lumbosacral Pls Help Guide Me! Not Sure If Should Nod Or Ask 4 Reconsideration

[GlassRose1500]

This forum has been enormously helpful for educating myself about SMC, but I'm not confident because it's so damned complicated! I've been working on this for a while and I think it's close, but I'd feel better about it if some of you with SMC experience weighed in.

If you could pick apart or confirm my logic AND advise if this should be a NOD or Request for Reconsideration (date of letter was NOV 22, 2013, so I'm running out of time), I'd very much appreciate it! Also, I posted a seperate thread on possible loss of use SMC, which I'm not sure if I should pursue and if so, if I should do so in this document).

Re: Automatic Special Monthly Compensation (SMC) review and entitlements analysis

To whom it may concern:

In reviewing document ###/CORE ##/abc, CCS xxx*xx*xxxx, LAST, FIRST M dated Month ##, 2013, it appears no SMC evaluation was performed, which should have been triggered by the TDIU award, as SMC is "to be accorded when a veteran becomes eligible without need for a separate claim." Bradley, 22 Vet.App. at 294; see AB v. Brown, 6 Vet.App. 35, 38 (1993) (claimant is presumed to be seeking the maximum benefit allowed by law and regulation); see also Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) ("should have inferred from the veteran's request for an increase in benefits . . . a request for [sMC] whether or not it was placed in issue by the veteran").

Entitlement to SMC “Housebound”: 38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a service-connected disability rated as total (or, per Bradley v. Peake, a TDIU rating predicated upon a single service connected disability) and is either house bound in fact, or has additional service-connected disability or disabilities independently ratable at 60 percent or more.

Because entitlement to IU was granted based on my 70 percent depression award (the record evidence referenced above includes the IU examiner’s finding that “employability for both sedentary and physical employment [is] based on [my] mental health symptoms), my remaining independently ratable service connected disabilities are greater than 60 percent, and I am housebound in fact, I should have been granted entitlement to SMC “Housebound” effective the date I became eligible for TDIU.

Entitlement to SMC “Aid & Attendance (A&A)”: Strong record evidence for entitlement to A&A, and in particular A&A at the higher level, exists. The criteria is met based on service connected disabilities, and basic ADL assistance and preparation of food / household chores / yard work is provided around the clock by my husband, who transports me to a medical facility when my needs outpace his knowledge or abilities, a licensed health-care professional provided by the VA three days per week who accompanies me to medical appointments when they fall during her scheduled hours, an Ambulette Driver when I am en route to or from a VA Medical Center, or VA Medical Staff during appointments, procedures and hospitalizations. Without this 24 x 7 aid, I would require in-patient or assisted living.

1. Entitlement to SMC at rating of L ½ or higher:

A. Entitlement to Housebound

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a service-connected disability rated as total (or, per Bradley v. Peake, a TDIU rating predicated upon a single service connected disability for the purpose of considering entitlement to SMC at the (s) rate)

AND:

i. has additional service-connected disability or disabilities independently ratable at 60 percent or more

According to rating explanation contained within the document referenced above and attached as exhibit A, the IU entitlement awarded effective Month ##, 2013 is based on the 70% depression rating awarded on that same effective date.

Additional combined service connected disabilities are > 60%

Chronic Lumbosacral Strain 40%

Migraine 30% (frequency >1 per week should have = 50%, NOD)

R LE Sciatica 20%

R Knee PTC w/limited motion 10%

L Knee PTC w/limited motion 10%

R Knee PTC w/pain 0% (reduced fm 10%, want to NOD)

L Knee PTC w/pain 0% (reduced fm 10%, want to NOD)

ii. OR, is permanently housebound by reason of a service-connected disability or disabilities

I have been housebound, in FACT, since June of 2012. A Functional Independence Measure (FIM) was performed by a certified VA Home Based Primary Care Occupational Therapist on Month ##th of 2012 which found me to require aid and attendance for most activities of daily living (ADLs) due to service connected disabilities, including getting into and out of the tub, lowering and rising from the toilet, getting into and out of bed, reaching and grabbing, and prolonged standing, walking or sitting, and preparing food or performing household or yard chores.

I am physically unable to leave the house without aid. Around the clock care is provided by my Husband, a VA provided Certified Home Health Aide (three days a week), an Ambulette Driver en route to a VA Medical Center, or VA Medical Staff during appointments and hospitalizations.

At the time of the VA IU examination, on Month ##, 2013 at the VA Medical Center, in City, State, the IU examiner documented the following:

“Veteran has moderate to serious difficulty with depression and anxiety; she has intermittent passive suicidal ideation; she has poor motivation and chronic problems with energy / concentration / focus / distractibility / interest / hopelessness / helplessness. She is social withdrawn and periodically does not leave her house for extended periods at a time. She becomes frustrated over her need for her husband to act as a caretaker. She is unable to attend to a number of ADLs … She has withdrawn from activities that she previously enjoyed and frequently avoids family and friends. She has lost a number of friends due to social withdrawal.

B. Entitlement to Aid and Attendance

i. Basic Aid and Attendance criteria (§3.351©(3) The particular personal functions which the veteran is unable to perform should be considered … [t]hey must be based on the actual requirement of personal assistance from others. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need.

a) inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable;

b) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid;

c) inability of claimant to feed himself (herself);

d) inability to attend to the wants of nature;

e) or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.

f) “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed.

Functional Independence Measure (FIM) was performed by a certified VA Home Based Primary Care Occupational Therapist on December 10th of 2012 which found me to require aid and attendance for most activities of daily living (ADLs) due to service connected disabilities, including those related to rising from chairs or bed, dressing, bathing, and toileting, donning and adjustment of prosthetic aids/devices for knees bilaterally, right ankle, tens unit pads, back supports, wrist and hand braces, and device used to deliver hot and cold water to pads at the base of my neck for treatment of migraines). FIM also found I require total assistance with meal preparation, laundry and other chores, walking, and climbing stairs.

I am bed ridden with four to six distinct migraine episodes per month, with each of them costing at least six and sometimes as many as fourteen hours in bed with no light, noise and minimal movement. Knee and spine pain make it difficult for me to get into and out of standard furniture, including the toilet and our bathtub / shower, even with aid.

As a result of my loss of ability to perform these functions due to service connected disabilities, the VA has provided a fully electric hospital bed, swiveling transfer bench for the tub, a raised toilet seat with assist bars, a cane, a rolling walker with seat, prosthetic inserts for my shoes, both a manual and electric wheelchair and ramp, and devices to help me reach items or don some of my clothes without bending at the spine or knees.

The combination of spine and knee pain, migraines, medications, inability to perform ADLs, and depression cause me to strongly desire and in many cases require isolation from people, movement and noise. Bed is where I spend most of my waking hours – it’s where I eat, sleep, read, use the computer or phone, rest, and recover. There is a chair at the end of the bed for my husband or health aide to use when they aren’t providing specific services like help dressing or food preparation.

I am physically unable to leave the house without aid. Around the clock care is provided by my Husband, a VA provided Certified Home Health Aide (three days a week), an Ambulette Driver en route to a VA Medical Center, or VA Medical Staff during appointments and hospitalizations.

ii. Higher level aid and attendance. A veteran is entitled to the higher level aid and attendance allowance authorized by §3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:

a) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p). (I don’t understand this criteria)

b) The veteran meets the requirements for entitlement to the regular aid and attendance

c) The veteran needs a “higher level of care” than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.

Care for basic ADL assistance and preparation of food is provided around the clock by my husband, who transports me to a medical facility when my needs outpace his knowledge or abilities, a licensed health-care professional provided by the VA three days per week, an Ambulette Driver when I am en route to or from a VA Medical Center, or VA Medical Staff during appointments, procedures and hospitalizations. Without this 24X7 aid, I would require in-patient assisted living.

Note Regarding HOUSBOUND: See also 38 C.F.R. § 3.350(i)(2). The term “permanently housebound” is further defined as being “substantially confined to such veteran’s house . . . or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout the veteran’s lifetime.

“Substantially confined” as interpreted in Howell v. Nicholson based on their reading of Thompson v. Brown, (1995); see also Jackson and Cropper, both supra, is considered to be met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all). The court found the Secretary’s supplemental briefing to be “reasonable and consistent with statute and regulations”.

Accordingly, the court held that leaving one’s house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC-HB benefits, and the Board’s interpretation of section 1114(s) to preclude the grant of SMC benefits on the basis of Mr. Howell’s leaving his house in order to attend VA medical appointments was erroneous as a matter of law.

[Vync]

I wish I could assist further, but am not an expert on SMC. Please hang in there. There are a bunch of members who are experts and should be able to read your notes and post their opinion. Good luck!

[GlassRose1500]

Thanks Vync - hope you're right. I'm working on a serious revision - you know how you have to do it in layers... the first "take" is based on an imperfect understanding (seriously imperfect) but as you build it and talk to others about it and do the research, understanding grows (as does the length of the appeal document) which drives even more research and something you read the first time around actually (begins to) make sense?

It's exhausting. I can't take a break from it for more than a day or I will QUICKLY lose the precious little clarity I've gained (Meds, TBI, Age, not lol). But my sleep meds are kicking in so it's good night for me. Thanks again Vync, and cross your fingers that some of the heavy hitters on here will show up with some flashlights and shed some light on this **** for me..

[Berta]

"In reviewing document ###/CORE ##/abc, CCS xxx*xx*xxxx, LAST, FIRST M dated Month ##, 2013, it appears no SMC evaluation was performed, which should have been triggered by the TDIU award, as SMC is "to be accorded when a veteran becomes eligible without need for a separate claim." Bradley, 22 Vet.App. at 294; see AB v. Brown, 6 Vet.App. 35, 38 (1993) (claimant is presumed to be seeking the maximum benefit allowed by law and regulation); see also Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) ("should have inferred from the veteran's request for an increase in benefits . . . a request for [sMC] whether or not it was placed in issue by the veteran")."

If a veteran is eligible for SMC consideration, under the citations you posted here, the VA commits a CUE every time they do not properly consider SMC.

Maybe the info in our CUE forum will help you:

I filed CUE in 1998 on a posthumous award for DIC.

The VA had rated my husband's NSC stroke at 80% and used the wrong diagnostic codes.

He also had as established potmhumous award for 100% P & T for PTSD.

The NSC stroke was a 1151 malpractice issue that VA confirmed in the same decision, along with malpracticed IHD and other "multiple deviations from the standard of care"
that caused his death under 1151 inthe DIC award.

So, they had a 100% SC vet with 80% NSC, "as if" SC (1151) and that equals SMC consideration. They didnt mention SMC at all in the 1998 decision..

I was awarded the Cue on
1. failure to properly consider SMC because the established evidence warrantsed consideration and award.
2. Their 80% rating under 1151 was wrong and they increased it to 100%
3. The diagnostic code errors ...dont know what they did there because I never received a rating sheet.

As evidence I sent them a copy ofthe 1998 decision and a page or two from M21-1MR, part of a page from the VBM by NVLSP, a copy of the 1114, 38 USC regs, and medical evidence of the estabnlished 2 separate 100% disabilities, which was in VA's possession at time of the 1998 decision.

They fixed the 100% 1151 retro and paid it along with with an posthumous award of SMC S (HB).

And it only took EIGHT ----ing years because my VARO does not know how ro read.

The failure to consider SMC, under the SMC regs, is a CUE on it's own But the manifested outcome ( the retro cash the vet or survivor didnt get due to the CUE)
is what makes the CUE valid.

Maybe I am not understanding this correctly.
If you have TDIU or 100% now, it sppears they DEFENITELY should have considered you for SMC S and you could have appealed for A & A and then once a vet gets into the Step SMC criteria, they can often build on those additional types of awarsds under SMC.

I know it IS confusing.

Here is a great explanation by ASKNOD of SMC:



and he posted this at his website a few days ago re: SMC S:

http://asknod.wordpress.com/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

The VA awarded my husband HB, because the VA Van had to pick him up and take him to VA Day treatment a few days during the week.
he could not drive and got too aggressive with me when I drove him, to the VA, because he thought farm tractors were tanks sometimes.

He could not write a check or determine change or the amount on dollars.

He got lost on a day trip when he was in the PTSD 21 day inhouse program.He remembered our phone number and called me up but could not see any names of street signs or stores to tell me where he was in Buffalo.NY.Luckily the VA team leader found him fairly fast.

Also he bent over in a grocery store one day to try to read something and I noticed he had VA pajamas on and not his light blue slacks I thought he had on..

It said Property of the VA in big black letters on his rear end when he bent over. I had sent them a statement to include all that.

These are things VA considers in HB awards. Also VocRehab said his 1151 stroke made continued college unfeasible.They gave him 2 accomodations for his PTSD but after the stroke, he had too many more difficulties, which also warranted the HB award..

One reason this claim took so long is that I asked for a reconsideration, and although VA responded to me a few times, making it look like they were really working on the Recon Request, they were only trying to piss away my NOD time.

Once this claim was set for BVA transfer I was overjoyed!

But Nehmer happened ,it never went to the BVA, and it was the Nehmer people who awarded the CUE because I also had an IHD CUE claim pending too ( for 7 years) on the same decision from 1998 which they awarded as these pending issues pre dated Nehmer 2010 and impacted on the proper Nehmer AO IHD award.

Our member ASKNOD is superb with explaining the convoluted aspects of SMC.

Edited August 27, 2014 by Berta

[GlassRose1500]

Thanks so much for that thoughtful response, Berta. I've read many many many of your post to help me lay a foundation (shaky as it may be) of knowledge sufficient to put down my first draft.

Because I am within the NOD period, I have been advised to use NOD (with DRO) because the result would be the same as a CUE, but faster. Both would lead to SMC S at the least, and if A&A approved L or L 1/2 with the same effective date as my IU award. Do you think that's accurate?

Also, do you think my logic and evidence, aside from CUE vs. NOD is compelling?

Thanks!!!

[Berta]

I do agree with your logic, that the CUE and NOD should produce the same results....I was not completely sure if you were still within the NOD time frame.

And you are and could even ask them to CUE themselves like I did in my more recent pending CUE, but still I had to file a NOD on time and VA says that claim is with a 'specialist' but that might be the person who refills the paper cups, if they have big water dispensers at the VARO.

"Do you think that's accurate?" Yes because I assume all of the evidence was there when they made the TDIU award.

Personally (after using the DRO route in 2006) I would never request a DRO review again and rather go right to the BVA>

However, others here have definitely had success with DRO reviews!

I am pretty much surprised that they did not consider you for SMC at any level........

And with VA under the gun these days I bet they have been making more mistakes than ever.