I Guess I Won Something!

[Philip Rogers]

hawkfire27 - I'm not sure at this point if the VA would consider the failure to "imply" HB/A&A as a CUE or an open claim. Personally I'd approach from both points, thereby allowing the RO to decide and protecting yourself from further aggravation. Either way, go get 'um!!! jmo

pr

We are also looking at a CUE regarding SMC going back to 1988 when my husband recieved 100% for PTSD. It was never taken into consideration at all. The PTSD claim has already had 3 CUES granted with adjusting effective dates, and not once did SMC or A&A come up.

Thankfully we also have an IHD with nehmer going back to 1996 which the C&P exam put at about 60-100% so if the CUE fails then we should get SMC statutory HB with this rating from 1996 anyway.

Hadit has been so great. We have both learned so much. Finally my husband is getting the benefits he earned. Thanks to everyone again!

[Philip Rogers]

WAC-Vet75 - they refer to both 38 CFR 3.350 and 38 USC 1114(s) and close w/the statement "The Veteran has one disability, PTSD, w/alcoholism, rated as 100 percent disabling and additional disabilities that combine to 50 percent disabling."

My disabilities consist of PTSD 100%, DM II 20%, Hypertension 10%, tinnitus 10%, right lower extremity peripheral neuropathy 10%, left lower extremity peripheral neuropathy 10% and ED rated 0%. I can just imagine how much they have cost other veterans!

pr

PR.....looks like the fight is on!!! Did they state what law/regulation they used in the denial for the 100% plus 60%? NOW, it becomes a matter of what the law says, and giving good argument concerning the "intent of Congress".... this is EXCITING!! With the wording of the laws/regulations, concerning basic compensation rates, SMC rates, sure looks like you will be setting precedent!!!! They HAVE to follow the law/regulation, and they have not. Now, we have to hope that the CAVC finds this case as "interesting", and pulls it up on docket sooner.

Edited March 13, 2011 by Philip Rogers

[Philip Rogers]

Thanks, carlie, I agree, it's money in the bank, but w/no interest. I'm hoping to resolve the 100+60 locally, without going to the BVA. As for the 21yr old HB/A&A claim, I'll win eventually.

pr

pr,

That's what I was thinking on the recent bank deposit.

I think the 100 + 60 deal will win at BVA - just some 'mo money' to look forward to down the road : - )

[Tbird]

Wonderful news PR, I am very happy for you.

[Philip Rogers]

Berta - as always, thank you!!! I haven't had the time yet to review the cases and didn't want you to think I was ignoring you and your help!!!

pr

To add:

my SMC CUE is for Accrued benefits. I think VA probably makes any errors in SMC accrued decisions.

This claim is similiar to some degree:

http://www4.va.gov/vetapp09/files1/0900129.txt

THE ISSUE

Whether there was clear and unmistakable error (CUE) in a

February 15, 1997, rating decision, which denied entitlement

to a higher level of special monthly compensation based on

the need for aid & attendance under 38 U.S.C.A. § 1114®(2),

for accrued benefits purposes.

ORDER

A February 15, 1997, rating decision, which denied

entitlement to a higher level of special monthly compensation

based on the need for aid & attendance under 38 U.S.C.A.

§ 1114®(2), for accrued benefits purposes, was clearly and

unmistakably erroneous.

http://www4.va.gov/vetapp09/files1/0900129.txt

[WAC-Vet75]

WAC-Vet75 - they refer to both 38 CFR 3.350 and 38 USC 1114(s) and close w/the statement "The Veteran has one disability, PTSD, w/alcoholism, rated as 100 percent disabling and additional disabilities that combine to 50 percent disabling. My disabilities consist of PTSD 100%, DM II 20%, Hypertension 10%, tinnitus 10%, right lower extremity peripheral neuropathy 10%, left lower extremity peripheral neuropathy 10% and ED rated 0%. I can just imagine how much they have cost other veterans!

pr

OMG, they actually stated it!!! You have them! There is nothing in either of those laws/regulations stating "combined"!!!!! They are making an "assumption", interpreting the law how they want to, and legally, they can NOT. Now, the race is on...... Will their own Counsel pick it up, or will they wait until it goes before the CAVC? I would suspect that if there is any way they can get out of it going to CAVC, ie., giving you an increase in one of your other disabilities, they will, to prevent CAVC ruling on it. Yes, how many of our comrades have been ripped off of what they are rightfully entitled to?!