Berta--an Interesting General Counsel Decision.

[Guest Morgan]

Berta, (or anyone else who is filing a Sec. 1151 claim)

You might want to read the attached document .

Applicability of 38 CFR § 3.310 to Disability Proximately Due to or the Result of Disability Covered By 38 U.S.C § 1151.

HELD:

Disability compensation may be paid, pursuant to 38 U.S.C. § 1151 and 38 C.F.R. § 3.310, for disability which is proximately due to or the result of a disability for which compensation is payable under section 1151.

Carrie

Edited March 8, 2006 by Morgan

[Guest Berta]

Thanks Carrie-

Basically that is why I get DIC-under Section 1151-

VA caused Rod's death- (the additional disability due to VA care) and that was resolved long ago-

but they never paid SMC to him or to me and said he was not entitled to it-

He was 100% SC PTSD so certainly entitled to SMC with the 1151 disabilities.

At the time I had a new vet rep and he was delighted that he got my award letter a few weeks after I gave him my POA but he knew nothing about the claim and I was so exhausted (I had won 2 VA claims and the FTCA claim within months -after a miserable 3 year ordeal) that I didnt even consider that the decision was wrong.

OGC Pres Op 30-97 -which I sent- supports my CUE claim on this

and I also sent other VA info documenting that he was over 100% under 1151 on two rating decisions and also I have a letter and a email from the VARO supporting the claim.

From 1988 to 1994 the VA made "multiple" errors in his medical care and deemed it as "substandard".

The SMC disabilities were part of that substandard care-I found more -thus the diabetes claim of 2003.

This Pres Op (30-97) fully supports that even a NSC vet getting 1151 benefits at the maximum comp rate is entitled to SMC also-if the medical evidence warrants it.

It expands a little what the pres op you posted has held.

It is an very interesting decision- as one can see the veteran was NSC paraplegic-but the VA buggered him so much that he lost his legs due to amputation due to improper medical care-which they call disarticulation of the hip(Sec 1151)and was found eligible for SMC too.

Date: August 29, 1997 VAOPGCPREC 30-97

From: General Counsel (022)

Subj: Entitlement to Special Monthly Compensation for Disarticu-

lation of the Hips Following Preexisting Paraplegia

XXXXXX, XXXXXXX X. X XX XXX XXX

To: Director, Compensation and Pension Service (212C)

QUESTION PRESENTED:

What level of special monthly compensation (SMC) should be awarded to a claimant with nonservice-connected paraplegia who is entitled to compensation under 38 U.S.C. § 1151 for disarticulation of the hips?

COMMENTS:

1. This question arises in the case of a veteran who has had nonservice-connected paraplegia since 1964. In 1966, the veteran was hospitalized at a Veterans Administration (now Department of Veterans Affairs) (VA) facility for excision of a pressure ulcer overlying the right trochan-teric area. During the hospitalization, he developed a hematoma that became infected and resulted in purulent arthritis of both hip joints. Consequently, he required amputation of both legs at the hips.

2. If the veteran is entitled to compensation for bilateral hip disarticulation under 38 U.S.C. § 1151, the proper level of SMC under 38 U.S.C. § 1114 must be determined. Section 1114(l) of title 38, United States Code, authorizes SMC for “anatomical loss or loss of use of both feet”. A higher rate of compensation is authorized under 38 U.S.C. § 1114(n) for “anatomical loss of both legs so near the hip as to prevent the use of prosthetic appliances”. The vet-eran in this case appears to satisfy the literal require-ments of section 1114(n).

3. The General Counsel addressed an analogous situation in VAOPGCPREC 93-90 and 5-89 (O.G.C. Prec. 93-90 and 5-89). In those opinions, the General Counsel held that SMC may be awarded under former 38 U.S.C. § 314(k) (now § 1114(k)) for anatomical loss of a creative organ where nonservice-connected loss of use predated the service-connected anato-mical loss. Former section 314(k) provided that SMC is payable “if the veteran, as the result of service-connected

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disability, has suffered the anatomical loss or loss of use of one or more creative organs”. In VAOPGCPREC 93-90 and

5-89, the General Counsel noted that the plain language of the statute supported an award of SMC for the veteran’s service-connected anatomical loss. The opinions reflect that the plain, unambiguous language should be taken literally. See also 2A Sutherland Statutory Construction §§ 46.01-.04 (5th ed. 1992). They do not suggest that the award of SMC should be reduced to discount the veterans’ preexisting loss of procreative power.

4. The present case also involves preexisting “loss of use” and subsequent anatomical loss. Congress clearly authorized SMC for disarticulation of the hips. Neither the plain language nor the legislative history of section 1114 reveals any intent to reduce an award due to preexisting paraplegia. In light of VAOPGCPREC 93-90 and 5-89, we conclude that under these circumstances SMC is payable at the higher rate prescribed in 38 U.S.C. § 1114(n).

HELD:

Regardless of preexisting paraplegia, SMC is payable at the rate prescribed in 38 U.S.C. § 1114(n) to a claimant who is entitled to compensation for bilateral disarticulation of the hips under 38 U.S.C. § 1151.

Mary Lou Keener

[SLEDGE]

"may be paid"

The word 'may' is used throughout the VA 'rules to live by'.

Just thought I would throw that in.

The word 'may' is the fall-back for everything that the VA does.

I means they have a choice and we do not.

sledge