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!! 

 

 

 

[jfrei]

On 8/15/2017 at 1:18 PM, SupermanCannedy said:

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. 

Yeha it was a fracture that healed spontaneously after 3 weeks the evidence and dx are there from the ER also to this day I have a 1.25 in cyst in my cerebellum from the trauma.

Edited October 24, 2017 by jfrei

[SupermanCannedy]

On ‎10‎/‎24‎/‎2017 at 8:29 AM, jfrei said:

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.

   Thank you!! I wonder if you can't get a claim for the skull fracture because the VA considers it to be part of the evidence that you have TBI, so rating it would be redundant? My vet's brain has global atrophy. Even though it has shrunk and has deep pits, that problem can't be claimed. But, it was used as evidence that he has TBI.

   On the other hand...chronic headaches are a common symptom of TBI and if you have them can get a good 50% for it, in addition to the 100% TBI P&T. If you have other claims that combine to total 60% (with VA math)..which, is quite possible with the headaches as a big boost, then you have the basic foundation of requirements to receive the SMC L rating. It is a few hundred dollars higher than the SMC S you're probably receiving now. I figure you must be getting the S rating because it is almost always an automatic give when rated at 100% for TBI. 

 

[jfrei]

I was given SMC S when I was granted IU for my TBI with my other issues combined without the TBI is 70%.So now I have 1 TBI/PTSD  at 100% its together ive given up at separating apparently is harder then I thought even though the doctors did the rater said it was more rated together. Any ways I have 2 of 30%, 1 of  20%, 4 of10%, and 2 0% disabilities. If Im mistaken that would be 75% or 80% rounding up collectively. So that 1 100% and then 80% of the other disabilities combined which gets me SMC S? I am just asking if that is right....

[john999]

I would hire a lawyer because they don't get paid unless they win.    Getting a claim out of the VARO can be good and it can be bad.  When you go to the BVA you will probably wait two to three years.   If you can get your SMC T from the VARO it could happen fast via a DRO Hearing.  You or your attorney can ask for a personal hearing from the VARO at any time.  Do you have an independent medical opinion that states your vet  needs a 24/7 caretaker?  I see the VA doctor says he does but new evidence would be IMO doctor saying the same thing only louder.    If he is Pre 9/11 there is no provision for you to get paid as his caretaker.  You would have to use the SMC T money to hire a caretaker, or I guess you could pay yourself since you are his fiduciary.  Does SMC T actually pay enough to hire a live-in caretaker?  I doubt it.   So it would be you which he is lucky to have you.   I would hire the lawyer.  Would there be considerable retro pay if the lawyer won the case?  This is where the 20% would come from and that money is already spent so to speak.  What new evidence would be would be a medical opinion that your brother requires round the clock care, why, where, when etc.  Don't try to get free stuff because it is worth what you pay for it.   I got TDIU 16 years ago and I ended up having 4 medical opinions before I got my 70%,  TDIU,  P&T and an earlier effective date. It was money well spent.  I have found almost all VA claims will benefit from IMO/IME.  I would never have won TDIU or the secondary conditions that got me "S" without them.
 

[SupermanCannedy]

9 hours ago, jfrei said:

I was given SMC S when I was granted IU for my TBI with my other issues combined without the TBI is 70%.So now I have 1 TBI/PTSD  at 100% its together ive given up at separating apparently is harder then I thought even though the doctors did the rater said it was more rated together. Any ways I have 2 of 30%, 1 of  20%, 4 of10%, and 2 0% disabilities. If Im mistaken that would be 75% or 80% rounding up collectively. So that 1 100% and then 80% of the other disabilities combined which gets me SMC S? I am just asking if that is right....

Jfrei, 

It is my understanding that when a 100% rating is awarded for a TBI claim, the SMC S is automatically applied. That is most likely why you have it. They are not inclined to award the L rating unless you put in a claim for the increase. From what you have written in the various posts the past few months, it does appear you are eligible for SMC L. I don't think you need a lawyer to be successful in getting that award, unless you put in a claim and it is denied. A good VSO will be able to help you with this. It is not an unusual or complicated claim and you seem to have good medical evidence. You just need to put it all together so it is an "easy read" for whichever decision officer's desk it lands on. Google your county VSO office and see who is available and ready to help explain to you what needs to be done and will help you through the steps. I helped my vet make the increase from S to L about 2 years ago and it was much easier than putting in the claim for his TBI! It was also a faster response. I believe it took around 2 months. GO and GET ER DONE! 

 

[SupermanCannedy]

8 hours ago, john999 said:

I would hire a lawyer because they don't get paid unless they win.    Getting a claim out of the VARO can be good and it can be bad.  When you go to the BVA you will probably wait two to three years.   If you can get your SMC T from the VARO it could happen fast via a DRO Hearing.  You or your attorney can ask for a personal hearing from the VARO at any time.  Do you have an independent medical opinion that states your vet  needs a 24/7 caretaker?  I see the VA doctor says he does but new evidence would be IMO doctor saying the same thing only louder.    If he is Pre 9/11 there is no provision for you to get paid as his caretaker.  You would have to use the SMC T money to hire a caretaker, or I guess you could pay yourself since you are his fiduciary.  Does SMC T actually pay enough to hire a live-in caretaker?  I doubt it.   So it would be you which he is lucky to have you.   I would hire the lawyer.  Would there be considerable retro pay if the lawyer won the case?  This is where the 20% would come from and that money is already spent so to speak.  What new evidence would be would be a medical opinion that your brother requires round the clock care, why, where, when etc.  Don't try to get free stuff because it is worth what you pay for it.   I got TDIU 16 years ago and I ended up having 4 medical opinions before I got my 70%,  TDIU,  P&T and an earlier effective date. It was money well spent.  I have found almost all VA claims will benefit from IMO/IME.  I would never have won TDIU or the secondary conditions that got me "S" without them.
 

John, 

    We have never had to use a lawyer before this claim. We had an awesome VSO who showed me how to put together a solid claim and a cooperative vet who took every test he needed to go through in order to provide evidence.  His claim was processed, the c & p was solid and he got 100% P&T + SMC S awarded fairly fast! His claim to increase to a T the first time resulted in an L 1/2.  Just over a year later I filed for T again. But, that amazing VSO got promoted beyond my ability to reach her and we moved to a different state where no one seems to have heard of the T. So, I did what I could and the claim was denied. 

I first used a pro bono lawyer to file the NOD and immediately felt regret because they knew so little about VA law and even less about SMCs. I realized the NOD could sit at the county level for years and I suspected it was done poorly, which would lead to another denial!  Time has been ticking, so there will be retro pay in the end. But, if it takes years before it is finally approved and he passes while waiting, it is irrelevant. I took the advice of the folks on this site and found a law firm with experience in VA law. I am very happy with decision and believe it will be worth the % they get to keep. They are working fast to get it out of the county level and before a judge because my vet is at risk of being placed in a memory care or other facility. 

The claim wasn't denied because he didn't meet the criteria for T; the DO denied it based on criteria for R2, which was an error. We presented evidence from the VA neuro as well as his civilian neuro. There were plenty of other tests and brain scans, etc. It is very clear that he is eligible.  However, we will most likely have a civilian brain injury expert do another exam with a follow up letter.  We can also submit the MRI, Pet fusion and SPECT scans he received this past year. They show the continued brain atrophy and degeneration caused by the multiple TBIs.  His VA neuro started home health services with occupational, speech and physical therapy twice a week each in his home. We could include the initial assessment intake by each therapist. 

It is unfortunate that Congress didn't allow the VA Caregiver Program to pass for vets of all eras. It was attempted twice, but only passed when it was narrowed down to the caregivers of post 9/11 vets. Receiving the stipend from that program would not have resolved our problem. What would help us both is the ability to hire experienced help. The SMC T doesn't require a veteran to be in need of care 24/7 nor does it require skilled nurses. It is for those who are so helpless that without "regular in home aid & attendance" they would need to be placed in a care facility. He needs assistance, personal care and supervision all through the day and help with the process of going to bed, but he does not need supervision while sleeping....yet. Caregivers do not command the same pay as nurses, however the ones who are experienced and behave professionally can get close to the same hourly pricing. Ideally, we would hire a team of 2-3 caregivers who rotate in regular shifts and can cover for each other when needed. The SMC T will be enough to hire that type of help on a daily basis and I will be grateful for the time it will free up for me. However, I will remain his main caregiver and biggest advocate.