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Jim 501st

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I read the post on EED, and thought I would ask a question on the subject.

I am currently rated 100% Meniere's

50% ptsd

10% each knee with bilateral

I am attaching a portion of a letter I sent to my lawyer yesterday and would like to know if you Guys think it has legs.

We are anxiously awaiting our case to get back to the BVA for a decision on additional 100% or IU in reference to the three c & p s I had performed at the -------VAMC for hearing, general physical and PTSD. I know my C file can be only be at one place at a time and it is being held at the ---------RO awaiting DRO review on SAH claim. Do you have any idea when this DRO review may transpire? Our intentions are to spend the winter in Florida from January to April.

When my case goes back to the BVA, I would like you to consider the facts below and see if you think they have any merits. This is concerning SMC's L 1/2 that your firm helped me get. They backpayed me to the date that we filed for SMC; however, if we go back to the C & P for Menieres Disease performed on January 7, 2008, the C & P doctor named ------------- admitted that my C & P report under Physical Exam portion that there are signs of a staggering gait or imbalance? Answer Yes.

Other Findings:

Veteran has difficulty getting out of chair. He has a noticeable gait disturbance and leans toward the left. His wife was with him today.

Summary of All Effects on Occupational and Daily Activities:

Diagnosis: Menieres Disease

Effects of the problem on Occupational Activities: Dizziness, general occupational effect: not employed, receiving SS disability for back condition.

Are there effects of the problem on usual daily activities: yes

Describe others: This veteran has a gait problem that would prevent him from performing many activities of daily living without assistance.

At the end of her C & P report, the doctor denied service connection for all the above. The BVA judge at our hearing service connected the Menieres Disease and I was

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backpayed 100% to the date that I filed for Menieres Disease. We then filed for SMC and was assigned L 1/2 and backdated to the date that I filed. After reviewing Dr. ------------------C & P report, she clearly states in her physical exam portion that I needed assistance for daily living at that time.

I understand you normally receive SMC's from the date you file for them; however, in this case, I wonder if a presumption of inferred claim should not be in effect and backdated to at least the date of this C & P, January 7, 2008, or the date in 2007 that the Regional Office awarded me 100% for Menieres Disease, probably based on these C & P results.

I would appreciate the BVA Judge being made aware of all the facts mentioned above if you think they have merit.

-----------------

DOB: 1/15/43

File No. ----------------------

My point is I could not file for smc's until the BVA Judge service connected it and the RO approved my claim at 100%. If the c&p Dr had service connected at the time I would have filed for smc's. I did apply for and was awarded aide and attendance as soon as I got the 100% award.

Jim 501st

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Your SMC should go back to the date you filed for the conditions that led to your getting service connected. The C&P exams were part of claims process. You are not supposed to have to file for a SMC.

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I'm not being a nay - sayer on the issue/s, just want to post that

when we are at higher levels and file for something else, it does allow the

VBA a chance to review everything.

From what I've been reading and hearing these days - I'm just throwing out

a tid-bit of caution to all, and I hope it goes well for you.

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"My point is I could not file for smc's until the BVA Judge service connected it and the RO approved my claim at 100%. If the c&p Dr had service connected at the time I would have filed for smc's. I did apply for and was awarded aide and attendance as soon as I got the 100% award."

SMC is mandated that the VA MUST consider it whenever the medical evidence warrants it.

I have 2 CUE claims pending on this mandate as not being considered in two award letters I received for posthumous decisions.

The dopes---ooops the VA ---- even stated n one effort to deny my claim-that my husband had never asked for SMC consideration yet I responded that there s no reg in 38 USC/CFR requiring the veteran to ask for SMC consideration as his established disabilities warranted it.

They gave wrong diagnostic code for his 1151/now AO SC stroke and no rating at all for his FTCA,1151, now AO SC IHD.

"backpayed 100% to the date that I filed for Menieres Disease. We then filed for SMC and was assigned L 1/2 and backdated to the date that I filed. After reviewing Dr. ------------------C & P report, she clearly states in her physical exam portion that I needed assistance for daily living at that time. "

Is that claim still in appeal or is the appellate period over and if so, has your lawyer suggested filing a CUE?

One thing about CUE claims- the medical evidence must be clearly established at time of alleged CUE.

What I mean is this:

Husband had 100% P & T for PTSD.Posthumous Award 1997.

Then VA awarded on the 1151 claim as to wrongful death (DIC)7 months later.1998

They rated his 1151 stroke wrong at 80% under 1151 but even with that error in rating-they should have considered and awarded at least the "S" award.

1151ers are as entitled to SMC as everyone else.

I sent VA the regs on that and some BVAexamples as well as an OGC pres op.

The Stroke should have been rated 100% and was directed SCed in my 2010 award.

His fatal IHD ( the cause of his wrongful death (FTCA/1151) was completely ignored on the rating sheet yet clearly SCed under 1151 in the narrative.

His IHD also was directly SCed in the BVA award letter of last year.

I am hoping the Nehmer AO people figure it out right. The CUEs are still pending.

Your medical evidence seems solid Jim-I just wanted to make this point again on established medical evidence.

In my case, some of the medical evidence might have still been in Washington ( Office of General COunsel FTCA) when the 1998 decision was made and VA didnt mention SMC at all.(Yet the chilling statement they made had to come from the results of the FTCA doctors as it was almost verbatim of what one doctor stated)

Still I sent to VA their regulation that states as long as the evidence is in VA's possession- it doesn't matter where it is- if the medical evidence warrants SMC consideration.

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I am a bit confused so please bear with me ...

I understand that you are being compensated at the SMC L 1/2 level, correct?

If so, why is Individual Unemployabilty an issue? If you are at 100% for another condition Meniere's Disease?), the issue of IU is moot (unless there is something of a historical nature that I'm unaware of).

On what basis are you applying for an additional 100%? You seem to have a good handle on SMC so you probably already know this: an additional, independent 100% grants a step increase in SMC, or perhaps in your case to SMC L 1/2 (if you aren't pursuing an increase for PTSD) from 38 CFR 3.350(f)(4) http://www.benefits....ART3/S3_350.DOC

I read the post on EED, and thought I would ask a question on the subject.

I am currently rated 100% Meniere's

50% ptsd

10% each knee with bilateral

I am attaching a portion of a letter I sent to my lawyer yesterday and would like to know if you Guys think it has legs.

We are anxiously awaiting our case to get back to the BVA for a decision on additional 100% or IU in reference to the three c & p s I had performed at the -------VAMC for hearing, general physical and PTSD. I know my C file can be only be at one place at a time and it is being held at the ---------RO awaiting DRO review on SAH claim. Do you have any idea when this DRO review may transpire? Our intentions are to spend the winter in Florida from January to April.

When my case goes back to the BVA, I would like you to consider the facts below and see if you think they have any merits. This is concerning SMC's L 1/2 that your firm helped me get. They backpayed me to the date that we filed for SMC; however, if we go back to the C & P for Menieres Disease performed on January 7, 2008, the C & P doctor named ------------- admitted that my C & P report under Physical Exam portion that there are signs of a staggering gait or imbalance? Answer Yes.

Other Findings:

Veteran has difficulty getting out of chair. He has a noticeable gait disturbance and leans toward the left. His wife was with him today.

Summary of All Effects on Occupational and Daily Activities:

Diagnosis: Menieres Disease

Effects of the problem on Occupational Activities: Dizziness, general occupational effect: not employed, receiving SS disability for back condition.

Are there effects of the problem on usual daily activities: yes

Describe others: This veteran has a gait problem that would prevent him from performing many activities of daily living without assistance.

At the end of her C & P report, the doctor denied service connection for all the above. The BVA judge at our hearing service connected the Menieres Disease and I was

Page Two

--------------

backpayed 100% to the date that I filed for Menieres Disease. We then filed for SMC and was assigned L 1/2 and backdated to the date that I filed. After reviewing Dr. ------------------C & P report, she clearly states in her physical exam portion that I needed assistance for daily living at that time.

I understand you normally receive SMC's from the date you file for them; however, in this case, I wonder if a presumption of inferred claim should not be in effect and backdated to at least the date of this C & P, January 7, 2008, or the date in 2007 that the Regional Office awarded me 100% for Menieres Disease, probably based on these C & P results.

I would appreciate the BVA Judge being made aware of all the facts mentioned above if you think they have merit.

-----------------

DOB: 1/15/43

File No. ----------------------

My point is I could not file for smc's until the BVA Judge service connected it and the RO approved my claim at 100%. If the c&p Dr had service connected at the time I would have filed for smc's. I did apply for and was awarded aide and attendance as soon as I got the 100% award.

Jim 501st

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am a bit confused so please bear with me ...

I understand that you are being compensated at the SMC L 1/2 level, correct?

If so, why is Individual Unemployabilty an issue? If you are at 100% for another condition Meniere's Disease?), the issue of IU is moot (unless there is something of a historical nature that I'm unaware of).

On what basis are you applying for an additional 100%? You seem to have a good handle on SMC so you probably already know this: an additional, independent 100% grants a step increase in SMC, or perhaps in your case to SMC S 1/2 (if you aren't pursuing an increase for PTSD) from 38 CFR 3.350(f)(4) http://www.benefits....ART3/S3_350.DOC

As I said before my case is a bit confusing:

The BVA Judge service connected Meniere's and sent it back to the RO to rate. Due to the c&p exam, they assigned me 100% back dated to the date I filed, which was the middle of 2007.

She also remand several issues Including left knee which was granted, Also IU. The ask a specific question. ( Was this Veteran unable to work prior to 2007) I had three c&p's on the same day. One for hearing which the c&P DR. said my hearing alone made me iu,. This is insignificant as it only took me back to the same date I was granted P&T. I'll skip to the PTSD The Shrink who did this C&P stated I was iu due solely on ptsd and gave me a gaf of 40. He also made reference to another C&P I had in 2005 for ptsd where that Dr said I was unable to work due solely to ptsd. ( the RO low balled me and gave me 50% at that time). This claim was filed in 2004 which if granted the VA would have to pay me the difference of 50% to 100% from 2004 to 2007 when they gave me 100% for meniere's, but more important to me it would reset the 10 year clock back to 2004 for DIC purposes.

Just for the record the third Md also said I was IU prior to 2007 for all the medical conditions conbinded.

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Thank you for the update, that the IU issue is for historical rating purposes.

am a bit confused so please bear with me ...

I understand that you are being compensated at the SMC L 1/2 level, correct?

If so, why is Individual Unemployabilty an issue? If you are at 100% for another condition Meniere's Disease?), the issue of IU is moot (unless there is something of a historical nature that I'm unaware of).

On what basis are you applying for an additional 100%? You seem to have a good handle on SMC so you probably already know this: an additional, independent 100% grants a step increase in SMC, or perhaps in your case to SMC S 1/2 (if you aren't pursuing an increase for PTSD) from 38 CFR 3.350(f)(4) http://www.benefits....ART3/S3_350.DOC

As I said before my case is a bit confusing:

The BVA Judge service connected Meniere's and sent it back to the RO to rate. Due to the c&p exam, they assigned me 100% back dated to the date I filed, which was the middle of 2007.

She also remand several issues Including left knee which was granted, Also IU. The ask a specific question. ( Was this Veteran unable to work prior to 2007) I had three c&p's on the same day. One for hearing which the c&P DR. said my hearing alone made me iu,. This is insignificant as it only took me back to the same date I was granted P&T. I'll skip to the PTSD The Shrink who did this C&P stated I was iu due solely on ptsd and gave me a gaf of 40. He also made reference to another C&P I had in 2005 for ptsd where that Dr said I was unable to work due solely to ptsd. ( the RO low balled me and gave me 50% at that time). This claim was filed in 2004 which if granted the VA would have to pay me the difference of 50% to 100% from 2004 to 2007 when they gave me 100% for meniere's, but more important to me it would reset the 10 year clock back to 2004 for DIC purposes.

Just for the record the third Md also said I was IU prior to 2007 for all the medical conditions conbinded.

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