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Question

Berta told me about Footnote One Nehmer yesterday and I had not heard about that although I do know about Nehmer.  And yes my husband was rated for Ischemic heart disease before it was added to the presumptive list. And his death certificate signed by his GP at VA saying long term heart disease.  It was rated as secondary to diabetes (which was rated 20% initially) and was already a presumptive condition. He had applied for both at that time - about 2003 or 2004.  He was rated 30% initially for his heart even though he had had a quadruple bypass (Dec 2000) with neurological complications, extensive scar tissue from many previous heart attacks that had to be cleaned out before the bypass could proceed in surgery.  He had a TIA on the operating table and post pump syndrome from being on the heart lung machine so long (due to the cleanup) for surgery.  He was told by his heart specialist he could no longer work at what he was skilled to do. He was granted SS Disability as a result 9 months later.  

He filed his first VA claim a couple years later when his buddy finally persuaded him to do it.  He had been diagnosed with Type II Diabetes in 1997.  They didn't address any of the neurological stuff (from the heart surgery) as I recall at all or the post pump syndrome (which usually goes away rather quickly but was a problem for at least a couple years for Don).  The lower left ventricle of his heart was dead already before surgery from previous attacks we didn't know about - silent due to diabetes.  And his ejection fraction was 25 before and right after surgery and then came up to 30-35.  It bounced around some over the years but was usually 30-40. He had an echocardiogram every year which approximated it. After 2 hospitalizations for Congestive Heart Failure over the next few years, they finally rated him 60% heart and 40% diabetes (when he became insulin dependant.  Shortly after starting insulin  - a few months -  Don was put on an insulin pump because he was needing so much insulin and put him on the U500 insulin which is very closely monitored because of being so very strong) and VA rated him for 10% each leg for Peripheral Neuropathy.  Don also claimed PTSD, which should have been granted, as we had a few years worth of records already from a private practice psychologist the VA had recommended whose report said he had it and it was from VietNam (non-combat).  But Va's C&P psychologist or psyciatrist said he wasn't sure of that origin. He agreed Don had it. They asked us to prove Don's stressors.  We searched for months for other guys Don remembered being there, found one but couldn't prove the stressors.  They never contacted us when the requirement to prove stressors was lifted to re-evaluate his claim.

In 2006 they rated  him TDIU and his heart 100% by itself in the same decision with effective dates a few months apart???  Makes no sense to me since the TDIU was then dropped due to the 100% rating.  That was his last rating - 2006. He developed kidney failure late 2010 with a hospitalization of a few weeks for Congestive Heart Failure because the kidneys weren't removing the fluid with normal types of hospital treatment. He was treated by a team consisting of his heart specialist,  his GP who had admitted him, and the new Nephrology group the GP brought in. All Private Practice doctors and hospital. They finally tried something rather bold, I'm told, that started the fluid draining.  After discharge, at home, he had a few weeks of digital monitoring of his stats, reports I had to give them on weight and output amounts etc. and nurse visits and was told to prepare for dialysis.

About that time his doctor at VA called, alarmed, at his rapid decline in kidney function. That is in the medical records at VA along with numerous notations of him being on dialysis and having a port in his abdomen for it, every time he went in for a 6 month checkup.

As you know, Berta, we asked about rating his kidney failure (which his doctors say was from diabetes making it another secondary condition of diabetes and so service connected..) and 3 different VSOs in 3 locations each said we couldn't go above 100%. I didn't know about these kind of forums then.  And only discovered the blog I reference below, by accident.  We also asked his doctors at VA and they didn't know either.  But one of them (unbeknownst to us) requested payment from VA for the 'dialysis treatment plan' and they agreed to pay for supplies, treatment, bi-monthly clinic followups with the 'team' (nephrologist, nurse, dietician, social worker). They also covered delivery of supplies to our home bi-monthly (huge amount of heavy bags of fluid and much more.).  He had started dialysis April 2011 and they began paying April 2013 and continued until his death Dec 6, 2015.  In March 2015 I saw a blog about Special Monthly Compensation and about rating conditions beyond the 100% level. I asked for an analysis of Don's case and the attorney agreed requesting Don's C-File from VA in March. It didn't arrive until late Aug 2015.  The analysis  wasn't quite finished when he died.  A & A was definitely something he qualified for as well and I have many statements from friends, relatives, our pastor etc as well as notes in VA's files and doctor statements about it. But that's another story.

I don't know if Nehmer affects anything I've said here or not.  Does anyone else?  Berta?  And we were not ever contacted by VA or NVLSP about it.  Maybe because he was already 100%? 

I did apply for DIC and Accrued benefits within the year following his death and was granted DIC and denied accrued because they said there weren't any.  They never checked his C file or medical records or Treasury to discover anything really. I had thought the attorney would represent me in an appeal but he's decided not to.

My DIC was granted at the higher level due to Don having been 100% for over 8 years.  I'm not sure what you thought I interpreted wrong about that Berta.  

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I think all we need is the decision that awarded the PN, - 10% for each leg.

I do not see any past denials for the DMII or IHD.

It is those denials that would warrant a Nehmer review.

However- and I hope others here will chime in-

on page 2/9 of the 0012 scan,  you added ,on the side the PN awards.

I feel the PN awards along with the 40 DMII and the 100% Heart disease should have warranted consideration of SMC S....if not under Bradley V Peake, then under SMC S Housebound.

Your husband could not work, as the decision states, so I assume he would fit into the Housebound criteria.

Do you have a PN decision from VA that also shows the ratings of 100% heart, 40% DMII, and then the 2 10%s for the PN?

If so I think they committed a CUE (Clear and unmistakable error) in that decision if they did not consider SMC at all.

A SMC CUE would provide retro regardless of Nehmer. This does not appear to me to be a Nehmer claim.

I will read over the downloads again...maybe I missed the PN award.

And I will find Bradley V Peake and the Housebound criteria.

 

 

 

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The Housebound criteria and also Bradley V Peake are explained in this recent BVA decision.

 

 

"Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where a veteran has a single service-connected disability rated as total and either (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).  This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).

 

For purposes of satisfying the requirements of 38 U.S.C. § 1114(s), a rating for a total disability rating for individual unemployability due to service-connected disabilities (TDIU) may be considered a total rating, and any disabilities that do not form the basis for the TDIU may satisfy the requirement for additional service-connected disability or disabilities independently ratable at 60 percent or more under Section 1114(s).  See Bradley v. Peake, 22 Vet. App. 280, 291-93 (2008).

https://www.va.gov/vetapp17/files2/1710914.txt

I feel that your husband's SC disabilities warranted SMC consideration for either the 100% plus 60% due to the PN award which I cannot find here- or under the SMC S Housebound criteria.

I also hope you find an attorney , or VSO, or accredited agent ( like our member ASKNOD here) to raise the CUE issue.

Since this does not involve Nehmer, I believe this is the only way you could obtain any further accrued benefits from the VA.

I won a SMC CUE .The CUE claim has to be worded to reflect the SMC Mandate and the "lack of consideration" of SMC when the medical evidence warranted it .

It is the "lack of consideration" of the SMC Statutory Mandate that was the basis of my CUE. I knew if they considered SMC regulations they would award it retro as an accrued amount and they did.

Whoever you get to help you can find my SMC CUE info here. It is basically a simple CUE to file.

I didnt check the rate info to make sure they did not include the SMC S amount on the downloads.

Still, if they did consider SMC and deny it, or award it ,that would appear in one of their decisions and I think it would be in the PN award decision.

 

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Ok---I think we do have all the info we need---

As I understand the pdfs , the heart rating became 100% in an April 2007 decision ( Scan 0012 page

1 and 2 of 9)

The PNs were awarded at 10% each in an August 2006 decision in which the DMII had been 20%

And the heart disease was 60% at that time. Scan 0012 page 8 of 9.

The Cue appears to be in the decision appearing as Page 1 and 2 of the 0012 Scan

They granted the 100% in the April 2007 decision and listed 100% EED as Nov 2006 but in the narrative they state the EED was July 11, 2006.

As you correctly wrote on the decision they forgot the 2 PN awards of 10% each, yet they are clearly listed on the rating sheet dated August 14, 2006.

This was a DRO review decision.

From what I deduce here, that decision contains a CUE, due to the lack of proper consideration and application of the SMC Statutory mandate.

You were represented by the Vietnam Veterans of America.

I would contact them if I were you to see if they would review that August  2006 decision.

Please feel free the email them or give them a copy of my comments here.

I see no reason why, since your accrued application was timely, they would not consider the SMC and hopefully award it to you.

Hopefully others will read the rating sheet of the 0012 scan, the one that is a DRO decision and lists 100% SC heart, 40% DMII, 10 PN left leg and 10% right leg.

I see no consideration at all given to SMC S under either theory of entitlement.

Although my SMC CUE was awarded in my AO IHD Nehmer decision, it had no bearing on the Nehmer review,except for the FTCA/1151 award)  because the IHD CUE I filed in 2004 did have bearing and they awarded that as well.

Those 2  CUE claims had not been transferred to the BVA yet and I asked Nehmer RO to give priority to these 2 CUE claims , as they were filed long before the AO IHD claim was.

 

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The CUE is on page 8 of the 0012 scan dated 8/14/2006.

Because it does not consider the DMII increrased rating of 40% with an EED of Nov 8. 2006 on page 1.

I assume that both of these pages are from the DRO decision dated 8/14/06.

100% for IHD AO

40% for DMII    Ao

10% PN left leg

10 PN for right leg

To me that is SMC at 100% plus 60, but even if not, this veteran was definitely housebound by all available medical records, in VA's possession, at time of the 2006 decision.

VA makes more errors on SMC than we can possibly know.

That is why all veterans and their survivors need to be up to speed on the SMC regulations.

Edited by Berta

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I ws going to write the CUE for you but noticed something is wrong here in the pdfs.

The date of the DRO review is 8/14/2006  (page 1 of the 0012 scan) but page 2 of the same scan does not jive with the dates.

 

Do you have the actual dated award letter for when they awarded the 100% SC for heart and the 40% for the DMII?

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      Denied as…. early as 2011…  Yet, ID to pinpoint as severe symptomatic complexities of Monomelic Amyotrophy variant of ALS in 2017….should be cued
      Bilateral Hearing Loss (claimed as diminished hearing)
      0%
      Service Connected
        Tinnitus (claimed as ringing in both ears)
      10%
      Service Connected
        headaches
        Not Service Connected
        depression
        Not Service Connected
        skeletal arthritis aching of the joints (unspecified)
        Not Service Connected
      Arthritis denied as…. early as 2015…  Yet, ID to pinpoint as being symptomatic complexity of Monomelic Amyotrophy variant of ALS in 2017….should be cued
      post traumatic stress disorder (PTSD, also claimed as depression and anxiety)
      30%
      Service Connected
      PTSD - Combat
      Hypertension
      0%
      Service Connected
        Neuropathy, Right Upper Extremity
         
      Rectal carcinoma claimed as rectal cancer, a soft tissue cancer)
        Not Service Connected
      Agent Orange - Vietnam
      Still on since  12/11/14 appeal
      Remand 5/15
      scar, shrapnel right knee
      10%
      Service Connected
        09/18/2013
      diabetes mellitus type II
      10%
      Service Connected
      Agent Orange - Vietnam
      07/06/2015
      prostate cancer
      100%
      Service Connected
      Agent Orange - Vietnam
      07/06/2015
      erectile dysfunction
      0%
      Service Connected
        07/06/2015
       
      Neuropathy, Right Upper Extremity Denied as…. early as 2011…  Yet.ID to pinpoint as severe symptomatic complexities of MonomelicAmyotrophy variant of ALS in 2017….should be cued Agent Orange – Vietnam
       
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    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
      • 2 replies
    • Exams that were being sent strictly to contractors before, due to VAMCs not being open, are starting to be routed back to VAMCs. This is going forward from last Friday- not sure if prior scheduled exams will be re-created for VAMC vs vendor.
      • 7 replies
    • Mere speculation in your VA C and P exam

      M21-1, Part III, Subpart iv, Chapter 3, Section D – Examination Reports III.iv.3.D.2.r. Examiner Statements that an Opinion Would be Speculative Pay careful attention to any conclusion by the examiner that an opinion could not be provided without resorting to mere speculation (or any similar language to that effect). VA may only accept a medical examiner’s … Continue reading
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    • A favor please - just changed servers so if you have a moment...
      A favor please - just changed servers so if you have a moment go to https://www.hadit.com I'd like to see how the server handles a lot of traffic. So if you have a moment click the link and i can see how things are going on the back end.
      • 11 replies
    • It's time to ask for help from the community. If you can help with a gift it would be very appreciated.

      Fund HadIt.com Veteran to Veteran LLC


      Give a financial gift to help with the upkeep of HadIt.com. HadIt.com is NOT a non profit. Gifts are not tax deductible, they are just gifts. 
      • 11 replies
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