FormerMember

You just have to love those Veterans Service Representatives. They think it all out for you. It increases their success rate when they file it for non-service connected. Sheesh. I bet Mojo, old Homer Simpson's monkey, would be a natural for this job.

Special Monthly Compensation Pay is discussed in 38 USC 1114 and in 38 CFR 3.350.

Andyman, you have a viable case for an earlier effective date. Remember you get one shot at this when you finally win. It's an easy NOD. Just make sure you get the 0958 in before the 1 year date of grant for bennies. Good luck, sir.

Well, then Mr. Johnson, you want to know about how to win a ILP. I've been involved in how to do that since 2011. Here's everything I know on the subject. https://asknod.org/2014/06/03/va-ilp-the-secret-handshake/ https://asknod.org/2013/04/18/bva-dude-youre-not-getting-a-dell/ https://asknod.org/2012/04/25/va-called-today/ And the library of selections to learn everything you ever wanted to know about ILP requests-and even more. https://asknod.org/category/independent-living-program/page/12/

R/T.

Nine months and counting for that elusive greenhouse promised. I'm launching a new Writ Monday morning and then turning off my phone and computer for a week. I like watching them blow coffee through their noses. https://asknod.org/2016/06/11/cavc-graham-v-mcdonald-ii-while-my-guitar-gently-weeps/

Andyman73 says: I wrote that this needs to be my SCD date due to same SMR evidence used to make SC was used back in 2006. The only difference was that 2006 claim was never adjucated. Andy, remember a claim unadjudicated remains a claim until it can be ascertained that a decision has been reached. I'm not the past master of it but I'm close. VA had to go back 20 years and pay it at 100%. They were too lazy to do a Fenderson staged rating. Thirteen months later I did the same thing with my AO disease. When VA "neglects" to finish a rating, for whatever reason, the claim sits there awaiting action. Sometimes it is deferred and forgotten for a decade or two like mine. Sometimes it is viewed as being "deemed denied" because it was secondary to a denied primary claim. If you fought for years on the primary claim and finally won on appeal, VA is known to "disremember" you also filed the secondary. They are loathe to go back and award it from the original filing date. It takes finesse to carry it to appeal and win it to avoid VA's propensity to offer up all manner of silly arguments about how you should have know it was denied-even if they forgot to tell you. You need not attack this as a CUE because that is worse than digging to China from Nebraska. If they failed to adjudicate it, you treat it as a regular claim unanswered. I like to spring it on them. First, you win it. Then you point out it wasn't a reopen, but rather the pursuit of an original claim from 2006. VA will fight like the devil to toss it. You'll have to go to appeal and it may take a while but the reward is well worth it. A claim remands pending until it can be verified by some judicial motion that it was either awarded or denied. That is boilerplate VA law. They tend to ignore it (and you) in hopes you'll get bored and go away. This precisely why you see an 85% denial rate that shrinks to 61% at the BVA and then reverses percentages and is awarded 65% of the time at the CAVC. VA simply doesn't operate within the law and arbitrarily denies in hopes you'll give up. VA appears to be doing this to me on my ILP greenhouse. Monday morning they get their wakeup call. I'm filing a new Extraordinary Writ of Mandamus to compel them to build it for me RFN. They have delayed five years on appeal and now another 9 months to "study" it. Last week, they informed me they are now in the next stage of letting out bids for the general contractor who will supervise it. Next, they take bids for the physical structure. No dice. It doesn't take three years to build a 24 X 48 greenhouse. If your 2006 filing for a disease/injury has never been addressed, I suggest you get on it. No attorney or agent can help you until you have that denial in your back pocket. It'll be a daisy of a dustup but I think you'll prevail. After all, you have the power of hadit and asknod.org behind you.

Regardless of what anyone tells you, your NOD suspense date is one year from the date of a denial letter-period. If you have not filed a NOD in that time, the claim is final. In VA claims, there are two different types- original and request for increase. CUE is not a claim. It is a request to revise one of the other two claim paths. I filed in 94 and got denied. I filed my NOD and N&M E. VA sent out a SOC but foolishly acknowledged the N&M E and promised a new decision soon. In 2007, after waiting waaaaaaay too long for it, I reopened it and won 100% right out of the gate but they denied the EED of 94. They said I never filed a Form 1-9 (now a VA Form 9). I filed my new VA 9 and they fought this to the CAVC. Finally, they acknowledged it and paid me. If I had let it go and not appealed it, they could say that again. If I had just CUE'd it, I had no assurance that claim would be revised. I did have the assurance I could win via appeal because it was an original claim regardless of how many times I reopened it. The error occurred in 1994 and the claim was still open. Always attack on that facet first. CUE can be argued numerous times and with numerous filings but each must be predicated on a new theory. Revising an old decision is infinitely harder than doggedly pursuing the appeal route. VA is often more inclined to eventually see it your way on an appeal-especially with an attorney arguing your case. With CUE, it's like flipping a double-headed coin and VA always gets to call heads. The rate of CUE approved, regardless of Berta's and my success, is abysmally low. That is because it has to be as obvious to everyone as white on rice. If you don't know what you're doing, you'll never prevail. Even if you do, it's still a dicey situation as to whether you'll prevail or not. Appeals with merit will always win with a nexus/IMO. Submitting a new IMO at the BVA with no review at the local RO level is the latest craze for a guaranteed win. The backlog is so tremendous, the VLJs are simply granting them to clear out the backlog.

Okay. Here's the problem. When you win, you have one year to complain on an original claim about any aspect of it-including the EED. If you let the 1 year window expire without filing the NOD for the EED and instead, file the CUE claim, you may lose the CUE claim and also lose the EED because you did not file the NOD for it. It is a Fenderson decision in the first instance when you go fishing for a EED. You get one shot at it. If you don't file the NOD, you can never litigate the EED any other way than a CUE. Always exhaust the easy remedies and then file the CUE as a last resort. You can call CUE anytime. You can only litigate the EED on the appeal of the original claim. You can never ever file in the future for a reopen to reconsider the EED. It's all or nothing when you win. Save the CUE for after you exhaust the possibilities of winning your NOD at the RO or the BVA on Appeal. You are throwing away a very good chance to win on appeal just to take a risky shortcut. If you do not desperately need the money, take the appeal route to guarantee a trip to the CAVC if necessary. Never cut off your appeals route for a premature CUE you could file if you lost on appeal. That's a Legal 101 Bozo no no. JMHA.

Military and VA doctors both know the ratings for Tinnitus under DC 6260. That's why they say occassional. It takes two good stabs at it unless you're forewarned and go the "recurrent" route. I discovered in 2007 that Vets who got their doctor to say the specific phrase "near-constant, debilitating symptoms" regarding Hepatitis C got 100% right out of the box. Others who said they missed about a month or more of work in the last 12 months got 60%. One word can cost your 40%.

Okay. So this is how it plays out. You file the NOD and demand a new C&P for tinnitus. Your tinnitus must be constant-not occasional. If you have it cited in service as mentioned above, then it is service connected. If you have a VSO, why not ask him why he didn't call you to remind you of the appointment(s)? They get the same notifier as you. If, and only if your tinnitus is "recurrent" will you be granted SC for it. If it is only occasional and resolves for a period of time, you'll get the goose egg. Max is 10% bilaterally. Although I did see a DAV claims specialist try to argue for 10% for each ear all the way to BVA last year. I guess the 1990 email on that FAST letter never made it. By all means get a doctor to give you a report on the current status (occasional vs recurrent) and a letter that says "It is my opinion the tinnitus Mr. NG2013 suffers from now was from his exposure to a loud working environment while in the service. Mr NG reports occasional tinnitus in service which has gradually become near continuous and recurrent now. Given his age and only risk factor for damaging sounds was in a military environment less than several years ago, his tinnitus can only be ascribed to his work environment." Attach the medrecs as Exhibit A and the doctor's IMO as Exhibit B and send it to Janesville with a green card. You'll have a 10% rating in about six months.

Remember, your VSO has the IQ of a goat on CUE. We discussed this yesterday on the Hadit radio show. Listen to it. Time for an IMO, cowboy.

Oh, Berta, Berta, Berta. Remember the rules of CUE we learned in Error 101. The same rules apply to VA in CUE spades. Now, VA is attempting to CUE themselves so we must give it Russell-like introspection. While it can be said that if, and that's a very big IF, there was CUE, then 4.14 kicks in but VA is trying to insert the regulation in before CUE has been ascertained. One doesn't know if the rater, in his infinite wisdom was also giving more for vertigo based on the evidence, extra schedular sympathy-or... if it was actually CUE. Did it manifestly change the outcome? Re-examining evidence for a possibly different interpretation to call out CUE can never be grounds for it. Unless VA can clearly and unequivocally prove that extensive, remarkable vertigo was not the rationale for granting 30% and; if they can prove the evidence could never be interpreted differently; and if they could prove that the error manifestly changed the outcome or that the error was outcome determinative, then they can sustain CUE. I'm sorry. I don't see CUE. I see a mistake, possibly an extremely dumb one but does it rise to the very high standard of CUE? Maybe, maybe not but you and I know that bar is so high after MacKlem as to almost be insurmountable when VA calls themselves a CUE.

There are three distinct areas of records. 1)All Service military and medical records are stored at the National Personnel Records Center in St. Louis. That is the NPRC. 2)All VA medical records are stored in the VISTA computer electronically after 1996. Any before that date are archived and still accessible if asked for. That is the Veterans Health Administration or VHA. 3)Your c-file is maintained by the VA- as in Veterans Benefits Administration (VBA) and are located at the VARO where you filed. It takes time and sometimes dynamite to dislodge them from VA's grip. Regardless of the resident expert representing you, remember one thing. They have 40 hours of training to get their learner's permit to do claims. I've studied VA law intensely for over 8 years and been filing since 1989 and I still don't know everything. However, it is a basic tenet that you have one year from a decision to object by filing a NOD. That is claims 101 and even a VSO rep with an IQ over 75 should be able to tell you that. I suspect his prowess is less than Specialist 1st Class. Best of luck on your claims, sir.

So the American Legion is your "VA Claims specialist" ? I don't suppose this expert suggested you hire an independent medical specialist to construct an IMO or get your c-file? Since the claim was closed on 9/10/2013, I'm sure he discussed the fact that the time to submit a NOD was not later than 9/10/2014. Your original 2013 claim is now dead in the water. You will have to refile but the claims specialist will hopefully tell you all that. Best of luck sir.

MRSA, as a disease process, is always going to be rated at 0% unless you're in the hospital with it and suffering chronic effects. I contracted it in 2009 during my one year staycation at the Seattle VAMC from a contaminated PICC line. After treatment with antibiotics the acute infection resolved. I test positive on any blood tests for it but it is in remission. The body does eventually build an immunity to it of sorts such that you become a carrier for it and can infect others but you, yourself are relatively immune to it unless your immune system becomes compromised. A disease like MRSA is much like Hepatitis B. You become ill and eventually recover and acquire immunity.When that occurs, symptoms abate and there is no outward appearance of the original illness. VA has to rate you at 0% as there is no compensable rating absent any disease symptoms. Merely being turned down for work in the medical sector because you are a "Typhoid Mary" carrier of sorts is not compensable. You have to suffer permanent effects such that it impairs your ability to physically work.

It's not that easy. I do not have your c-file. I know nothing about the hx of the claim. Is the bowel or bladder incontinence part and parcel of a SC disease? If so, yes. Remember, there are no time limits on SMCs. The moment you demonstrate your entitlement, be it five or fifteen years ago, that is the date of SMC. I suggest you Private Message me to discuss it.

<<< I don't understand why they never granted me the loss of bowel control b/c my Doctor has ordered the padded briefs and given me medication, >>>>> Well, gee D25, go figure. You don't suppose they have a tendency to low ball and/or no ball you? Or is it just that they're in backlog mode on SMC claims? Or maybe they haven't a clue what they're doing? I just had a guy I'm working with, who's already at S apply for A&A. He won and then they never gave him the bump. They looked at both legs and gave him a SMC K for each one instead of going to SMC O and R1. VA avoids the Rs if they can and prays you don't figure it out. You will note I am not calling it a conspiracy-just a very, very odd coincidence this happens over and over.

The Records Management Center in St. Louis is now the de facto place to get c-files but remember we now live in the VBMS electronic records world. You have to adapt to the new ways or suffer waiting forever. I suggest you read this. I published it over a year ago but the technique is tried and true. Of course, calling the VA ombudsman or Secretary Bob is always a great way to get their attention sooner. https://asknod.org/2015/01/12/2015-va-updates-on-getting-your-c-file/

Word game? What planet have you been holed up on? That's the not-so-secret technique employed all these centuries.The VA has always required a nexus letter/IMO to substantiate a claim absent an injury in combat. This was finally enunciated in Caluza v. Brown in 1995. The three requirements have never changed since the War of 1812-disease/injury (or risk factor) in service; disease/injury now; and lastly, a well-reasoned nexus associating the two. You cannot get around this requirement even if your service medical records annotate it over 90 pages. The concern BroncoVet brings to the discussion about the claims file is important. You must provide the doctor who is asked to opine on this with the contemporary records otherwise VA will decimate the nexus by saying the VA Examiner did read the the records and thus the VA nexus denying is more probative than a hired gun paid to blow bubbles for you. Thus you absolutely need to obtain the c-file. In legal terms, they call this 'discovery'. That's why VA is obligated to give them to you under FOIA. Getting an IMO is no harder than looking in the Yellow pages for SSI/SSD attorneys and asking them for a referral or number of the specialist they use for IMOs. Just for the record, Veterans do not get IMEs. An IME (Independent Medical Evaluation) is what the VA goes out and obtains if your nexus is really good. First, it is not independent. VA shops who will provide it and what the answer will be. Often, the one providing it is not well-versed in the subject-i.e. a proctologist opining on L5/S1 radiculopathy into the lower extremities. Lastly, you will never meet or attend this IME. It is accomplished remotely by a doctor reviewing the records and saying whatever thirty pieces of VA silver buys. Wilson v. Derwinski (1991) teaches us that "The regulation requires continuity of symptomatology, not continuity of treatment." All you need show is an injury in service and a continuous, unbroken history of symptoms. Having an intercurrent paper trail of post-service treatment is just the gravy to support it. You or your friends/family are capable and credible for confirmation of this condition as it comes to them via their five senses and requires no specialized medical training. Lay testimony, however, will not substitute for an IMO. Best of luck in this endeavour. P.S. Someone will feel obligated to disagree with this assessment. I did not mention presumptive diseases such as the AO ones in 38 CFR 3.309(e) or the presumptive of filing within a year of discharge. I feel most are aware of those codicils or should be.

Okay, let's tear this one down and analyze it. You state that you were granted Aid and Attendance at the L rate. Because of the extra 60%, you were probably already receiving SMC S before the upgrade to L. The 60% (or more but less than a full 100% schedular) takes you up to L 1/2. Obviously to get the bump to M two things had to occur. Either you had to have two 100% schedular ratings (not TDIUs but true 100% schedular ratings) to get M or you met it via loss of use of three extremities ( both legs and one hand) 38 CFR 3.350(f)(5) Here's why you get R1. When you have any two of the requirements for SMC L, M, or N, you advance to O automatically. No ifs ands or buts. If you have the bump up clause as you, do, that carries through until O. Now, here's the kicker. If you qualify for SMC O and one of your two qualifiers is A&A, you get the promotion automatically to R1. You'd get R2 if you can prove you need a caregiver 24/7 or some supervisory care by trained medical personnel above and beyond normal. You have mentioned you have loss of use of lower extremities plus one upper. This finding got you SMC M automatically as it is one of the listed ingredients using 3.350 (f)(5) without relying on 3.350(f)(3) or (4). Bladder and bowel incontinence are a requirement for SMC O as listed in 3.350(e)(2): (2) Paraplegia. Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C. 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. Please note the conjunctive use of "and" above. This makes the requirement a dual one. VA expects you to qualify for both to advance but read on. This is why you are entitled to SMC O. It makes no difference if the VA granted you SMC L for loss of use of lower extremities in 2003. That is considered a requirement only for SMC L. The loss of use of three extremities is the sole rationale for the SMC M. However, the moment you are diagnosed with the loss of bladder and anal control, the Helplessness clause of the A&A kicks in separately. This, all by itself, entitles you to A&A, Those are now the two requirements I mentioned above that will promote you to SMC O. 3.352(a) holds that you do not necessarily need to comply or qualify with every single one of the enumerated issues to qualify for A&A at the R1 level. You simply need to qualify for most of them. If your doctor is willing to say you have uncontrolled bowel issues, that would be the clincher but I have won this without loss of sphincter control before because you have loss of one upper extremity needed to effect an undergarment change unassisted. This is the ammo for the "helplessness" argument of higher A&A. Think of this like Legos. However, the argument doesn't stop there. 3.350(e)(3) goes on to state: (3) Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of “being permanently bedridden” and “being so helpless as to require regular aid and attendance” without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. SMC law, alone, permits pyramiding in this one instance. If you are entitled to SMC O, and one of the entitlements includes A&A, you are allowed to use it as the building block to advance to the higher R1 or R2 automatically depending on your demonstrated need. VA will try to take this sideways into SMC P and one of it's numerous subqualifier combinations. Ignore that argument. When you qualify for R1, it's like a Monopoly 'chance' card. You leave all the Ks, Ns, Os and Ps behind and proceed to "Go!" and collect your R1/R2. Getting to the R ratings often requires a nexus (IMO) letter from a doctor. VAMC doctors are instructed to avoid the 21-2680 like the Plague and let the VBA schedule their own C&Ps to deny with. I always suggest a truly independent outside source for the IMO. If you're smart and on Medicare instead of a death wish using VAMCs), you should have no trouble planting a 21-2680 in front of them to ask for an assessment. VA uses the peripheral neuropathy DBQ to deny most at question number 13. http://www.vba.va.gov/pubs/forms/VBA-21-0960C-10-ARE.pdf They slide sideways into amputations and whether that would solve the problem of "loss of use". You want to make sure you have your doctor fill out http://www.vba.va.gov/pubs/forms/VBA-21-0960C-4-ARE.pdf to document loss of use. Include any medical notes substantiating loss of bladder control and point out loss of use of upper extremity to qualify it as true helplessness on top of the loss of use of lower extremities. Amputation is a "salvage" operation. The relevant law and precedence which control this is Tucker v, West 11 Vet. App. 369; (1998) where the Court held: The relevant inquiry concerning an SMC award is not whether amputation is warranted but whether the appellant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. See 38 C.F.R. 3.350(a)(2) I'm sorry I was unable to give you this advice sooner Dolphin25 but emergent family situations take precedence. I hope you can understand that. In the future, you might want to plan your strategy out earlier such that it doesn't leave you in a precarious legal situation with no time in which to maneuvre or solicit timely advice. I'm not being critical. I just point out that things like this happen to those who advise here. Some, like Carlie and Stretch, pass on and will never offer advice again. I'd also like to apologize to Jerrel and John for missing the radio show Wednesday evening for the same reason. I'm usually pretty responsible but exigencies outside my control sometimes arise and prevent me from attending to my commitments.

Dolphin 25, please give me a few days. I'm right in the middle of a Hospice. When they die, I'll be right back to answer this. The long and short is you are entitled to R1 and I'll tell you why in detail ASAP. Bear with me, sir. A sends

<<<< b/c they stated Veteran may be entitled to a higher level if they get information from a company I hired to come in a help take care of me >>>>> Never sit around and wait for VA to "get" anything from an outside source. More guys have lost with that mindset than I can count. Get it yourself. VA has to pay them for copies and they will refuse to. You can get them free via HIPPA. Criteria for a housing grant do not carry into the ratings field. I've seen that argument fall flat like a souffle. The requirements for a specific SMC like M are stated in 38 CFR 3.350. If, and only if, you qualify with two of any of the criteria for SMCs L, M, N or O/P, and IF one of them is Aid and Attendance, you can march smartly into R1. If you require far more care, you get R2. The criteria are all laid out in 3.352(a). Specially Adapted Housing grants are not ratings criteria, per se, like Part 3 and Part 4 of the ratings manuals.

Let's look at TBI and PTSD/MDD in a conjectural light. First, everyone overlooked the obvious. TBI and PTSD are rated in the same Diagnostic Code area. It often is necessary to reduce a rating in one area in order to grant a higher rating in another disease injury. That analogy is never more evident than in Hepatitis C. VA often tries to grant cirrhosis (DC7312) and Hep C (DC 7354). The two DCs trip over each other in pyramiding such that you end up with a 40% in one and a 20% in the other when you should be given a 60 or 100% for just the Hepatitis. Remember, the VA is obligated to give you the highest and best rating possible and it is presumed you are seeking as much. If you were getting 10% for TBI, which is peanuts, and 50% for PTSD, it stands to reason that a reduction of the TBI that resulted in a net increase in the PTSD to 70% would be more advantageous. You can file for TDIU or at least be in the running for it with far more solid footing. 38 CFR 3.344 is the defining reg on this. If the disease /injury is static, and there has been no remarkable, sustained improvement as evidenced by VAMC STRs over five years, your rating is substantially protected against reduction. Period. If tampering with ratings to get a higher single rating such as Rootbeer described above nets you a higher rating for a single disease, why would you view it as a setback? Far too often, folks from VSOs have forecast bad things for those who get 'greedy'. I saw it a lot over at the Pink Peggy Site as well. It just isn't so. If it were true, how did I get to 290%? How did I get a greenhouse? Why am I not down in the bottom on ratings? I've browbeaten them for over 27 years since 1989. Using this logic, it seems someone would eventually say "hey. This Graham guy is a nimrod. Let's fix his wagon and teach him a lesson. Your medical condition will set the bar for your rating. Period. After five years, you can go up but you cannot go down unless you have complete remission of disease/symptoms and it's proven unequivocally via two C&P exams. And yes. Of course VA has an alarm clock to check up on you if your ratings are still dynamic. Face it. Some things get better via surgery or exercise. Admittedly, we get older and the body wears out. However, once you get rated for say, a bad back, everything that goes south over time is covered. I'm in remission for Hep C now but VA isn't going to come back and scalp my HCV rating. I've passed the five year test. Hell, I've passed the 20 year one so it's protected.

Loyal, SMC L is not Aid and Attendance in and of itself. A&A is just one component (the lowest dollar A&A) and begins with SMC L. I was discussing SMC L requirements alone re N4Life's recent filing. A&A has two higher tiers (R1 &R2/T). To be awarded L, M, N or O/P, you must qualify completely with any of their listed items. A&A, as a stand alone, is not SMC L but merely a component(one of several) that entitles you to SMC L. I try not to confuse folks with extraneous add-ons or "build-ups" that intensify or bump up SMCs into the higher ratings. Understanding SMC, even without all the little codicils, sometimes takes years to wrap your noggin around. SMC S is simple in comparison. You absolutely have to qualify for the tenets of 3.352(a), or a majority such that a doctor can say you "fit" the criteria, in order to qualify for A&A. However, you could have loss of use of lower extremities or any of the others listed in 3.350(b) and qualify for SMC L but still not be entitled to A&A. If you had loss of use of only one lower (or upper) extremity, you would only qualify for SMC K for that appendage. But presto-if you have loss of use on one lower and one upper extremity, you move to M-again- not necessarily with A&A. Think of A&A as a component part of the family of entitlements in the SMC library. SMC L can equal A&A but A&A doesn't automatically equal SMC L. It can just as equally be a component part of M, N, O/P, R1 and R2/T. Or, your spouse may qualify for it. I have to preach to the lowest common denominator or risk the explanation flying over everyone's head due to the complexity of all the possibilities. SMC has more twists and turns than the Mississippi River. Where else can you find pyramiding permissible to reach R1 or R2/T?