FormerMember

VA insists ILP is still a vehicle to take you back to work. If you can't work, then how is that possible? VAOGC Precedent 34-97 says "avocational" as in hobby. No one will acknowledge that yet it is one of the few precedents that control. The other one is that all your disabilities, not just SC ones, must be considered in awarding ILP. VA refuses to acknowledge that as well. ILP is 7/8 of the VR&E iceberg you never see.

The BVA Fuehrer Eskinazi has stipulated each VLJ shall complete one a day. 60 VLJs=60 decisions. We also have up to 45 Acting VLJs who can do the same for 90 day stints so (very) roughly, 135 decisions per day=26,200 per year. Sadly, they are arriving at the rate of 45,000 a year. Do the math.

I second Berta's sentiments. Scratch and attach. We're gonna have a hard time decyphering this one based on the incoming.

First of all, let allow me to clear something up. Until 1994, the substantive appeals form was a Form 1-9 as in One dash nine. It then became simply a Form Nine with no hyphenation. Lawyers now call it a VA 9. When you file now, the BVA rarely remands unless something major is missing or was overlooked such as lack of SSI/SSD files. Usually they send it to their private Regional Office which we call the Appeals Management Center (AMC) to correct it. It's right around the corner from 810 VArmit Ave. NW on Eye Street. If you file the VA 9 and do not include any new and material evidence, VA will ask you politely if you are finished sending in information or evidence. If you sign off on the 5103 form, as they call it, you are asking VA to proceed with the adjudication as you have nothing else to include. It sounds as though you have extra exculpatory evidence you wish to include in the form of an IMO/IME. If that is the case, you should note on the 5103 that you do, indeed, have N&M evidence to submit. However, if it is a "new" claim, as in one you have never mentioned before, you should not introduce it into this one. File a separate claim for it. It would have to be peeled off and remanded -or acted on as a separate claim anyway. The BVA tends to complete your first claim you are filing the VA 9 on and remand the "new" claim for initial review at your local Regional Office. This will, in most cases, hold your new claim hostage in DC until you get an up or down on the one you appealed. We now have a budding VBMS electronic records system and this allows your c-file to be in two places simultaneously-technically. VA is slowly getting into this method. In sum, you cannot tack on a new, unadjudicated claim in the first instance to an appeal.

And we can use this invaluable information on how long we will be contemplating our navels awaiting a DRO review for.... what, exactly? I'm at twenty one years, three trips to the CAVC, three BVA appeals and no longer counting. It's far too depressing to sit around xing off days on a calendar. Focus on family or a hobby. In the time it takes, you can become proficient in VA law.

They left out only those who served after 9/11/2001 are eligible for SMC T. It is basically a regurgitation of 3.350 but with less legal language. Very few notice the small "or" at the end of SMC O that says " or a combination of multiple injuries causing severe and total disability". That "or" obviates the need for all the above considerations for O which greatly reduces the burden on the Vet to qualify. As the link says, SMC is one of the hardest VA regs to wrap your mind around.

They try to do a pretty good job of camouflaging SMC. It's like the Mississippi River and switches back on itself quite a bit to confuse you. Best of luck and always take what those fellers down at the VSO say with a grain of salt. They tried to tell me tattoos were willful misconduct. If that were true half the Navy and all the Marines would be guests in Ft. Leavenworth. clear prop!

Most excellent win. sugar. The only thing finer might be getting your picture on the cover of the Rolling Stones. Winning a CUE puts a pretty big smile on the face.

You might want to rethink that logic, Ollie. SMC L is also known as Aid and Attendance 1 or abbreviated A&A 1. A&A 1 is SMC L. Look carefully at the requirements for L and at 38 CFR 3.350(b)(3) and then look at 3.352(a). (3) Need for aid and attendance. The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in §3.352(a). (a) Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance (§ 3.351©(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. But see 3.350(f)(4): (4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114(l) through (n) or the intermediate rate provisions outlined above. Translated, that means if you qualify for L and have two (2) independently ratable 100% disabilities, you get M. No ifs, ands or buts.

Pete-- Technically, you had to get them via a Home Improvement and Structural Alteration (HISA) grant. The tempurpedic beds might fall into ILP but I have usually seen them granted using the VHA prosthesis path. The VA is desperately trying to strangle the IL Program because they feel they are already giving us far too much. I usually get reports of can grabbers, sock puller uppers, grab bars at toilets/showers and occasionally headphones (for TV) for extreme hearing issues. There are also SAH (Specially Adapted Housing) and SHA (Special Adaptive Housing) grants as well as automobile adaptations. ILP was a set aside specifically for severely disabled Vets to make reparations for how we were treated when we came home from Vietnam. There is no specific list of diseases/injuries needed to qualify. Congress didn't get anally specific about what a severely disabled Vet actually is. VA did that. Here's how Congress gave it to us: https://www.law.cornell.edu/uscode/text/38/3120 It's rather humorous to listen to all the reasons why you don't qualify or only get the can grabber while they are collecting bonuses on top of their $100 K salaries. How about another wrinkle. You can be retroactively reimbursed for SAH home modifications you did after you qualify for it. Save dem Home Depot receipts. I built my house using ADA standards so I can ask the moment I get my wheelchair learner's permit. The fact is, honestly, that VA's VR&E folks are trained to identify what you need based on your mental/physical limitations. They are also supposed to ferret out implied needs for grants and try to include them. So you can imagine a VR&E honcho saying "Well, Lordy. You need a lot of stuff. We'll fix up your car so you can brake and throw in a riding lawn mower on account of it's a bitch to push a mower in a wheelchair."

The thing about ILP is the VA gomers are slaves to the word 'vocational'. They refuse to consider 'avocational' (or hobby) as described in OGC Precedent 34-1997. In each and every denial on the way up the ladder to the BVA, the discussion always ended with "There is no avocational application for ILP. We have numerous items to increase your independence in activities of everyday living but there will be no talk of hobbies." Towards the end, they got the denial language directly from VACO VR&E in DC. One could tell a new author had been drafted to write it. They then began focusing on the fact that I had a 6X8 greenhouse and several raised planter boxes with glass over the top. This segued into "Jez. What gives? He has three Greenhouses which are adequate for his needs of everyday living." https://asknod.wordpress.com/2013/04/16/sesame-street-count-the-greenhouses/ Remember that denials, be they for claims or ILP grants, are the same. The logic for the denial must always remain constant. They cannot keep moving the goalposts and changing the rhetoric for the denial as they did with me. The last straw was when they waited 8 months until the revisions to M28 Chapter 9 (ILP protocols) came out in March 2014 to fabricate a beautiful, well-reasoned SSOC. The only problem is that it was inapplicable. I filed in 2011 and thus fall into the old regulations. These are the mental giants you will be dealing with. The new regs forbid motorized devices that might be construed as mobility devices. Electric wheelchairs fall into Chapter 17 prostheses help and are exempt. Riding lawnmowers, tractors and golf carts are now verboten...or are they? The only way you can roll back illegitimate regulations is to appeal. I plan to bust the ILP back open to what was envisioned in 1980 when it was inaugurated. That's why I upped the ante a bit from a $4,000 unheated one to the $85,000 Lexus with an electric ass scratcher attachment. Once you win, the boys at the VR&E have to comply with the finding that you need the item. They hire a real expert and allow him/her to decide the parameters. Since the expert is not constrained to think in pennies and bonuses, s/he focuses on what you need-not what VA thinks you need. I got far more than I asked for when they gave in on the computer and all the software/peripherals. This tipped their hand and showed what they really were supposed to do from the beginning. For instance, the computer expert assigned noticed I didn't use two fingers on my right hand due to peripheral neuropathy. He included Dragon Speaking Naturally to the software package. I merely asked about Adobe 9 PRO and the Microsoft Imaging Program and he threw them in too. In for a penny-in for a pound folks. In the ILP world, once you win, the sky is the limit. VA will lie and tell you there are limited funds available for ILP. They will tell you that you only get one shot at this. All lies. After you have been successfully 'rehabilitated' with your new greenhouse (3 years), you can go to the end of the line and sign up for a new ILP. Remember who you are dealing with here. They denied the program existed in 2011 when I filed for it. Remember--Win or Die. What do you have to lose?

Being on the cusp of 65, I'm rather pragmatic. It won't be that awfully long before I'm driving a wheelcharriot. Best to go hydroponic with the raised tables while VA's footing the bill and make it ADA. The gal who wrote it up said she's familiar with the IL program so this must be the standard package. Makes you wonder what the full meal deal is, huh?

Always be prepared for your VR&E win. In my case, it's been advanced on the docket at the BVA and is ripe for a decision within a month. Thus, I contacted Farmtek's ILP coordinator and asked for a "bare bones" greenhouse suitable for the NW and cold weather. Since VA has $180,000.00 available for each and every one of the 2,700 annual applicants who pass the audition. it behooves one to have it all compiled so as not to appear like an FNG chucklehead when contacted after the win. I do hope VR&E Director Jack Kammerer has a high-limit credit card because Farmtek is a FOB kind of outfit where VA is concerned. VA tried the slow pay technique several times and now their credit is damaged. The install cost also isn't included nor are the electrical/plumbing connections. Go big or go home, folks. To think that they denied me a little ol' 12X20 in 2011.Grambo's greenhouse.pdf Oh shit, Lieutenant. A gook just walked into the prop. I yelled clear prop. I did. I swear I did. I'm not cleaning off the windscreen this time. No way. Solar star 24X48.PDF

R/T, PR.

You need to get on the ball. Prostate stuff is AO presumptive. You know the drill. Get the nexus , assemble the medrecs. Push send. Perhaps someone who is a Vet. Rep (VFW. AmLeg, MOPH) will help you file it!

SMC K does not provide for Loss of or loss of use of Prostate. If you become impotent, the provisions for loss of use of a creative organ would be for application. Here's the spec sheet for peeing problems. Rate particular condition as urine leakage, frequency, or obstructed voiding Continual Urine Leakage, Post Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence: Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day 60% Requiring the wearing of absorbent materials which must be changed 2 to 4 times per day 40 % Requiring the wearing of absorbent materials which must be changed less than 2 times per day 20% Urinary frequency: Daytime voiding interval less than one hour, or; awakening to void five or more times per night 40 % Daytime voiding interval between one and two hours, or; awakening to void three to four times per night 20 % Daytime voiding interval between two and three hours, or; awakening to void two times per night 10 % Obstructed voiding: Urinary retention requiring intermittent or continuous catheterization 30% Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1. Post void residuals greater than 150 cc. 2. Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec). 3. Recurrent urinary tract infections secondary to obstruction. 4. Stricture disease requiring periodic dilatation every 2 to 3 months 10% Obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year 0% Urninary tract infection: 0%

Here's my take on nexus letters after fooling around with what does and does not work. https://asknod.wordpress.com/6051-2/ VBA has inveighed on the VHA doctors and forbidden them to write anything more than the day-to-day progression of the disease /injury. In 2010, VBA ruled only VA shrinks can dx PTSD. You need to get outside the VA system to get a DBQ. The DBQ merely lists what your physical condition is for rating purposes. DBQs were never meant to be discoveries of how you got disabled. Remember always that a C&P is much like a DBQ. Most C&P doctors are not there to make the all-important decision of whether it is or isn't service connected. That job falls to the VA Examiner back at the RO. Your job is to upstage him or cut him/her off with your doctor's nexus to rebut VA's. Any doctor can make a subjective opinion if he/she is well versed in the subject. They have the training. If you get right up in their face and demand a nexus, they probably won't do one. VA doctors sure won't. Presumptives are very valuable. They go hand in glove with you being exposed to the danger. Proving I was in Vietnam was the only way I can even put in a claim for Porphyria. Being a combat Vet makes my testimony incontestable. Between the two, it's almost a guarantee of SC. You make the assumption that this is an honest VA poker game and it is not. VA does not throw in the towel until they don't have a leg left to stand on. No nexus equals no dice. Sounds like you don't have a nexus or have failed to point out 3.317's applicability to your claim, sir. <<<<<The c&p exam was a good one. She just confirmed that I had both. No opinion.>>>>>>>>> See the problem? A DRO is going to make the same denial decision absent you finding a doctor to say the magic " It is at least as likely as not that Mr. Rude 1122's fibro and IBS are due to his exposure to _______________ while he was in-country." I'm not asking you to believe me but that's how I got there. J1VO.

Presumptive exposure to anything, be it bending atoms on Bikini Atoll, to Agent Orange in the Republic of Vietnam or to the Gulf War(s) alleviates one simple facet of evidentiary law. It does not equal a free pass. The Court of Appeals for Veterans Claims (COVA) affirmed basic Federally recognized law in 1994 (Caluza v. Brown) that three things were needed to win a VA claim. These were well-known rules among the poohbahs since 1918 but not to the rank and file Veteran. 1)Disease(or risk of exposure to)/injury in service; 2) same disease/injury now ; and 3) a doctor's letter cogently tying the two things together (nexus or IMO/IME). Nowhere on a DBQ will you find that magic IMO box. If you do not provide one-guess what? VA will be mighty happy to oblige you and provide their own. 85% go against you. When you present a claim, you list all these important items. Staple a 21-4138 to a Doctors nexus letter and say Attached find exhibit A nexus letter from Dr. ___________. I tell all my Vets to get several. Most of them win right then and there before VA wastes years on phony denials. If VA suspects you're a Patsy, you're toast. Presumptive exposure is merely a box you check for in-theatre exposure. It grants you the right to advance to consideration for that presumptive because you were exposed. It in no way alleviates you from the responsibility of finding a medical doctor/PA-C/ ARPN or their equal to opine that indeed the fibromyalgia is undoubtedly a cause of Disease #A and #B due to presumptive exposure because a clear medical link has been identified and it is covered by 3.317 -- https://www.law.cornell.edu/cfr/text/38/3.317. Winning a VA claim is like football. You never want to be on defense. The idea is to keep your enemy off balance and at a strategic 3 to 1 superiority in evidence submittal. When I was in the military, they taught us to bring guns/ammo plus a shit ton of air support to our daily Rocks, Paper and Scissors matches. To me, a denial is usually proof that you relied on someone else, actually believed VA is nonadversarial and Veteran friendly, were not well-enough acquainted with the game yet or your nexus letter fell flat like a souffle. Many of you do not know that if you were in combat and have a medal to prove it, that you are given the combat enhancement of 38 USC 1154(b) whereby everything you testify to concerning the event that precipitated your disease/injury is the absolute, unvarnished truth and cannot be impeached unless you start in talking about chemtrails and those chips VA inserts in our necks to do the mind control thing. 1154(b)acts much like another "presumptive" in that it automatically means we do not lie. You don't usually get into combat situations unless you reeeeeeeealy love America. Credibility is a big part of the benefit of the doubt in these things at that point. Giving certain Vets presumptives lightens our evidentiary burden but does not absolve us from providing the linkage that wins the claim. There are no Chutes and Ladders in this game.

Try this one on for size. Too many of you feel the angst of an egregious error but invariably feel a CUE filing can leap tall buildings and right a wrong. Always remember, if you felt the decision was in error, you had the right to appeal it. Failure to do so, in essence, was an admission that VA's decision (denial) was correct. Far too many acquiesced to a VSO rep. who said it wasn't CUE and should never have been filed in the first instance. Righting a wrong in VAland is an arduous undertaking and not for the legally challenged. https://asknod.wordpress.com/2014/05/02/cue-the-quintessential-elements/

For the record, I was shot in Laos. We were not there in a military capacity or so the story goes. My ID said I was employed by USAID and taught French. To whom I taught it, I'm not sure. My non-disclosure agreements keep me mum for 50 years until 2020. I'll tell you all about it then. Meanwhile, you can get an idea here>>>http://bastiatblogger.blogspot.com/2012/09/ravens-over-laos-inside-legendary-steve.html Some called it Terry and the Pirates program. Here's a photo at Udorn Air Base after six months over the fence. My .25 cal FN "baby" was strapped to my left ankle. Never left home without it.

This may be a single judge memorandum decision but the courts and VA are not free to ignore the thrust of the decision as it rests on other precedence. For years, trying to prove you were in-country so as to get presumptive for herbicides has been a challange for some of us-most especially blue water folks who came ashore for mail runs or R&R at Vung Tau. Hunt opens up an interesting can of worms for VA. Never has a Vet been allowed to simply offer lay testimony that he came ashore and been believed. Judge Greenberg put a fork in that June 14th. VA has been instructed to "fix" it. The third BVA denial was the CAVC charm. Check it out, my fellow bullet biters. Fifty years later and Willie finally gets the green smoke. https://asknod.wordpress.com/2015/07/17/cavc-hunt-vs-mcdonald-red-clay-between-my-toes/

Let's play VA math. 20 +20= 36. Do the bilateral gig for 3.6% and hold that (40%). 10 +10=19 so you get another 1.9% /// 40 + 20= 52; 52+10=57; 57 + 10= 61; 61+10 = 65% rounds up to 70%. You have it on paper but you have the "independently rateable" hurtle of three different diseases. You fall afoul of trying to count up different anatomical segments or bodily systems. If you only take the highest (independent) ratings from each bodily system (anatomical segments), you have 20% (Left lower radiculopathy) +20% (lumbosacral strain)+ 10% (Chondromalacia) +10% (left shoulder condition)= 53%.

Before you count the chickens up, make sure the individual ratings are not related directly to or part of the 100% disability. VA considers it pyramiding and will not grant on that theorem. If you have a true 100% schedular for one disease, or TDIU to stand in its stead, all the added disabilities must be extraneous to it or be completely different disease entities/musculature injuries even if they are rated secondary. Here's 38 CFR § 3.350(i): (i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and, (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Always remember, too, that Special Monthly Compensation (SMC) at any rate is a separate, additional entitlement independent of your compensation rating. Thus you could be 40% for one thing and get SMC K for a lost hand or foot or loss of use of an eye-or both. You can actually have three Ks at the same time. But most importantly, SMC is awarded at the time you show the entitlement due. It technically does not require you to file to obtain it. It is paid retroactively to the date your medical records can show entitlement. VA's Sherlock raters are supposed to see this or the M21 computer is supposed to automatically point it out. If they overlook it, you merely have to tell them rather than file a tenuous CUE. I'd strongly suggest the IRIS method if the decision is rather new. This means the file and the claim are fresh in the rater's mind. I just whacked them for SMC S retro back to 1994. I did it the CUE path. I started in 2011 and won it in 2015 via an Extraordinary Writ when VA refused to honor their own C&P results. Remember, SMC is one of the least known, most complicated entitlement programs that VA has and consequently is one of the hardest nuts to crack if they want to be anal about it. VA's ability to reattach a prosthesis to the remains of an arm or leg can determine the difference between N or N 1/2. Or P. The reason you didn't just get it automatically indicates VA suspects or wrongfully assumes some of the additional 59% is related to your 100%(TDIU) rating. Best of Luck, sir.

VA is not allowed to make decisions on willful misconduct or LOD if it is not found in the military record. The can, however, point to some medical fact post-service that was a risk/injury due to reckless behaviour. If you have a history of skydiving after service and were in the 101 or the 173rd, you might have a hard time claiming your injury was service-connected. If you engaged in cocaine or intravenous drugs post-service, this would be your risk factor for Hepatitis regardless of what happened in service. If VA cannot tar and feather you with a UCMJ-documented finding of willful misconduct or "not LOD" in the record, they cannot make that determination post -service. Boy, howdy. If your attorney isn't schooled on 3.102 yet, you're in for some rough sledding at the BVA after you lose at the RO.

Perhaps starting a new thread would be less confusing, Wolf14. This thread is about Slick's 100% win. It began 13 June.