FormerMember

Never despair. I'm fairly sure she's going to be a moving force in her next incarnation. A spirit that strong and giving doesn't simply evaporate into nothingness. I belong to the paddle club ("Clear!") and never got a clear look. It's exciting to think what's next on the menu. I don't fear it. I'm certain she didn't either.

She never signs her decisions with Ursula. It's always U.R. Powell.Here you go. Here's 444 all the way back to 2011. http://www.index.va.gov/search/va/bva_search.jsp?QT=U.R.+Powell&EW=&AT=&ET=&RPP=50&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011

I only hope I lead as many to success as she did. A great inspiration to any who hear the calling. Our loss is Heaven's gain-but far too soon.

I figured with VA shutting down the AO research we may be in deep doo-doo on this, Cowboy. I do have one VVet friend who was smart enough to file for DM2 in 89 just as a shot in the dark. It paid out to 88 (one year earlier automatically). Make it so, Numbah one. Currently have one down the road from me. 3 tours LLRP and he worked the trail heavily. PD was dx'd & is dogging him. His personality is changing and he can't see it. We're working on it. Win or Die,

I just published this and want all my in-country brothers and sisters to keep your eyes peeled for this. Nasty news. https://asknod.wordpress.com/2015/11/15/ao-diseases-add-on-dont-forget-the-lewy-bodies/

Loyal, check where you're downloading the 38 USC for SMC (k). It is $102.23 currently- not $96.00.

Looks like we lost a post in the process of changing the venue on SMC over. Here is the relevant passage. It helps to have a grasp of VA law and how they write their regulations. It was right in front of you. Allow me to emphasize it in red. 3.350: (a) Ratings under 38 U.S.C. 1114(k). Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, complete organic aphonia with constant inability to communicate by speech or, in the case of a woman veteran, loss of 25% or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy), or following receipt of radiation treatment of breast tissue. This special compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability, provided that the combined rate of compensation does not exceed the monthly rate set forth in 38 U.S.C. 1114(l) when authorized in conjunction with any of the provisions of 38 U.S.C. 1114 (a) through (j) or (s). When there is entitlement under 38 U.S.C. 1114 (l) through (n) or an intermediate rate under (p) such additional allowance is payable for each such anatomical loss or loss of use existing in addition to the requirements for the basic rates, provided the total does not exceed the monthly rate set forth in 38 U.S.C. 1114(o). The limitations on the maximum compensation payable under this paragraph are independent of and do not preclude payment of additional compensation for dependents under 38 U.S.C. 1115, or the special allowance for aid and attendance provided by 38 U.S.C. 1114(r). Now I'll reduce it to /DickandJanespeak. If you have loss of use of one (1, un, nung deo, ichi) foot, you get a SMC K. If you have loss of use of both feet (2, deux, song, ni etc.) you get SMC L. If you have loss of use of one hand and one foot, you get SMC L. If you have loss of one hand, you get a SMC K. If you have loss of use of both hands, you get SMC M. You have two hands and two feet. You get remunerated for a maximum of two hands or two feet. You can be blind in one eye, lose the use of a creative organ and lose one or both of your buttocks and get three more SMC Ks when you are receiving compensation between 0%-100% or under SMC (s) as long as it doesn't go over L. In your case, with a bump to (m) via 3.350(f)(4), you still cannot exceed $5,075.60 (SMC (o) with your SMC Ks. But you still can only count a foot or a hand once. If you count your feet as SMC (l) and get the bump to (m) from another 100% schedular rating, you could still count a loss of use of 1 hand as a SMC K legally. Now, put on your seat belt and stay with me, If you lost use of both hands and both feet, you would be entitled to (r-1)= $7252.63 but no Ks. I would never pull a statement out of thin air and blow bubbles, sir. The regulation is unequivocal and clear. You have to know how to read it. If you are single and rated 100% schedular/TDIU, you would be entitled to $2906.83. Add SMC (s) and it's $3243.67. Now add 3 (three, sam, trois, san) SMC Ks @ $103.23 each ( $309.69) =$3553.86. SMC (l) is currently $3,617.02. You are safe. A spouse or dependents do not factor in. The addition of a fourth K rating, however, would take you over SMC (l) and not be allowed. Moving it forward, if you were SMC N ($4540.89) with three Ks @ $309.69, you remuneration would be $4,849.58. SMC (o) is $5,075.60 so you would still be safe. The way it's written, you can actually get more than three Ks between the rates of (l) up to the (n) rate ($4540.89) as long as they did not exceed SMC (o). 3.350(a) doesn't set the limits on the number of Ks per se. The break point is the SMC (l) language when you have SMC (s) and three Ks. After SMC (l), the number allowed is controlled by SMC (o). Obviously, not that many have the Forest Gump entitlement (buttocks) or, if men, a loss of breasts. The rest (one, eye, aphonia, ED/hysterectomy and total deafness) naturally limit how far you can go with SMC Ks. How many do you know with loss of use of a creative organ, lost buttocks, deaf, dumb, blind in one eye and, if women, missing their breasts or a part thereof? There are only eight K platforms. If you use a hand and/or a foot, you are down to six. If a man, five. VA is not well-known for giving money away.

If you had 0% for ED, were you being paid the K for loss of use of creative organ? If so, it works like this. Yes you can have 3 Ks simultaneously. If the K was for ED, that's it. You cannot be given Ks for the loss of use of a hand or foot as those are the prime ingredients for your L rating that has been bumped up to M via 3.350 (f)(4). If you had loss of use of one eye and your buttocks, you could have the 3 Ks. Under no circumstances can one of the ingredients for L also be a predicate for a K as that would be pyramiding.

Agency of Original Jurisdiction (AOJ) = San Diego= Cheeseville WI

When you appeal a decision, you have two "reasons or bases for doing so. Case or Controversy. 1) Case: Case means law. If the law is incorrectly interpreted by VA, and it apparently is 67% of the time based on the rate of vacates, set asides and reversals cumulatively from the BVA or CAVC/Fed. Cir., then the claim is remanded to comply with law. Just because the M 21 for years said TDIU was not a 100% "rating" did not make it so. Bradley cleared up that misconception. M 21 also said you had to use the ratings in order of award date to add them up towards a SMC S entitlement. Buie rewrote that. In sum, the M 21 is dynamic. A precedent from the Court immediately voids the M 21 interpretation. VA can declare anything they want judicially as long as it hews somewhat closely to the regulation/ statute. It can prevail for years or decades but as quickly as it is discovered to be faulty, it is discarded. See Walker v. Shinseki on 3.303(b). VA is fond of reinterpreting existing regs to say what they feel they say. It doesn't make it law. Squeezing 3.156(b) into regurgitating a new meaning of "reconsideration" as a "pre-NOD" is disingenuous but not given any force of law. The very first BVA/CAVC case to attack it will show it is not in accordance with law-and therefore null and void. 2) Controversy: Controversy means what it says. You dispute the findings of fact that a VA rater has arrived at. Controversy can only encompass the evidence of record (EOR) or medical findings that are at odds with accepted and published literature. If you can show VA has misinterpreted or skewed the facts to arrive at an incorrect decision, you either win or get a remand to present your side all over. If VA said the DM2 you suffer from is not related to Agent Orange and you were never boots on the ground, that can be a two-fold error of both case and controversy. DM2 is presumptive via 3.309(e) and if proven to exist, is automatically awarded absent some extraneous reason. The only controversy would be the debate as to your presence in RVN. If your 214 shows it, and VA misses it, it's controversy. The path to reconsideration has been there for years without a specific definition of it being a quicker de novo review -usually to right a wrong quickly for an egregious error that probably should not have been made in the first instance. You do not need to file for it. You or a good legal minder usually calls up the VARO manager or Director and explains the snafu. They take a gander at it and fix it. Homeless folks and those with emergent medical situations/ dire financial deficits get this consideration frequently. It's the law. 90 days. However, those of us who are not dying or living under a bridge do not. If we ask for a reconsideration immediately upon receipt of a bogus rating, we often can correct it. That is accomplished via an attorney or you in person at the RO. I have yet to see a VSO accomplish this but that is not proof they can't or won't. I had a Vet who recently won but was lowballed at 20%. He was legitimately 100% for Hep C. He bought a dog of a motor home and had no physical address except his attorney's. Bingo. Homeless. Instead of having to wait 585 days for his DRO reconsideration at Oakland, he was advanced and given a C&P pronto. He had the 100% in less than 90 days and the $140 K retro in the bank. Every situation demands its own repair order. Just because several of you have a different experience with a reconsideration, do not for a moment assume your circumstances are normal and your fellow Vets will be accorded the same treatment. I often am not told the complete story when asked for help. I have to drag the facts out to find out the real problem-and a real solution to it. There is no such thing as a shortcut with VA unless you are in dire circumstances or you're related to President Obama.

38 CFR 3.156(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.(Authority: 38 U.S.C. 501) No reference to "reconsideration". For VA raters to torture it out of 156(b) is voodoo law. I stand by my observation that it should only be employed in situations of medical/financial emergent situations that demand Rule 900 intercession. Beraud v. McDonald in Buckwheatspeak:https://asknod.wordpress.com/2014/09/13/fed-circus-beraud-v-mcdonald-justice-interuptus-ii/The M 21 is a tool to aid in adjudications. As such it carries the impetus of an interpretation of a regulation (but not a statute). The M 21 is often wrong, or should I say, the raters use it in such a haphazard manner that it provokes far more errors than it seeks to address. The M 21 is also corrected on almost a monthly basis due to new precedence at the Court and Federal Circus. Bradley, Groves, Buie and many others constantly force them to reword it. Utilizing the M 21 to understand your claims denials logic is like reading last year's newspapers. P.S. Or like believing eBenefits information is in real time.

Toodle on down to your RO and go up to the info desk. Ask them if they can give you some hard facts on what the hold up is. It's fun to watch them blow bubbles in front of you.

Loaded the disc and there were 10,078 pages. That, I believe, would be called a shit ton.

Yes , the decision can be alluded to. Every BVA decision is generally unique to its claimant and the circumstances. It can be referenced, however, if the majority of the facts that fit both of you are based on statute or regulation. In other words, it cannot be a decision based on a diagnosis or controversy over material facts. Again, you need to point out that a determination of willful misconduct is a decision made by the military if you were were in the service at the time unless it occurred before the enactment of 38 CFR 3.301. Since Congress enacted it in February 1961, VA can engage in willful misconduct determinations based on what they perceive only in the post-military or intercurrent aspect. The VA also cannot make the willful misconduct determination other than basing it on a military determination that you abused alcohol or drugs. Period. The 1997 decision is flawed based on the Veteran driving the vehicle in an unsafe manner being willful misconduct. A driving infraction (absent alcohol or drugs) that leads to injury is a LOD determination. Reckless driving is LOD only if the military determination says so. VA cannot make LOD determinations. A military record shows any LOD determination and it cannot be revised without the Vet petitioning the appropriate branch of service's Board for the Correction of Military Records to do so. In the case of the BVA decision you cited, the Board made a finding of fact and law that an expired, suspended or nonexistent licence is not willful misconduct. Since this is not specific to the Veteran in this decision and applies to all similarly situated Veterans in the same situation, it is admissible as evidence in favor of your claim and can be cited as acceptable law. Use it. I commend you on your diligent research. Finally, the Board notes that operating a vehicle without a license is a “mere technical violation” that is not willful misconduct. Here's what I see. A recalcitrant DRO that is pretending to be objective but going to deny under any circumstances. If you lawyered up and the law dog marched in and set the jackwad straight on 3.301's reach, you would win instantly. Playing VA house with no legal talent is like a poker game with a marked deck, 6 aces and a card shark as the dealer. You are at a strategic disadvantage. You will win eventually but VA is going to make you fight for it. The M21 contains the holding and knowledge of that 1997 decision. It's not like the DRO is unsure or clueless or desperately trying to sound it out like Phonics. Your presentation of the decision's holding on the driver's licence should be enough to prevail. It all depends on whether the DRO is "Veteran-friendly". And then there's the benefit of the doubt. Best of luck, sir.

I used VAOPOGCPRECs 34-96 and 6-01 to win my greenhouse. The VLJ even complimented me on their pertaining to the subject. He even used them himself in the decision. They're lethal when used properly at the BVA level. Takes the wind out of the sails way before they get to the CAVC.

I got my first one in 2009 ( 2600 pgs) I got the RBA for the first CAVC show (3715). I'd have to check the new CD for this page count.

7th ABCCC. Call sign Cricket/(night) and Hillsboro (day). I talked to them about 50 times a day. 272.3 Mhz. My call sign Wetback Yankee. Caught my silver BB @ L-108 Muong Soui 9/17/70 flying down Route 7 in a Porter with the fancy blue/white/silver paint job. I remember the Yellow submarine. You could see it from the air on the upwind leg before you turned left on final. Welcome Home, sir. Feel free to use the letter. That's why I wrote it. As a combat Vet, I get the 38 USC 1154(b) presumption that anything I say is the truth. Sabai dee gwoh? Still have my AirAm pin, too.

Read it. https://asknod.wordpress.com/2012/02/29/thailand-ao-exposure/ and https://asknod.wordpress.com/?s=Ao+in+thailand Food for thought. I was in one of the new 3-story yellow barns at Udorn about a week after I got there. I was originally in the swamp down near the former AFTN site that got clobbered by the F-4 about a week before I landed. The new barns were 60(?)ish feet from the perimeter where the Thai lunch vendors set up. Nothing grew there. I departed for up country in July 70 and came back to visit again every once in a while for different missions. I out-processed there in May 1972 and came home. Here's an affidavit (attached below) I supplied to another airman stationed at Udorn. It was accepted into evidence by the BVA. I have not heard back from him as to whether he won. Remember one thing. Ten years ago, VA was insisting there was no AO used in Korea or Guam. That has changed. Okinawa was next. Hell, they're still digging up old barrels of it there at Naha and Kadena, You could never have won an AO case in Thailand five years ago but nevertheless, we are beginning to win there. The trick is the nexus letter. Always has been-always will be. You can't diagnose yourself with DM2 and then say "It's because of the fertilizer they used at Udorn." Your doctor has to say it and he should be darn specific as to why. If you weigh 300 lbs and eat corndogs for breakfast, lunch and dinner, your case is compromised. Being on the perimeter of Udorn was a fact for almost all of us. Many of us lived on the perimeter. I believe this should be moved to the Agent Orange file section as it belongs there. Letter of support for AO-AB.pdf

Check it out. Squid finally wins his claim. We've been working on this since early 2008. VA said they "seemed to have misplaced the 1986 c-file" that used to be in San Diego when he filed in Sioux Falls in 2010. https://asknod.wordpress.com/2015/11/02/bva-squidleyone-joins-the-pt-club/ We went in loaded for bear and did it in one trip to the BVA with a remand to get it right. Sioux Falls VA tried the Rocks/paper/scissors game with Registered Nurse beats MD gastroenterologist . The VLJ didn't see it that way.

The law says you cannot collect on a Feres FTCA Tort claim as well as VA comp. You can offset the Feres and begin collecting VA comp after you exhaust the Feres funds. As for GM, I do not see the correlation. As for collecting on both counts. if you are injured in the service you get comp. period. If you get anything out of GM, that is not another settlement with the Govt. The law simply says you cannot "pyramid your winnings" from two sources-say the Army and VA. This is why you have to sit out any winning financial settlement from the military at discharge for a medical payout until it is satisfied dollar for dollar before collecting VA comp. Here's another interesting VA fact. Only the military can make a finding (and usually does) re willful misconduct or LOD. VA cannot by law, reach back into military jurisprudence and make a post hoc judgement. If the Milrecs are silent for Willful Misconduct, VA cannot make that determination in the first instance. LOD is identical. If there is no mention either way, it is to be presumed it was LOD. VA gets busted on that about five times a year.

I use a search bar on my site, Theresa. It's at the upper right under the medal and all the black area of widgets. Type in the word(s) you seek or a CAVC decision name like Buie and it brings up any mention of Mr. Buie in a blog. I like Hadit because you can ask questions. Many say they find my site limited because it isn't a "forum" like this. Why duplicate? We have the best of both worlds. Many like the DIY aspect of claims filing knowing how limited the VSO system is. And for all those who like to be told they cannot get there from here or be depressed and told there is no hope- we have Peggy's Pink site. My favorite-Ye olde Medic- is still the soothsayer of doom and gloom over there. He has counseled innumerable Vets to not waste their time filing for HCV via jetguns. I've now helped over ten guys and a gal win on it. I even went out and bought one. Win or Die. Those are your alternatives in this game.

Let me expand my comment. In this thread alone, I see several errors just in the participants who contributed. To begin with, to understand this as clearly as possible, let's turn it into "Buckwheat speak" to get rid of the CFR junk that often clogs up understanding. Mr. James Buie's case in 2011 is the best one ever documented and is the most cited to when Vets claim SMC S. Ken Carpenter knocked this one out of the park. VA was not gonna go quietly into the night on SMC S so it took a unique set of circumstances -a confluence of events if you will- that could create the perfect SMC Storm. https://asknod.wordpress.com/2011/09/27/cavc-buie-5-v-shinseki-0-2011/ Watch how he slowly builds up to SMC S. At the end, to qualify, Buie rearranged the order in which he received them. Another thing I wish to clarify. A secondary condition to a primary rated one is not inferior. If you have PTSD or MDD secondary to losing your hearing from a IED, it is just as important in counting to qualify for SMC. I am rated 100% schedular for hepatitis and 100% schedular for porphyria, secondary to the hepatitis. Either one can be the predicate to serve as the base 100% for the first SMC S requirement-i.e. that you have at least a 100% rating. See? It doesn't have to be 100% schedular. A TDIU rating is 100% for rating purposes. Likewise,Buck, your 70% for PTSD stands alone as the predicate for your TDIU-again the 100% base for SMC S. You do not need to add to it to make a combined rating of 100% to qualify for the first part. You are TDIU solely on the 70% PTSD. Alternatively, if f you have one rating of at least 40% and others that will take you to 70%, then they are the predicate for TDIU paid at 100%. This is important for you Navy04. You have enough to qualify for TDIU BUT ALSO have enough separate and distinct disabilities that combine (with VA math) to qualify you for SMC S. VA is required to tell you which of your disabilities (if you have less than a single 60% disability to qualify for TDIU) that they are using to grant your TDIU. If Navy04 has a 70% PTSD rating, that alone qualifies for the TDIU all by itself. Everything else is the gravy for the SMC S. All he needs is the 50% and a 10% to make 55% which rounds up to the magical 60% extra for SMC S. If anything, Navy 04 has way more than he needs to get there. VSOs do not have any idea how this works and VA will not tell you. You have to fight for it. I have had many DROs tell me the party stops at 100% and there's no more money on the table. Never think it cannot be done. Never quit asking questions but always try to seek the answer with the available resources first. If the regs do not answer the question, go further afield and research it. The good thing here is Navy 04 will get his SMC S entitlement from the day he can prove he had the required ratings to qualify-not the day he applies for it. Navy zero 4 is cleared in hot. Weapons are free, gentlemen. Make it count.

Newsflash. The medrecs aren't at Walter Reed anymore. Just thought I'd let you know that. Try NPRC hospital file. There are three files there (Hospital/ STRs/SMRs. Three separate files in three separate buildings. Then go to a VAMC ROI and ask for all your VA medrecs. You get them that day. No monkeying around.

I know I will be misunderstood when I say this. After counting today, I find 240 discussions on various aspects of Special Monthly Compensation, including SMC S. Narrowing it down, there are conservatively 200 involving just SMC S alone. Nevertheless, it seems no one (or very few) are willing to do the hard work and review prior posts for the same questions asked over and over. Further, I notice the same group of us knowledgeable in this area are answering the same questions over and over with the same exact answers. Learning a subject is easy here. The sheer volume of information is complete enough to qualify you for a non-attorney Practitioner's license at the VA. In fact, as some know, I am in the process of doing just that. I didn't go to law school. I learned it from asking, reading posts here and precedental legal decisions at the Federal Circuit and the CAVC. Still more was gleaned from BVA decisions-all of which are there at your fingertips. I can understand if someone feels their particular situation is so unique that it requires a personal answer. Many situations are subtly different and require a nuanced answer. However, reading over this particular subject, I note that I have answered the same exact question over 20 times in a year. This leads me to believe that some are not willing or are unable to grasp the concept of searching for their answer and prefer the FacePlace technique of throwing it out there and letting all pile on with many answers-some of which are incomplete or factually incorrect and harmful. Mind you, I do not criticize. I was a FNG once. Once, I emphasize. From there on out, I sought answers rather than ask for advice. If the answer was nowhere to be found, I used to go to the "Pink" site. After a while, I realized they had a warped view of Veterans help. Hadit is possibly the most read and respected of all the Veterans Help sites for one reason. We give good advice that aids in a win. Being graced with an Elder designation in spite of very few posts is a great honor. I did not agree to it initially feeling it might upset others who had been here longer and thus had "more time in the cockpit". Knowledge earned is to be shared - most especially with those from whom VA deprives it. Asking the same questions over and over with no effort to research it burns out those who hope to help you. We get "mental laryngitis" from repeating the same things over and over. Eventually, some of us cease to offer that which you need to win. This deprives everyone who hopes to learn here. I beg all of you who come to Hadit to make an effort to at least attempt to find an answer among the tens of thousands of posts before asking. If you still find yourself stymied, most of us would be glad to help you. I was tempted to just answer the SMC question again when it struck me as horribly redundant. Again, I apologize if I have insulted anyone.