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First Class Petty Officer
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80 Excellent

About HorizontalMike

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    E-5 Petty Officer 2nd Class

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    100% TDIU Dec 2015

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  • Service Connected Disability
  • Branch of Service

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  1. Broncovet, Yeah, understand the above. Sometimes it just takes me longer (TBI) than others. Though, I have not talked with Adam Luck on the phone for about 2years, and it had been since last December for getting any email contact. And that email was only to communicate the docket number(s) that I had requested. Trying real hard to sit on my hands and not react(overreact), but my MDD is very real and often gets in the way. That said, I just discovered the "new" ebenefits page via IDME.ME and did not realize that this existed/exists. How long have I missed noticing this one? Will have to play around with this link and see what it offers... Any quick tips?
  2. Looks like my "lucky" attorney put the RAMP in on May 23, 2018 just one week after your RAMP date. So I am on day #81 of my partial conversion to RAMP. We'll have to see just what goes forward. In my attorney's quoted email above, he is/has ignored a very important aspect of my appeal, and that is service connection for and rating of my Sleep Apnea and Major Depression along with the needed IMOs. I have a disturbing feeling that my attorneys are going to take the 100% TDIU as an end-all AND RUN ignoring their promised IMOs for OSA and MDD. That would exclude any SMC retro or future, or about $350/month going forward and $+25,000 of retro SMC. One would think that these lawyers would like that additional 20%/$5,000 in their pocket as well, but who knows... 😟 They are already due ~$9,000 or so if/when the 100% TDIU retro portion goes through.
  3. Well, I just found out that my "lucky"(Bronco will recognize the name) attorney had already opted me into RAMP back on May 23, 2018 AND NEVER EVEN BOTHERED TO NOTIFY ME! The only way I found out was logging into eBenefits two days ago, 8/8/2018. According to my "lucky" attorney: September marks 6-years on my claim(s). We have been at the BVA level for over 2-years, Form-9 date May 2016. Currently BVA cases are being distributed to the Judges up through March 2016 appeals dates. So what does this actually mean for me? IMO, it looks like my current legacy appeals are probably going to be heard/decided BEFORE any RAMP decision. I'm still trying to wrap my head around this, however... Estimated RAMP Decision date, 9/3/2018---11/20/2018.
  4. Asknod explains this TDIU and SMC-HB issue, better here: https://asknod.org/2014/08/16/smc-s-attempting-to-cue-old-tdiu-decisions/ "...Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all. Mr. Howell does not contest this interpretation. Having synthesized the essence of the interpretation, the Court proceeds to apply the coup d’ grace on the Veterans Law Judge. Accordingly, we hold that leaving one’s house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC-HB benefits, and the Board’s interpretation of section 1114(s) to preclude the grant of SMC benefits on the basis of Mr. Howell’s leaving his house in order to attend VA medical appointments was erroneous as a matter of law. That, fellow Veterans, is your can opener when you get hit with something like this. I have read numerous decisions that cite to the fact that the Veteran was able to attend his/her appointments and thus was free to move about the country. The holding is well-cited and will stand you in good stead when they try to pull the blinders over your eyes. Always remember, Veterans. VA doesn’t know the law any better than your VSO or you. They make stuff up and run with it. If you are lucky enough to catch it or have an astute rainmaker who does, you will prevail. I can’t count how many Vets have come to me over the years and try to quote law to me to show why they lost. If 67% of all VA decisions are overturned, remanded, vacated or set aside for error or incorrect reasons and bases at the CAVC, then the smart money says appeal it. What is remarkable is that only a small number of Vets do so. Go figure..."
  5. Buck, This is copied directly off my VA Benefits Letter ( I only xx'd out dates). I am P&T. What Broncovet and I both hope and are working for is to have the VA recognize the TDIU actually IS "substantially housebound in fact" and thus qualify for SMC-HB. VA Benefit Information Summary of benefit information You have one or more service-connected disabilities: Yes Your combined service-connected evaluation is: 70% Your current monthly award amount is: $2973.86 The effective date of the last change to your current award was: xxxx,xx,xxxx You are being paid at the 100 percent rate because you are unemployable due to your service-connected disabilities: Yes You are considered to be totally and permanently disabled due solely to your service-connected disabilities: Yes The effective date of when you became totally and permanently disabled due to your service-connected disabilities: xxxx,xx xxxx Howell v Nicholson https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/ AND WITHIN: "...Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all..."
  6. I am 100% TDIU, not 70%. I am not looking at getting 100% statutory. From what I understand, the 100% TDIU actually IS a total rating when connecting the dots for SMC. My MDD and OSA are what is being appealed for service connection at the BVA. Case will probably be heard about May 2019, based on my FORM9 filing date. Basically, from what I understand is that I need just one additional 50% from either MDD or OSA to be added to my 10% Tinnitus to get to the magic "160%" for SMC. From what Broncovet and I were discussing deals with the SMC-HB and 100% TDIU. Broncovet's links above appear to indicate that they actually do apply... that 100% TDIU should qualify for SMC-HB "housebound", since I am basically "housebound" because I cannot leave the house and/to earn a living.
  7. TBI = 70% (this singularly got me the 100% TDIU) 10% Tinnitus TBD -- MDD TBD -- OSA w-CPAP
  8. THANKS! Howell v. Nicholson = Bingo! And Senate Report No. 1745-- U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2) = DOUBLE BINGO! Questions: Since you appear to also be working on this, what is your opinion as to HOW can a veteran avoid the VA getting hung up on, distracted off-task with SMC-AA and SMC-S, and get directly TO SMC-HB "housebound in fact"? Currently the Board of Appeals is distributing cases from "June 2015" to the Judges. My FORM-9 was filed May 2016 and forwarded to Washington D.C. out of the local VARO's jurisdiction. As you can see above, I am currently less than 100% statutory and appealing Service Connection for both MDD and OSA. Do I have wait for these BEFORE claiming the "housebound in fact"? Is the VA going to argue that TDIU 100% actually is the "replacement" for SMC-HB? Can they do that? Or should TDIU compensation BE at the SMC-HB rate of compensation?
  9. Thinking out loud Brocovet, so how does this sound? You bring up a good point about "separate and distinct". As I gather, it would/will be best to argue that my MDD stand on its own as a disability and NOT Secondary to TBI. I have not spoken with my lawyer (Adam Luck, which you know) for over a year or more, but I am now beginning to understand that he may be suggesting something similar. Look at my attached (below) "disabilities" from ebenefits, where it currently shows MMD "not serviced connected". It has been listed by the VARO as a stand alone disability and NOT secondary to anything. QUESTION: Would or could it be important that my "severe adjustment problems" diagnosis occurred six (6) months after my TBI and thus has a distinct/different etiology: My "severe adjustment problems" diagnosis/note from my ship's doctor makes absolutely NO reference to my earlier TBI in any way... thus IMO separate and distinct. After all, looking at all the disabilities ratings criteria, we constantly see things like "one or more of..." then a list of multiple choices. Surely the VARO/BVA understands that THAT shopping list does NOT mean that a particular veteran has ALL items in any particular rating category of symptoms. This is where I think that the VARO goes off-task inferring that if I have disability A. in a category that has/includes "One or more of, A.B.C.D.E. and F." listed, then they want to insist that any diagnosis that has B.C.D.E. and F. cannot be used elsewhere, because of an existing diagnosis A. QUESTION: Does the "Medical Description" (seeing rating letter below) limit what is considered duplicative or overlapping "symptomatology" in my TDIU determination? ______________ FROM a 2017 BVA Decision (I found this while researching recent rulings): Citation Nr: 1736081 Decision Date: 08/30/17 Archive Date: 09/06/17 DOCKET NO. 13-25 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia "...Rather, Diagnostic Code 8045 provides explicit instruction as to rating only "purely neurological disabilities" and "purely subjective complaints" associated with trauma to the brain. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). A diagnosed mental disorder, such as major depressive disorder or anxiety disorder, is neither a neurological disability nor a subjective complaint under the rating schedule; it is a separate disability. In this regard, the Board reiterates that separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See 38 C.F.R. § 4.14 (2016); Esteban, 6 Vet. App. at 261-62..." _______________ and MY RATING DECISION LETTER EXCERPTS Below: What We Decided If this account is no longer open, please notify us immediately. We determined that the following service connected condition has worsened, so we granted an increase in your assigned percentage: Medical Description Old Percent New Percent Effective Date (%) Assigned (%)Assigned Residuals of traumatic 40% 70% Jul 8, 2015 brain injury to include mild memory loss, abnormal social behavior, insomina and light sensitivity Basic eligibility to Dependents' Educational Assistance is established from July 8, 2015. We assigned a permanent 100% disability evaluation for your service connected disabilities effective July 8, 2015. We granted entitlement to the 100% rate effective July 8, 2015, because you are unable to work due to your service connected disabilities. No examination will be scheduled in the future for your permanent and total disabilities. Your overall or combined rating is 70%. We do not add the individual percentages of each condition to determine your combined rating. We use a combined rating table that considers the effect from the most serious to the least serious conditions. THIS IS CONSIDERED A PARTIAL GRANT OF BENEFITS SOUGHT ON APPEAL We have withheld 20% from your award for attorney fees per your signed agreement we received with your private attorney. You will receive a separate letter regarding this withholding in the near future. We have enclosed a copy of your Rating Decision for your review. It provides a detailed explanation of our decision, the evidence considered, and the reasons for our decision...
  10. I agree with all of the above but would like to add that you MAY NEED TO follow up with the VARO about the form9 date. As in, did they actually log it in? My form9 was NOT entered into the system for four (4) months and it was only when I got an erroneous ruling from my VARO (NOT a judge) that I questioned WTF was going on. Got my lawyer on it and I soon finally received notice/letter that my appeal had been forwarded to the Board of Veteran's Appeals in Washington DC. Give'm Hell!
  11. Still waiting on my appeal +5-1/2yr and counting. Looks like "... the Board is generally distributing cases to Veterans Law Judges for adjudication with docket dates up to June 2015..." and mine was filed May2016, so maybe in another year... Looking at other records to show SC for my Major Depressive Disorder (MDD). In my C-file I found a clinical record/consultation Sheet where my Ship's Doctor requested a Neural Psychiatric evaluation for me off ship. My Ship's Doctor noted: “…20 yo WM with severe adjustment problems to Navy, absolutely refuses to cooperate with peers or officers. (‘that’s just the way I am.’) Please evaluate, make recommendations for disposition. signed R. Martin, M.D.…” My QUESTION: Doesn't the above quotation, "severe adjustment problems" constitute a valid diagnosis under §4.130 Schedule of ratings—mental disorders "...9440 Chronic adjustment disorder..." since it was diagnosed/signed by the Ship's Doctor? In my Disability Rating Letter, "...The examiner stated that you also have a diagnosis of depression which may also cause changes in cognitive function, but because of the considerable overlap of symptoms between TBI and depression, it is not possible to determine if the cognitive symptoms are specifically related to either TBI or depression without use of mere speculation. The issue of depression is currently on appeal and will be addressed at a later date by the Appeal team..." and "...This is a partial grant of benefits sought on Appeal..." I also attached a copy of §3.310—Disabilities that are proximately due to, or aggravated by, service-connected disease or injury because it clarifies that Depression shall be considered a secondary SC disability/condition. Isn't this a slam-dunk? Is the VARO just jacking me around or is there actually more to it than that? s3_310 Disabilities that are Secondary Service Connected to Original Disability.pdf
  12. HorizontalMike

    Preparation For Decision

    That was my experience. The remaing question is... at what rate/percent? Great news I hope!
  13. Here in Texas it is a one consent State where only one party needs to give approval to record (and you are that one party in this case). I recorded my DRO hearing.
  14. HorizontalMike

    Gov't Shutdown

    Unfortunate, but here is the answer: https://www.blogs.va.gov/VAntage/43654/va-contingency-plan-2017/ Appendix C – Functions to be Suspended BVA Claims appeals will be discontinued
  15. Unfortunately, it looks like all BVA appeals will be suspended during shut-down. Never mind that the BVA is behind several years as it is... }8-( https://www.blogs.va.gov/VAntage/43654/va-contingency-plan-2017/ Appendix C – Functions to be Suspended Organization Functions to be Suspended VHA None BVA Claims appeals will be discontinued

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