Three Separate 100% Scs

[Berta]

My SMC accrued claim under Nehmer involves three separate 100% SC ratings for a 2 year period with staged ratings prior to that back to 1988.Those ratings still do not include my husband's still unrated AO DMII.

Under a very well hidden regulation in M21-1 I found that these separate disability SC rating ( 100% for each independent disability)as well as finding of Aid and Attendance status requires the SMC "M"level of award.

I am curious if anyone here falls into this unusual SMC level as I could find nothing in BVA cases that comes close to this type of "M" award.

They could award just SMC S and 4 Ks due to loss of use of extremities but that would be a low ball rating.

It took me quite some time to prepare the Aid And Attendance evidence.I finally got that all done and ready to mail to them today.The regs have to be carefully read over and then evidence that supports A & A has to be carefully prepared.

I certainly made my own statement as to the daily care my husband needed from me but there was also plenty of documented evidence from the VA in the clinical record that helped to support this claim.

It pays to keep Everything!

[broncovet]

Berta..

I just would comment that someone posted to the effect that "M21's" are not regulations that the court enforces. I have not seen a single CAVC case where it cited regulations from M21. Further, even the 38CFR's are supposed to be supported by USC regulations.

Also, it would appear that trying to get "staged" ratings may not produce the best result for you. In other words, if you applied for the maximum benefit, at the earliest effective date, then let the courts "stage" the ratings according to "the facts found".

In other words, if you could get SMC M back to 1988, why would you want less?

Maybe my ignorance is showing...just trying to help.

Edited November 27, 2010 by broncovet

[Berta]

Thanks Bronco vet-

I have asked for staged rating from 1988 to 1991 (IHD 10-30)(then "S" from Nov 1991 to Aug 1992), then "M" up until my husband's death.

"In other words, if you could get SMC M back to 1988, why would you want less?"

That rating (SMC "M" to 1988) is not borne out by the medical evidence.

In the confines of hyperspace it is hard to reveal what this claim involves.

For any M21-121 I cited ,I also cited 38 USC and 38 CFR 1114 in the CUE claim (2004) that they switched over to the Nehmer claim.

Whether they adjudicate the CUE frst or the formal AO IHD claim- the results will be the same under Nehmer -when they get it right-

I cited M21-1MR in an IRIS and got them to CUE themselves in 2005.

I might have added the proper 38 citation too- I forget- I was quite angry-and entitled the Iris What The Hell is this!!!!and I filed the IRIS as a complaint.

It gained the VSMs attention and got my rep off his butt and he got right overt to the RO- but I do NOT advise anyone to do this.

I already had a long and miserable relationship with this RO-for years - and had succeeded in everything they fought me over-yet they still tried to pull something on me regarding my 2003 claim and I would not stand for it.

Even when the BVA awarded the claim in 2009 I had to fight them via General Counsel to pay me the cash- which they did-

that only took almost a year-and they still have failed tpo advise me of the ancilliary awards that even the BVA mentioned in a past decision.

But I bypassed the R0 and got those awards too.

This might help someone-

I took them step by step with direct references to specific clinical records for the SMC accrued claim.My recent response went to a contact person (the Manager of the Nehmer Division) who had sent me 2 IRIS responses and the claim I have pendng is no longer at the Buffalo VA and is with a rater already.

I stated to them (they can go 2 different ways on this award) exactly what SMC levels I felt my husband was eligible for and why-by medical evidence.

I presented the Aid and Attendance claims separately focusing solely on the A & A regs and referred them to the clinical record in support of how he fulfilled the regulations for A & A during the same time frame he should have received the M award.

If they dont give me what I want(based on the medical evidence) , I will have a 'reasons and basis' in writing as to why and can continue from there and will obtain an IMO if I need one.

My husband ,with over 300% SC under both direct SC and over 300 % 1151 SC has Never been considered properly by the VA for SMC at all.

PS when I asked them to CUE themselves I got another DR0 review immediately- but this time my vet rep was present and he buggered that up-(helped the DRO bugger it up I should say) He questioned the lack of SMC consideration in my 1997 award but never advised me to file NOD, I didn't know then what I know now.He has since been demoted.

Edited November 27, 2010 by Berta

[broncovet]

Berta,

I am not sure how you "bypassed the RO" unless you mean skipping DRO review and going from denial to BVA.

I think I understand what you are saying about the "staged ratings"...you indicate the medical evidence was just not there to go back to 1988 for SMC M.

I beleive it was Katrina Eagle (the lawyer for Veterans) who said to not say anything in your NOD (or other VA correspondence) that does not "further" you position of obtaining additional benefits. I think I made that mistake. I pointed out errors the VA made, even tho correcting them was not going to produce any additional benefits.

I do think it is possible that the VA sometimes awards more than you expect. Years ago, in sales training, they taught us that the guy that brings up the numbers first, looses. You always want them to suggest a number, or, if you have to suggest a number make it way more than what you expect.

Just one example of this was overstock.com. They would say, this item sells for $999. Our regular prices is $499, but if you purchase in the next ten minutes its just $299. They always "plant a number in your head higher than what they want, so then when you go down to the asking price, it seems low". Oh, yes, and overstock .com got sued, because their 999 item was for sale by competitors for 175, and was never priced at 999. Overstock.coms excuse was that all companies do the same. Im not suggesting you lie..ever..not that you would follow that suggestion anyway. But you can tell the truths that are beneficial to you. Example:

Even tho the Veteran had disabilities so severe they eventually caused his death suggesting the maximum Special Monthly Compensation (N), the Veteran can clearly demonstrate that the medical records on....date suggest that a minimum of SMC M is supported. Even tho Dr. JJJJ s report suggests a level of SMC M is warranted on that date, this does not mean he did not suffer similar symptoms earlier. In fact, this is precisely why he went to the doctor, because he had previously suffered the symptoms. .....

In the case of SMC, these are supposed to be inferred, and the Veteran is not required to claim them, that is, there is no "claim date" but the effective date will be established by "facts found". Just because the doctor reports that he had those symptoms on that date, does not necessarily mean that is when his symptoms began.

This was discussed on another forum. The VA classically uses the C and P exam date as an effective date for increase. However, the Veteran DID NOT get sicker at the C and P exam..this suggests the C and P examiner made the Veteran sick!

Instead, the C and P examiner NEGLECTED to give an effective date by stating something like.."The Veteran has been experience these symptoms since ........ date." Rather, the C and P examiner says nothing, and the VA assumes the date of exam is the date the symptoms began.

Im guessing this will work for the VA. You know they are going to "cut" whatever you ask for, so ask for much more than what you want.

[68mustang]

Berta..

I just would comment that someone posted to the effect that "M21's" are not regulations that the court enforces. I have not seen a single CAVC case where it cited regulations from M21. Further, even the 38CFR's are supposed to be supported by USC regulations.

Also, it would appear that trying to get "staged" ratings may not produce the best result for you. In other words, if you applied for the maximum benefit, at the earliest effective date, then let the courts "stage" the ratings according to "the facts found".

In other words, if you could get SMC M back to 1988, why would you want less?

Maybe my ignorance is showing...just trying to help.

broncovet

I posted the following a while back on M21 adjudication. Don't know if this is what you are talking about.

68mustang

http://www.bva.va.gov/docs/VLR_VOL1/vlr1parker.pdf

[Berta]

That PDF file is a very good legal analysis.

It makes my point better than I did:

"

19 “Manuals are designed to provide procedures for benefit payments and, in general, for all the

work everyone in VA does. They provide uniform procedures for all offices in the application of

laws, regulations and development activities.” Id. ¶ 3.03(b)(1) (emphasis added).

20 Id. ¶ 3.04 (“M21-1 deals specifically with the adjudication of claims for compensation, pension,

and related benefits within the province of the veterans service center.”).

21 Fast letters are administrative circulars published by the Director of the VBA Compensation

and Pension Service that are designed to transmit information and instructions to local VA offices

about VA programs and projects, but include information about legal changes affected by other

authority that affect VA.

22 Training letters are administrative circulars published,,,,,," etc

I have used them all 38 CFR, 38 USC, M21-1MR, Training letters and directives in order to succeed in my claims.

Broncovet asked:

"I am not sure how you "bypassed the RO" unless you mean skipping DRO review and going from denial to BVA."

I was eligible for the REPS benefit when I won my last claim. The 800# operator told me there was a notation on the PC and in my C file NOT to send me the REPS application.

I contacted REPS myself ,they faxed me the new REPS app (the one n my file was there since 1995) and I sent them the SSA info they needed and got my REPS award.This was a significant 5 figure award and the VA should have advised me of it in the direct SC death award letter but they didn't.

They also should have advised me in that letter of the additional funeral expenses they owed me and they didn't.

I wrote to the VARO which handles these awards (Phila VARO),sent them what they needed, and got my money in a fdew weeks.

VA also failed to give me and my daughter a new delimiting Chapter 35 date and they didnt even address that either in the SC award letter.

I contacted VA Edu and not only got the new entitlement date squared away with the new certificate (and years more of CHapter 35) I also got the 6000 I had paid as tuition to AMU after the first entitlement date ran out.It only took a few weeks to resolve that issue.

The new award letter failed to mention or direct me at all there but I dealt directly with Chap 35 VA Educational Dept in NY instead of the RO claims department.

VA failed to advise me as to CHAMPVA eligibility but I already have that so maybe that is why.

VA also would not even mention a high five figure FTCA offset they owed me.

This offset was clearly due to me by established VA case law and regs and the BVA in an older case I had years ago pointed out this offset was due to me if I ever succeeded in direct cause of death.

I tried to get the VARO to resolve the offset issue and they said I was wrong about it.

I went to the Regional Counsel VA here in NY and he too said I was wrong.or-if in fact O Was corre4ct, they ad no jurisdiction in Buffalo over smething like that . (Yes they do-he was wrong)

I went to the Office of General COunsel and after 3-4 letters and many phone calls of BS saying I was wrong-they turned me over to a top well known VA OGC attorney who said I was right,and he sent the VARO a letter to this effect quotoing the same laws and regs I had done all along-and the check was in the mail.

All this transpired a few months ago and the VA would have kept almost 100 thou (maybe more) if I had not known what they owed me and then made sure I got it.

The Buffalo VARO has treated me like crap from the day they VA in DC admitted to malpractice.13 years ago.

I don't care if they continue to treat me like crap as long as they eventually cough up the dough.And luckily I bypassed this RO for the above ancillary benefits.

What they did to my husband was despicable and the day he died he wanted assurance from me that I would go after them if he suddenly dropped dead. I said "Oh honey the VA isnt going to kill anyone." He dropped death a few hours later.Death by VA.Now death due to AO. There is Honor in that.No honor in any FTCA award.

What gets me Broncovet is that not only do widows often get lousy service from the VA, but there are plenty of Vet reps and SOs out there who mistreat widows and take advantage of the state of mind we are in because of our grief.Many of them really don't understand the DIC regs either.

It is up to us all veterans and survivors alike, to know the regs they must apply to our claims and make sure they do it.

I might well have even have a cause of legal action (damages) against a former vet rep but I expect that situation to be resolved by VA. If not I will talk to me lawyer.

You have no idea how happy I am to know my current claims are at the Phila PA VARO and not at my AOJ of Buffalo.

They-Buffalo-per IRIS already lost my initial AO IHD claim and the medical evidence for it.They lost it by end of August. They didnt waste time on that.

I just sent it all again to VARO Phila directly to the VSM who told me the other claim is on a raters desk.

Edited November 28, 2010 by Berta