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Apprehensive about submitting for SMC S

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glider222

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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

 

Scan0016.pdf

Scan0018.pdf

Scan0017.pdf

Scan0005.pdf

Scan0004.pdf

Scan0008.pdf

Scan0007.pdf

Scan0006.pdf

Scan0009.pdf

Scan0011.pdf

Scan0010.pdf

Scan0015.pdf

Scan0014.pdf

Scan0013.pdf

Scan0012.pdf

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  • HadIt.com Elder

I must be missing something here?

70% %50% 20%10%  only add up to a 90% combined rating   the rating is 89.2 =90%.

unless the 70% Bipolar rating was inferred to TDIU AT 100 &  and Then combined rating of the other 50% 20% &10%  to = Meet the SMC Criteria Special rating table.

this should be a statutory rating  and its the VA Duty to Assist''   the SMC S-1 RATING should come automatic and the veteran should not have to request the SMC-S

Anytime a veteran gets proposal to reduce he will be paid until the VA proves his disability has  got better over time  and they need medical proof to do that, and they need it twice.

 

I was TDIU  P&T FOR 14 years For Noise Induced profound & severe hearing loss /and Tinnitus,THAT DISABILITY WILL NEVER IMPROVE & IS CONSIDERED CHRONIC IN NATURE L

After 14 years  I filed a new claim and was awarded  PTSD 70%     the rater added the SMC-S1 H.B.  Automatic  I never asked for the SMC-S 1

I was sent to a C&P FOR THIS NEW DISABILITY BUT NOT FOR THE ONE I HAD ORIGINALLY. 

The VA can send a veteran for a C&P Any time they want too, Always go to it  or email Bob McDonald  or the under secretary  and explain why you think its a waist of time,  CFR'S STATE ..> iIf there's no change in your disability (prove that with medical records) & your disability is considered chronic in nature and no improvement expected in your life time  , you over the AGE 55 And have had this disability over 10 consecutive years,  and another veteran can have this time to have his claim Adjudicated.

Ms Carlie wrote something like this when she got a call/letter for a reevaluation C&P..She emailed the VA Under secretary I believe...at that time  it was Allison Hickey''

Some One In Mrs Hickey Office   shot an email over to carlie R.O. To cancel her C&P.

jmo

......................Buck

Edited by Buck52
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  • Moderator

Its a common "fear" tactic, used by VA employees and VSO's alike:  "Dont ask for an increase or they will reduce you instead".  Its 100% hogwash.  They can only reduce you if you meed the criteria for reduction, and that has nothing to do with "asking for an increase".  

The VA constantly looks for ways to reduce you, but only if you meet the criteria, that is, you "actually improved under ordinary conditions of life", and that improvement has to be sustained improvement, not just an "episode" where you feel better temporarily.    They reduce you when they can, but it does not matter if you apply for an increase or not.  As Asknod explained, if they reduced every time you ask for an increase, Berta, Asknod, and my self would probably have a "negative" rating.  

Edited by broncovet
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I understand how you feel bud. I was Reviewed a few months ago, and the VA reduced one of my Disabilities even though I am 100% P&T. I too struggled for a long time to file for SMC L and A&A. I decided to file for it last month. Well I had a couple of C&Ps for PTSD, and A&A. They were both brutal and I too am scared the VA will tamper with my current ratings and P&T. Just hard to say bud. Only you can decide what is best for you and your family. Good luck and keep us posted. God Bless

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Something that isn't being considered is Mr. G222 has been rated P&T (see Scan #15). Absent a CUE determination that the P&T award was clearly and unmistakably erroneous (or any other rating, for that matter), the actual ratings must stand as being static with no improvement. Once you cross over the five year protection afforded in 38 CFR 3.344, a much more current visit to a doctor (at VA) must show marked improvement to provoke a reassessment. Again, this is only applicable to ratings which are still "new" meaning less than five years old. If you have SSD  for over two years, you qualify for Medicare and can avoid the VA like the plague. I would never set foot inside a VAMC again for that reason alone. No law says you are required to keep VA abreast of your current physical/mental state. You do that at your own risk.

Now, for the conundrum of SMC. SMC doesn't require a specific filing for remuneration unless VA is so dense they do not catch it. All SMC regulations/entitlements begin with a unique phrase. A claim's effective date will always be the date of filing. On the other hand, an SMC entitlement begins when you can show, by unequivocal medical evidence, that you have lost the item or lost the use of the item. Take your hand or leg  for example:

SMC for loss of use of a hand or a foot is established when no effective function remains other than that which would be equally well served by an amputation stump below the elbow or knee with use of a suitable prosthetic appliance.435 The determination is made on the basis of actual remaining function. A veteran who lacks the ability to grasp or manipulate objects with his or her hand is entitled, and a veteran who is unable to balance or propulse (push off his or her foot) is entitled.436 The determination is made on the basis of whether or not actions could be accomplished equally well by an amputation and use of a prothesis.
 

Loss of use of a foot or hand is automatically established when evidence indicates (1) extremely unfavorable complete ankylosis of the knee or (2) complete ankylosis of two major joints of an extremity or (3) shortening of the lower extremity of 3 1/2 inches or more.  Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.438 As of June 10, 1974,  loss of use  due to functional hysteria or conversion reaction can be established, assuming that permanence is established.  

Granted, SMC is only applicable to service connected diseases or injuries. Since SMC predated the Bradley/Buie line of legal reasoning, it is legal to reach back for an earlier effective date. Bradley only sanctioned SMC using a TDIU as the equivalent of a 100% schedular. It in no way influences an EED based on a qualifying TDIU prior to 2008. As Buck points out, an argument could be made for the EED based on the 70% bipolar as a stand alone rating for the TDIU which I am sure it is. 

VA will always fight for the lowest dollar figure they can to low ball you. They're an insurance co. That's what they do. Some bondo and an Earl Schieb $99.95 paint job will always be the offer over a new left front quarter panel. Remember, you do not have to fight this as CUE. It is an "entitlement" and has been since WW2. The moment you evidence the entitlement via medical proof, that is the date of entitlement. Period. You do not have to reach back and say the rater blew it. So what? He blew it so fix it already and pay the back monies owed. Case closed.

 

 

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Here's your legal justification, sir.

In Bradley v. Peake,462 the CAVC made it clear that the VA could not require one condition rated as 100 percent disabling to be a precursor for SMC(s) benefits. The CAVC held that Section 1114(s) does not limit  a service-connected disability rated as total  to only a schedular rating of 100 percent  it includes a disability that would support the grant of TDIU. In addition, the Court held that when a veteran has several service-connected conditions that combine to a 100 percent evaluation, if the veteran would be monetarily advantaged by having just one service-connected condition support a total TDIU rating and the veteran has other service-connected conditions, which combined are at least 60 percent disabling, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran. Also, because SMC benefits must be granted when a veteran becomes eligible without need for a separate claim, (see, e.g., Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)), any effective date must be based on that point in time when the evidence first supported an award of SMC, which may be well before the veteran raised this issue. See 38 U.S.C.S.  5110(a), 1114(s); 38 C.F.R. � 3.400(o).
 
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On 6/28/2016 at 6:18 PM, asknod said:

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. 

 

You know me. I love to  be wrong, Bronco. I forgot to look at 38 CFR 3.957. A rating cannot be monkeyed with after 10 years. A disability, on the other hand, is protected at 20 years ( 3.951). Likewise 3.344 deals with a disability and not a rating.Found this this afternoon on the sample Agent's test. Trick question. Every word has import. I stand corrected. Sorry.

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