Pending Claim - Scary

[Googy]

I am in the middle of a SMC and AA claim with the VA. Served from 80 to 85 in USAF. Muscular Dystrophy manifest while in service. Condition was aggravated my service and took me to where I could not function or even walk and had so much muscle breakdown that I would have red tinged urine. This was all under the threat of article 15's and reprimands. I made copies of all those physical profiles. They sure have come in handy. Was medically retired in 1985 placed on TDRL with 50% comp (they offered me 20K but I said no way) and a year later on PDRL with 80%. Then in 86 was taken over by the VA at 50% SC in the Hodkins category - that is a form of cancer of the brain and not the correct category. They took my comp away in 1987 saying it was CUE. It was not CUE and I eventually prevailed over them in hearings in 2 local hearings and then the DC BVA where they supposedly opened a new category for Muscular Dystrophy in 1988. Then they put me in the "brain infection" category at 30%. They did not even put me in the category I set precedence with and this was not the correct category yet again! They then threatened me that if I ever made another claim they would take away everything forever. You can believe that I did not want anything to do with them after that. I developed related cardiomyopathy along with this weakness throughout my body - I have used a wheelchair since 1987 and arms are so weak I cannot do most things by myself like preparing food and bathing and etc. My wife, daughters and neighbors have been caring for my needs, but not the VA. I have never been able to work a job for more than a few months from 1985 to the present. I have my lifetime earning statement all the way back to before I enlisted and I is very paltry. I never even heard of IU until this summer. I had never before heard of SMC or AA until this summer. I have been trashing my body all these years and my wife has been working multiple jobs just to make ends meet all the while trying to care for my ill health. Thinking about this now really angers me to boiling. So one day in 1997 as I happened to pop in to a DAV NSO in a VA hospital to ask him if this seemed odd to him. There is a huge story behind all of this but too long to go into right now. This NSO did not buy my story at first, but after a week of research he saw that everything I said was correct. He did some sort of quick claim and I wound up with a dual rating; 100% SC PAT for loss of use of lower extremities due to Muscular Dystrophy and a 60% SC for cardiomyopathy. I took it and ran like a starving child who hoards food for fear of never eating again. Ten years later I am a greenie at Unit DAV Commander. By chance the state DAV Commander asked about my condition at a BBQ this July. It was then that I heard of SMC. Then I did research about AA and IU. There are many years I should have received IU first then SMC and AA. So now I have Muscular Dystrophy, cardiomyopathy with electrophysiological arrythmias with the need for a pacemake soon, stroke, whitematter disease, brain infarctions resulting in cognitive/memory problems, spine problems and a paralyzed right lower foot from a ill fitting VA wheelchair. These are all SC related disabilities which I have overwhelming record of. I am going to do as they say? Appeal, appeal, appeal.

I submitted the SMC AA claim in July 07. I received 2 VA letters at the same time. I had a C&P the same day I turned in the letter asking if I had any more medical records to submit. I knew I had numerous letters to substantiate my claim, but somehow the box was marked "Does not have any records to include". I am not sure they even read this right.

[Testvet]

keep kicking it took me from Nov 2002 until April 2006 and I am still fighting on some other issues.....exhaust all appeals

[Googy]

Well, I was denied somewhat but gained in a way which does not really help me all that much. I have submitted a NOD and will have a De Novo review so I can more thoroughly demonstrate and prove my case. There is a lot that many physicians are ignorant of pertaining to my case and many others. Just like PTSD, AO and brain injury and ....... I'll let you know how this goes.

Does anyone have any experience with a de novo review? Are there do's and dont's I should know of. Any advice?

Greg

[Ron II]

Well, I was denied somewhat but gained in a way which does not really help me all that much. I have submitted a NOD and will have a De Novo review so I can more thoroughly demonstrate and prove my case. There is a lot that many physicians are ignorant of pertaining to my case and many others. Just like PTSD, AO and brain injury and ....... I'll let you know how this goes.

Does anyone have any experience with a de novo review? Are there do's and dont's I should know of. Any advice?

Greg

Hi Greg,

The only thing I can offer is that occasionally and surprisingly, the NOD will be examined quicker than one might think. I thought mine would get reviewed somewhere between six months and one year after I submitted the NOD. Mine was reviewed (and denied) a little over four months after filing.

Good luck,

Ron

[Berta]

you might fit into the Aid and Attendance criteria:

http://64.233.169.104/search?q=cache:YrNa2...us&ie=UTF-8

But still-I dont see why they are denying you SMC-

100% for one disability (SC or 1151) plus 60% or over for additional separate SC disability (SC or 1151) equals SMC at the "S" level.

I have the same problem-

the VA stated my husband was not eligible for SMC "Under any circumstance"

He was 100% SC {PTSD and well over 100% in Sec 1151 disabilities)

At first I thought they were right-that 1151 disabilities (those that the VA has caused by crappy medical care) did NOT qualify him for SMC-

But after taking the time to research VA 'ola'-(almost everything we need is on the net and usually at the VA web site itself or within VA decisions)

I certainly saw how incorrect they were to deny SMC and filed 2 CUES-and this has gone back and forth now since Sept 2004-

I recently finally got DRO review request form on these CUES- and on the request for de Novo, I listed on the back of the form all of the evidence that I have sent them already-

This went along with my AO claim 2 weeks ago to a supervisor in rating so if I get something on the SMC claims I sure will let you know-

as a Nehmer widow -they have to pay 3 years retro on the SMC as accrued-I told them in writing- the "S" award is obvious but I dont want it-the med evidence warrants a higher level of SMC-

(have you thoroughly read ALL the SMC levels? would "S" be too low in your case?)

If it baffling and enfuriating to me how they can disregard evidence but they do it all the time-

the funny thing is-when the VA makes the proper decision on my AO death claim then the SMC issue kicks right in again due to Nehmer Court Order-

a double whammy-

they then have a choice SMC under 1151 or under direct SC for the SMC disabilties caused by AO-

"They took my comp away in 1987 saying it was CUE. It was not CUE and I eventually prevailed over them in hearings in 2 local hearings and then the DC BVA where they supposedly opened a new category for Muscular Dystrophy in 1988."

FANTASTIC just think of the $$ they could have saved and how much negative impact that could have had on you and your family if you had not fought that.

This could be a point to raise with the DRO-

since you have documented proof that the VA erred legally in this past decision- then 'it is more then likely 'they erred in your SMC denial.

As part of my claim I used basically the same idea-

they erred in medical care (documented by FTCA) and numerous misdiagnoses so it is 'more then likley' they could not properly the etiology of my husband's death by VA-( Agent Orange causing his undiagnosed diabetes)

Of course I sent them plenty of med evidence too on that and it looks to me that in your case they have everything they need-

why didnt you ask for reconsideration?

Hold the DRO to their job description-I posted the link to it at hadit many times-and I held it over the VA when the DRO ignored my evidence in 2005.

Edited February 14, 2008 by Berta

[Berta]

PS-

"I should have been receiving IU from 1985 to 1997 especially had they placed me in the correct category with the correct rating."

Yeah -this looks like possible CUE there to me---

"They then threatened me that if I ever made another claim they would take away everything forever"

if they documented that-------their letter should be posted in every newspaper in the country!

It DOES look like a CUE-on the past decision-

if the med evidence was in their constructive possession

and they made a 'legal' error- (ie using the wrong rating code or whatever) to your detriment-in any final decision-

that would be a definite CUE in my opinion.

If I were you I sure would look for the DAV's support on all of this-it looks to me that the DAV did help you-

and your track record shows you are very proactive and knowledgable yourself on the VA claims process.

By "qick claim" do you mean the DAV asked for a reconsideration?

[Googy]

Berta and all,

How would I go about finding that results from an appeal that went to BVA in DC in 1988 in which I prevailed? Any repository that you know of?

Gregg