Appealing Denial for SMC T based on SMC R2 criteria

[SupermanCannedy]

Has anyone on this site put in a claim for SMC-t? Do you know of anyone who has been awarded it? I am the sister of a pre 9/11 veteran who has been rated at 100% for TBI P&T. I am his full time caregiver and have been appointed his fiduciary. I also have helped him with his claims...and have done well, until this one. I do my best to give him a high quality of life, but need to hire because his body is fit, but his memory and cognitive skills are in constant decline.

He is a textbook case for SMC T because, in addition to the first 2 requirements, his VA neurologist has also filled out the forms to state that "Without regular in home care the veteran would need to be placed in institutional care". That is a major requirement for an SMC T. We submitted the claim for an SMC T 2015 and they granted him A&A at the L 1/2 rating, which we didn't realize is also required to qualify for SMC t...actually SMC L or higher. We submitted the SMC t claim again April 2016 and they denied it based on R2 criteria. After not knowing what to do about that and not getting any help from the local VSOs (they aren't familiar with this SMC T) a pro bono attorney offered assistance, so we took it.

The decision board came back with a "We got your new claim...we can give you an answer within 30 days or you can have up to a year to submit more evidence." I have NO IDEA what that really means or what to do...So, I submitted for the extra time. Now, I need some guidance.

Should I have people we know write up some buddy letters to explain how much help the vet needs in his daily life? Should I hire one of those VA lawyer firms that take 20% of whatever award is granted? Do any of you know of anyone who has worked on an SMC t? The last report I read was from Dec of last year when the congressional coding was recommended to be changed in order to make the criteria more clear and the "open". The charts show that as of 2011, when the Fast Letter first went out, only 120 or so veterans have been awarded this SMC. So, that's why I am hitting brick walls!

We appreciate any help. Thank you!! 

 

 

 

[SupermanCannedy]

You guys are great!!

R3dneck and Gastone, I will get working on posting the redacted denial letter. Hopefully, the error will be very clear.

broncovet- check, check, double check: His TBI diagnosis is current, he was rated at 100% because it was service connected, and the 21-2680 filled out by his VA neuro notes that his residuals are related.

Jfrei, you made a good point and your post was not a waste. They did not initially provide an SOC. I had to call and ask for it. Aaaaarg!

I appreciate your responses. I’ve been working on this thing solo and welcome your opinions and advice.

-back shortly with the denial letter…..

[SupermanCannedy]

Here is the Decision letter. We filed for an increase from an SMC L 1/2 to an SMC T. The ratings officer stated that the criteria has not been met because the examination does not show a need for nursing home care. He then went on to quote the CFRs for SMC R2n (which requires the need for skilled nursing care)...Not T (which does NOT required skilled nursing care, just regular A&A at home). 

It looks like he got confused by the response the dr gave on line 25 of exam form 21-2680. It asks if a nursing home is needed. The dr marked NO. Then, wrote "The vet needs a high level of supervised care to perform the functions of daily living, however such aid & attendance can be provided with in home care".  I think the rater saw wording similar to "higher level of care" which is a classification for SMC R2...and either didn't know the difference between the two SMCs, forgot which one we had filed for, AND/OR just ignored everything else that was written by the dr. 

On line 35 of the same form, the dr wrote, "In the absence of regular aid and attendance for the residuals of TBI the veteran would require hospitalization, nursing home care, or other residential institutional care." - One of the main criteria for SMC T per Section H of the SMC- 11. Entitlement to SMC Under 38 U.S.C 1114(t) 

I appealed through some pro bono lawyers, but am not sure it was done correctly. I would appreciate your guidance in what to do next... What do you think? 

Decision Letter May 11 2016.pdf

[jfrei]

This VA game has literally driven me mad and I hate thinking  about the countless time of my life I wasted already with my disability claim. But it if I'm not doing it No will... continue on with my story after my appeal. It still continued after my 5 wait for SC for my TBI because they they denied my skull fracture saying it never happen they had a doctor who disagreed with several other doctors who had already diagnosed me when I was in a coma in 2006 and the DVT in both my legs. I only filed for the left leg since that was the one that was a reoccurring after the fact Injury of pains in my leg and was prescribed lovenox and painkillers for the leg pains. Last month now it's still being being evaluated with MRis and X-rays by my primary doctor. I was just issued my SSOC on Friday so word on Monday it's been 7 years now in July since my intial.

[SupermanCannedy]

Jfrei, I am glad you're out of your coma and doing so well that you can function well enough to navigate a site like this! It sounds like you have a ways to go in healing physically and neurologically. I hope you have success in both areas. 

Am I to understand that you are still trying to get a diagnosis from a VA dr for having a TBI?  Not all head injuries are TBIs,  however if yours resulted in one then after all these years the results should show on an MRI because it often (not always) causes dehydration, deterioration of the smooth areas creating deep grooves that fill with fluid, like islands., and partial or global brain atrophy. Your  VA PCP should be able to go over your MRI within a week of taking it.It they haven't, then call and tell them you want to go in and talk about the results. If your brain does not show abnormalities on an MRI, but you are experiencing the residuals of TBI, including memory loss and decline in cognitive function, then ask for a referral to the neurologist. They can do their own testing and request a PET scan, which will show a lot more. You'll also need a neuro psych eval. You'll need the evals, tests, and diagnosis for your  TBI claim.  Your medical records from the time of your coma, the diagnosis from the drs at the time, and the current xray will both make great pieces of evidence as well, despite any other dr who states "it didn't happen".  I am frustrated on your behalf that you have not received more assistance in putting together everything needed to make this a successful claim,  instead of all this back n forth business!! 

Was it just the TBI claim you filed for 7 years ago and the others, like the leg, filed separately? Hopefully, any other claims you've put in for have been successful as you work on this one because that is a loooooong time!  May it speed up and be successfully completed soon. 

[SupermanCannedy]

Hi Jfrei,

I appreciate the advise. Here is an update: I decided not to go the traditional route with the appeal., so we are switching gears. We don't have 2 years to wait for an SOC and then another 2 or more after. My vet is needs help NOW. So, we are pushing to get the appeal out of the Regional Office and into the hands of a judge for a hearing. I just completed a statement letter explaining why we are urging this to happen. I hope they cooperate and let it go because I believe that if it goes before a judge, it will be awarded. 

[jfrei]

On 10/23/2017 at 2:18 AM, SupermanCannedy said:

Hi Jfrei,

I appreciate the advise. Here is an update: I decided not to go the traditional route with the appeal., so we are switching gears. We don't have 2 years to wait for an SOC and then another 2 or more after. My vet is needs help NOW. So, we are pushing to get the appeal out of the Regional Office and into the hands of a judge for a hearing. I just completed a statement letter explaining why we are urging this to happen. I hope they cooperate and let it go because I believe that if it goes before a judge, it will be awarded. 

Sounds good my TBI Residuals are already rated at 100 scheduler P and T but they denied me the skull fracture which is what I believe caused my chronic headache condition that in am also service connected for already... it’s all a game with these Va raters and I wish you all the best in your appeal.