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]

[Buck52]

Are you TDIU using the  4.16 extra scheduler rating?  I  realize you are IU  being paid at the 100% rate  but your current rating of 70% and the 10% for tinnitus would still be your original S.C. ratings  ..>correct?

This is what they go by to check the SMC Criteria to see if you meet the criteria and if your rated at these ratings then its not enough.

If your IU at a combined rating or the 100% rating  you still do not meet the SMC S Criteria...

But I am not sure why they never infrrerd the SMC S H.B. to you at the time you was awarded the IU???

If you could not leave home for work...like I said I never truly understood this.

if this is true then why do we need the 100% and the 60% separate ratings to meet the SMC S  H.B. Criteria?

You mention Does a secondary rating becomes  part of the original rating?   yes it is true  when a Veteran is granted a secondary rating to an already S.C. Condition this secondary condition becomes   a whole part of the original condition.  They pay on both depending on how severe or bad the symptoms are.

And any secondary you may have  then they can be combined them...if you have enough combined ratings  then it is possible to meet the SMC Criteria.

Edited May 14, 2018 by Buck52

[Buck52]

http://www.purpleheart.org/ServiceProgram/Training2012/10-M- SMC final.pdf

[Buck52]

I Believe the kicker here for you is if your not P&T IU  then that stops the qualification for the SMC S H.B.

Although  you maybe total IU but  if your not P&T with the IU Rating  then that's the kicker. according to the link above .

Edited May 14, 2018 by Buck52

[HorizontalMike]

16 minutes ago, Buck52 said:

I Believe the kicker her for you is if your not P&T IU  then that stops the qualification for the SMC S H.B.

Although  you maybe total IU but  if your not P&T with the IU Rating  then that's the kicker.

 

Buck,

This is copied directly off my VA Benefits Letter ( I only xx'd out dates).  I am P&T.  What Broncovet and I both hope and are working for is to have the VA recognize the TDIU actually IS "substantially housebound in fact" and thus qualify for SMC-HB.

VA Benefit Information
Summary of benefit information
You have one or more service-connected disabilities:  Yes
Your combined service-connected evaluation is:  70%
Your current monthly award amount is:  $2973.86
The effective date of the last change to your current award was:  xxxx,xx,xxxx
You are being paid at the 100 percent rate because you are unemployable due to your service-connected disabilities:  Yes
You are considered to be totally and permanently disabled due solely to your service-connected disabilities:  Yes
The effective date of when you became totally and permanently disabled due to your service-connected disabilities:  xxxx,xx xxxx

 

Howell v Nicholson

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

AND WITHIN:

"...Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the
claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to 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..."

 

 

 

Edited May 14, 2018 by HorizontalMike

[broncovet]

3 hours ago, HorizontalMike said:

• 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"?
• 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"?
• 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?

1.  Dont worry about that.  It could work to your advantage for VA to adjuticate "a higher level" of disability with A and A.  It puts pressure on them to award SMC S. 

2.  Claim "housebound in fact" now.  Dont wait.  Even tho your effective date for SMC is "not" the date of claim (SMC is inferred and your effective date is the date you meet the criteria, and not the date you apply). Still, would you rather have money now or have it later?  Apply earlier..means you get benefits sooner.    Its a myth that you can not have appeals and claims going on at the same time.  

3.  I have no idea what VA will "argue", but, rest assured they will try to cook up a denial.  Implementation of Howell is rather new, and only recently made it into VA regs.  

[Buck52]

Mike

''Your combined service-connected evaluation is:  70%' if you had another separate condition rated at 90% then that would meet the SMC Criteria'

 From a 70% s.c. rating  your IU P&Tb/c they used the 4.16 extra scheduler rating criteria to boost you up to the IU  P&T because your s.c. condition's keep you from working.

I would love to see the CFR regulation stating that if a Veteran is granted IU P&T stand alone rating, then he meets the SMC Criteria.  statutory/mandatory  or if he/she can not leave home for work under the house bound in fact rule..or any regulatory revisions like Howell vs  Nic I've read Howell  but don't truly understand it.

also on Asknod blog he goes further than the Howell revision.

Quote from Asknod blog

''What was lost here is very important:''

''Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the 
claimant is restricted to his house except for medical treatment purposes.''

 

I've just never

seen the regulation? that if a veteran is IU he /she is entitled to the SMC?? and I know there's some members here at hadit that have been granted the SMC S H.B. for this purpose....

Have you been denied the SMC S H.B based on your IU P&T Award?

Edited May 14, 2018 by Buck52