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jamescripps2
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Posts posted by jamescripps2
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Did you go to the Court pro se or did you hire an attorney?
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When you file for SMC -T the VA will put you under a magnafying glass. SMC-T is reserved for those veterans that cannot qualify for SMC R-2 because they don't have loss of or loss of use of at least two limbs or other qualifying disabilities.
You can see the requirements and qualifications for SMC-T at 38 CFR 3.350 last paragraph (j).
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In eighteen years of dealing with my VA claims, I have never gotten a call from the RO. Also, I have never tried to call them.
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No, there is no presumption for tinnitus.
That award would have been awarder due to the VA's duty to assist inferred claim provision.
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Copy and paste to Print the 2 pages (Nexus explanation & example Nexus) Submit to your doctor.
Page 1
There are certain important things in this world that we only get one shot at. Such is the Nexus letter in a veteran’s service-connected disability claim with the Department of Veterans Affairs. Although only one Nexus letter is required, it is advisable to seek the overwhelming number of three individual and concurring Nexus letters if possible. The Nexus letter may require a lot of effort on the part of the veteran, but the return is indispensable.
Generally, according to the law, three elements are necessary and therefore required to obtain a favorable decision by a veteran for service-connected benefits.
#1- An event in service that could have caused or aggravated a disease or condition
#2- A present day diagnosis of the existence of the same disease or condition
#3- A medical opinion linking number 1 with number 2
The required medical opinion is called a Nexus letter. The letter must be written specifically for the individual and explicit to that individual’s claim. It is important that the opinion be expressed as a degree of likelihood. The degrees of likelihood, arranged in ascending order from the lesser to the greater are as follows, “not likely”, “at least as likely as not”, “more than likely”, “and highly likely”.
In the case of “at least as likely as not”, the veteran always receives the benefit of doubt and therefore the outcome is considered a favorable opinion. The doctor, or expert, does not have to use absolutes or conclusions in the statement. Opinions are gleaned by a review of the pertinent records and facts. A professional opinion can then be rendered based upon the record, the medical history, the facts, and the education and/or experience of the author of the letter.
Most denied veterans’ claims failed because of the lack of a Nexus letter altogether or the lack of a properly written Nexus letter.
A proper Nexus letter must be as brief as possible while stating the facts and must include the following:
“After a review of the veterans pertinent records” – (use medical and any service records furnished by the veteran to show the event in service)
“It is my professional opinion that it is at least as likely as not” – (choose and insert the proper degree of likelihood, see above choices)
The author must offer a rationale as to the opinion in the statement – (e.g.,” It is well known in medical journals”)
The author must provide credentials, especially VA titles or specialties – (e.g., Oncologist, Hematologist, Orthopedic Surgeon, Environmental Clinician, etc.)
Please understand that the VA often uses credentials to assign probative value to the nexus letter.
Example of a Nexus Letter
DATE ____________
Reference: (Veteran’s name) ____________
SS# ____________________ VA File #____________________
********************************************************************************************** Page #2
To Whom It May Concern,
I am Dr. ____________. I am board certified to practice in my specialty. My credentials are included. I have been asked to write a statement in support of the afore mentioned veterans claim.
I have personally reviewed his medical history. (Name the Documents) I have also reviewed and have noted the circumstances and events of his military service in the years ____________ (Event or Events claimed as the cause of the condition) while he served during his military service. (List dates of service)
Mr. ___________ is a patient under my care since (enter Date). His diagnosis is _____________ (Name the Condition).
I am familiar with his history and have examined Mr.____________ often while he has been under my care. (Specify Lab Work, X-rays, Etc.)
Mr.____________ has no other known risk factors that may have precipitated his current condition.
After a review of the pertinent records it is my professional opinion that it is at least as likely as not that Mr. ____________’s condition is a direct result of his (Event) as due to his military service. (Choose the degree of likelihood with which you can concur – “at least as likely as not”, “more than likely”, or “highly likely”)
In my personal experience and in the medical literature it is known (Give a rationale).
Signed,
Dr. ____________
(List credentials and contact information)Please understand that the VA often uses credentials to assign probative value to the nexus letter.
While the nexus letter must be brief as possible it should be as detailed and complete as the circumstances dictate. -
I have a written request to give to your doctor along with a sample nexus letter for the doctor to use as a templet. It has been cut, pasted and copied thousands of times in the last fifteen years for use in obtaining a nexus letter. google search
vatheredneckway.wordpress.com
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It is a long road!
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I was assigned loss of use of two feet in 2011. I was assigned SMC L for A&A back in in 2016. That gave me two L awards that advanced me to the R-1. In 2020 I had a major medical issue and was awarded R-2.
So The L to the R-1 took five years. I did that pro se. I also did the R-2 pro se.
Upon being granted R-1 back to 2016, I then appealed for an eed back to 2011. After consulting with Former Member, Alex Grham, I used the CCK law firm and that went up to the CAVC, was remanded back to the BVA and again remanded back to the RO where I won ten years eed back to 2011 with a supplemental claim decision in February 2022.
I have an ongoing appeal now for ten years eed for the R-2.
Mr Cue, you follow the advice of Former Member and you won't go wrong.
Fight on and never give up my friend!
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FYI, Former Member, Alex Grham, whom I consider a good friend of mine is the guru on the higher levels of smc. If it were not for Alex and his knowledge, I strongly doubt that I would be a "R-2" veteran.
There is no question, and it is not disputed, the fact that a veteran does not need a 100% disability as the basis to apply for A&A, and there never has been, but if the award happens to be 100% the veteran is certainly going to have a easier time of applying and being granted A&A.
This is about as close as I can find on the granting of A&A while employed. It actually applies to pention A&A but I suspect it would hold true for any case of a veteran working and drawing for A&A at the same time.
IX.ii.2.C.1.h. Future Employment and A&A3) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional.
Pension beneficiaries are required to inform the VA if there is a change in any condition affecting their right to continued payments. If a beneficiary who is receiving A&A by rating obtains employment, the rating activity should review the claim to determine whether the beneficiary still meets the statutory and regulatory requirements for A&A. If the requirements are no longer met, follow the procedures in M21-1, Part X, Subpart ii, 4.A.5.Note: Participation in a program of Compensated Work Therapy (CWT) alone does not affect VA pension, however, if a Veteran obtains employment following a CWT program, this would suggest that he/she may no longer qualify for A&A.Applying for SMC "T" while employed would be inconsistent with the requirements at 38 CFR 3.350 (2) (i)If what I have presented here is not adequate, then you show me where it does state that a veteran can work and receive A&A at the "T" level at the same time.I suspect that a case like this would be denied and fought all the way to the Federal Circuit Court and back, who knows? -
Well Mr Cue, I give up, I suppose I don't know anything about what I am talking about.
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12 minutes ago, Mr cue said:
I don't see any where we're it stated that a veteran has to have a 100 percent rating for tbi to get approved.
First of all, I don't think that anybody has posted that there is a requirement for the TBI to be rated at 100% in order to apply for SMC "T". Second, One has to meet the requrements of regular A&A before SMC "T" can even be considered. Third, the OP says that he is still working, Fourth,The OP says that he only needs assistance, "most days".
Exerpt from 38 CFR 3.352
(2) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met:
(i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.
(ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.
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28 minutes ago, Mr cue said:
Like I example you before
Why would the veterans have to need or open there disability up to apply for smc benefits.
You don't have to have a 100 percent disability to apply for a&a. This has been address on hadit.
If you re read my post, I stated, "The ideal situation would be that the unrelated condition being advanced for the need of A&A be rated at 100%".
I did not say that the condition used to apply for A&A needed to be 100%.
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You conceded that your IDVS and 60% blatter incontinence are related to your loss of use of feet.
You are going to need A&A to be granted for an unrelated condition, seperate and distinct from the loss of use of feet. The ideal situation would be that the unrelated condition being advanced for the need of A&A be rated at 100%.
You might look at filing for an increase on the PTSD for use in applying for the A&A.
It would be a long shot, but you could fall back on 38 CFR 3.351 (c) (3). That route would send your A&A decision up to Washington to the Director of Compensation and Pension for a ruling on an extraschedular rating.
If you can be granted A&A, considering that you already have SMC "L" for loss of use of feet, then you would advance to the maximum rate of SMC"O". SMC "O" is a prerequsite for the "R-1" rating. When you are awarded the "O" your "L" rating automatically advances to the "R-1".
Under certian circumstances the 100% could be used as the basis of the need of A&A. Another discussion!
Complicated!
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The requirements for SMC T have not been met. The reason for the granting of the T award rest soley upon the TBI. All other conditions and disabilities are not considered. Also, expect no caregiver benefits while working.
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I would think that the vba will order a new C&P, or at the least, ask the previous examiner for clarification or an addendum for more information on a previous exam.
If you don't have a nexus you might take the opportunity to get one.
Your claim will be kicked out of the HLR and up to a suplemental claim because of the missing but needed medical information, giving you a chance to submit a nexus letter.
Supply your own good luck!
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I know one, but he hasn't won.
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Also, I am not insinuating that you need a lawyer. You sound like you are savy enough that you can do it yourself, if you can show that you qualify. If you can really comprehend every word of 38 CFR 3.350 you begin to realize that loss of use of feet is going to be easier to show than the loss of use of hands.
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I don't care what Hill and Pontoon or anyone else says. The VA is going to put you under a magnifying glass when you apply for loss of use. They are not going to give you loss of use because you need to slide a coin to the edge of a table in order to pick it up, or the fact that you can't hold on to your favorite pot and pan.
If you do your home work, get your ducks in a row and lawyer up, you are still years away from winning a loss of use claim. You will at the least go to the BVA and probably the CAVC and back.
Not trying to discourage, but if you do intend to file for loss of use of hands and/or feet you need to get serious about it. For the most part, what H&P wrote is intended to attract customers but can't be supported by law.
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NEVER EVER ASK FOR A HEARING!!! All you can do at a hearing is to reenerate the evidence already of record. True, you are allowed to submit new and revelent evidence at a hearing to the hearing officer, but, you could submit that new evidence without a hearing. When you ask for a hearing you are asking for three years to be tacked onto your appeal. Novice VSOs will ask for a hearing.
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3 hours ago, 30percentermovingup said:
Actually the regs read if you do as good or better with a prosthetic then it's loss of use. A few criteria but that is the one I will use for both, I can't walk without my orthotics (AFO), I can't use my hands without my carpel tunnel braces.
As far as loss of use of feet, do you wear AFOs? Were the AFOs issued by the VA? What was the reason that the AFOs were issued? Were you diagnosed with drop foot?
As far as the hands, are you showing any type of claw hand condition? Have you lost any or all of the tissue of the hands between the thumb and the forefinger? Do you have pinch grip?
FYI, You might want to go over to the hadit forums and read the M, O, R-1, and R-2 threads. There is a lot posted there about drop foot, loss of use and qualifying for the SMC higher awards.
Loss of use of two hands and loss of use of two feet, ben there and done that to include ten years of R-1 / R/2 retro.
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On 10/16/2018 at 6:43 PM, vetquest said:
I am a 100% veteran and spend a lot of time with church activities. I may look normal, if you overlook the leg braces, but most of my disability is invisible. I question my disability many times but my wife reminds me that I have a very compromised memory and I am not always fully up to par.
Do those leg braces qualify you for the clothing allowance, vehicle grant, and Special addaptive housing allowance?
Not prying, rather, informing. I am also in Tennnessee and wear leg braces.
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Ordinarily, I would say file a 10182 and ask the BVA to revue the case for an earlier effective date.(EED)
Considering the backlog at the Board, that might not be such a good idea at this time. In my opinion a better route at this time would be to appeal using the HLR and file it on a 20-0996. Using the HLR you cannot submit additional evidence but you can request a phone call, there you can state your contention about the retro pay and the EED.
If the HLR fails and is denied, then ask for a Board revue using the 20-10182.
Others, such as brokensoldier and broncovet may chime in with differing opinions.
TBI claim for SMC-T
in VA Disability Claims Research
Posted
I can't think of any circumstance where I would withdraw a claim rather than stand and fight for it. But, if withdrawal is someone else's strategy, I won't condem it either.