dav_marine72

My lawyer is Rebbecca Patrick. She just won me 4 remands at the U.S. court. When I first looked into her I noticed she had more experience at the BVA than the U.S. court. However, after I talked with her I liked her and I am glad I went with her. She does not seem to have a million clients so she gets back to you in a reasonable amount of time. She charges 20% which compared to others isn't bad. I actually had one lawyer ask for $2500 + 20%. I was definitely impressed with her actions at the court. Not only did she find some angles I hadn't thought of she convinced the VA counsel to remand my 4th issue. Initially she would only remand 3 and drop 1. Let me know if your interested in her information. I'm sure she would be glad to talk with you.

Okay VAF I did some reading in the Veterans Benefit Manual. It seems I am in a different position than the Veteran who posed here. I never received a remand from the BVA. My remand were from the U.S. court. So my thoughts were coming from there back to the BVA. Let's just hope the BVA does not remand my claims for some reason when they get them back.

Vaf, I'll get back to you on that one LOL. Maybe I'm being fed a bunch of crap. Would not be the first time. This is what my lawyer said should happen next. She and the VA counsel are developing a joint motion for reconsideration (JMR) based on them agreeing my 4 issues should be remanded. After the court okay's the JMR it will go back to the BVA. We will have a choice whether to have the BVA or RO make a decision. If we choose the BVA (which we will) they will give us 90 days to send any new evidence. After that they make a decision and we appeal again if necessary. Now I assume what your saying is if the BVAs decision is that further development of the claim is needed it's either going to the VARO or AMC? Either way I'd rather have an attorney. When my case was at the BVA they overlooked a ton of evidence. It wasn't until I got my decision a year and a half later that I found out a ton of evidence wasn't considered. This happened even though I was faxing new evidence down the whole time and a woman at the BVA customer service line is telling me they received my faxes. I felt like I had no control and could not interface with anyone at the BVA who actually was working on my case. I have to assume (here I go assuming again LOL) that a lawyer must be able to get a higher level of access than we can at the BVA and or AMC? Maybe I shouldn't have used the words cracking the whip but what I meant was that the lawyer would have the legal access I don't. Make sense?

Congrats Larry, You will kick some arse no doubt. Does this mean you are no longer 100% P&T? I thought about doing this down the road if I can ever sit again.

Devil Dog I can't get in the MRI machines either yet I have had 7 since 1997. The key is xanax. Pop a couple of those babies and you'll go in sub and not give a crap. You manned up enough in the Corps just like me. Whatever dr. orders the MRI will gladly give you a script for a couple.

I just won 4 remands at the U.S. court. My lawyer said you can either have me follow this back to the BVA with me cracking the whip and get a quick decision or go at it alone with the BVA which possibly means them sending it to the AMC and getting lost in a black hole. She said she has dealt with vets that have been stuck at the AMC for years. Granted she has a reason to want to follow my case back to the BVA (cash). However, she has been a good lawyer and I am so sick of dealing with VA idiots I'd gladly pay 20% to have her crack the whip and get me a decision at the BVA. From what I have read out here from others the AMC seems to be a graveyard. See if anyone on here knows how to get your case away from there. Do you have a lawyer?

Broncovet, I fully agree. What is so sad is that if I hadn't found a cheap manual on ebay I would not have known to appeal this. Even my service officer didn't know. I can only imagine how many vets can't do research on their own and get screwed on a daily basis by VAROs.

I love it! Keep kicking arse!

Hi All, I posted a few days back about being TDIU P&T and getting entitlement to SMC S2 based on a single 100% service connection and being housebound. I received S1 while on convelescent leave because my back was 100% temp. Once I came off the temp and was rated TDIU bye bye SMC. The Veterans Benefit Manual (thank the Lord for ebay) that I have alerted me to a side not stating that TDIU is a basis for SMC entitlement. I looked though the regs it pointed to for days unable to find any language pointing directly to TDIU so I wouldn't need to have this sent to the BVA because the VARO certainly doesn't know about it or didn't want to give it. Anyway what I needed I found in VA Gen. Coun. Prec. 2-94 (Feb. 2, 1994). Although this precedent was written to establish SMC entitlement for convelscent leave it did drop this very wonderful statement: This is under comment 7. “ We find nothing in the language of section 1114 (s) to indicate that Congress meant to exclude service-connected disabilities rated as total under 38 C.F.R. 4.28, 4.29, or 4.30. (Although it is not the question before us, we also find nothing in the language of section 1114 (s) to indicate that Congress meant to exclude service-connected disabilities rated as total under C.F.R. 4.16, i.e, a total rating based on individual unemployability.) Stick that one in your pipe and smoke it VARO!!!!!!!!!!!!

Hey Pete, Thanks for your post. I'm preparing my assault this weekend. It's funny time used to matter to me. Now all I have is time. This SMC is only one issue I am working on. I'm going after A&A based on I am a danger to myself and others, the house grant, service connection for alcohol and prescription drug abuse secondary to my back as diagnosed by the VA mental examiner, appealing a denial of erectile dysfunction secondary to my back and or 200 mg of Zoloft a day, a denial of service connection for GERD 2nd to all the meds I take, appeal of initial 0% ratings for eczema and high blood pressure from 2002 that the RO never sent to the BVA even after I showed proof of filing a form 9. LOL. If I rate it by law I'm not dropping anything just because I am TDIU P&T. I have a chance for substantial back pay (have 4 items coming back from U.S. court to BVA from 2000) and will go after anything above and beyond that will make my family more comfortable. I have treated my family like crap over the last ten years based on chronic pain and cannot be a normal dad because of my 10 service connection disabilities. Now that I do not have to work I am going to make up for how I have acted and will truly value what I have. Thanks everyone!

Okay maybe I'm shooting my mouth off and shouldn't be. I got the decision last week which was for TDIU, convalescent leave, etc. So maybe I just file a disagreement that I feel I should not have been cut off from SMC? The manual said to file a CUE but I don't want anything getting screwed up. Hence why this site is such an asset for Veterans. Anytime I'm at the medical facility or RO I spread the word. I also believe in giving back. Hence why I tend to be out here more. I have been trying to post for others but I am still consumed with getting my final decisions in place. Thanks J.

Yes I agree with going with housebound but did you read where it states for SMC TDIU, convelscent leave, etc. may be used as a basis for entitlement? This is included as a side note in the Veterans Benefits Manual under the SMC section we are referencing. Berta actually brought it up when I first posted my TDIU that the RO taking SMC away was wrong. Now I think I can use this verbiage to contend that a clear and mistakable error was commited when the RO took away my SMC S1 and did not rate me S2. Here is the big verbiage for my case - The 100 ratings under 38 CFR 4.16 (TDIU), and 38 CFR 4.28 (prestabilization ratings). 4.29 (ratings for disabilities requiring hospital treatment), and 4.30 (convelescent ratings) of the rating schedule may be used as a basis of entitlement for SMC. See VA Gen. Coun. Prec. 66-91 (Aug. 15, 1991); See also manual M21-1MR, part IV, subpart ii.2.H(a.) Hence TDIU replaces having a single 100% disability. Just like being on convalescent leave gave me 100% for my back hence SMC was rated.

No what I was trying to establish is that I am reading the manual correctly and it states that having one 100% rated service connected disability is the same as having TDIU for SMC purposes.

As far as housebound goes the manual states: 1. the Veteran is "substancially confined as a direct result or service connected disabilities to his or her dwelling: (413) 2. it is reasonable certain that the disability or disabilities will continue throughout his or her lifetime. (414) I only leave my house for medical appointments. 413 - The court has held that leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined. 414 - There is no requirement that either the single total disability or the independent 60 percent disability be permanent. I'd have to think a back injury with DDD at three levels that has been in effect for 14 years with two failed surgeries to include removal of L3-S1 with cages implanted and a pending spinal stimulator implant because the pain is driving me insane, would be a basis that it is reasonably certain my disabilities will continue through my life.

Not following you J, The way I read my TDIU is the 100% rating and since I am housebound I should rate the SMC S2? " The second way to get it is have one service connected disability rated at 100% and be housebound."

Hi Everyone, Does anyone have experience with SMC for total rating plus 60 percent or housebound status? I think Berta raised a red flag on this for me before but I believe I know have found the regs for it. Anyone that could provide any addtional info would be appreciated. Here is the deal: During my temp 100% convalescent rating for my L3-S1 fusion surgery performed in March 2009 I was awarded this SMC based on the fact that I had a 100% rating (my back) and a 50% mental rating and a 30% asthma rating. Why I wasn't considered for housebound I have no idea because I only leave for appointments. I can't sit, stand, or walk more than a few minutes at a time without switching those positions. So they take away the SMC when my convalescent leave is up in July. I was awarded TDIU for May 2009. Recently my SO asked the RO for regular aid and attendance for me because my wife can't work because she needs to take care of me (still waiting on this one). The rating decision even included a statement from the RO admitting this. Anyway back to this SMC. I'm reading the Veterans Benefits Manual and guess what I see? To get this SMC it states there are two ways: First you have to have one service connected rated at 100% and addtional service connected disabilities involving a different bodily system that are independently rated at 60% (411). The second way to get it is have one service connected disability rated at 100% and be housebound. The RO stated because my back went to temp 100% and my mental 50% and asthma 30% this is why I rated it. Well I am reading the the little notes at the bottom of the VB manual and it states this: (411) 38 U.S.C.S. 1114(s); 38 CFR 3.350(i)(1) (2007). In a VA Gen. Coun Prec. 66-91 (Aug. 15, 1991) and 2-94 (Jan. 21, 1994), the VA general counsel held under 38 U.S.C.S. 1114(s). several separately rateable disabilities cannot be combined to achieve a single total (100 percent) rating in order to qualify for the special monthly compensation. The threshold requirement for entitlement under this statue is that the Veteran must have "a" (that is, at least one) disability rated as total. Here is the big verbiage for my case - The 100 ratings under 38 CFR 4.16 (TDIU), and 38 CFR 4.28 (prestabilization ratings). 4.29 (ratings for disabilities requiring hospital treatment), and 4.30 (convelescent ratings) of the rating schedule may be used as a basis of entitlement for SMC. See VA Gen. Coun. Prec. 66-91 (Aug. 15, 1991); See also manual M21-1MR, part IV, subpart ii.2.H(a.) Sounds like the RO should have never stopped paying me the extra $295 a month for this SMC based on the award of TDIU in effect once the convalescent leave ended................... anyone??????????

tssnave, Tough call. If you take the back out you still have mental 50%, asthma 30%, and right foot 10%. Technically with no back I'd say no. But then again if my back was fixed I'd love to go back to work. As we stand I'm scheduled for a spinal stimulator because the pain is driving me insane and thats on 3 oxycontins 40mg and 3 oxycodones 30mg. I also keep falling because of the numbness in my right leg / foot. If they rate me what they should I should end up like this: Back 40% ortho, 40% right extremity neuro, 40% left extremity neuro, SMC A&A Mental 70 - 90% Asthma 30% Right foot neuro 20% Left foot neuro 10% Chronic right testicle pain 10% High blood pressure 10% eczema 10% gerd 10% erectile dysfunction 0% $89 SMC

Funny I didn't but then again they had two different decision award letters. One with the P&T and mine without LOL.

Thanks Larry that's exactly what I am saying. I'll ask for the code sheet though that's a good find. They said they have a 2011 date for a back exam not a TDIU exam. Why would they bother if I am TDIU? Unless they think this back without L3-S1 is going to get better and that will help me go back to work. Code sheet time. Thanks everyone.

LOL I agree Pete. I always wondered why do we need to go through metal detectors? LOL. Funny thing is the VA police are usually more like us. I also BS with those guys. They just sit around all day anyway. Yesterday I got two Marines and were talking for about 30 minutes. You know I've always worked and made good money with my disabilities. I guess it made me not feel as screwed with by these people. Now that I can't work and I rely on them I feel very vulnerable. I actually have not been sleeping well since I got TDIU. I don't feel well thinking about how the government is in control of me supporting my family. Then I have to hear about future exams and I think about how I'm not out of the water. I feel like I have no control.

Yes that's a good pint. Hence why I am hoping for 100% schedule and SS. Based on that with the spinal stimulator, monthly pain clinic for opiates, monthly shrink visits, etc. I hope I will be able to shoot anything down they try. Can I actually ask for no more exams or is that not an option for appeal? LOL. Wishful thinking right?

I just want to make sure everyone understands my RO used to be in a federal building. They moved the entire RO office into a couple of floors in the hospital. So I was at the full RO office when this took place.

Good to go!

Some questions: "V.A. adjudication division" you are talking about the regional office correct? "The most recent rating examination will have a box on it for the date of future exams. Whether you have a future exam scheduled is what determines if your dependents have entitlement to DEA (Dependents Educational Assistance) and CHAMPVA." I definitely have DEA and CHAMPVA benefits. The exam she was talking about is for the 40% they gave my back rating which actually is heading back to the BVA from the U.S. court for an intial higher rating than 20% ortho and 10% neuro from 2000 and 2002 respectively. Granted my TDIU is based on back 50%, mental 50%, asthma 30% and seven other 10s and or 0s. It did not say under my TDIU rating that I would have a future exam. Under my temp 100% for convalescence it said after that my back was bumped from 20 to 40%. Then it said however since there is likelihood of improvement this rating is not permanent. Funny thing is once it gets back to the BVA my lawyer believes I will get at least 40% ortho, 40% right lower extermity and 40% left lower extremity. That would put my back at a combined rating of 80%. Maybe I should just post my decision on here with private info blocked out for people to look at?

Hey Delta, Thanks for the advice. One thing though I was at the regional office. It's in the same building as the health center. I do have a copy of my C file already. I just need to refresh it from this summer when my RO made it for my U.S. court attorney. Thank you for your time.