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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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30percentermovingup

Somewhat confused on loss of use

Question

Hello and I hope everyone is well.

I am a little confused, on loss of use, I understand the term and the definitions etc. 

Where I am confused is do I apply for it. I asked the V.A. podiatrist to put it in my record for my right foot, she never did. In fact she spent 10 minutes with me, referred me for a brace and emg and hasn't seen me since. The emg showed some bad radiculopathy also by the way. I haven't been able to get a follow up though. We are talking eight months.

I will be getting a mobility scooter this month from the V.A. or actually an Enhanced Motorized Wheelchair. I need to apply for the auto grant but I am unsure how to prove loss of use, do I apply for the SMC award which would probably be SMC (K) or is there another form I use? Do I need a doctor to fill anything out for loss of use or do I apply for just that directly?

I appreciate all your help, and the forum has helped me greatly in the last couple of years. No matter how hard I searched here or Google I could not find out how to prove loss of use for the mobility grant.

Also to answer a question that will be asked, yes I have loss of use, my right foot which is service connected would be better served amputated and a prosthetic put on due to the pain.

Thanks again

Nick Savage

Edited by 30percentermovingup
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SMC K would likely not be applicable. It's usually used when there is no other option.  There is a scheduler code and rating level that is applicable. You will have to at least get the VA to generate a C&P request, or have enough detail from the treating physician and/or an IMO to make the C&P redundant.  

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Actually, SMC K would be applicable. Chuck, even with a rating specifically for it. I have had several instances of it. Vet gets clobbered by through and through in ankle. Loss of use ensues. VA rates on the ankle using 4.71a (DCs 5270-5273) and then does a 21-2680 for SMC. The doctor cites effective loss of use of one (1) lower extremity and SMC K is awarded. If both ankles were damaged resulting in a wheelchair, SMC K would not be for application because it is for a single extremity-not two. SMC L would be awarded if both were afflicted and rated as loss of use of lower extremities (plural). 

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Thank you two, so let me ask then if I do get Smc k, that would give me loss of use. It would probably take a year or so to be decided also right?

I know that would be a wait. If I was able to find a physician to give me an IMO with an exam stating loss of use for the right foot due to pain, could I just use that for the application for a vehicle grant.

I am not concerned as much with the 100 some odd dollars for the smc k (although it would certainly help), as I am with the vehicle.

The Motorized Wheel Chair will not help me without being able to carry it. I can propel a manual WC in the small apartment I live in with no problem. I need the motorized because of my congestive heart failure and longer distances.

I just do not want to fill something out and then find out I did it wrong, because I know how long the V.A. is in granting anything.

Thank you both again. 

P.S. I see no like button, I guess I have not been a member long enough or is it hidden? Thanks.

Edited by 30percentermovingup
trying to find like button.
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Go ahead and apply, even tho SMC is "inferred" so an application is not required.  You should get it on the effective date the doc says you qualify as "loss of use" of your foot.  You want to go ahead and apply, because, ....here is a suprise....VA does not always do what they are supposed to do.  That is, in this instance award SMC for loss of use of your foot.  

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43 minutes ago, broncovet said:

Go ahead and apply, even tho SMC is "inferred" so an application is not required.  You should get it on the effective date the doc says you qualify as "loss of use" of your foot.  You want to go ahead and apply, because, ....here is a suprise....VA does not always do what they are supposed to do.  That is, in this instance award SMC for loss of use of your foot.  

I still can't like a post but Thank you to the three of you for the input.

So I downloaded the paperwork and I can go ahead and apply for SMC, I do understand it is inferred but they don't always give it. Although I didn't know about loss of use and the definitions when I got my 30 percent. All I knew is I needed a walker because the pain was too bad to walk on the foot.

Then when i found out the Doctor was ordering referring me for a Motorized WC, I then found out about loss of use because I needed something to carry the WC with. The knees went out is why it got so bad and I am a nurse but not for the VA but a doctor told me it was probably because I am using body parts to compensate for others.

I actually fought the Dr. to not get the Motorized WC at first, but then I fell in the door of Fort Worth VA, some rat told him, then I fell the next week in his office, so he said I should have it before I break something from my osteopenia. I weight 375 pounds so it is like an earthquake when I fall.

Okay after all that jibberish I will file for it. I still need to know what i need to do to get the vehicle before that goes through though, if there is a way. 

Thank you for your post.

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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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