diabetes Question For

[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 May 4, 2009 by Berta

[cowgirl]

No Cue expert here, but heres a thought. Berta, I think the smc looks like it should be 'inferred', see this, I read it for your question, but dont have the background you do. maybe part of your answer is in M21-1MR, Part III, Subpart iv, Chapter 6, Section B.

and of course, as you know, a claim is for maximum benefits allowed by law and regulation).

per M21-1MR the VA must must consider SMC when the medical evidence warrants it?

and

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?

Best to ya,

Cowgirl'up2009~!

Edited May 4, 2009 by cowgirl

[carlie]

Berta,

You posted,

"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?"

YES - I certainly agree, I would hold back on more until I got the paperwork from them.

jmho,

carlie

[Philip Rogers]

Berta, I think they will have to pay the accrued SMC and that will make the CUE claims moot issues but then what do I know. I'm so happy for you and your late husband, Rod! Sometimes ya just have to get things corrected, even if just on principle. jmo

pr

[Pete53]

If it was not for principle I would have given up on VA.

Berta you are an inspiration for Veterans with claims to hang in there and make sure the VA knows that they have been taken to the mat.

[sixthscents]

Berta,

I think he would qualify for SMC under CFR 38, 3.350. I quote:

"(i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and:

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or

(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime."

Now would the other 100% rating apply. I dont think so, and thats because they evolved from the same etiology. That is the same thing caused all three, his exposure to AO. Further if it could apply, I dont know where they would bump the S SMC to.

However, as long as this was the same (CFR 38 3.350 that is) then yes he was clearly entitled to at least an "S" SMC rate. I personally would file the CUE. You'll win, as long as the reg was the same then. It passes all the marks. You really don't need to reference anything else here except CFR 38, since it is clearly defined under the regulation right.

Bob

Edited May 5, 2009 by sixthscents

[Berta]

When I filed these CUE claims in 2004 -I told them to keep the "S" (the lowest but obvious award )

and send me the proper SMC amount.I even figured the level of SMC out for them-

But I do think that is a moot issue now and they have to award SMC- they violated M21-1MR when they didnt consider SMC in the first place.

If they low ball with "S" award -the cardio IMO I paid for 2 weeks ago- that has not been prepared yet- can be re-shaped to support SMC instead of SC death.

The doc is holding off -I think-he was contacted yesterday-because I dont need the IMO for DMII now-

I couldnt use this for the CUEs -they require legal evidence-

but any decision on SMC now due to completely different SC disability that has finally been acknowledged (I proved this was a malpracticed and ignored disability-DMII evident in med recs since 1988 and untreated and the complications were fatal-)

if not the correct level SMC- now I can NOD with the new cardio IMO-

All the conditions on the death certificate were service connected by this new decision I got-as secondary to DMII due to AO exposure- evident in med recs but undiagnosed and untreated by VA at all.

I will just wait for the VARO award letter-but am already anticipating that might be all screwed up.