boat. You may have your wife by your side articulating your desires. There's a lot more. I don't want to drown you. http://www.va.gov/vaforms/form_detail.asp?FormNo=28-1900

From what you wrote above, the 60% for asthma pre-existed the rating for the PTSD. When they granted bent brain for 70% and gave you TDIU at the 100% rating, that effectively gave you 100% (TDIU) added to the 60% from the asthma-i.e. what was needed to attain your SMC S rating. Currently, SMC S pays about $347 a month on top of the total disability rate of $2,904 /month for a single Vet ($3,068 if married). It should work out to $3,415 or so if you are married. As for the amount retroactively owed, every year they increase it several dollars a month. For a rough estimate, deduct $2/month ($24 a year) for every year before 2016 to the year they say you qualified for the SMC S. Example: 2016 SMC S would be $4,164. 2015 SMC S would be $4,140. 2013 SMC S would be $4,116 et cetera. As for the other claims, always file a NOD. If you file and lose without appealing, you are implying you filed a false claim basically. Why else would you file for something if you did not feel you were entitled to it? Never throw in the towel or VA will be back to chisel away at what you have already been granted.

Nehmer Adjudications have a unique feature. If at any time in the past you filed for a current Agent Orange presumptive disease that was not recognized at the time of filing in the past, you get that date as the effective date. I had one who filed for DM2 in 96 and lost. He came back in 2009 and refiled. On appeal to the BVA, he won the 1996 date for 40%. Now, with this, you have what the Courts call 'a matter of first impression'. If you filed for it in 2002 as being caused by AO (or any other risk), it stands to reason that a later adjudication granting the disease/injury as due to AO is based on more and newer research that permitted a finding that it was indeed caused by AO. The monkey wrench is whether it is recognized as a presumptive. It's intriguing case law that deserves to be heard. I'd fight for it if for no other reason than to set precedence for others who come behind us. I did it for Porphyria Cutanea Tarda. I got VA to grant it at 100% schedular all the way back to 1994 under 4.115a (and 4.20) as phlebotomies being analogous to dialysis. We should always do what we can for those who will fight VA in the future over exposure to diseases or unknown chronic conditions in SWA. Burning feces and depleted uranium dust from ordnance cannot be good for the lungs. I think it's important enough for you to run it by an attorney. The important thing is to file a NOD for an earlier effective date based on Nehmer logic within the one year window to do so. It would help if you were truly boots on the ground in RVN as opposed to a Korean/Thai/Okinawa/Guam exposure. Those are always tenuous claims at best and VA usually pokes hole in them or only allows them on a case by case basis-usually at the BVA. Win or Die.