secondary §3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

[HorizontalMike]

38 CFR Book B 3.310 mandates secondary service connection for certain disabilities associated with traumatic Brain Injuries (TBI)

I have a couple of QUESTIONs since my MDD rating is still in limbo at the VARO:

1. What does it mean by "...the secondary condition shall be considered a part of the original condition….”
2. Does that mean MDD is to be rated separately as secondary service connected to TBI?
3. OR,does that mean that MMD cannot be rated separately from TBI and receives just ONE rating?
4. How can secondary service connected disabilities avoid the "pyramiding" accusation?

 

§3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

 (a)    General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

 (b)   Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. (Authority: 38 U.S.C. 1110 and 1131)

 (c) Cardiovascular disease. Ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service-connected amputation or amputations.

 (d) Traumatic brain injury.

(1) In a veteran who has a service-connected traumatic brain injury, the following shall be held to be the proximate result of the service-connected traumatic brain injury (TBI), in the absence of clear evidence to the contrary:

(i) Parkinsonism, including Parkinson’s disease, following moderate or severe TBI;

(ii) Unprovoked seizures following moderate or severe TBI;

(iii) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe TBI;

(iv) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; or

(v) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI.

(2) Neither the severity levels nor the time limits in paragraph (d)(1) of this section preclude a finding of service connection for conditions shown by evidence to be proximately due to service-connected TBI. If a claim does not meet the requirements of paragraph (d)(1) with respect to the time of manifestation or the severity of the TBI, or both, VA will develop and decide the claim under generally applicable principles of service connection without regard to paragraph (d)(1).

(3) (i) For purposes of this section VA  will use the following table for determining the severity of a TBI:  Mild	Moderate	Severe
Normal structural imaging	Normal or abnormal structural imaging	Normal or abnormal structural imaging
LOC = 0–30 min	LOC > 30 min and < 24 hours	LOC > 24 hrs
AOC = a moment up to 24 hrs	AOC > 24 hours. Severity based on other criteria
PTA = 0–1 day	PTA > 1 and < 7 days	PTA > 7 days
GCS = 13–15	GCS = 9–12	GCS = 3–8

Note: The factors considered are:

Structural imaging of the brain.

LOC—Loss of consciousness.

AOC—Alteration of consciousness/mental state.

PTA—Post-traumatic amnesia.

GCS—Glasgow Coma Scale. (For purposes of injury stratification, the Glasgow Coma Scale is measured at or after 24 hours.)

 

(ii) The determination of the severity level under this paragraph is based on the TBI symptoms at the time of injury or shortly thereafter, rather than the current level of functioning. VA will not require that the TBI meet all the criteria listed under a certain severity level in order to classify the TBI at that severity level. If a TBI meets the criteria in more than one category of severity, then VA will rank the TBI at the highest level in which a criterion is met, except where the qualifying criterion is the same at both levels. (Authority: 38 U.S.C. 501, 1110 and 1131)

[44 FR 50340, Aug. 28, 1979, as amended at 66 FR 18198, Apr. 6, 2001; 71 FR 52747, Sept. 7, 2006; 78 FR 76208, Dec. 17, 2013]

[HorizontalMike]

On 5/12/2018 at 4:13 PM, broncovet said:

EVERY VET who is TDIU should get SMC S, per Howell:

Referring to Howell:

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

In pertinent part, noting that this is not "statutory" SMC S, but rather, "housebound in fact":

Here is why I think every TDIU Vet should get housebound:  If you are "unable to maintain SGE due to SC conditions", then you are unable to "leave the house in order to earn an income".  If you are not able to work, then you arent able to leave the home TO GO TO WORK.  Duh!!!

I will be fighting this fight with VA soon, but since I'm at the CAVC, I am waiting for my turn at the BVA for the SMC S issue.   (Im at cavc about effective dates, and going to the BVA on a different issue, that is, SMC S.)  

THANKS! 

Howell v. Nicholson = Bingo! 

And 

Senate Report No. 1745-- U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2) =  DOUBLE BINGO!

Questions: 

1. Since you appear to also be working on this, what is your opinion as to HOW can a veteran avoid the VA getting hung up on, distracted off-task with SMC-AA and SMC-S, and get directly TO SMC-HB "housebound in fact"?
2. Currently the Board of Appeals is distributing cases from "June 2015" to the Judges.  My FORM-9 was filed May 2016 and forwarded to Washington D.C. out of the local VARO's jurisdiction.  As you can see above, I am currently less than 100% statutory and appealing Service Connection for both MDD and OSA.  Do I have wait for these BEFORE claiming the "housebound in fact"?
3. Is the VA going to argue that TDIU 100% actually is the "replacement" for SMC-HB?  Can they do that?  Or should TDIU compensation BE at the SMC-HB rate of compensation?

[Buck52]

HorizontalMike

What are your ratings? are you IU at a combined ratings?  or 100%?

Do you have a seperate & distinct condition rated 60% or higher? (along with what your currently rated at)

SMC is not a rating its a momentary service for veterans that have severe  chronic injury or disease due to there S.C. CONDITIONS! (which is the Veterans burden of proof) with medical documentation.

I hear that a Veteran with TDIU P&T can get SMC S H.B on the fact that he can't leave home for work   so to the VA this makes him HouseBound.

Obviously  they must never had this when I got my 90% Combined rating for TDIU P&T in 2002, I was never given the SMC S H.B. back then(2002) 

  Moving forward I filed a PTSD Claim in 2013 I  was awarded 70% PTSD IN 2014 and since I was TDIU P&T they inferred the SMC S H.B. and I am 65. (age is not supposed to be a factor but in my opinion it truly is.)

 Anyway That made me 100% as a final degree and met the criteria for the SMC S H.B.

[HorizontalMike]

8 minutes ago, Buck52 said:

HorizontalMike

What are your ratings? are you IU at a combined ratings?  or 100%?

Do you have a seperate & distinct condition rated 60% or higher? (along with what your currently rated at)

SMC is not a rating its a momentary service for veterans that have severe  chronic injury or disease due to there S.C. CONDITIONS! (which is the Veterans burden of proof) with medical documentation.

I hear that a Veteran with TDIU P&T can get SMC S H.B on the fact that he can't leave home for work   so to the VA this makes him HouseBound.

Obviously  they must never had this when I got my 90% Combined rating for TDIU P&T in 2002, I was never given the SMC S H.B. back then(2002) 

  Moving forward I filed a PTSD Claim in 2013 I  was awarded 70% PTSD IN 2014 and since I was TDIU P&T they inferred the SMC S H.B. and I am 65. (age is not supposed to be a factor but in my opinion it truly is.)

 Anyway That made me 100% as a final degree and met the criteria for the SMC S H.B.

TBI = 70% (this singularly got me the 100% TDIU)

10% Tinnitus

TBD -- MDD

TBD -- OSA w-CPAP

[Buck52]

okay

your 70%IU ....can you see the connection here? you need another 90% rating to meet the SMC Criteria

if you do not have a higher rating to boost your 70% or 80% with the 10% tinnitus added in  you still will need a much higher rating at least 90% to boost you to the SMC S Criteria.

 

I was 90% TDIU P& T Being paid at the 100% rate with the Extra P&T Benenfit's

OK now with my already 90% and the 70% added in 2014 for the PTSD   that is what boosted me up to the SMC S H.B....Unfortantately your under the 90%   your 70%/80%..so you will need another S.C. Condition rated at 90%  for them to grant the SMC S. H.B.  Using VA Math.

70% IU and another S.C. Condition rated at 90% will meet the SMC Criteria According to VA Math.

Now with that said I do not understand it when a Veteran can get SMC S for being IU   because he can't leave home for work? &   then he is considered H.B.  they have been giving this award out to veterans but I truly think it depends how severe the  s.c.condition is or conditions and his age  if your over 55 then that helps.

[Buck52]

Mike you may want to call in to the hadit radio show and ask this question  Asknod will be on and  he can explain it to you a lot better than some of us old farts.

AllI know to tell you is if you have any other conditions that can be SERVICE CONNECTED file on them and get your ratings higher via combined ratings , they will add all your seperate conditions together and those little 10% ers do add up quick.

[HorizontalMike]

20 minutes ago, Buck52 said:

okay

your 70%IU ....can you see the connection here? you need another 90% rating to meet the SMC Criteria

if you do not have a higher rating to boost your 70% or 80% with the 10% tinnitus added in  you still will need a much higher rating at least 90% to boost you to the SMC S Criteria.

 

I was 90% TDIU P& T Being paid at the 100% rate with the Extra P&T Benenfit's

OK now with my already 90% and the 70% added in 2014 for the PTSD   that is what boosted me up to the SMC S H.B....Unfortantately your under the 90%   your 70%/80%..so you will need another S.C. Condition rated at 90%  for them to grant the SMC S. H.B.  Using VA Math.

70% IU and another S.C. Condition rated at 90% will meet the SMC Criteria According to VA Math.

Now with that said I do not understand it when a Veteran can get SMC S for being IU   because he can't leave home for work? &   then he is considered H.B.  they have been giving this award out to veterans but I truly think it depends how severe the  s.c.condition is or conditions and his age  if your over 55 then that helps.

I am 100% TDIU, not 70%.  I am not looking at getting 100% statutory.  From what I understand, the 100% TDIU actually IS a total rating when connecting the dots for SMC.  My MDD and OSA are what is being appealed for service connection at the BVA.  Case will probably be heard about May 2019, based on my FORM9 filing date. 

Basically, from what I understand is that I need just one additional 50% from either MDD or OSA to be added to my 10% Tinnitus to get to the magic "160%" for SMC.

From what Broncovet and I were discussing deals with the SMC-HB and 100% TDIU.  Broncovet's links above appear to indicate that they actually do apply... that 100% TDIU should qualify for SMC-HB "housebound", since I am basically "housebound" because I cannot leave the house and/to earn a living.

Edited May 14, 2018 by HorizontalMike