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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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sammy

Va Dr Stated Tbi - Never Sent For Tbi Test - Cue?

Question

My husband has an anoxic brain injury.

He has been 100% service connected for Dementia but I recently reviewed his C&P exam.

The neuropsyce was asked if the veteran has a TBI and he answered YES. He was never sent for a TBI exam. Would this be considered Cue under 38 CFR 4.20 which talks about analogous ratings.

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Carlie,

Regarding your earlier post about the R for R having a decision on it prior to the expiration date of the timely NOD.

I have a sense it will not be addressed according to ebenefits.

Can I still file a timely NOD for a higher rate of SMC?

Just for clarity - was a higher rate of SMC addressed and denied in a rating decision -

I read the uploads but can't remember.

Also - just my 20 bucks worth but I do not think the reg for analogous ratings will apply

in this situation, as I understand it.

The way I am understanding the situation is that VA has provided compensation

under the for anoxia brain injury (from myocardial) under the DC for dementia,

as a unlisted condition.

I do not know how this will play into SMC levels and wish I could be more helpful.

I don't know - I sure might be off on this one.

§ 4.20 Analogous ratings.

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.

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Carlie,

No a higher rate of SMC has not been denied yet...I only sent in a RECONSIDERATION which will not be answered until after my timely NOD date.

Wow, the rest of your answer is very deep.

Thank you!

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I think ,if VA only paid for the SMC at the “S “level, they have made an error in this decision.

And the retro.

As I understood the decision, VA had rated your husband at 100% SC for dementia and then rated him at 100% SC for the heart condition.... as two separate system ratings.

Also they awarded him SMC “S” under the A & A regulations.

And then they mentioned the “additional full step” , and I can only assume maybe they meant SMC “M”, as this regulation in M21-1MR shows,

but I dont see any mention of SMC “M” at all in the decision and now wondeer if they should have granted him SMC “M” and paid for that as well.

SMC “M” ,as the SMC comp chart here shows, is a very high level of SMC.

When I read this I recalled that I felt my evidence showed my husband (100% PTSD and 100% CVA) was eligible for SMC M under this reg but they awarded him SMC HB (Housebound) instead of A & A.I filed a CUE claim on that decision for a different reason ,but that could potentially award the M award , as well as the proper retro, and that decision will be interesting.and helpful to others here I am sure.

I almost forgot about this regulation that is explained in M21-1MR.

I suggest that you send this regulation to the VA to support your reconsideration request but if that request does Not involve the SMC issue I raised here under the regulation, I suggest you either NOD that specific part of their decision that only granted the A & A award or read my template as to how to get the VA to CUE itself, during the appellate period.

and, hopefully, you have a vet rep that can take a look at this reg and the decision and maybe others here will too, for their opinions.

d. Example 2: Rating Decision With a Properly Assigned SMC Hospital Code

Situation: The veteran has a

  • 100-percent disabling psychiatric condition that does not require A&A, and

  • 100-percent disabling heart condition that does require A&A.

Result: Entitlement under 38 U.S.C. 1114(m) is warranted based upon the need for A&A plus an additional 100-percent disability.

Coded Conclusion: The proper

SOURCE:

41

SMC for Additional 50- and 100-Percent Evaluations Under 38 CFR 3.350(f)(3) and 38 CFR 3.350(f)(4)

2-H-24

M21-1MR, Part IV, Subpart ii, Chapter 2, Section H

(If you google this M21-1MR excerpt the entire topic will pop up and it is Topic # 41.)

I am assuming here that, as I understood the decision, he was rated 100% SC for Dementia as separate from the 100% SC heart condition and that VA only paid for the SMC " S" award and never considered him per the above regulation, the SMC "M" award.

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Berta,

Thank you....both you and Carlie should be attorneys.

Yes, my husband is getting SMC the the M rate.

Here is the breakdown:

K-1. Loss of creative organ

L-1 needing A&A of another person

P-2 (paid at the M rate) I believe this is heart condition and dementia

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Thanks for this info .... Good!

They are rating and paying him properly under the SMC criteria.!!!!!

I think many many errors are often made by VA in calculating SMC levels,so this was my concern.

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