Apprehensive about submitting for SMC S

[glider222]

Here I am a year later and I have yet to submit 526ez for Smc S.  I am attaching all the paperwork for my

inferred SMC S.  Along with an email I received from my VARO after she was contacted by Allison Hickey.

(it did not help in my case)  I feel like I am opening my self up for a complete review.  I do not go to the VA and have

not since 2003.  The State VSO that I go to is ok.  However he put down an eed of 2002.  I told him I only

requested eed back to Bradley vs Peake.  I am all over the place with this.

  I received a lot of great advice last year, but when I try to apply it with the VSO and according to the tone of

the email from the VARO, they do not agree with you all.  Of course I feel that You guys here at HADIT are correct.

My big fear is again, being dragged in to have C & Ps I cannot handle it.  I am 55, have been rated 90% IU, P&T

since 2002.  I do not trust that the VA will honor the over 55, over 10 years........

I would like some of you to look at all the paper work I have attached and advise me how to proceed.  I also would

appreciate any feedback as to my paranoia.  Or should I be paranoid. 

 

Thanks

 

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[broncovet]

I suggest you read the regulations and criteria for reductions, since that seems to be your worry...getting reduced.  

Since you have been rated over 10 years, you meet both the 5 year protections and 10 year severance protections.  

The important thing is remember you do not have to meet the criteria for 100% all over again.  The burden is on VA to show you "actually improved" under "ordinary conditions of life", that is, working.  If you are not working, then I guess you did not improve under ordinary conditions of life, right?  

 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, §3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

[FormerMember]

I believe there is some error in interpretation of what constitutes a protected rating. Let me summarize. A rating is substantially protected if it remains static for 5 years or more:

( (c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). 

There is a provision in DIC law that says you must have a 100% Schedular rating or TDIU for 10 or more years for your spouse to qualify for DIC unless you pass from a SC disease.

 38 CFR 3.951 deals with a protected rating:

(b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.

Asking for SMC is not something most VSOs are familiar with. It is very complicated law and VA raters are not prone to handing it out like Mardi Gras beads or 10% for tinnitus. Think of a VSO as a mailman and nothing more. He knows how to file but he is not required to know why. He has a supervisor who checks his work. The super is equally clueless because he hasn't taken the test and isn't interested in learning the requisite law controlling it. 

If you simply have a TDIU rating and you have 60% or more above and beyond it in ratings that have no connection or relation to it (i.e. sleep apnea and DM2 on top of TDIU , you get SMC S. Period. You get it from the day you can prove medically that that all three conditions existed and were rated by VA. 

What's with the 'I'm scared' gig? Did that big bad VSO say that VA may come and screw you over for being greedy? 

Berta and I ought to be penniless and at 0% if that  were the case. 

 

[glider222]

Thanks Broncovet and Asknod.  They agree I should get it, but not the eed.  They both, VSO and his supervisor claim I can only get paid from when I file. The VSO said his boss at the VA hinted I could be dragged in for review as it has been so long.......

 

 

 

[glider222]

If I go ahead and submit it today and they drag me in, try to reduce.......can I still be paid while I am trying to fight it?

 

[Berta]

Asknod is correct here of course!

I perused the site a lot to see if Bradley is retroactive but nothing came up to help with that.We had much discussion on that years ago....Bradley was decided in 2008.

I would think Bradley would kick in now for your SMC claim:

Did I understand the scans correctly?

TDIU due to 70% Bipolar SC

Sleep disorder 50% SC

DDD  20% SC

 Hypothyroidism 10% SC and some "0" SCs

Since those older ratings has anything changed on the ratings here?

I would sure think you fall under Bradley now but if a claim for SMC has not been filed since Bradley,the VA might not extend the EED to Bradley........

That is why I asked if anything else has changed since the original TDIU claim was awarded.... changed by formally filing a claim since then...

 

 

 

 

 

[glider222]

HI Berta, 

no nothing has changed.  I have not filed for anything since the first award.  Thank you for your input