tdiu Smc You Have To Ask?

[WAC-Vet75]

Ok all, I need a good head slapping! I know better, but STILL I had to call the 800# (duh). Philip, I sooooooooo feel your pain! Here we go....

When I have called, they would tell me that I am 90% combined. I've been 100%TDIU P&T since 1993 (granted P&T in 2008, dated back to 93, according to the 800#). Today, when I questioned why I am being shown as 90% combined, instead of 100% plus the additional disabilities, I was told that I am not 100%, I'm 90% combined. I questioned the TDIU, and it was agreed I was 100% TDIU, so I asked why the other disabilities weren't considered for SMC. I was told because I didn't have a 100% rating! I was then told that the 100% TDIU was a SEPARATE rating, and that in addition to the 100% TDIU, I have a combined rating of 90%! UGH!! When I questioned WHY I did not receive, or was even informed eligibility to SMC was possible, I was informed that I had to ASK for it! I questioned that the 70% that was used for the 100% TDIU, and was informed (a number of times in the conversation), I was told that the TDIU is another rating, separated from the 70% (for which it was based). My ratings, as of 1997, are 10%+10% bilateral, 70% (used for TDIU), 20%, 10%, 10%, 10%, 0%. Erroneously combining (as the VA has been doing), would give me the 100% TDIU (based on single disability of 70%) with an additional 54%. The correct rating should be (according to 38 USC 3.350, 38 USC 1114) 100% plus an additional 70%. Yes, the additional disabilities are separate and distinct. So, the 800# insists that I HAD to ask for the SMC, that it is not the responsibility of the rater to either notify you, or to address the issue UNLESS you ask for it! How do you ask for something you have no idea exists? Back in 1993, 1997, I had no idea that you could be eligible for something called SMC?

The 800# had a difficult time understanding that my present claim is for Aid and Attendance, telling me that is for pension. He informed me that my claim, that is pending, could rate me at the housebound rate (SMC s) for the A&A,. Housebound rate is A&A? My 1993 rating, should have been housebound, considering the letter I sent (and the reason I was granted TDIU) back in 1993, stated that I was housebound, could only leave the home with assistance (when I was able to leave the house). I do believe, that would have been considered an inferred claim (correct me if I'm wrong), an unadjudicated claim.

So, who will be the first to offer the well deserved head slapping?! Philip, I'm right there with you brother!!!!!

Edited March 14, 2011 by WAC-Vet75

[Berta]

"was even informed eligibility to SMC was possible, I was informed that I had to ASK for it!"

This is VA Bull Sh-t plain and simple and one tactic VA tried to pull on me for my SMC CUE claim.

I responded to that same statement that the fact remains the VA caused my husband's untimely death (documented FTCA/1151)

and therefore he could not ask for SMC as he didnt live long enough (due to VA health care) to even see his award for 100% P & T PTSD in his lifetime and also he expired before his 1151 claim became my claim,as a re-open , and I proved what he said in his 1151 claim- that the VA would cause his death.

My still unacknowledged legal evidence includes BVA decisions and 2 OGC Pres ops that prove 1151 disabilities can warrant SMC.

These disabilities however all became direct SC ones last year by BVA award so they still have to consider SMC for accrued purposes now under Nehmer.

I also reminded VA that 38 USC 1114 does not require any veteran to have to ask for SMC.

This benefit is a statuatory Mandate that- whenever the evidence warrants SMC should be considered- they will consider it.

Bradley V Peake expanded the definition of 100% to include TDIU for SMC purposes.

"My 1993 rating, should have been housebound, considering the letter I sent (and the reason I was granted TDIU) back in 1993, stated that I was housebound, could only leave the home with assistance (when I was able to leave the house). I do believe, that would have been considered an inferred claim (correct me if I'm wrong), an unadjudicated claim."

Do you have the award letter? I think you should file a CUE on that decision if the established medical evidence they had at that time warranted a HB award.

That bears repeating- if the VA had established medical evidence that indicated HB or A & A was warranted and they did NOT consider SMC at all, that is a CUE.

For example my husband could not drive and the VA van had to pick him up for VA Day Treatment.He needed Day treatment as he could not be left alone and I had a farm to run.There were other reasons too - not for this discussion.

That alone should have triggered them to consider the SMC HB or A & A award.They also overlooked completely the "S" award for 100% plus 60 % or more.

A & A is often misunderstood. The criteria is here at hadit.

A veteran does not have to fit into every part of the criteria.

But they need evidence of what parts they fit into. Spousal statements can also be considered for A & A awards.

Edited March 14, 2011 by Berta

[WAC-Vet75]

Berta, I really think I should get a swift kick for even calling the 800#, as I KNOW better!!!

I can only find the last page of my 100% TDIU from 1993 (I went through that, "I'm tired of this sh*t" stage, and unfortunately trashed a few things I shouldn't have many years ago). The last page does state, "In reaching this decision we considered the following evidence: your outpatient treatment records from the VA medical center in Martinsburg from January 7, 1992 to May 22, 1993: the hospital summary from April 26, 1993 to April 27, 1993; the VA examination from June 24, 1993 to June 29, 1993: the VA Form 21-8940 dated May 4, 1993; VA Form 21-4192 dated July 15, 1993 and July 19, 1993." I am in possession of a copy of the letter, dated 6 Aug 93, sent to the Adjudication Officer, himself (mentioned in first post here). On the last page that I have, it shows enclosures(s) VA Form 4107, so I am assuming this actually is the last page of the decision. I need to get a copy of my C file, but want to wait until after my other two issues are adjudicated.

It's also funny that they call one of my disabilities a "stomach condition", when in reality, I was diagnosed with a gastric ulcer, esophagitis, and reflux within 3 months of military discharge. Not once have they rated the GERD (another CUE in the works). In 2009, I was given another endoscopy, and was told I had a hiatus hernia (apparently it's a slipping one and hence was never noticed before?). During my hospitalization in 76, they even made me part of a study for a new drug for GERD......

Sorry, I digress..... The A&A is presently being adjudicated. Though the Doctor listed that eyesight was 5/200 each, I am not service connected for my eyes, and figure they will disallow that portion. I have MS, and have great difficulty performing certain tasks, many times I am totally unable to perform certain tasks. I had paid someone, for a year, to assist me, but now my daughter has taken over as my caregiver. She has to wash my hair, helps me dress (damn buttons have gotten tricky over the years), prepares meals, I even go through periods that I can not turn a damn door knob (I'm planning on getting them all replaced with levers!). I informed the C&P Doctor of my difficulties, and his report noted it. That's also when I read that horrible word referenced to me...."frail"!

So, don't you agree that I need a slap in the head for calling the 800#?!

Edited March 14, 2011 by WAC-Vet75

[Pete53]

If you are able go to the VARO and look over your C File. Anything you need a copy of they will usually make on the spot for you. After all they are your records

[Philip Rogers]

The VA is "supposed" to consider any additional ratings/SMC without the claimant having to ask. But, as we all know, sadly, it usually doesn't happen, so it's up to the claimant to be proactive, in their claims process. "K," I think they owe you some sizable retro payments.

pr

[carlie]

Not once have they rated the GERD (another CUE in the works).

So, don't you agree that I need a slap in the head for calling the 800#?!

WAC-Vet75,

An issue that has never been rated (adjudicated) does not meet the CUE criteria.

A CUE is filed on a unappealed claim that has become final.

Yes - you need to be slapped for the rest of this entire day :-)