Dustoff1970

Very good info Broncovet and thanks for the correction. I confused SMC-S housebound with A&A. My bad. I am glad others fact check me.

Both different types of SMC-S pays the same and there is no higher rating or payment than what you are receiving now with the at home housebound SMC-S1. The other SMC-S2 is as stated for those with the 100% rating plus additional ratings of at least 60% and both S1 and S2 pay the same amount of additional monthly dollars. You qualify (evidently) for both types of SMC-S but again the VA will pay you only for the one you are now receiving. If you apply for the VA Care giver program then this is administered by the VA Health Care hospital system whereas the SMC ratings are administered by the VA Benefits System thru VA Regional Offices raters. You should seek the advice and assistance of an experienced VSO officer found at VA regional offices. Their services are free to vets. The DAV, VFW, AMVETS, PVA, etc all have VSOs. My comment is not legal advice as I am not a lawyer, paralegal or VSO

There are 2 types of smc s aid and attendance. You are already receiving one as you say. You are getting the actual at home a and a. You can only receive one smc s at a time. The Other smc s is statutory for vets who have a 100% or tdiu rating plus additional ratings of 60% or more. VA will not pay for 2 smc s to same vet at same time. Both types pay well over $300.00 per month additional. The at home care giver program is a separate program from SMC-S ratings. My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Actually your comment to the OP was very spot on. I gave a poor example from a former VA DRO but then followed up with the good explanation from great law firm CCK. All my disabilities have been primary or secondary connected and never aggravated. The VA math for aggravation is too complicated for me to figure out and is an example of more VA bureaucratic BS confusing and not helping vets.

Pick out key words in this Cita Tion and enter into cavc court website search box until you finally find a 3 judge decision citation. You can do same at bva decisions search box until you find the citation. Will have to use different key words until you find it. Can also read court decisions in citation that may mention the sought after citation. Lot of work but worked for me. The citation may mention a 3 judge decision from cavc or fed appeals circuit court. My comment is not legal advice as I am not a lawyer, paralegal or VSO. Total VA disability percentages 250%

Here is another explanation of AGGRAVATION from the Chisholm Chisholm Kilpatrick (CCK) law firm. https://cck-law.com/blog/va-service-connection-aggravation/ My comment is not legal advice as I am not a lawyer, paralegal or VSO

Okay here is an example of an aggravation disability issue discussion by a former VA DRO rater and long term VSO. In this example he is talking about Sleep Apnea but aggravation is the topic of the discussion. "The association between sinusitis and sleep apnea is well known and nobody at VA is going to take issue with an assertion from you that sinusitis can aggravate sleep apnea. The hurdle you are facing isn’t whether or not this is possible, but rather whether or not YOUR sinusitis aggravated YOUR sleep apnea and no scholarly article in the world will establish this unless the article is specifically about you. This will require a medical opinion addressing you personally. Remember, just because sinusitis can aggravate sleep apnea doesn’t mean that it did in your situation. Other factors can aggravate it also. All the article would do is to support what they already know. It really won’t be of any use in your situation. What you need is a medical opinion from your doctor. Absent that, VA might obtain a medical opinion for you, but there is no guarantee as to that, but also as to what the opinion will say. Another thing to keep in mind is that even if it is determined that there is aggravation, you can only be compensated for the amount of aggravation. To determine this they must determine how bad your sleep apnea would be without the sinusitis and establish an evaluation, and then subtract this from the evaluation for your sleep apnea as a whole. For example, if you require a CPAP even without the aggravation, this warrants a 50 percent evaluation. This 50 percent must then be subtracted from whatever evaluation your sleep apnea warrants overall which would most likely also be 50 percent. This leaves a 0 percent evaluation for compensation purposes. This means that unless your sleep apnea has worsened to the point that heart problems have developed, a 0 percent evaluation is most likely when we are talking about aggravation. To get anything otherwise you will need to be able to show that if it weren’t for the sinusitis you would not need the CPAP. In this case they would only subtract 30 percent from the overall 50, leaving compensation for a 20 percent evaluation. " In almost all my claims in order to cover all my bases I have successfully claimed 1. For my disability to be directly service connected AND/OR 2. Secondary service connected to an existing service connected issue and 3. That my disability is caused by AND AGGRAVATED by my active duty service OR secondary service connected to an existing sc disability. In my claims I have also successfully contended the strong VA medications has also caused and/or aggravated my disabilities for PTSD, Sleep Apnea, Heart Disease, Tinnitus, GERD and Hypertension. You may be able to also argue that VA medications caused and/or aggravated your non service connected disability and therefore the non service connected disability can be service connected. This has worked for thousands of vets over the past 50 years. You will probably need a favorable nexus medical opinion from a Dr. or specialist to win the claim/appeal. Go for it. My current ratings are for PTSD 70%, due to Nam combat AO Heart Disease 60%, due to Nam Agent Orange toxin GERD 60%, due to PTSD and VA meds OSA Sleep Apnea due to PTSD and VA meds 50% Tinnitus 10%, due to Nam combat and medevac pilot Hypertension 0% due to PTSD and Nam Agent Orange plus SMC-S for five years My PTSD 70% rating started in 1998 to the present time. My comment is not legal advice as I am not a lawyer, paralegal or VSO

Here is perfect example of pacmanx comment response to you. Since 1998 I have been rated P&T TDIU for 70% Nam PTSD. Then earlier this year I was awarded the additional monetary compensation known as SMC-S due to additional claims I filed in 2017 for Sleep apnea due to PTSD and Agent Orange Heart Disease of 30% (now 60%). This 50% plus 30% added up to more than 60% and qualified me for the SMC-S backdated to 2017. Since then I have received additonal ratings for GERD at 60%, Tinnitus at 10% and hypertension or HTN at 0%. IMHO you have very little to lose and everything to gain by filing claims for your additional disabilities. Your lawyer seems to know his/hers stuff. Your additional disability/s must be for different body parts separate from your TDIU disability just like my example here. My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Since I just made another donation I will again make this suggestion for both members, lurkers and non members to find this discussion forum when they are viewing other Hadit veterans webpages. Make clickable link banner at the top of each Hadit page about size of your banner titled "Your Ad here" on this page. Maybe a little smaller and have the banner rectangular like this one scretch nearly accross the top of each page. Here is an example I am talking about but longer in length. Hadit banner should be in bold background color and letters and longer than my example of my Vietnam unit banner. Title of the banner should be VETERANS DISABILITY BENEFITS DISCUSSION FORUM. The VBN forum has such a banner at the top of all their pages. This will make it easier IMHO for everyone to find this duscussion forum. Cheers

Yes the VA raters will send you the Release of Information consent form for you to list the private doctor/s treating and diagnosing you and you sign and return the form so VA can contact and request the private medical records from them/him or her. They did this when I filed a claim for Nam Agent Orange Heart disease and even tho I sent all of his medical records (copies) with my claim to VARO. The heart surgeon sent them the same info that I included with my claim. I also signed another Release of Info consent form and gave it personally to my heart doctor in order to save time. Everything worked out smoothly. If the private physician does not respond to the request then the raters will after a reasonable time period proceed with adjudicating your claim relying on whatever evidence you submitted. My comment is not legal advice as I am not a lawyer, paralegal or VSO

It is a long shot, but you can always file another new CUE claim stating that the VARO failed to consider the evidence before them in your records and site the evidence that was in their records and they did not consider. You will also have to site some different 38CFR regs and 38 U.S. Codes that they failed to consider and/or misinterpreted in addition to the ones you used in the first CUE claim. Just speculate like I did but make it close. Use your imagination with different wording of the new different CUE claim or they may refuse to adjudicate and just ignore it. Evidence they failed to consider but was a matter of your official records could be national archives, VA records both medical and non-medical and of course military service records and private medical records, etc. Just like I did you can make a guess and list the evidence you think they failed to consider in addition to the evidence you listed in the first CUE. The CAVC and FED Court ruled that evidence in the above records but not before the VA raters at time of decision was actually "constructive receipt" and should have been used in adjudicating your claim. It worked for me from 2000 to 2003. All you have to lose is the time it takes to formulate and type the new CUE claim. My comment is not legal advice as I am not a lawyer, paralegal or VSO

In 2000 I filed several different types of claims at near the same time for CUE, Section 1151 VA Injury claim, P&T request, and an Administrative petition for Equitable and Extraordinary Relief directly to the VA Undersecretary For Benefits with a copy sent to the VA Secretary. I included in the Extraordinary Relief claim elements of my deliberate VA Injury and CUE contentions. The actual CUE claim and Injury Claim was of course filed directly with the VARO. The Equitable Relief petition got the immediate attention of the VA Secretary and they sent it to the VARO for quick adjudication plus a positive letter to me. Within a few weeks I received a P&T designation for my TDIU rating. The CAVC in 2003 agreed with one of my CUE contentions on the VARO failure to adjudicate me for an implied TDIU claim prior to 98 and their remand instructions ordered the VARO to adjudicate me for this inferred claim. The VARO about same time of CAVC decision awarded me about 5 year back pay for TDIU. The VA Injury claim was denied and I did not appeal as no need to continue. I also in 2000 sent many letters to U.S. Senators and Congressmen complaining of my deliberated medical mistreatment and abuse I and other Vietnam vets received from Temple, Texas VA doctors from 1985 to 87 and most replied to me with letters of concern and copies sent to VA Secretary and VA health care officials in Central Texas forcing those officials to reply to each senator and congressman/woman. Bottom line is I played outside the sand box and got their immediate attention and most of what I needed. It works. I felt I had nothing to loose and a lot to gain and had lots of free time on my hands. To argue against success is to blow against the wind. My comment is not legal advice as I am not a lawyer, paralegal or VSO

brocovet is again spot on correct. Even if his cancer is eventually fully cured he should still receive at least a service connected rating of 0% which can be very useful. My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Bronconvet you are entirely correct. THE VA treats secondary sc conditions same as primary or original sc conditions and the secondary do qualify a vet for SMC-S if the additional disability/s add up to at least 60% or more and are for different parts of the body and separate from the single 100% or TDIU (100%) original disability. Another disability caused by a secondary sc disability can also be service connected by VA. As a real world person experience example is my BVA award of OSA Sleep Apnea at 50% due to or SECONDARY to my VA service connected Nam PTSD and VA medications. This 50% added to my then 30% service connected Nam AO heart disease exceeded the minimum 60% needed for me to receive SMC-S. My 100% TDIU was based upon a single disability of PTSD at 70%. Yes there are two separate SMC-S ratings. 1. SMC-S1 is for housebound in fact and must be diagnosed by a medical professional where vet cannot leave the house due to serious physical or mental disability and usually requires the aid of a part or full time care giver. 2. Is the statutory SMC-S2 rating that has nothing to do with being physically housebound but based upon an additional disability/s of at least 60% in addition to a 100% for a single separate disability. TDIU counts as a 100% rating for this purpose by regulation and M21. Veteran is not confined or prohibited from leaving his/her residence. My comment is not legal advice as I am not a lawyer, paralegal or VSO.

In 1987 I received a vocational assessment from the Waco VARO VOCAB counselor stating I was not capable of gainful sustainable employment without further education and he approved my claim for completion of accounting degree at a local central texas college that I then graduated in 89 with accounting finance degree. His 87 assessment help me continue my 50% PTSD rating until 89 and then it was reduced to 30% and discontinued in 91. However if he had said I was capable of gainful employment then my PTSD would have probably been reduced or terminated much earlier. A two edge sword. I would listen to my attorney if I had one. My comment is not legal advice as I am not a lawyer, paralegal or VSO

You may have to file for a 3 judge panel or en banc review as a reconsideration request motion or file CUE against the CAVC and/or BVC or appeal directly to the higher Federal Circuit Court Appeals. Maybe it is called the Federal Appeals Circuit court???. One of your first and primary arguments on any appeal is that the CAVC failed to consider or misinterpreted relevant 38 CFR regulations and 38 U.S. Code laws and of course mention those distinct regs and laws by proper title. This will always get you in the front door or they may dismiss your appeal as they do not rule on the facts of the case but the laws and regs relied upon by the lower court and/or BVA. Then As your second contention you can then argue what facts and evidence the CAVC judge/s dismissed or misread, etc. This was my pro se method I used with partial success in my CUE Appeal before the CAVC in 2003. My comment is not legal advice as I am not a lawyer, paralegal or VSO

Since I admire your open minded free speech forum so much I will do what I can with more promotion and donations. This is only vet benefit forum I am aware of where a vet can get honest detailed answers from other very experienced non lawyer or VSO vets who are not constantly judgemental of vets questions and reasons why. One other vet benefit forum is very narrow minded and constricted in their advice to discourage certain type of help for vets and claims. The forum is run by former VA raters, VSOs and lifer retired military pukes. Other forums allow too many coots and nut cases to constantly sound off and even using very filthy language. On top of all your Hadit webpages you might highlight in bold colors and letters the Veterans Disability Discussion Forum with a banner about 1 1/2 to 2 inches wide and near same length as the page is wide. I encourage other vets on this forum to use the Hadit vet orange oval logo as a photo in their comments on other vet social forums including military war history forums for Vietnam, Iraq, etc. and individual military units. Easy for me to do.

In my pro se dealings with the CAVC court I filed many motions explaining things and requesting actions of the court on my behalf. Most times the hostile VA general counsel attorneys opposed my motions with counter motions but the single judge was very liberal in granting my request as required by CAVC own rules for pro se vet appellants. You may be able to accomplish much with motions filed to the court if your appeal is still open before the court and no final decision rendered. I still have the original and copies of all my 2003 court motions, decisions, ROA and other documents that is in two file boxes (very heavy). My comment is not legal advice as I am not a lawyer, paralegal or VSO.

You may have to appeal to the higher Federal Circuit Court of Appeals in D.C. if you believe that you have a solid lot of evidence to support your case and most importantly you will have to list the actual VA laws and regulations that the CAVC court failed to address or misinterpreted. My comment is not legal advice as I am not a lawyer, paralegal or VSO.

To begin with if you meet the minimum criteria for SMC-S then I would go ahead and file for it and see what happens. If it has been denied by VARO or BVA then appeal that with good arguments. You can also remind the BVA and VARO of the appropriate regulations/laws that require them to assume the vet is filing for highest rating possible to include SMC. You can also file for a BVA reconsideration of your denied appeal and point out the above information I mentioned. You may or may not be able to introduce new evidence in your reconsideration request or file CUE on the BVA or appeal directly to the CAVC. My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Many years ago I successfully represented myself pro se before the U.S. CAVC court on a CUE appeal regarding 4 separate CUE contentions. And I did have partial success with a single judge ruling decision. However, in skimming over your above information then IMHO only a veterans attorney such as Ken Carpenter or another can understand fully all the above information and this is beyond the scope of this forum. If you still have an attorney then discuss your arguments with him in full detail or seek advice from another law firm. Too late for a national DAV VSO to be of assistance, etc. Good luck. My comment is not legal advice as I am not a lawyer, paralegal or VSO

Sounds like your attorney is very much on the ball. Good luck.

I read from knowledgeable others that a bad C&P exam cannot be used as an argument/basis for CUE. As to the VA raters not considering the evidence that was available and/or before them then how do you prove that they did not consider all the evidence before them as most of their decision letters are vague, short and brief on details including reasons and basis. In the bad old days the VA decision letters never even listed the evidence they supposedly considered in arriving at their decision. In my 2000 CUE claim and appeal to the VA, BVA and finally CAVC veterans court I argued that the raters never considered or dismissed all the evidence and argued/contended that they misinterpreted the laws, regulations and effect at time of the decision. I of course listed those 38 CFR regs and 38 U.S. Code violations they committed, etc. Also I listed all the evidence I submitted that I claimed without proof that they failed to consider or was available and not before them. All this was sheer speculation on my part but it worked. I did have a partial victory at the CAVC when the judge said they did commit a non CUE error by failing to adjudicate me for an inferred/implied TDIU claim prior to 1998. This led to my receiving P&T TDIU with five years back pay. Half a loaf is better than no loaf. Some folks shoot for the moon and go for it with nothing to loose. That was me then. My comment is not legal advice as I am not a lawyer, paralegal or VSO

I recently underwent two separate LHI Optum Serve ACE C&P exams concerning my heart disease increase to 60% from 30% that was approved last year by the BVA on appeal. I was notified by each NP examiners that this was a records review exam only and my personal attendance was not needed. Notification was by written letter in the regular USPS mail and the exams were two weeks apart. The VA VARO raters ordered these exams maybe as an effort to reduce back my 60% to 30% IHD/CAD. But no joy for them as I very recently received in regular mail VA Regional Office decision letter continuing my 60% rating level for Nam Agent Orange Ischemic Heart Disease also known as IHD/CAD. Evidently both examiners agreed that my extensive solid medical evidence record/history for the increase was justified. DBQ means Disability Benefits Questionnaire and used by C&P examiners and other medical personnel to evaluate in a computer format a veteran's disability picture/snapshot. Sometimes proper justice is served to deserving vets. Smile. My comment is not legal advice as I am not a lawyer, paralegal or VSO

As a recent example of BVA remand results here is my personal real experience. In January 2022 BVA remanded my AO Nam Ischemic heart disease increase appeal to VARO for a new and more material VAX C&P exam to gain a more accurate picture of my current IHD/CAD heart disease. VARO then sent me 150 miles one way to a LHI EKG exam and after arrival I was told the technician was out sick and they would contact me for reschedule and they never did and then falsely stated I failed to appear for the EKG. VARO then again denied my claim and I again appealed to BVA and telling them about the false claim that I failed to appear. I also provided BVA with new evidence in the form of independent private doctor IMO nexus medical opinion justifying my increase from 30 to 60%. The BVA then ignored the LHI false statement and granted me my increase to 60%. Here is the actual BVA remand instructions to the VARO for my appeal. Citation Nr: A22000106 Decision Date: 01/05/22 Archive Date: 01/05/22 DOCKET NO. 190415-204229 DATE: January 5, 2022 REMANDED Entitlement to an initial rating in excess of 30 percent for the Veteran's service-connected coronary artery disease (CAD) is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from September 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 RAMP rating decision. The Veteran elected direct review. See April 2019 Correspondence. By way of history, the Veteran was granted service connection for CAD with a 30 percent rating effective June 5, 2017 in an August 2017 rating decision. The Veteran submitted a timely notice of disagreement (NOD) in May 2018. In October 2018, the Veteran submitted a RAMP Opt-In Election Form. In November 2018 a RAMP rating decision was issued. Under the AMA, the Board may only remand an issue to correct a pre-decisional duty to assist error. Upon review of the evidence of record, the Board finds that there was a pre-decisional duty to assist error and a remand is required. Significantly, in the November 2018 rating decision, the RO denied entitlement to a higher rating for the Veteran's service-connected CAD. The VA last provided the Veteran a VA examination (VAX) for this condition in August 2017. Since then, the Veteran has asserted an increase in severity of his disability. See May 2018 NOD. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a claimant is entitled to a new VAX where there is evidence that the condition has worsened since that last VAX). VA's duty to assist includes the conduct of a thorough and comprehensive VAX. Green v. Derwinski, 1 Vet. App. 121, 214 (1991. Accordingly, a more contemporaneous VAX is required to provide a current picture of the Veteran's service-connected CAD. See 38 C.F.R. 3.326, 3.327. The matters are REMANDED for the following action: Schedule the Veteran for a VAX to determine the current level of severity of his service-connected CAD. A copy of this REMAND and his entire claims file must be provided to and reviewed by the examiner. The examiner should report all signs and symptoms necessary for determining the current level of severity of his service-connected CAD. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. 20.1303. My comment is not legal advice as I am not a lawyer, paralegal or VSO