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Bva Denied My Smc For 100% + 60% "s" Award . . .

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Philip Rogers
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Philip Rogers Grand Master

Philip Rogers

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My atty(I wasn't needed) had the staff conference, Monday. They, the CAVC court clerk, the VA atty and my atty agreed that I probably had a case for an EED on my diabetes claim (w/no cash payment change) and better evidence of HB back in the late 1990's, which my atty feels, at minimum, rates a staged rating for an SMC "s" award, back then. So now I'll just wait until the case is heard. I'm guessing I'll win a remand and a decision by late 2015 or 2016, if I'm still alive. Anyway, I'll be installing a new flagpole to fly my American flag, upside down, for the next 4 yrs!!! And life goes on . . . jmo

pr

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broncovet Grand Master

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Ok..PR...I will bite. How do you "stage" a SMC S rating? You either get it or you dont, but you dont get 30% SMC S, and then 70% SMC S.

Also, why would eed for your diabetes claim NOT change monetary compensation? Usually, if an issue is "moot" then the court so states.

In other words if you are not eligible for SMC S, then it would be moot for you to be 100% instead of IU. However, I recently did get the BVA to admit it "was not moot" if my effective date of IU was earlier than my effective date of 100%.

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Philip Rogers Grand Master

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Ok..PR...I will bite. How do you "stage" a SMC S rating? You either get it or you dont, but you dont get 30% SMC S, and then 70% SMC S.

Also, why would eed for your diabetes claim NOT change monetary compensation? Usually, if an issue is "moot" then the court so states.

In other words if you are not eligible for SMC S, then it would be moot for you to be 100% instead of IU. However, I recently did get the BVA to admit it "was not moot" if my effective date of IU was earlier than my effective date of 100%.

bronco - Ya got me! I have no idea. Since my HB claim goes back to 1989 and HB is assumed to be permanent, I'm guessing they might award about 10-12 earlier years and then take it away. I think I can still win it all. According to my atty the combined ratings table is arbitrary, with no law behind it. I kinda disagree but we'll where it goes and meanwhile I'll see what I can do to provide additional evidence. jmo

pr

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broncovet Grand Master

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Of course...they would "stage" (Fenderson) rate your SMC S by, instead of awarding it back to 1989, they "pick" a later date. That is going to be hard for them to do, in light of regulations requiring them to infer SMC whenever you meet the criteria. I will speculate you dont meet the "housebound in fact" criteria, and are seeking HB strictly on statuatory (100 plus 60) housebound. However, if you do feel you meet the "housebound in fact" criteria, then it may be a mistake not to persue that as well. I can, however, see an advanatage in appeals for NOT mentioning eligibility to "housebound in fact". That is, if the VA does not consider both criteria for housebound, that should be, at a minimum, a cause for remand to consider you for housebound in fact, even if they deny statuatory housedbound, for example, by trying to combine your ratings instead of adding those over 100%.

A remand always gives you the opportunity to submit new evidence, and have it considered at the beginning of the appeal period (at least that is how I see it)

I dont think there is precedent for staged SMC, BUT, I do know judges have pressure also to "dispose" of the case. The judge does not want lengthy litigation.

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Philip Rogers Grand Master

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Okay, received a letter, today, from my Attorney(s) that they've secured a preliminary agreement, w/the VA, to remand my claim of entitlement to SMC, from the CAVC to the BVA for reconsideration. Now I just have to wait and see what happens. I'm pretty sure it'll be awarded, just don't know how much or how long.

pr

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carlie Grand Master

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Okay, received a letter, today, from my Attorney(s) that they've secured a preliminary agreement, w/the VA, to remand my claim of entitlement to SMC, from the CAVC to the BVA for reconsideration. Now I just have to wait and see what happens. I'm pretty sure it'll be awarded, just don't know how much or how long.

pr

Damn Flip - your moving quicker than Beverly did !

Carlie passed away in November 2015 she is missed.

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