Smc Do I Need To Submit Claim

[GlassRose1500]

This has been a really helpful thread for me as well, Thanks!!! But now the challenge will be pulling together the right words for the NOD (I'm going the NOD route because the notification date of my 90% TDIU was less than a year ago).

Any ideas about where I might find language to support my NOD (in particular the VA's obligation to adjudicate A&A, explicitly covered in claim, and additional SMC, implied but not explicitly addressed in claim)?

70% MDD (New)

40% Spine (up from 20%)

30% Migraines (New)

20% LRE Radiculopathy (up from 10%) bilateral factor)

10% R Knee Arthritis (New - bilateral factor)

10% L Knee Arthritis (New - bilateral factor)

= 92% rounded down to 90% but TDIU

Dropped R Knee Pain (was 10%)

Dropped R Knee Instability (was 10%)

Dropped L Knee Pain (was 10%)

Dropped L Knee Instability (was 10%)

No language about LLE Radiculopathy or A&A, which were clearly addressed in claim

There is an error in the findings language (a discrepency between the number of migraines per month - in one place (where they review the medical findings and rationale for rating) the frequency is documented correctly, and in another (the rating language itself), it is not documented correctly, which should lead to an increase in migraine percentage.

There is clear and compelling evidence from the file at that time and even more clear and compelling evidence since that the reduction in knee percentages is bs. If anything the arthritis should have been added, not put in place of the 10+10+bilaterally for pain and loss of stability per knee.

But I don't know that I'll tackle either of those in my NOD (I'm already being paid at the 100% rate) ... but rather just go after the No Decision on A&A (explicitely requested) and the No Decision on inferred SMC. I'm going to have to search for the location of the code or precedent case that says they are obligated to adjudicate SMC under these conditions (cause my DAV guy was no help there - he said they were not required to adjudicate anything that isn't explicitely named in the claim and refused to discuss it further). I have solid evidence, including a VA provided home health aid for three days per week to cover when my husband is not home.

Edited August 18, 2014 by GlassRose1500

[Rob402]

The VA is required to consider SMC if they grant a "total and permanent" 100% rating.

then file a NOD challenging the effective date using the argument that the VA should have inferred SMC from a grant of 100% permanent and total disability.

Chris, could you please point me to the sources for the above suggestions, whether that be code, case law, or both. Would be much appreciated.

[carlie]

This has been a really helpful thread for me as well, Thanks!!! But now the challenge will be pulling together the right words for the NOD (I'm going the NOD route because the notification date of my 90% TDIU was less than a year ago).

Any ideas about where I might find language to support my NOD (in particular the VA's obligation to adjudicate A&A, explicitly covered in claim, and additional SMC, implied but not explicitly addressed in claim)?

70% MDD (New)

40% Spine (up from 20%)

30% Migraines (New)

20% LRE Radiculopathy (up from 10%) bilateral factor)

10% R Knee Arthritis (New - bilateral factor)

10% L Knee Arthritis (New - bilateral factor)

= 92% rounded down to 90% but TDIU

Dropped R Knee Pain (was 10%)

Dropped R Knee Instability (was 10%)

Dropped L Knee Pain (was 10%)

Dropped L Knee Instability (was 10%)

No language about LLE Radiculopathy or A&A, which were clearly addressed in claim

There is an error in the findings language (a discrepency between the number of migraines per month - in one place (where they review the medical findings and rationale for rating) the frequency is documented correctly, and in another (the rating language itself), it is not documented correctly, which should lead to an increase in migraine percentage.

There is clear and compelling evidence from the file at that time and even more clear and compelling evidence since that the reduction in knee percentages is bs. If anything the arthritis should have been added, not put in place of the 10+10+bilaterally for pain and loss of stability per knee.

But I don't know that I'll tackle either of those in my NOD (I'm already being paid at the 100% rate) ... but rather just go after the No Decision on A&A (explicitely requested) and the No Decision on inferred SMC. I'm going to have to search for the location of the code or precedent case that says they are obligated to adjudicate SMC under these conditions (cause my DAV guy was no help there - he said they were not required to adjudicate anything that isn't explicitely named in the claim and refused to discuss it further). I have solid evidence, including a VA provided home health aid for three days per week to cover when my husband is not home.

Rose,

What SC'd condition/s do you feel will make you eligible for A&A ?

[GlassRose1500]

I receive A&A services (not compensation) the 3 days per week my husband is not home for SC spine, knee, migraine and medication side effect related impact to ambulation, food preparation, and basic adls for which I require assistance or I could not perform. The VA HBPC occupational therapist performed an evaluation detailing areas I needs assistance with and cited the SC conditions as the cause.

Thanks for asking :)

p.s. I shouldn't have posted this here, so I created a new post to reframe the question.

Edited September 4, 2014 by GlassRose1500

[Pete53]

It has been my experience that the VARO rarely looks at SMC unless you request them to do it.

[Rotor Head]

Keep in mind that a single 100% rating is generally a prerequisite for SMC's. (SMC K and SMC S based upon Bradley v Peake are exclusions) It does not mean that you can't be awarded with a combined rating of 100%. However, it is an exception and must come from the C&P director in DC. Making it a rare occurrence.