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Pending Claim - Scary


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.

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DRO hearings and N.E.R.F.

Anything I should know about presenting at one? I have one scheduled for the 19th of June. I am actively re re organizing my mountain of medical records and such. I will try to present as accurately and as understandable as I can so as to not confuse the DRO. I get one hour but I can request more time if needed, but I need to do this asap.

I need to find out more info on the term N.E.R.F. (no effective remaining function). Can anyone find reference to this so I know as much as I can possibly know? Is there anyone else who would like to talk about lost remaining function in their hands which the VA rated? I can barely move my fingers and they are so weak that I cannot squeeze anything with any strength at all. I have muscle constrictures in my hand and fingers. I cannot hold anything in my hand not even a dime or a pill without dropping it. Can't zip up anything or button. My career as a product designer is over because I have lost motor control and my hands have cramps all the time. Should this be enough to qualify this N.E.R.F. statement? I had a strength test using a hand meter at the VA hand clinic about 4 years ago and the results were "non functional strength". I had copies made of my VA med records and that visit is not there. Yeah, the one document I need is not there. I am very meticulous about keeping copies of everything all the way back to mil service. I have been trying to get a hold of that clinic to no avail. Guess I will go up there and rattle some cages - YET AGAIN. Playing these stupid games with the VA gets old!

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N.E.R.F. (no effective remaining function).

This usually means "loss of use of" and can be a critical medical assessment for SMC.

It seems you are already receiving SMC L 1/2 and are asking for SMC "0" ?

"What my NSO and I decided is that we will try for SMC (O) and then this will more fully entitle me to A&A (100% plus 60%). Then this will qualify me for SMC (r.1)."

As I understand it you get the 'loss of use of' SMC for upper extremities but not your hands-

What you have to focus on with the DRO is the medical evidence that supports the "0" rating

I am sure your vet rep has a copy of the 2007 Veterans Benefits Manual from NVLSP.

I am not permitted to copy too much of it here.

If he goes to pages 367 to 368 he will see the conditions for the "0" award and actual examples of how it can be awarded.

The higher levels of SMC are complex enough that I think any veteran filing for these higher levels should get a thorough knowledge of the SMC regs and better yet- buy the VBM from NVLSP.

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Looks like this claim will be decided early - tomorrow. I have paperwork and letters from Docs stating nerf form hands and arms. Supposedly I will now be rated at r.1 or r.2. Wow, this has been a lot of work and worry. Finally I can get the care I need.

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Hadit and Berta and all:

Well, I won my claim and they put me at r.2. Didn't expect that - wow! So I get a lump check and my compensation goes up and now my wife can stay home and take care of my needs like I have been needing for 20 years. Wish they would have told me or inquired abt this and would have placed me in the correct category and comp rate all those years ago. My life could have been without so much struggle and stress and pain.

I do have one question remaining though. Would I receive (K) awards for loss of arms or hands or legs or buttocks also? I can't find anything on this specifically.

Hadit helped me so much. I suppose I will have to donate now, huh! And this is a overwhelming yes with a grateful heart.

I do have two more claims atleast for IU years back and putting me in the wrong category.

Looks like this claim will be decided early - tomorrow. I have paperwork and letters from Docs stating nerf form hands and arms. Supposedly I will now be rated at r.1 or r.2. Wow, this has been a lot of work and worry. Finally I can get the care I need.

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Congrats on your win.

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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 7 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:

      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis

      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.

      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 


      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.


      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

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