theotherguy

jbasser, With all due respect, I was responding to his more recent response clarifying that he is 50 percent combined. It was not an attempt to show anyone up and I'm sure you'll see this is the case if you read the entire thread from the beginning. Regardless, the compensation amount doesn't add up and we're going to need more information before anyone is going to be able to help resolve this question.

At 50% s/c with a spouse and a child your rate would be $850 per month and with SMC K (additional $91) you'd be at $941 a month which is close to what you are reporting.... I'm not sure what to tell you, are you receiving a nonservice-connected pension as the greater benefit perhaps? You could simply call your POA and ask him/her whether or not you are already receiving the "K" award...it a relatively easy question for them to research and answer quickly.

You should already be receiving it. If you are not, it would represent a clear and unmistakable error by VA which you should identify immediately.

You should be receiving SMC "K" for anatomical loss of one foot. I'm confused about your 50% award though...do you mean that you are receiving 50% combined with 40% evaluation for the amputation and 10% PTSD? Amputations of the knee generally are going to be at 40% or 60% depending on the level as displayed here: Leg, amputation of: 5163 With defective stump, thigh, amputation recommended 60% 5164 Amputation not improvable by prosthesis controlled by natural knee action 60% 5165 At a lower level, permitting prosthesis 40% 5166 Forefoot, amputation proximal to metatarsal bones (more than one-half of metatarsal loss) 40% 5167 Foot, loss of use of 40%

While it is a change in law, it is not a change in policy as VA had already had an available Fast Letter which allowed them to grant s/c for PTSD under these circumstances. If anything, it is just bringing the law up to speed so that all of their new hires are aware that they can establish compensation under these circumstances. As I had mentioned before a ways back, the evidence can even show the stressful event causing disability occurred prior to entrance as long as the medical evidence shows the onset of disability was during a verified period of creditable service.

Teac, Whether or not you are entitled to additional SMC for disabilities you are already receiving compensation for would depend on what disabilities they were. You would not qualify for a half step increase based on these additional disabilities as there is no "boost" to SMC "S" with the exception of additional "K" awards. Erectile dysfunction is generally the only noncompensable disability which would allow for a grant of SMC. Other disabilities such as loss of use of a foot/hand/buttocks, aphonia, blindness, and deafness would also allow for additional "K" awards (for men) but are associated with disabilities which carry a much higher percentage rating than the percentages you reference here. You can look this up in 38 CFR 3.350 if you want to research whether alternative entitlement to SMC may be available to you.

They are not just being fired Pete...they are being criminally prosecuted as they should be. Two employees (not Waco) from different offices found to have been intentionally destroying evidence have already been given the axe and will likely be found guilty in court with a large fine and up to 3 years in prison.

The 88 percent number comes from an internal monthly review of claims called STAR (I don't recall what that stands for). Anyway, a portion of the work completed by each of the VARO's is requested by VA Central Office in Washington DC for these STAR reviews. I know this might seem like a loaded gun to some of you, but I will say that STAR did call a CUE on a denial for Wolff-Parkinson White syndrome on a guy I was helping a couple of years ago. It was completely unexpected and we were both glad they were able to resolve the issue right away. How often this sort of thing occurs is obviously a rarity since that number is so high.

Do you have loss of control of both bladder and bowel? I remember you saying something earlier about having to use an in-dwelling catheter, which certainly helps to support an R-2 level claim. Keep in mind that impaction is every bit as relevant as incontinence under these circumstances. If you do not have the loss of bowel control, you can still reach "O" if your need for A&A is found to be due to your complications of IVDS under 38 CFR 3.350(e)(ii) and the combinations provision. The VA manual provision on this topic is found in M21-1 MR, Part IV, Subpart ii, Chapter 2, Section H, Subsection 45. This subsection provides: A statement from a licensed health care professional, who provides or supervises daily skilled health care on a continuing basis in the veteran’s home, is a prerequisite to establishing entitlement to a higher A&A allowance. The statement must indicate the • conditions justifying the need for this level of care • nature, extent, and frequency of the services provided, and • nature and extent of the supervision being provided, if the services are actually provided by a nonprofessional. Once this statement is provided, they are directed to: Request an immediate examination via the Automated Medical Information Exchange (AMIE)/Compensation and Pension Records Interchange (CAPRI) or Veterans Examination Request Information System (VERIS). VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, should be completed in response to the examination request. The examiner will certify whether an ongoing daily need for skilled personal care is indicated by completing Item 32 of the form. Note: Provide a copy of the statement submitted by the licensed healthcare provider to the examiner. Based on those findings, they are directed to: Does the examination report show an ongoing need for skilled personal care? • If yes, grant entitlement to the higher A&A allowance under 38 U.S.C. 1114®(2). • If no, prepare a rating decision, denying the claim. The reason I have posted this information is that it may explain the process which you have been going through. Based on what you are saying has been endorsed in those reports, it sounds to me like you should be good to go. One thing though, I'd have your POA (if you have one) check and see if the VA examiner completed the VA Form 21-2680 or they completed just a basic A&A examination. I'm sure you have been through the CFR already and are aware of the regulatory requirements for the higher level of A&A, but I wouldn't anticipate that your representative is going to be familiar with this situation since these claims are so rare. Paralyzed Veterans of America has the best training when it comes to SMC, so it might be in your interest to seek representation by them if things don't turn out in your favor. Hope this helps.

Sorry for not getting back to you in a more timely manner. I'm glad to see that you have a handle on things and frankly understand that getting to "O" or "N 1/2 + K" is a requirement for you to be evaluated at "R-1." If your impairments are related to your IVDS getting this level of SMC should not be problematic if the evidence is how you have described it. Basically, if you need A&A at even the basic level and are at "O" or "N 1/2 + K" you will be bumped up to R-1. To reach "R-2" the VA has a requirement that a higher level of care must be certified. I know that there is more information available on this in their M21-1 MR and I will do some more research and get back to you tonight. theotherguy

sixthcents, I might be able to help you if you can give me some additional information. Can you give me a breakdown of your current service-connected disabilities with the evaluations along with your current level SMC? Sorry to make you post this again if you have posted it sometime before, I have not been here as often as I had in the past.

I thought this was explained pretty good on another board I was reading earlier today and thought I'd post it here. According to that guy the VA is supposed to be updating the neurological portion of the rating schedule soon and implementing some changes under the Dole-Shalala commission recommendations specifically with regards to the way these TBI claims are worked. The current rating schedule really sucks hard core towards what they can grant and I'm betting they did not evaluate him for the behavioral or cognitive changes since they only granted the 10%. DC 8045 (Brain disease due to trauma) provides: "Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207)." AND "Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma."

These are issues which are nonservice-connected which they VA has either denied service connection for based on a claim you filed or which were identified as disabilities during a claim for pension benefits. The PTE/PGW is a period of service code means you served during a period of peacetime and during the Gulf war era.

Jay, Favorable ankylosis of the knee would mean that it is locked in 0 to 5 degrees of extension. Basically the veteran would have to be walking stiff-legged since they could not bend their knee. Unfavorable ankylosis likely is comparable to loss of use of the foot because the foot would either not be touching the ground or incapable of supporting weight due to being locked in varying degree of flexion contracture.

Is this a Marine who just got out or has been out for a long time?

Pete is absolutely correct, you should be 100% + SMC "S" for statutory housebound. The problem with doing the math is that you need to remove the 100% disability when combining disabilities to figure out possible SMC "S" eligibility. In order to get higher benefits, you will need disabilities which will make you eligible for a higher level of SMC. The most common ones are "K" for erectile dysfunction and "L" for aid and attendance. You could also get a "K" for aphonia if your laryngeal cancer causes paralysis of the vocal cords.

I'm not trying to play the devil's advocate here, but if any of us requested copies of our rating decisions the exact same thing would happen. It might be an interesting thing to test out if you believe there is a conspiracy of some sort here. The code sheet which the reporter was holding very rarely is included in a FOIA request and if it is, the decision makers name is always removed. This is not specific to this case. In fact, POA's are advised that they also are not to release these without removing the name first. In all the years I've been helping people and reviewing their evidence, I can't recall one time ever seeing the name of the person who worked their claim. This looks to me like nothing more than they are trying to make something out of nothing. Having said that, the denial has to be wrong unless the injuries had healed or he just doesn't have them. I noticed that they did grant the arm amputation and SMC and the kid did not appear to have any injuries to the head, his left arm, or either leg in that video. But I have to believe there would be scars or something else there. Wish I could see it myself. If Ziegel was anything less than a 100% from the beginning than there is something horribly wrong with Chicago. He would have only been 93% based on the conditions they listed in the article, hopefully he had claimed more.

Berta, I see where you are coming from now, my confusion is basically just a matter of how you were wording it. While the veteran is a Nehmer class member, his effective date goes back using liberalizing legislation under 38 CFR 3.114. I guess I have never thought of these as "Nehmer grants" per se, since the regulations were in place to protect them regardless of any impact the Nehmer case has had on the grand scheme of things. No biggie, I just wanted to make sure I was not missing your point. It is really good info to make sure that all AO vets get a chance to read over 38 CFR 3.816 and 3.114. Good idea :D

Berta, Can you explain what you mean by a category 3 Nehmer veteran? Does it mean that while the veteran is a "Nehmer class-member" he/she is not entitled to an earlier effective date under Nehmer? Sorry, I don't have a VBM and although I get the TVA from NVLSP I don't have issues which back date that far. Thanks :D While I agree with you that all AO vets need to check their effective dates, this case appears to be a perfect example of what happens when an incomplete application for benefits is submitted. I know that this topic has been discussed before here, but I wanted to point out that the fact that he was diagnosed more than one year prior to his date of claim is not what earned him an earlier effective date. The BVA decision cites "A March 2004 report of contact notes that a call to Dr. S.S.'s office revealed that he had treated the veteran for diabetes mellitus since April 2002, although the veteran reported a history of becoming insulin dependent in 1987." If the veteran had submitted his private treatment records with his claim he probably would have been granted the one year earlier effective date up front. The guys I've helped out have a hard time understanding why they need to provide the VA with anything other than a current diagnosis. This is a perfect example of why it is important to submit all pertinent evidence up front.

Congressional inquiries typically require immediate responses regarding the status of an individual claim and I wouldn't think that it delayed the processing of your claim any unless you receive your decision right away. My claim has been sitting with the rating board since April and I haven't heard a peep yet, and I can't say as that I am surprised since I am not a Global War on Terror veteran.

I tried to point out that it didn't apply to the question in this thread, I just wanted to make sure that people were aware that it could be done. I don't see how it is a shady area if the regulations permit it to be granted and the VA is reinforcing training on this subject. It was listed directly as a FAQ on a PTSD information letter released to the RO's in an effort to help expedite the processing of claims in which they are unnecessarily developing to the service department for verification of stressors when the disability was diagnosed in service. To help put it into context, two of the more commonly claimed disabilities are hemorrhoids and pseudofolliculitis barbae (razor bumps) which you will see become service-connected because they manifest in service. While each vet may be predisposed to developing the condition, the fact that a chronic disability initially manifest during military service is binding on VA. With any potential pre-existing disability, such as your cancer scenario or the conditions previously mentioned, there must be "clear and convincing evidence" per their regulatory criteria to refute or rebut the presumption of soundness upon a veteran's entry into military service. This is a very high burden of proof for them to reach without concrete evidence of treatment prior to military service (which is not there in the vast majority of claims). I'll admit that there is no easy answer to any of this as the facts would have to be judged on a case by case basis. I'm just trying to help out anyone that might need it

Actually that is not entirely true, if PTSD manifests in service due to stressor(s) which occurred prior to active duty it will still become service-connected. The key part is that the disability had to manifest in service. I know that it seems strange, but it's really not any different than other disabilities which certain people are predispositioned to develop at some point in time such as Wolff-Parkinson White syndrome. VARO's have been notified of this fact in recent training. I realize that this does not apply to this specific question, but I just wanted to point out that others may not necessarily be excluded and more and more people are being diagnosed with PTSD prior to their discharge from service.

Berta, The regulation in question here (38 CFR 3.400(o)(2)) is not the only regulation which is possibly applicable in claims for increase. I have reviewed many cases in which 38 CFR 3.157((1) has not been properly applied; especially with diabetics. These effective dates can go well beyond the one year period allowed for by 3.400. Here is the reg (§ 3.157 Report of examination or hospitalization as claim for increase or to reopen) for anyone who is curious and remember the title to avoid confusion about broader applicability to original compensation claims: (1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

I doubt there is a way to speed it up and I see the problem becoming a whole lot worse with attorney's entering the fray. If anyone wants a copy of their file, it probably would be a good idea to get your request in ASAP.

Can you move your ankle at all? I would suggest that you look up the definition of ankylosis and you should have a pretty clear indication as to why that evaluation was assigned. I can't say definitively based on the evidence you have provided, but it does not appear that you in fact have ankylosis.