FormerMember

I crumped yesterday morning-pneumonia/ congestive heart issues. Seems I always choose a weekend to end up in a hospital. Doc tentatively dx'd IHD. Great. Something new to file for. VA will just be ecstatic to hear from me again. Clear Prop.

Brother Kevin in Manila writes me this afternoon to tell me the letter I wrote arguing his entitlement to R2 clinched the deal for him. He got the skinny end on the Earlier Effective Date (EED) at 3/29/16 but that's a battle for another day. He is now entitled to $8,318.95 a month. I feel good about this one. It took almost 14 months and about 4 C&Ps. It reminds me of my wife in 1987 making them kill four rabbits to confirm she was pregnant beyond the shadow of a doubt.

<<< I am 100% Schedular P&T >>> I don't see it ( the 100%). You list as your disabilities: 70% PTSD50% TBI/Migraines40% Residuals of Testicular Surgery30% Crohn's Disease30% R Shoulder30% Scars 20% Lumbosacral strain10% Radiculopathy, right lower extremity10% Left knee strain with osteoarthritis10% R Knee painful motion secondary10% Asthma10% Tinnitus10% Damage of Cranial Nerve IISMC K I assume you get the SMC K for the testicular surgery. You mention an "increase for my 40% voiding dysfunction" but I don't see any voiding dysfunction listed. Just from looking at the long list, your TDIU rating comes solely from your 70% PTSD rating. All the rest of those 50s, 40s and 30s are gravy for the SMC S rating. If you were getting K & S and were married, you monthly payment should be about $3,519.00.($3,068+ $347+ $103.23 Never fail to go to a C&P . I find these, when they occur, are a fishing expedition to reduce a rating. VA never calls up and says "Yo, dude. We want to give you a higher rating but we just need you to come in and show us it's worse." VA doesn't work that way.

You haven't done anything wrong. VA has failed to recognize your entitlement. If you are already at TDIU, you are not financially disenfranchised. VA is now reviewing the "total" picture of the claim-something they should have done beforehand. When they realize you are SMC S entitled, they will grant it. The other stuff on the FDC will be adjudicated at the same time. You'll get a retro check back to when you became entitled. If you hadn't filed for SMC S, then you would have done something wrong. VA "punishes" us on the FDC track if we submit newer claims on top of old ones awaiting a decision. There is no logic to it. It is what it is. It's their football and their playing field. We have to go along with it but we can call our Congressmen and complain. VA doesn't publish the rule book on this.

I had a set of TDY orders showing I was at TSN in Saigon 6/70. My yellow shot book has a Sept. 22, 1970 date stamp " AIRA (Air Attache)US Embassy Vientiane Laos 96243" along with three shots administered by the Flight Surgeon. Just more lyin' cheatin' trailer trash Vets looking for a handout.

My questions are: 1. Wasn't I supposed to receive the SOC? When you file a NOD, you have two paths you can take. A traditional path to the BVA without a DRO review or 38 CFR 3.2600 (DRO review) The traditional path will send you the SOC ( usually 16 months) and you have 60 days to file the VA 9. The DRO path will result in a de novo review and either the granting of the claim or the issuance of the SOC. In some cases, you win some of your appeal issues and the SOC is issued for those denied. 2. Will I receive an SOC regardless of the outcome of my DRO hearing? Yes. If they grant all your claims but there still is a higher rating available that was not granted, then the claim remains in contention. AB v Brown (1994) said that a Vet is seeking the highest rating possible and therefore the claim remains in appellate status until you quit fighting it or you win all that is possible to win. 3. When I filed out the VA21-0958 one of the questions specifically asks the Veteran to list the service connection and % the Veteran feels warrants the service connection. Obvisously this is what I feel I deserve but is this actually something the DRO reviews and considers? VA must grant any and all benefits to which we are entitled to by law and which they have the power to grant. If you have hammer toe and ask for a 60% rating for it in the 21-0958, you're not going to win regardless how you feel on the subject. The ratings schedule is set out in Part 4. You can ask for the moon but if the rating doesn't go that high, they cannot award it. 4. Since I never received the SOC is that any violation of my rights? No. You cannot receive the SOC until the DRO makes a decision on what to grant and what to deny. You usually receive two documents after a review. One is a new rating sheet telling you what you won or lost and the other is the SOC explaining why. At that point you have 60 days to file a VA 9 or the balance of the year from the day you received the initial denial you filed the NOD from. By law, you can rebut the SOC with new and material evidence. If you do, and VA still denies you, they send out a SSOC explaining why (or they grant the claim). If they continue the denial in a SSOC, you have 30 days to rebut the SSOC- or file your VA 9. Remember, once you file the VA 9, the VA begins the process of wrapping up the appeal, certifying it with a Form 8 and preparing it for transmittal to DC to the BVA. No more action will be taken on the appeal at the RO once the VA 9 is submitted. My world record was in 1991 with a SOC rebuttal followed by two SSOC rebuttals before I filed my VA 9. If you do this, time is of the essence in making sure you do not blow the suspense date(s). Green cards and snail mail are de rigueur when doing this nowadays. No eBennies or electronic filings. I delivered mine to the Seattle RO and had them hand stamped. And yes. I still lost.

God, does this bring back memories- (Buck and Gastone) ? DEROS. FYGMO. I'm so short I have to stand on my boots to tie my laces//FY Sarge. I'm short// No way I'm walking point// You must have me confused with a cherry// I forgot how to throw a M 26// Sorry. I was drinking after 2300 Hrs. Take me off flight duty// I think I will probably have Extremely Trashed Or Hammered disease until___/ ____/ ____ (DEROS)// PCOD is in three days.

Sounds to me like he's talking about SMC T. If he's post-911, he'd need to get her qualified for the caregiver stipend as long as he qualifies for helpless/danger to himself and others under SMC L.

Sorry I didn't get back to you, sir. My brain fart. I received a panel denial at the CAVC and became engrossed in that. The answer is yes. File the 526EZ pronto. It makes no difference with SMC claims. Entitlement runs with the date of eligibility. If you were entitled to it in 1998, that would be the date they paid from. They paid my SMC S all the way back to March 1994 filing last spring. It can have no effect on a FDC as that is a fast track filing and not related to the SMC entitlement. It also may have the added effect of them deciding it sooner as they have a VSR/RVSR already working your GWI claim. VA, contrary to popular belief, occasionally engages in judicial economy and adjudicates multiple claims simultaneously if they are all ready for a decision. Best of luck, sir. I know you'll prevail.

Pedro L Even a good teacher was once a grasshopper. It certainly isn't what you learn but what you do with the knowledge afterwards. Logic tells me what I did was nothing more than follow another great teacher's technique (Bruce McCartney). He did four tours back-to- back as a combat dustoff medic. 68-72. He is 100% for PTSD and he wrangled a greenhouse out of the Atlanta RO. He was my inspiration. Hell, I was a xxxxx. I only did two tours. Fighting VA is akin to a poker game. Don't hold on to a weak hand. Always play from a position of strength. Always have an alternate plan for any contingency. But always have that ace of a IMO up your sleeve on appeal. We Vets have VR&E at a tactical disadvantage. They are fighting to suppress a viable program (ILP) and have no good, viable arguments. We occupy the high ground and merely need to stay in the fight to the end. There was simply no way VA could allow my appeal to go to the CAVC. I'm already 2 for 3 up there and have shown my inclination to litigate to the end. That's why my battle flag is emblematic of our plight.

https://asknod.org/2016/04/14/hadit-com-radio-show-at-1600-hrs-on-the-left-coast/

Negative. I just received the IILP proposal yesterday morning about 3 hours before the meet and greet. I wanted to go over it with my attorney. They wanted to cut the program's duration to one year from two. That, quite obviously, would limit their exposure to a year of propane and electricity bills. At one point, the counselor suggested a 60-day rehabilitation schedule as I had amply demonstrated my ability to grow vegetables. I negated that with the reminder that I now have newer 100%,40% and 30% ratings on top of what I had when I filed in 2011 for other debilitating diseases and might need time off to accommodate their side effects. It appears they have been instructed to wrap this up pronto and quit arguing over the fine points. A comprehensive medical assessment has been called for to make sure I am capable of accomplishing this. The actual "break ground" date is tentatively 1 August. This will permit me to finish my gardening this summer. VA makes the IL Program seem unattainable. All it requires is a commitment as intense a a claim for SC. Nothing more. Nothing less. Had they not "lost" a NOD and VA 9 over the five years of the litigation, I suspect I'd have received it in 2014. But then, that's why we always advocate using a green card so there can be no "he said-she said". VA is very stingy with ILP funding. Why, I do not know. There's plenty allocated to the program for us all. Simply multiply 2,700 eligible Veterans every year times a maximum entitlement of $180,000.00 per Veteran and you can grasp what they are hoarding. I attach a redacted version of the Individualized Independent Living Plan (IILP) for you all to see what they look like. Theresa likes to point to our power as Veterans in our vast numbers. If a lot of you swamp the system with ILP requests, eventually this program will regain its meaning. New IILP for 2016 redacted.pdf

It's all right here. https://asknod.org/category/independent-living-program/page/12/

We planned the assault operation carefully. Each step was documented and I wrote them up on the ILP blogs. Each NOD, Administrative Review, VA 9 and SOC/SSOC rebuttals were replete using their own regulations giving them authority which they denied existed. The Veterans Law Judge was dumbfounded when I presented it to him. He had no clue such a program even existed-let alone that he could grant one. Half the battle with the VA is getting past all the Negative Nancys and presenting it to a real, trained attorney/VLJ. They may be on VA's payroll but they also have an ethical code of conduct. One thing I noted was that my counselor was adamant about the personalized decision at the end. My BVA decision carefully stated the grant was unique to me only and could not be used by other Veterans. I agreed but also pointed out that the decision more broadly reflected that it is legal, and indeed permitted, to use these funds in this manner. VA has, since 1996, attempted to restrict or choke off the IL program and turn it into small inconsequential items like grab bars in showers. They also attempted to call riding lawn mowers and small tractors "mobility devices". Try driving your riding mower to the grocery store on a state highway. VA said there was no "avocational" application for ILP-that it was strictly a vocational attempt to bring you up to speed to work. If you can't work, then there's grab bars and electric can openers. My decision pushed them back a few years. http://www.va.gov/vetapp15/Files5/1538123.txt My counselor also said VA's VR&E policy is changing. I said I'd noticed that but also pointed out that there had been no corresponding changes in 38 USC §3120 or 38 CFR §21.160-.162 that would permit it. If it is ever challenged at the CAVC, this whole house of cards could-and probably would- come tumbling down. That was the purpose of my request and appeal. Apparently, VA (and VR&E ) didn't want to test the validity of the changes to the M 28 in Court and elected to grant it at the BVA level to prevent any precedence. Gastone, if you have the stomach for it, I'd go for the riding lawnmower, personally. I can just about guarantee you'll have one within six years if you start now. I could walk you through it in a minute. The only thing between you and that mower is a VA 9. You just have to prove you are so severely disabled by SC and NSC medical problems that you require the mower to attain "independence in the activities of everyday living." I finally hired a occupational therapist to write my nexus saying I would benefit from the greenhouse. It cost $137.45 and Medicare paid for it. My co-pay was $10.

I do plan on advertising this far and wide. VA's IL Program is difficult but rewarding. As BroncoVet points out, I already grow plenty for myself. They just put too many seeds in a packet. I can do much good with more space. But mostly, it shows what VA has available if you fight for it. As the counselor put it, "I can authorize up to $2 K on my signature. My boss can authorize up to $ 79,999 on his. After that, we have to seek the authority of the VA Central Office. They can sign off for up to $179,999.00. At that point, the VA Secretary is required to sign off". According to Kris, I'm way past $80 K and they haven't even hired the project manager yet. greenhouse + install quote redact.pdf

VA sent out their Voc Rehab counselor to present me with the Individualized Independent Living Plan (IILP). They chieu hoi'd and are not going to play keepaway. Seems someone in DC said "We don't want to see this at the CAVC." Full size and full hydroponics. He forbid growing pot in it though as its a federal grant. Two year plan and they pick up the propane and electricity bills during that time. All the hydroponic computer gear, 12 2000W halide lights, raised tables, storage tanks, pumps. Plumbing, wiring and propane gas utilities hooked up. Just add seeds (not included). It only took five years and a trip to the BVA. amen.

Jez, Loyal. My Vet's dictionary is an Air Force/Air America primer. We broke bread with the Army fairly regularly but we didn't attend the same churches. They were a bit primitive for us. They never had refrigeration and thus, no ice cubes for adult beverages. That was pretty much a deal breaker. We, of course, could simply fly in a generator and a refer and call it a Tactical Operations Center (TOC). Frag Order (FO) briefings for the next day were scheduled at 1630 Hrs and the last one to land had to buy a round. Army Folks never had a problem finding us.

Berta, what throws me is that I've been doing this 22 years and now there's a whole new set of acronyms coming in from SWA (Southwest Asia) such as AB8s, etc. I always got a big bang when I was over on the "Pink Peggy" site that moderators there turned P&T (Permanent and Total) into T&P. VA has always referred to Clear and Unmistakable Error as CUE. The BVA (Board of Veterans Appeals) and the CAVC (Court of Appeals for Veterans Claims) have also used that acronym exclusively. I noted one fellow there who claimed to be a VA rater extraordinaire always referred to it as "C&UE". After about 100 queries, I added a Vet's dictionary to my site early on to help Vets through the minefield of terms-both VA and military- that we encounter(ed) during our service. https://asknod.org/the-va-dictionary/

70% for PTSD is the TDIU. 50+10+10 =60% for the headaches etc. as long as the headaches have nothing to do with the PTSD and you're golden for SMC S. If the PTSD happened after the 50/10/10 for the TDIU, it's okay. Read Buie v. Shinseki. It makes no difference the order in which the ratings are awarded. A 70% for PTSD supplants a combined rating to make it the primary for the TDIU. Good sleuthing job.

I smell a VSO.

The idiots at the RO have never heard of Bradley v. Peake so don't waste the ink. The VA has your ratings sheet you posted above. They can do the math. They just never bothered. On page 8 of the 526 , it has a list for your disabilities. http://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf Type in "Entitlement to SMC S per 38 CFR 3.350(i)(1)" or type in "see attached sheet". Type it on a separate sheet and include it in the submission. Put your case # or your SSN on any paper you submit to ensure it doesn't fall on the floor and get separated from the claim.

File a form VA 21-526EZ to Janesville, Wisconsin and claim you are entitled to SMC (s) because of 38 CFR § 3.350(i)(1).You are rated TDIU (100%)P&T for your Bipolar disorder solely. You have additional disabilities that add up to 60% or more that are separated and independent of the TDIU mental disorder ( 50%+20%+10%=64% <=60%). Your effective date for SMC S is the date the VA awarded sleep apnea that raised your entitlement to 60% or greater above the 100% P&T---or 11/15/2001.

The first thing that bit my eyeballs is that this is being filed as a request for pension. Hellooooooooooooooooooooooooooooooo??????? This is not a claim for a non-service connected event. It is a claim for compensation and nothing else. Your brother's claim failed in 1983(?) very simply because that is what VA did back then. If the Vet didn't come back with a NOD, VA won. Refile immediately using the 526EZ and recharacterize your claim as one for compensation rather than NSC pension. I was going to read the whole train of comments but all I saw in the first 20-30 was NSC pension discussions. There is sufficient evidence of record to have him rated at 100% P&T with what is available. He and you need not file or pursue any private nexus letters from shrinks. VA requires one of their own to do it anyway so save the money. Vietnam Vets are virtually given a presumptive on PTSD if they were in combat and have a medal to prove it nowadays. Your brother more than qualifies. VA will low ball him with an initial offer of 50% and a NOD will take it to 70%. A DRO review will carry him to a full P&T if he threatens to appeal to the BVA but that is unfortunately how VA works. I would call my congressman this morning and get the ball rolling. This is inexcusable. Ask for an advancement on the docket as well. He's been denied for no good reason other than the claim being mishandled for decades. I do not fault you for it, VietnamVetSis. I do, however, smell the stench of an inept VSO in this somewhere. P.S. You'll need to get an up or down decision first on his claims for compensation. You cannot hire an attorney until VA substantially "denies" you any part of what you ask for. After rereading the thread, it's obvious a Clear and unmistakable error occurred in the first filing based on 38 USC 1154(b) alone. This will give you the can opener to resurrect your original claim and obtain an earlier effective date of 1983 filing. I have the names of several good attorneys but I'll contact Ken if you wish. I'm sure I can interest him in this and if not, "Hurricane" Katrina Eagle would love to take VA to task on this. Personally, I'd love to myself but I am not licensed to do so yet. This is a cakewalk inasmuch as VA violated nearly every precept of their own laws to deny your brother early on. I just began one very similar to this last year for a neighbor. We had to begin by getting his Purple Heart and Combat Infantryman Badge after 46 years of promises by 5 VSOs that "they were on it".

Correct, Buck. The moment you get a compensable rating for anything at all, the three zeroes equal 10 flies out the window. However, a good application of a 0% disability is where you have a disease such as cancer (with no complications or secondaries) that is cured or goes into remission. The VA cannot rescind the rating as it was honestly awarded. They generally drop it to zero and await a recurrence. In order to rescind it, they would have to travel down the CUE path and that is an arduous undertaking.

Yes, it's true. They are trying to phase it out. They have to be three different disabilities, too.