Lemuel

Knowledge is power.  So, read this over carefully and you tell me "if you have had actual improvement under ordinary conditions of life".  Pay particular attention to the BOLD parts:
Its actually very difficult for VA to reduce you, unless this is a temp rating, or you have had it less than 5 years.  (This goes from the effective date).  
      It gets better.  
The BVA "only has jurisdiction" for the issues you specifically gave them when filing your appeal.  Did you appeal your disability percentage or SC?  No?  Well the only issue the BVA has jurisdiction over are the ones you specified in your appeal, that is, the effective date.  
      The VARO must do a Proposed reduction to reduce you, to give you ample opportunity to dispute the proposed reduction, before it occurs WITH A hearing if you so choose.  If you are P and T or over 5 years, its very hard for VA to reduce you, "even with episodic" improvement, or improvement from not having to work a job.  
      "Actual improvement under ordinary conditions of life" means you are working, because "ordinary" people work, and disabled people dont.  

The synopsis was written before the hearing.  The case is stayed while briefs after the Chevron case.  Before the SCOTUS decision on the Chevron case there was not much chance.
The door is open now.  See the attached CCK brief following Chevron.
And I will be able to quote the remarks in the hearing by the VA GC stating that you needed "qualified nursing supervision your medication," to qualify for the higher level of care.  I am not nearly as bad off as Haskell was, but I have a nurse, because only a nurse can be qualified to fill my seizure medication dispenser.
The door is open to me for SMC-t.  The BVA will probably give me SMC-S and make me appeal because the Laska V McDonough case is still in limbo.  Certainly, no matter which way the CAVC goes, the case is going to the CAFC.
In my BVA hearing, I will try to point out how arbitrary the VAGC's argument was.  I would rather end up with SMC-S and see the guys who need SMC-t, like Haskel, get it.
Too bad CCK would not do all my issues with TBI.  Would have liked them to be taking my case to the CAVC if necessary.
240909 Laska v McDonought CCk supp brief.pdf

Yes, Lemeul.   Does anyone think its "normal" to take 7 years to appeal benefits they should have granted earlier, then pay them (IF, the Veteran manages to continue to jump through all hoops necessary for a successful appeal, and misses "no" required dates, such as the 1 year appeal period and the 120 day appeal period for BVA appeals, and, of course, replying to the SOC with the form 9, I think it is.  Or, the Verteran becomes too sick to continue the appeals or even dies.  
There is financial incentive for VA to give low quality health care (the Veteran dies early and misses out on benefits), and to delay and deny claims.  As long as that financial incentive continues, the delays, denials and low quality health care will continue.  Can you imagine getting paid for creating or inventing glitches such as losing key evidence?  
If VA had to pay interest, like Veterans do if they are late on their VA loan, the IRS taxes, but the VA pays no penalties and no interest for its part in delays, then claims would get done faster and better.  

I had a 1987 "undeveloped claim" for October 1987 extra schedular TDIU that was remanded in a De Novo review of my records by BVA Judge Marjorie A Auer remanded for development.  I was granted TDIU back to September of 1985, the last date of my full-time work in April of 2020.

I go to a printer and send it by FAX.  $2.00  Keep the proof of delivery and have had no problems with it not showing up on my RBA.  Apparently, FAX auto uploads to your file.  Same when sending evidence to the BVA or a Brief to the BVA.  Always copy the Evidence center with filings to the BVA.

I had occasion today to look up 38 CFR Chapter 4 which is the Disability Listing Schedule.
The first time I searched I came up with a version updated 7/1/2024.  About an hour later, I went back to my search to download the version.  By then the update was changed to 7/17/2024.
My suggestion is to PACACT claimants to look through the listing of diagnosis.  If you do not know what the diagnosis is or if you are comparing to possible PACACT exposures, look up the "diagnosis" for getting a list of symptoms.  You may have symptoms of a condition you were not aware was service connectable.
I will be doing that for myself over the next couple of weeks.  Will post any new claims that I submit besides the 2 I have already submitted.  Bladder cancer and colon cancer.  The colon cancer is iffy.  The biopsy states "pre-cancerous if left will become cancerous."  The disabling part is the same as the bladder cancer.  Repeat exams for re-occurrence.
10% for bladder cancer.  No meaning on my compensation.  Expect the same for colon cancer maybe though the colon cancer is more to be feared because of malignancy fears.  The bladder cancer is aggressive but not malignant.  Meaning it keeps coming back but does not spread to other organs.

I am removing CCK as my attorney tomorrow because they do not want to fight the BVA remanded case.  Only current claims for SMC.
I want the whole ball at once to the BVA and my motion to refer my case to the Director, Compensation Services.  TBI with or without epilepsy, by its very nature is complicated.  With epilepsy is more complicated because of the requirement to "observe or CONFIRM".  Rating Officers only read as far as "observe" and do not find treatment for as confirmation.
If I lose at the BVA and the facts are not determined from file references in my brief and motions, I will return to the CAVC with a claim of "arbitrary and capricious" refusal to do the fact finding that they are solely responsible to do.
I really thought CCK would handle this.  They have a lot of past clients and future clients that would benefit.

That medical retirement is a big specialty.  For veterans who tough it out without asking for a medical board and discovering the mistake later.  At least that is what it looks like from their questionnaire that I filled out.  "Denial", whether it is psychological or neurological in cause seems to be what they are fighting.
The DSM-5 is still treating the neurological denial (brain damage--anosognosia) as a symptom not the 1914 Babinski diagnosis of anosognosia.  At least there is now a diagnostic code for anosognosia except in the VA (only for civilian insurance billing), but the VA still requires it to be a listed DSM-5 diagnosis.  DSM-5 for psychiatric (behavioral) diagnosis.  And yes "Denial" is frequently a symptom of brain damage. 
The bridge of "denial" being a symptom of brain damage needs to be incorporated in the suicide ideation treatment to reduce suicide instead of telling the veteran he has an adjustment disorder.  The veteran needs to be told that he has an adjustment disorder that may have been caused by a brain injury at some time in his life.  VA does not want to do that in the record because it opens the door for compensation to a walking talking veteran that cannot hold a job because of "denial".

My current BVA status, according to a phone call I received from a BVA clerk, is that my "Legacy Appeal Hearing" will be heard in about 2 weeks.  She was questioning whether I wanted to have the hearing I appealed to the CAVC for or go back to AMA as my attorney was asking.  I said I would go back to the CAVC if my hearing was not granted, my additional evidence was not considered, and my facts as referenced in specifics in my file as opposed to the RO (and Statement of the Case) decision were not referred to in the BVA Decision were therefore arbitrarily and capriciously ignored.
Will post this to the DBQ question also as it relates.  Essentially, the ability of the examiner, the RO and the DRO to ignore your statements to them and items in the record including non VA physician's examinations and etiology statements.

Court of Appeals (CAVC) is dragging its feet on Haskel v McDonough, Now Laska V McDonough decision.  CAVC 22-1018.
On July 9, CCK filed  "Pursuant to U.S. Court of Appeals for Veterans Claims’ Rule of Practice and Procedure 30(b), Appellant provides the following supplemental authority: Loper Bright Enter. v. Raimondo, -- S.Ct. -- , 2024 WL 3208360 (2024)." 
Attached.  This should provide movement on SMC-T for those waiting.
240709 Laska v McDonough suplemental filing..pdf

My choice went the other way.  I do not need more now as much as I need right.  I guess it is the medic instilled, "leave no one behind" and the recognition that leaving veterans "behind--on the paper trail" is killing too many of them.
Thank you so much for my opening at my BVA hearing.  I will tell the judge that I made that choice.  I will keep coming back as long as I have a breath and enough intellect to fight for the veterans who are committing suicide because of VA mistreatment and mis compensation.
My next of friend claim in my 11/26/1994 response to the "Statement of the Case" means more to me than any benefit that I might get for myself now.  Especially with my wife having passed.  
If I end up back on the street outside the DVA Central Office demonstrating again until the VA gets combat veteran suicide down to at least the blue collar suicide rate, that will be what I will do.  I will be there with those veterans who but for that option, would have made that final exit to the end.

Try NVLSP:  https://www.nvlsp.org/what-we-do/lawyers-serving-warriors?gad_source=1 from @broncovet
 

This case is an undecided CAVC 22-1018 case affecting the Secretary's interpretation of SMC-T regulation that drastically re-wrote the 38 USC

The reason I ask for transportation instead of asking a sister to take me to my appointment.

The problem I have with ID-Me is that it is too diversified.  Tax preparers.  Medical.  Too many break in points.  Did not feel safe with it when the va.gov tried to slam us into it.  
The problem with signing in was not the problem.  The problem was getting to the information page you needed on va.gov after you got there.  Especially on the June 6 of this year log in.  The link organization would not get you to the link you wanted for the page you wanted.  The benefits claims and appeals information just was not there if you got to that page.
Very different my second trip on Friday.

That is like how do you separate spinal disc disease of the lower back from the neck?  Only a rater under pressure to reduce payout would do that under pressure from his superior trying to get his bonus or increase his bonus by reducing the overall budget.

Thank you for this explanation. I did get the retro payment and was awarded 100% plus the SMC-S. I received the payment on June 12th and can see the 100% plus SMC through my Va.gov login, but I still haven’t received the Decision Letter. I’m going to call them and see where the hold up is.

The "separate and distinct" to TDIU is probably a problem if I am hearing you correctly.  TBI is the cause of my TDIU.  Epilepsy confirmed, mistreated with Tegretol, a pending 1151 claim that it appears the CCK attorney does not want to go forward with is actually the cause of unemployability.  It is one of the claimed "residuals of the head injury".  Seems to me that the attorney needs to fight for that confirmation leading to compensation for more than 55 years before my epilepsy was treated with a medication that worked. Meaning a payment of 80% from 1974 to 1985, the TDIU EED.
I do not know how late "confirmation of epilepsy" works.  Mine was confirmed in September of 1990 as a cause of an MVA and I could not drive until my epilepsy was treated correctly in 2015. 
The epilepsy was actually the thing that made me unemployable. 
Clear in the CAVES report from Social Security and the back injury caused by the MVA in 1990.  The neck spinal disc disease has been SC as a residual of the 1969 TBI by a BVA judge in a 2017 remand based on my description and assessment of what I saw in the MRI radiographs that were shown to me quoting cases that allowed medical opinions from medically trained appellants before the BVA.  13 years as a Navy corpsman with independent duty experience was the basis for recognition of my ability to claim the left lateral blowout of a cervical disc was related to the head being hyper extended to the right as opposed to the whiplash to the left in the 1990 MVA which would have caused a right lateral blowout. 
Other physiology involved was the change of the spinal fluid from the lower back ruptured disc fragment dissolvement.  Something explained by the back specialist but not charted because of the VA's policy of not letting treating physicians record etiology.  That etiology is left to be determined by the rating and service connection process  in VABA. 
There is a lot wrong with the medical recording of medical reports in VAHA.  The etiology left out of a physicians reporting leaves the question of accuracy of the physicians assessment by others.  Leaves the patient to explain the etiology to the next physician attending.  And if the patient has no medical training, how is that going to go?

Fix needed.  All four attachments are at the top.  right click on 20200408 to see the Director, Compensation services letter.  The award letter came later below.  20200416
20200416 Narrative - TDIU Decision_Redacted.pdf

19900507 Al Marsella Stmt_Redacted.pdf19900507 Al Marsella Stmt_Redacted.pdf19900507 Al Marsella Stmt_Redacted.pdf19900507 Al Marsella Stmt_Redacted.pdf20200408 - TDIU Review - Admin Opinion_Redacted.pdf20200408 - TDIU Review - Admin Opinion_Redacted.pdf20200408 - TDIU Review - Admin Opinion_Redacted.pdfA protected environment can be out of patriotism and pity.  See attached that led to my TDIU EED back to two years before my claim, 3 years before this employment with the employer began and 5 years before it ended.    The redacted documents are attached.
This employer would have kept me employed at the monthly pay I was receiving even though he would have had to hire another employee to do most of my work which was a 20 hour week part time.  I tried to keep it up by working full time because the pay was enough.  Well more than the poverty line.
3711 19870624 TDIU claim_Redacted.pdf 20200406 - Admin Decision_Redacted.pdf

Here is the thing, if the VA recently granted you an increase in your rating, you need to wait to see what actually changed. It makes absolutely no sense in you filing any claim and or appeal until you get your notification letter. It is very possible that the VA included SMC-S in your newly decided award and your new notification letter will explain that. Keep an eye out for any direct deposit retro payment. But for now, the only thing you can do is sit back and wait for your decision letter. You can ask your VSO to send you a copy of your decision if it is ready or you can call the 1 (800) 827-1000 number to see if they can email you a copy if it is completed and ready but that is just about it. CH 35 DEA Education benefits come with P & T and not being rated 100% so, if your records show you are getting CH 35 DEA that means the VA has awarded you P & T.
SEE VA FORM 21-8760 for ADDITIONAL BENEFITS FOR P & T.
VBA-21-8760-ARE.pdf (va.gov)

My suggestion is to fill out the form.  Take it to your primary care for their input.  It then stays in VAHA is my understanding and is handled the same way as PCAFC.  I could be wrong about that.  But nothing you ask for should affect your current rating unless you are actually improved over what you were when you got the rating or did some stretching to get the rating.
Key is to look at your decision.  If it says P & T (permanent and total)  and the effective date to see if you meet the 5-10-20 year rules.  Not all ratings can be corrected.  Ratings for Rehab are always revisited no matter what you do usually annually.  Initial ratings are handled the same way.  No matter what you do they will be reassessed.  SMC is also reassessed regularly.  
If you do not qualify for no reassessment, then you will likely be reassessed.  Might as well draw the SMC and deal with the reassessments as they come.  If you rate it you rate it and an attorney will help.
SMC can eventually get to the BVA.  Prior to recent decisions it was very difficult because it is based upon VAHA medical reports which were unchallengeable.  C&P exams and challengeable with second opinions is my understanding of the difference.  A recent decision by the CAFC made the VAHA records challengeable for PCAFC and that should apply also to SMC.
 

Who is surprised about this?  Not me.  And VA wonders why Vets dont trust VA?  This does not earn Veterans Trust:  
Some time ago, VA was lying about the wait times for medical appointments, by having "secret" waiting lists.  
https://www.npr.org/sections/thetwo-way/2014/05/28/316712039/report-finds-evidence-of-secret-wait-lists-at-va-hospital
Now, the BVA, after asking for (and getting) ADDITIONAL money from Congress "to improve Veterans wait times" this resulted in failure, and VA lied about it. 
 
https://cck-law.com/blog/cck-law-shows-actual-bva-wait-times-2024/?utm_source=newsletter&utm_medium=email&utm_campaign=June+2024+VET+
 
Who pays for this?  Probably some of the 22 Veterans per day who take their own life.  I can speak for certain, its depressing to be waiting on VA benefits while you are unable to support your family, and, for my self and others homeless Vets.  I was a homeless Vet because of a VA "bogus denial" in 2004.  FuLL disclosure:  I was denied in 2002, and appealed to the BVA.  In 2003, the BVA awarded service connection.  However, the Regional office "Implemented" my appeal at a 0 percent rating.  Try making back house payments with a zero percent rating.  By 2004, I finally got a rating but it was too little too late.  Of course, the VA also knew that I was qualified for pension, and knew I was about to be homeless but did not process an application for pension until 2004, when "an application for compensation is supposed to be an application for pension, too."  By the time I actually got a check, it was too little, too late and I lost my home and became a homeless Veteran, "JUST LIKE I TOLD THEM I WAS ABOUT TO BECOME in 2002-2004".  They did not care and the only action they took was denials, delays, and lowball ratings (0 percent)..  
Instead of rating "on the criteria" the VA made stuff up to deny me, saying that it had been "too long since military service".  However, "length of time since military service" is not in the criteria for rating and, Va is required to rate on the criteria, not based on the color of our hair, the music we like or our political party.  

@Vync  38 CFR 20.1000 is not only about CUE.  It is just about having a hearing not done right for one of several reasons.  38 CFR § 20.1000 Rule 1000. Vacating a decision - Code of Federal Regulations (ecfr.io)  Vacating a decision is based on a "denial of due process" is the foundation.  If your "recognized rep" does not do a brief or appropriate motions it becomes a denial of due process.

@Lemuel Thanks for the info! I hope your legacy hearing is/was not like my AMA video hearing at the BVA. Back in the late 90s, the BVA hearing was with someone who had reviewed my file and I was able to interactively ask questions about the errors. The new AMA video hearing experience was awful. It was basically "we're going to record you asking questions" and place the transcript in your file so the other judge who makes the decision can read it in a year or two. Was the 4000 pages your entire c-file? I requested mine and it was over 11,000 pages in a PDF, but was still missing a bunch of stuff. My state VSO at the hearing was basically representing me by merely being there and was zero help. I followed back up about the denial and they still gave me "guidance" that contradicted the laws and regs at the time. Fun stuff, but that's why I am interested in exploring the CAVC route.