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Form 526Ez To File For Smc-S?

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retroman

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Hi, Just got off the phone with VA and asked if I am qualified for SMC-S under Bradley V Peake and the lady told me to file EZ form 526. I told her it’s the statutory and I don’t need to file the form and she told me that’s the only way for rater to look at. What do you think? Below is my disabilities and I need you to tell me if it’s a shot or not.

Thoracic 40%

Right lower extremity(secondary) 10%

Left lower extremity(secondary) 10%

Cervical spine 20%

Right dominant upper(secondary) 20%

Headaches 30%

Scares on face 30%

Allergic rhinitis 10%

ED(secondary) 0%

IU approved on all above affective date of 1 Jun 2011

Depression (secondary)70% affective date of 2 Apr 2012.

So is this what Bradley V Peake calles 100%+60%?

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YIPPEE FOR YOU!!!!!!!

This post made me flash back to 1995----no lawyer  ( called at least 15 in NY) would help me with a FTCA wrongful death case and no one could recommend an IMO doctor----this was pre internet  days , as we know it now and lawyers were not allowed to advertise their expertise in malpractice or anything.

Many of the lawyers were so negative- 'you cant sue the US of A, you will never get anywhere wth this, no I dont need to see the evidence, you will never succeed, blah blahblah- negativity only made me work harder on the case.

And many times, we can even convince ourselves that we dont stand a chance- it is human nature---particularly when you deal with such an adversarial entity like the VA.

I decided to just stay pro se on the wrongful death FTCA case and do it all myself. And I won.

The sole support I got was from my daughter....still in high school- and I never dreamed she would join the USAF and then VA messed up her only VA claim....with a NOD and CUE I prepared , it got fixed in weeks ( Chapter 35 - VA Educational Department))

They gave her one month of Chapter 35 when the reality was she was entitled to 7 years and one month.

The application clearly stated that any military service time with a  copy of her DD 214 would extend her entitlement date.The actual regulation is right on the Chap 35 app.

She was furious with the one month award letter and called my up right away ---"Cant they  read?" she asked me...and I said " No they cant, and welcome to my world!"

VA Educational dept is an oxymoron sometimes.

My point is however what my daughter said when she called me 3 weeks after she signed and sent them the NOD/CUE and they immediately corrected her entitlement date.....she said the original letter seemed so professional and after all it came from the VA, and GS level federal employees,  that- for a few minutes she thought it might  even be right....

I told her literacy does not seem to be a job requirement for many VA employees.....

We can NEVER give up.............

.this is great news....as to the EED- can you scan and attach here the decision as to their rationale for that date on the MH issue? They used the  C & P exam date and they sure might be wrong.

Cover the C file, and personal identifying info before scanning and attach it here.

And Happy Thanksgiving to you !

 

 

 

 

 

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Yes, Great Thanks Giving day Berta and all of  you.  I am sending you two scans.  One is why they disapproved my SMCS back in 25 Jan 2015 and the other one is approval letter on 8 Nov 2017. Also,  please note on my earlier post that my IU was awarded on 1 Jun 2011 and Initial Depression of 70% was awarded on 2 Apr 2012.  I guess as soon as I got the 70%, the IU became moot point.  Both of the IU and the Depression was requested on same form 21-4138. 

I was comparing the two award letters.  If you read the approval letter toward the end, it says ……evidence now shows that your serivce connected depression is severe enough in and of itself to preclude you from gaining of maintaining substantially gainful employment (Buie v. Shinseki). You also have additional disabilities rated 60 percent…..therefore, entitlement to statutory house bound is established effective nov 3, 2017 the date you met the criterial for this benefits.   Isn’t 70% is 70%? So, than why VA choose later date to award me the SMC S?  Unless, it has anything to do with T&P.  Thank you.

disaproved smcs.pdf

approved smcs.pdf

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It looks to me that they considered the MH award to determine that  it precluded the past TDIU award.....meaning the TDIU was based on a single disability- thus that met the criteria for the award of SMC, for Housebound.

I think they were correct to do that as it was advantegeous to you-

But

"Also,  please note on my earlier post that my IU was awarded on 1 Jun 2011 and Initial Depression of 70% was awarded on 2 Apr 2012. "

Can you scan the Apr 2012 decision and attach here?

I am wondering why- since they did consider the MH as the sole TDIU disability on this recent award- why they didnt make this recent award for SMC sooner, or with a better EED.

Something does seem wrong here but I hope others read the scans and chime in....

This definitely might be a CUE within the appeal period.

The main legal point I made in my SMC CUE ( available in the CUE forum) is that they failed to consider  the SMC mandate , and if they should have considered it in 2012, in your case, that is the CUE.

I think I should clarify this a little----the legal error occurs when they "fail to consider" SMC yet the medical evidence in VA's possession at time of a decision, warranted a SMC consideration( even if that might have still caused a denial which the claimant could appeal)-that way the claimant is not calling CUE for failure to award SMC,-this type of CUE makes them "consider" SMC if they failed to and should have----

the minute the VA (Nehmer RO-not the illiterates at my RO) read my brief SMC CUE (and an additional IHD CUE I had as well) they" considered" the mandate and the rating sheet I enclosed with the CUE and awarded.

I had an AO IHD death claim pending under Nehmer and asked them to resolve the prior 2 CUEs which had bearing on a proper AO IHD decision., and had been filed at that point 6 years prior to my AO IHD Nehmer claim, and were set for BVA transfer, yet were still at my VARO.

The Nehmer Phila rater (after an initial  ridiculous denial which I cued right away, sending the CUE on that to IRIS as a complaint- which was immediatly resolved ) who then got the claim,  could read ,and made those awards.

I still wonder how many other Nehmer Vietnam Vets or their surviving spouse got those ridiculous denials -for the same reason I did- and might not have appealed them.

My IRIS complaint was Very strong-and the VA knew who made the decision because the initials of raters and DROs etc wre within the alphanumeric code on the decision under the Re: part by the date.

 

 

 

 

Edited by Berta
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BTW I copied this page of the VBM by NVLSP as evidence for my SMC CUE:

"The VA Adjudication Procedures Manual (M21-1MR) mandates that VA adjudicators consider entitlement to 

    special monthly compensation as an inferred issue. VA rating activities are obligated to consider entitlement to 

    special monthly compensation in all decisions where the medical evidence indicates possible entitlement."

    Source:  2009 Edition of the Veterans Benefits Manual by National Veterans Legal Services Program.Page 333.

Also the 2010 Edition of VBM by NVLSP has this statement:

 

"In Chapter 17, Note 261 of the 2010 Edition of the VBM, NVLSP makes this statement referencing the CAVC Bradley decision:

"the effective date of payment for Special Monthly Compensation is not when the issue was specifically raised by the evidence, but when the evidence first suggested a need for this benefit."

I dont think I used that statement but sure used the 2009 VBM  statement.

And also a M21-1MR citation that says the same thing.

Edited by Berta
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Here's how this works in the real VA world. VA tries to use the date you first ask for TDIU. Having a single 40% and a handful of other disabilities that carry you to 70% or greater often elicits an inferred entitlement to IU. Rice v Shinseki drove this home that VA had to, by law, infer it if you qualified in every other respect. VA still hides behind the fig leaf now that an exam (mental in the instant case) will be taken to be the first confirmed knowledge that Retroman was actually  truly,  too physically or mentally impaired to work anymore. Prior to that Nov. 2, 2017 date, VA didn't have (or so they will argue) constructive possession of that knowledge-hence the date of the exam. It's easy to refute this at the appellate level with evidence of SSDI/SSI (which VA does have constructive access to). If a claim for TDIU existed prior to November 2, 2017, by law from that date forward whenever it can be shown the condition (TDIU) first existed must be the effective date. Rice stands for TDIU being a claim just like an increase or an original claim. VA has to determine if you are entitled to it even if you do not ask for it.

Note they cite to Buie v Shinseki - not Bradley v Peake. Buie stands for Retroman's situation. Once RM is TDIU for the earlier batch of ratings and gets a 70% which is a stand alone disease independent of any of the other ailments that constituted his original TDIU, he can supplant the 70% as his primary TDIU and the earlier (former) batch of rated diseases become the basis of his SMC S. Thus their wrong choice of the November 2, 2017 date. By law, they have to award the greater of two ratings in this case (an earlier effective date of TDIU the moment it can be ascertained you qualified for the SMC. Remember, SMC is due and owing the moment it is proved your entitlement exists. You do not have to file for it per se -but sometimes you do. Buie says you can transpose a TDIU or 100% rating and make it the primary then add up the old ones to make the SMC. That gives you a much earlier effective date if your records prove your contentions. VA has to add your ratings up in the most favorable way they can for you. As for that " he wasn't truly housebound"- ignore it. It's a red herring they always throw in. It's the wrong legal standard of review without a balancing discussion of how RM can best benefit from Buie.

 

You didn't think they'd just throw in the towel without a little fishing expedition to see if they can roll you for a few years of benefits did you?

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Thanks for your inputs Berta and Asknod.  You’ve got me all pump up again.  Enclosed is the Effective date for Depression and IU.

On ‎2017‎년 ‎11‎월 ‎24‎일 at 11:27 PM, Berta said:

I am wondering why- since they did consider the MH as the sole TDIU disability on this recent award- why they didnt make this recent award for SMC sooner, or with a better EED.

You took the words right out of mouth, Berta.  Yes, they considered my MH as sole TDIU on my recent award yet, they did not do that on my Apr 2012 award.  To clearly it better,  here is the outline if it matters;  On 23 Mar 2012, I requested for three claims on form 21-4138.  First item is IU, second item is ED and third item is Depression.  All approved with the different effective dates.  IU effective date is May 26 2011.  ED and Depression is Apr 2, 2012.  Their dates are listed on the attached awarded letter. I think someone there at the VA must got confused because I was awarded TDIU for few months made of many disabilities and/or  IU and Depression were filed on same form.  Remember, TDIU effective date is 26 May 2011.  Depression effective date is 2 April 2012.  Do you think they got confused?

 

13 hours ago, asknod said:

If a claim for TDIU existed prior to November 2, 2017, by law from that date forward whenever it can be shown the condition (TDIU) first existed must be the effective date. Rice stands for TDIU being a claim just like an increase or an original claim. VA has to determine if you are entitled to it even if you do not ask for it.

Asknod, The above statement shouldn’t be apply to me because my TDIU prior to 2 Nov 2017 was made up of many disabilities not single issue.  Correct?  But when my Depression 70% kicked in, the TDIU because moot and I became 100% or 100% scheduler.  In this case, 70% of my depression award could be sole IU factor and the other disabilities (which were used as TDIU) can be work up as 60%. In turn my SMC S, (100%+60%)  should be awarded as of 2 Apr 2012.  I hope I am not confusing any one.

13 hours ago, asknod said:

You didn't think they'd just throw in the towel without a little fishing expedition to see if they can roll you for a few years of benefits did you?

Yes, sir!  And the VA is doing very good job of it too. I am one confusing fisherman and thank god you folks are here to advise

2 apr award letter.pdf

Edited by retroman
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