FormerMember

You have to have the fire in your belly or a top notch wingman. If your wife wants to be the "bad cop" with VA, you can be the fly on the wall. I think part of my bent brain syndrome is inflicting "polite pain" on the VA and forcing them to do right by us. You have to put emotions in a box and sit on them no matter how much they beg to be heard. VA does one thing. They deny. 85% of the time... Since the War of 1812. If you know that, you adjust your aim point. I prefer enfilading fire with my evidence so they just run into it. Clear Prop.

David, Any project such as a woodworking shop requires stamina to win. I began by getting a therapist to review my disabilities and my desire to do something more than watch the Price is Right on TV. I love gardening and the therapist wrote it up as something a) I could accomplish and b) that it would be good for me. My disabilities are pretty extensive: http://www.va.gov/vetapp15/Files5/1538123.txt The VA judge granted my wish but VA has dragged their feet for 10 months implementing it. Towards that end, I filed a Writ at the CAVC demanding compliance. They're coming out next Wednesday to take a gander-finally. VA will fight you on this as they hate to give away their(our) money. If iled for the greenhouse in 2011 to see if I could win it for all of us. It took 5 years and I'm still not there but I'm close. A woodworking shop is well within the parameters of what VA's ILP is all about. You do have to be more disabled than most but it appears you qualify. I would be honored to help you in your fight for this. Go to my website at asknod.org and you can read articles I've written over the years documenting my fight with them. Every journey begins with the first step. They told me there was no such thing as ILP in 2011. https://asknod.org/category/independent-living-program/ We always win. It just takes time. ILP has $180 K for each and every Vet who qualifies.There are 2,700 slots open each year and VA only filled 1,426 last year. What does that tell you? We sure aren't running out of disabled Vets. We have a summer place in Hiram on Barker Pond near Fryeburg. It's been in our family since 1895 when my Great Uncle Forest built it. Due to my illnesses, I haven't been back since 2006 but enjoy it immensely. I hope to return soon for a summer of small mouth bass and pickerel fishing.

Roger that. Daddy sent me to private school and I still came up with a draft # of 39 in 69. I jumped into the AF thirty days before I had to report to Hampton AAFES for military service. Big words intimidate VA. They are more used to normal. My Voc Rehab puke Kris is their yes boy. He knows I'm not crazy but he started tipping his cards under his breath from a bid sheet and distinctly said ah 15 by 30 and its got a roof vent, a table and a AC outlet and a water faucet with PVC pipe. Coupla 8 foot florescents, fan. Yeah. Looks good. Back to the drawing board Kris. My dreamhouse has 10 2,500 watt Halides with overhead H2O computer distribution... To the raised hydroponic tables... with floor drains preset in the 4" concrete slab. I'll keep you posted, sir. Testing on the 12th.

After 10 months of blah blah blah, it's showtime next week (I hope). Here's the email I sent back to my Voc Rehab counselor of five years: To VBASEAT Today at 11:44 AM Kris, In your recent phone call you mentioned you had a brief (working paper)summation of what was being considered on the greenhouse parameters. Before we meet, I would appreciate a copy of it or an IILP you might be considering for my signature so we can accomplish this in one visit. If we are not in substantial agreement on the goals, the actual size and configuration of the greenhouse or what VA considers a "reasonable accommodation", your drive over would be a waste of time. I have striven over time to be an active stakeholder in this but the lack of information is causing an irreparable breakdown in communications. This is what prompted my filing to the CAVC. The VA Secretary, as you probably know, has until July 24th, 2016 to respond to that current Extraordinary Writ petition before the Court. I was hoping I could file a Petitioner's reply brief afterwards saying we have reach a mutually agreed upon modus vivendi. Absent any input or a beginning dialogue until we meet face-to-face is counterproductive and will only lead to further delays. The Farmtek ILP coordinator, Karen Meister, was given the full list of my disabilities and asked to craft a bid that hewed to the medical shortcomings and the ADA nature of my disabilities. A 24 foot by 48 foot greenhouse will encompass the same area I presently have under cultivation. ADA requirements also show a need for two entrance/exits at opposite ends. Due to my 6 ventral hernias and permanent lifting constraints of 10 lbs., using potting soil is sadly no longer an option. This was discussed in the opening colloquy with the Veterans Law Judge. We impressed upon him that 38 CFR § 21.160(a)'s "General" introductory statement encompasses all disabilities-both service and non-service connected. Any IILP must take all my disabilities into account. Simply providing a covered structure with a 120VAC outlet and a water spigot will not suffice to satisfy the BVA findings. I hope we are clear on that. As you may be aware, too, my rated disabilities have increased dramatically to 100%,100%,60%,40%,30% and 10% since my original filing in 2011. These percentages do not include my Crohn's disease, numerous hernias or balance issues. Merely trying to comply with the original 2011 greenhouse parameters is no longer a limited option left on the table now. Obviously, if the The VR&E parameters fail to encompass the BVA findings and appeals language, we will shortly find ourselves at an impasse before we even sit down. VR&E already finds themselves on shaky ground and in violation 38 CFR § 21.192(a)(2). As of today's date, it has been ten months and two days since the BVA decision was released. As this is a matter of first impression before the Court, it is possible Judge Bartley may construe it as essentially an arbitrary refusal to act on the VA Secretary's part. Additionally, as covered in 38 USC § 3107(a), the statute clearly states: Such plan shall be developed with such veteran and shall include, but not be limited to (1) a statement of long-range rehabilitation goals for such veteran and intermediate rehabilitation objectives related to achieving such goals, (2) a statement of the specific services (which shall include counseling in all cases) and assistance to be provided under this chapter, Court Of Veterans Appeals precedence unequivocally states that the usage of the verb "shall", as opposed to "may", clearly and unmistakably demands compliance with the regulation. 38 USC § 3107(c)(2) : (2) In any case in which a veteran does not agree to such plan as proposed, to such plan as redeveloped, or to the disapproval of redevelopment of such plan, such veteran may submit to the person described in section 3106(f) of this title a written statement containing such veteran’s objections and request a review of such plan as proposed or redeveloped, or a review of the disapproval of redevelopment of such plan, as the case may be. See also § 21.92 Preparation of the plan. (a) General. The plan will be jointly developed by Department of Veterans Affairs staff and the veteran. It would be preferable to sit down with a preconceived idea of VA's intentions to avoid further discord or misconceptions. As I have no knowledge of hydroponics, I am hoping for some guidance or educational instruction along the lines of what was provided to me on the 2012 ILP computer services from Jim Moss. We all desire the same outcome-one free of dissention and disagreement. Towards that end, it might be time to begin our own colloquy towards a mutual agreement of what will be provided as opposed to a one-way, dictatorial statement of what VA is prepared to offer. As mutual stakeholders, it is imperative to communicate openly and frequently to accomplish this in a timely manner. Absent that, we are merely working at cross purposes and may never find common ground. On another note, during your last visit, I asked you to submit a request for the Lexis Nexis Veterans Benefits Manual and supporting CD disc. I am sitting this month for the VA nonattorney practitioner's test and am desirous of having the materials to assist in my future preparations for helping Veterans. VA's laws and regulations, as well as the M 21 and M28 change frequently. Absent any updates, my pro bono work stands a chance of being incorrect or inaccurate. Since VA's VR&E program is increasingly shrinking in the number of Veterans helped, this should not impede or grossly impact other deserving seriously disabled Veterans as defined in 38 USC § 3120. I note for several years now that the VR&E has been unable to identify (only 1,426) and award the full compliment of 2,700 individuals authorized by law to entitlement to the IL Program. VA's own IL Case Reports show in FY 2004, Seattle had 41 successful rehabs versus the 7 recorded in FY 2015. Either the number of severely disabled Veterans is in decline or the program suffers gross underutilization. In any case, there appear to be ample funds available and waiting to be awarded. I would appreciate an update on that request when I see you on the 12th unless you have information on the status presently. Presuming an inevitable denial, I would respectfully request you send it back to VR&E VACO for Administrative Review as soon as possible. Without a VR&E position paper on what is proposed, any potential agreement will be stymied and your valuable time wasted. I'm fairly sure we don't want that. In the event you cannot supply me with the documents, we should reschedule our meeting until we have a mutual understanding hammered out that will be productive and a viable IILP that encompasses what the BVA held in its findings. I look forward to a timely response and the requested documents. ------------------------------------------------- That is how I deal with VA pukes. Some of you may have a different idea how to go about it.

I would ask for a traditional review pronto. My reference to running "them" both side by side is the EED due to failure to get the Decision causing equitable tolling and a CUE claim for the same ( the effective date should be 2003). Both theories can be argued at the BVA. Chances of winning there are far higher as that's where it's going to end up anyway. Call up the VARO and ask to change it to traditional. Or call up the 800 # and instruct the idiot to that effect. You aren't using a VSO I hope. Tell me you're not. Please.

Shooooo, doggies. I had to reread this whole thread to get the best feel for it. 1) you have them on Presumption of Reg on the mailings. 2) Makes no difference on filing a NOD about finding the evidence in the c-file 2 years later. I did that and won. 3) you got them by the short hairs on coming down with anything-even a runny nose, within the first year after service. It's an autowin. 4) do not do a DRO in LARO. You'll lose. They don't have authority, even with three signatures, to cut a check that big. VBA VACO standard protocols is to punt on 4th and long $. They let the BVA judge take a swipe at that pinata. Could be they'll try to bluff you and deny to see if you go to the CAVC. 5)Bell v. Derwinski is only good post-October 31,1990 for VAMC or VBA constructive possession argument. 6) If you have the two documents showing failure to txmit to Vet, you have them. 7) Win or Die. Sorry I fell out of this one and didn't get back sooner. I've been working a big stack of claims and studying for the non attorney practitioner test. Oh, yeah. And the heart failure thing, too. This isn't CUE. It's equitable tolling of an unfinished claim. You sort of have to characterize it as a free-standing claim which is awkward but best describes it. Normally EED arguments after a year with no NOD for an earlier date are toast. You have to do a CUE or prove the claim is still pending. Guess which path is easier with the sum of your non-delivered decision? I still like pulling both triggers of the shotgun and run them side by side as different theories for the same problem. Who cares how you win.

The Agent Orange law is explained like this. Say you filed for prostate cancer under any theory (direct or presumptive) back in 1999 and were denied, the date is still preserved for you. I got a guy SC for DM2 after a prolonged fight in 2010. He'd filed for it in 2002 and was denied because he couldn't prove boots on the ground. Once he won on the presumptive, they granted it back a YEAR before he filed for it-i.e. 2001. If you just filed for it in 2016, that is the effective date but if you'd filed for it earlier, you would get that date even if it was before the disease was added to the list. This creates a problem. Should we all shotgun file for Parkinson's and lose but wait to come down with it? Or all the other diseases for that matter. It would guarantee an EED for any you develop afterwards.

One thing I look forward to when I get my nonattorney practitioner license soon is I am allowed to remotely view the c-files from my home (office) (via computer sign-in) once I have a documented POA on file. This is probably one of the only up sides to the new VBMS process. It will help innumerable Vets get SC. It seems such a shame that VSOs are right there and are clueless on how valuable and essential the file is to winning the claim. We also get the phone number for the VARO coordination officer so we don't have to do the 800-827-1000 dog and pony show. Amen.

You have to be careful which CAVC cases you cite to or depend on. Some law is superseded like Walker v. Shinseki (3.303(b) and Clemons v. Shinseki (a claim for a mental disorder encompasses all mental disorders). or Bradley (TDIU is equivalent to 100% schedular for SMC S). Karnas superseded Kuzma. The law is constantly in flux. You have to cite to the Fed. Circuit sometimes to get the perfect match. On old stuff like this that precedes the VJRA, you are right. I have decisions from our pals at Seattle from 1989 with a simple "Sorry, you lost. Come back when you think you have a case." One other problem. I went back to look at the 1988 rating sheet. Regardless of whether you get the Presumption of Soundness (You do not as you admitted you had childhood Scheurman's kyphosis), the VA rater called it a developmental abnormality twice. That should set off alarm bells: 3.303(c) (c) Preservice disabilities noted in service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. 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. Focusing on just one regulation or one theory for CUE isn't workable. VA will cut you to pieces. Try to play devil's advocate on a CUE claim. Try to find all the reasons VA will blow you off and then find the work around. I have had some of the most wonderful CUE claims I worked out on paper and then ran them by a VA attorney. It made me feel like a Kindergartner trying to play ball in the NFL. It's humbling. The evidence game is the hardest as you do not know what they looked at. As I mentioned, you cannot find CUE simply by saying they didn't read all the evidence if the whole premise of SC ends with 3.303(c) developmental abnormality. That's a non starter. The law the rater followed (4.71a) DC 5299 (VASRD 1988) was current at the time so he isn't guilty of that. An argument could be made that the disability which preceded service increased in severity while in service. That would be grounds for CUE but since there was no requirement for a Reasons and Bases discussion in 1988, you lose. John999 lost his recent CUE all the way to the Fed. Circuit based on that. You have to rise with the early birds to find CUE and then have to go the extra mile proving it would have manifestly changed the outcome and resulted in a compensable rating. Any discussion of Benefit of the doubt is a nonstarter, whether you cite to 3.102 or 4.3. I live in Gig Harbor- or actually even closer to you. I'm at the top of the Key Peninsula just off SR 302 north of Key Center. Your 1988 address was on one of the scans you attached. I moved over here from Tukwila in 1989 and began building houses hereabouts. Have a Happy 4th, sir.

Jim, I'm studying for the test on the 12th. I've got a ton of that packed into my noggin right now like an Encyclopaedia Britannica.

From the above quote: <<< . Consequently, the June 1975 rating decision erred in its denial of service connection for a back disability. But for the rating decision's legal errors, the outcome in the June 1975 rating decision would have been a grant of service connection for a back disability due to in-service aggravation of a preexisting congenital condition. >>> Remember the two ingredients- either the facts as they were known, were not before the rater (they were) or a legal statute or regulation was ignored or violated. Evidence cannot be reargued and a different interpretation offered as CUE. A mere dispute over evidence will never be the grounds for CUE. You need to take the BVA stuff with a grain of salt. They are merely decisions that may or may not contain error. Read Russell, Fugo, Caffrey etc. They are panel or en banc boilerplate cites that are law. Some of the BVA decisions you read could have been appealed to the CAVC and won...or not. You can blow smoke rings all day with BVA decisions. They are instructive for their cites and little else. Better yet, you can go ahead and file and consume 5 years at it-maybe more - and get the same answer we provide here. I have won a CUE but it took 8 years. VA never admitted it. They merely shut up and gave me back the rating after I filed the Extraordinary Writ. If we honestly thought it would benefit you to file using 3.102 as the fulcrum, we'd be explaining how to do it in great detail to help you.

My thoughts exactly, Buck. How come this guy isn't in a wheelchair? Why work unless you need the $? Happy 4th to you by the way. We'll rip off a 30-rd. clip of green 7.62 tracers for all the Vietnam Vets still standing tomorrow. I recently found some in the original steel casings left over from our war. They were about .90 cents apiece but where are you going to get green tracers nowadays? Used to watch them green footballs come corkscrewing up at me in our O-1 and wonder if one was going to have my name on it. Lucked out. The silver BB wasn't a tracer. Be well. Hope to see you next Spring in San Antonio at the NOVA conference. I'm buying. Cupcake and I decided to drive down and sight see. Want to go over to Angelfire in NM and drop off a few things I brought home.

You don't need the M21 crap. The law is dispositive on the Presumption of Regularity of the mail. If VA mailed it to the wrong address, it is not considered delivered. End of argument. The notice is not considered delivered until some communication on your part is received by VA stating you did, indeed, receive it. At that point equitable tolling kicks in and you have one year to pitch a bitch. Take a gander at this. Rios was the first case of this nature and still stands as on-point law covering mailings. https://asknod.org/2011/09/27/cavc-rios-v-mansfield-2007-presumption-of-regularity/

If you want to throw $50 bucks at it and get it repaired in two months or less, file an Extraordinary Writ of Mandamus at the CAVC. VA will step on their necktie trying to get it done asap. Your logic and entitlement to the Writ can be summarized as worry that if you suddenly passed away, they might use this to deprive you of legitimate DIC for the wifesan or screw you out of some SMC funds. If VA is dogging it, the Writ is a really cool way to get their attention on a RFN basis. https://asknod.org/2015/03/08/cavc-birth-of-a-writ-act-iii-scene-8-down-for-double/

Buck- Tell him he qualifies for 38 CFR 4.56(d)(4)(i) as a high explosive missile event (severe). It's an automatic 40%. If he still has any microscopic SFW retained metal fragments, that furthers the argument. I just finished doing one of these. Got 40% each for 5 different muscle groups with retained metal fragments. I assume he has a PH to go with the CIB. It shouldn't interfere with the retirement pay if he gets rated over 50%. (38 CFR 3.750). (1) Compensation. Subject to paragraphs (b)(2) and (b)(3) of this section, a veteran who is entitled to military retired pay and disability compensation for a service-connected disability rated 50 percent or more, or a combination of service-connected disabilities rated 50 percent or more, under the schedule for rating disabilities (38 CFR part 4, subpart B), is entitled to receive both payments subject to the phase-in period described in paragraph (c) of this section.

Let's dissect this. First, the ratings. I do them in colors to show which are related and considered one unique disability. 60% CAD - heart -hypertensive heart disease 50% Sleep Apnea 30% Lft Ventrical - heart 30% Migraines 30% Bilateral Plantar Fasciatas 20% Prostatitas 10% Hips 10% lft shoulder 10% rt shoulder 10% lft knee 10% tinnitus 10% eczama 10% GERD 10% wrist 10% Cervical spine degenerative disease First, in red, you see 60% and 30% as one disease entity of or having to do with the cardiovascular system. Combined, they equal 70%. That qualifies as a prerequisite for TDIU. Next, the four 10%s in blue are again, all one symptomatology. VA has chosen to rate you as 100% ( combined) but you do not have any one singular 100% disability rated as 100% schedular. Nevertheless, Bradley allows the TDIU to stand in for the 100%. Looking further, the sum of the remaining ratings is well over 60% and do not involve the same systems which makes them all individually different (and thus available) for use as SMC S qualifiers. So the answer is yes- you qualify for SMC S at the earliest date it can be ascertained medically that you had an effective rating of 100% (or TDIU) plus additional disabilities that equaled or exceeded 60%. File it, Dano. By law, VA is required to maximize your ratings in any form such that you get the highest and best rating. AB v Brown (1995). Thus they are required by law to combine and possibly grant TDIU based on any disease entity that manifests enough to create TDIU. If you're still working, that pokes a hole in the balloon but your ratings are far more than necessary to get the SMC under either interpretation.

If you are going to use 3.102 as the foundation for the CUE, you're dead in the water before you even get out of the gate. You can read Russell v. Derwinski (1992) or my article of what constitutes a true CUE if you wish. Benefit of the doubt can never be the basis for the CUE-ever. The Secretary, in his brief, equates the adjectives "clear and unmistakable" to "obvious" as used in 38 U.S.C. § 7103(c) (formerly § 4003(c)). That statute, which authorizes the BVA to correct "an obvious error in the record," perforce means an "obvious" error, the existence of which, as noted above, is undebatable, or, about which reasonable minds cannot differ. See Br. at 18. In view of this standard, the "benefit of the doubt" rule of 38 U.S.C. § 5107(b) (formerly § 3007(b)) could never be applicable; an error either undebatably exists or there was no error within the meaning of § 3.105(a). (Russell/Collins v Derwinski 1992) Russell is attached as a .PDF below and my article https://asknod.org/2014/05/02/cue-the-quintessential-elements/ Russell_90-396.pdf

You know me. I love to be wrong, Bronco. I forgot to look at 38 CFR 3.957. A rating cannot be monkeyed with after 10 years. A disability, on the other hand, is protected at 20 years ( 3.951). Likewise 3.344 deals with a disability and not a rating.Found this this afternoon on the sample Agent's test. Trick question. Every word has import. I stand corrected. Sorry.

Rakkasan. The warrior man who defended the Wounded Warriors Project to the bitter end on the Veterans Today Article that exposed them back in 2013? The one and the same Rakkasan? How are you doin', guy?

Here's your legal justification, sir. In Bradley v. Peake,462 the CAVC made it clear that the VA could not require one condition rated as 100 percent disabling to be a precursor for SMC(s) benefits. The CAVC held that Section 1114(s) does not limit a service-connected disability rated as total to only a schedular rating of 100 percent it includes a disability that would support the grant of TDIU. In addition, the Court held that when a veteran has several service-connected conditions that combine to a 100 percent evaluation, if the veteran would be monetarily advantaged by having just one service-connected condition support a total TDIU rating and the veteran has other service-connected conditions, which combined are at least 60 percent disabling, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran. Also, because SMC benefits must be granted when a veteran becomes eligible without need for a separate claim, (see, e.g., Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)), any effective date must be based on that point in time when the evidence first supported an award of SMC, which may be well before the veteran raised this issue. See 38 U.S.C.S. 5110(a), 1114(s); 38 C.F.R. � 3.400(o).

Something that isn't being considered is Mr. G222 has been rated P&T (see Scan #15). Absent a CUE determination that the P&T award was clearly and unmistakably erroneous (or any other rating, for that matter), the actual ratings must stand as being static with no improvement. Once you cross over the five year protection afforded in 38 CFR 3.344, a much more current visit to a doctor (at VA) must show marked improvement to provoke a reassessment. Again, this is only applicable to ratings which are still "new" meaning less than five years old. If you have SSD for over two years, you qualify for Medicare and can avoid the VA like the plague. I would never set foot inside a VAMC again for that reason alone. No law says you are required to keep VA abreast of your current physical/mental state. You do that at your own risk. Now, for the conundrum of SMC. SMC doesn't require a specific filing for remuneration unless VA is so dense they do not catch it. All SMC regulations/entitlements begin with a unique phrase. A claim's effective date will always be the date of filing. On the other hand, an SMC entitlement begins when you can show, by unequivocal medical evidence, that you have lost the item or lost the use of the item. Take your hand or leg for example: SMC for loss of use of a hand or a foot is established when no effective function remains other than that which would be equally well served by an amputation stump below the elbow or knee with use of a suitable prosthetic appliance.435 The determination is made on the basis of actual remaining function. A veteran who lacks the ability to grasp or manipulate objects with his or her hand is entitled, and a veteran who is unable to balance or propulse (push off his or her foot) is entitled.436 The determination is made on the basis of whether or not actions could be accomplished equally well by an amputation and use of a prothesis. Loss of use of a foot or hand is automatically established when evidence indicates (1) extremely unfavorable complete ankylosis of the knee or (2) complete ankylosis of two major joints of an extremity or (3) shortening of the lower extremity of 3 1/2 inches or more. Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.438 As of June 10, 1974, loss of use due to functional hysteria or conversion reaction can be established, assuming that permanence is established. Granted, SMC is only applicable to service connected diseases or injuries. Since SMC predated the Bradley/Buie line of legal reasoning, it is legal to reach back for an earlier effective date. Bradley only sanctioned SMC using a TDIU as the equivalent of a 100% schedular. It in no way influences an EED based on a qualifying TDIU prior to 2008. As Buck points out, an argument could be made for the EED based on the 70% bipolar as a stand alone rating for the TDIU which I am sure it is. VA will always fight for the lowest dollar figure they can to low ball you. They're an insurance co. That's what they do. Some bondo and an Earl Schieb $99.95 paint job will always be the offer over a new left front quarter panel. Remember, you do not have to fight this as CUE. It is an "entitlement" and has been since WW2. The moment you evidence the entitlement via medical proof, that is the date of entitlement. Period. You do not have to reach back and say the rater blew it. So what? He blew it so fix it already and pay the back monies owed. Case closed.

I believe there is some error in interpretation of what constitutes a protected rating. Let me summarize. A rating is substantially protected if it remains static for 5 years or more: ( (c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). There is a provision in DIC law that says you must have a 100% Schedular rating or TDIU for 10 or more years for your spouse to qualify for DIC unless you pass from a SC disease. 38 CFR 3.951 deals with a protected rating: (b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. Asking for SMC is not something most VSOs are familiar with. It is very complicated law and VA raters are not prone to handing it out like Mardi Gras beads or 10% for tinnitus. Think of a VSO as a mailman and nothing more. He knows how to file but he is not required to know why. He has a supervisor who checks his work. The super is equally clueless because he hasn't taken the test and isn't interested in learning the requisite law controlling it. If you simply have a TDIU rating and you have 60% or more above and beyond it in ratings that have no connection or relation to it (i.e. sleep apnea and DM2 on top of TDIU , you get SMC S. Period. You get it from the day you can prove medically that that all three conditions existed and were rated by VA. What's with the 'I'm scared' gig? Did that big bad VSO say that VA may come and screw you over for being greedy? Berta and I ought to be penniless and at 0% if that were the case.

https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/

<<<An evaluation of 20 percent for malunion or nonunion of the tarsal or metatarsal bones moderately severe." >>> This is the language used in DC 5283 which is a completely different diagnostic code. 5283Tarsal, or metatarsal bones, malunion of, or nonunion of: Severe 30 Moderately severe 20 Moderate 10 Note: With actual loss of use of the foot, rate 40 percent. In most ratings, VA will cite to the next higher rating to say you do not qualify for it. It appears that is the case here. The good news is that the rating is substantially protected due to the longevity.

38 USC 1115 deals entirely with dependents compensation. You have to be over 30% which you have. So, you get X dollars for spouse. Then you get X dollars for each dependent under 18. You have to apply for dependency on a 526 EZ and submit your marriage license for each marriage you've ever been in, divorce decrees (if any), ex wife's SSN, new wife's birth certificate and SSN, birth certificates for each dependent child and so on. VA takes forever to accomplish it. If you take more than a year to submit it they will only go back one year on retro. True special monthly compensation (SMC), as described in 38 CFR 3.350 is for special circumstances above and beyond 100%. The simplest example is SMC (s) for Housebound. If you are medically determined to be housebound or you have 60% or more above a 100% schedular or TDIU rating, and the extra 60% disabilities are separate and distinct from the 100% rating, then you are awarded (s) which is about $347.15 above and beyond your 100% rating and dependents pay. I'm married (without children) and get $3,415.74.