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Question
Berta
you all know I have 2 pending CUEs-
One for lack of any DC or rating whatsoever for Rod's significant heart disease malpracticed on from 1988 to his death (documented in FTCA stuff)and supported by legal evidence of CUE (Their own regs)
Also CUE for SMC- as VA said he was "not eligible for SMC consideration under any circumstance." 100% SC as if under 1151 and 100% SC PTSD and now SC for DMII and fatal complications due to AO per BVA 4-29-09 decision.
Question
Since VA has to generate a completely new award under the Class Action Agent Orange Nehmer Court Order,(Beverly Nehmer Vs. VA)
they also have to make an accrued finding-
Nehmer retro is totally different than any other regs for other claims-
The BVA decision takes note that I sent them medical evidence enclosed with my Feb 2003 claim-noting I had found evidence of diabetes hidden in the med recs back to 1988.In 2005 the C & P "expert"s opinion said I was wrong using only this one sole statement from me, and this doc never even had the med recs at all when they opined. (I snooped on that one at the local VAMC where VA had sent his records in 2005) and I used that fact too to rebutt.and then I rebutted with Medilexicon medical symbology to prove the VA "expert" wrong-one the sole statement the VA has ever mentioned as to my evidence- for the past 6 years.
The remand wanted a medical opinion regarding the 1988 med recs and my evidence of DMII hidden in those reocrds-I say hidden -not really but it took plenty of medical study for me to interpret what was going on there-
The Nov 2008 VA Opinion- was knocked down by me last month via a fax to the BVA.
(and I was so mad I sent a cardio specialist 1750 for another IMO-I might be able to get that back as he just got the records from me-the IMO isnt even done yet as far as I know.)
Back to my question-
since VARO has to render a completely new decision on this claim-
wouldn't they have to also consider the deceased veteran for accrued SMC compensation-as regular SOP due to his 3 100% awards?
100% SC PTSD P & T 1997 (eed 1991)
100 % SC P & T now due to DMII and complications causing death 4-29-09 BVA decision award letter pending
100 % "as if" SC P & T under 1151 award 1998
And could that consideration (which he has never gotten -the basis of my CUEs)
make my CUE claims moot because they have to now finally make an SMC award?
With proper accrued under the Nehmer court order?
I got up today to follow up on my SMC CUE claims-as I put this on my list last week to do this week-
I was even going to call the IMO doc to see how soon I could expect his IMO-and work on the AO claim some more-
and then I remembered I won-
I can put down the weapons and close the materiale cache- for now-
and maybe my CUEs are moot and the new decision will award them anyhow- does anyone agree?
I guess my question is-
per M21-1MR the VA must must consider SMC when the medical evidence warrants it.
They have never considered SMC at all and even my rep said in 1998 they should have but he did not advise me to NOD that decision and he definitely should have told me to-
I was so shocked and exhausted from those claims( 3 awards 1997-1998) I didnt even think to file an NOD.
Rick Spaturo NVLSP just congratulated me-
If it wasnt for 18 years of the VBM that they publish-
I would have lost those older claims.They were in the bag when I gave the rep my POA.
Edited by BertaGRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
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