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Am I there yet?

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jamescripps2

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Yes I am there. My appeal only took eight months. In October , 2015, I was awarded loss of use of a hand and a foot and got the vehicle grant w/adaptive equipment and the SAH grant. I appealed that decision because upon any new 100% grant the VA is obligated by statute to consider A&A as an inferred issue and they failed to do that.

In December 2015, I appealed the decision because A&A was not considered as an inferred issue. My contention was,  I was awarded SMC "L" for loss of use of two extremities in the decision.  Had the VA considered A&A as an inferred issue at the time of that decision as they should have, I would have qualified for regular A&A. An A&A award is also a SMC"L" award. According to 38 CFR 3.350 and USC 1114 if you are entitled to two separate ratings between L and N you qualify for the "O" award. In my case I have two awards at SMC L that qualify for SMC "O". The A&A automatically goes to the R-1 rating if you obtain the prerequisite "O".

I got eight months retro but will appeal the decision for an earlier effective date of January 2011, the date that the loss of use claim was filed. More later.

Edited by jamescripps2
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I was granted R-1 earlier in the claim but was not assigned the effective date that I thought that I was due. An EED spanning five years back is the only remaining issue to be decided. The BVA says that I was required to file a claim for A&A while I am saying that A&A should have been an inferred issue based upon the well documented medical records of heart disease.  The records were in their possession at the time of a 100% grant for loss of use for one hand and one foot. I have three 100% P&T grants and many lesser grants.

Docket No. 16-61 183, The decision has not yet been posted on the BVA site, but should be posted soon. I engaged The CCK law firm to represent me before the Court. Due to the blatant nature of the denial, I think that any law firm would have taken the case, but I see CCK to be one of the best, if not the very best in the business The case may have the potential to set a precedent before a panel, but that kind of stuff is beyond my pay grade. WE will see!

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  • HadIt.com Elder

James

Do you think the cck law dogs will have to CUE THIS? Or write a writ to get their attention? ITS BEYOND MY PAY GRADE TOO!

please let us know how it goes and what it took to win this!

I am very interested in the outcome

I wish you the best Brother.

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It is of record that I called it a cue, but my argument is that the Board should have inferred A&A upon the decision granting loss of two extremities. M21 and Akles vs Derwinski support my contention.

Now, just think about this, a VAF 21-2680 is used to support a A&A claim, but keeping in mind that you are only required to file one 21-526 in a lifetime, what form would you use to actually file a claim for A&A. The day of a 21-4138 being recognized as filing a claim is gone. Have you ever seen or heard of a form to file for a "S" award or a "K" award, or for that matter, a form to file for any SMC? I did ask for A&A and a final R-1 rating on my RO nod and on my Form 9 that was certified to the Board. 

I was granted A&A, and loss of use of two extremities, resulting in the "O" award and the automatic bump to R-1 because of two SMC ratings between SMC "L" and "SMC "N". Like I said, I am going to COVA for a five year EED retro. The EED issue is the only item that is on the table for decision, and that is decision is dependent on the ruling of whether or not the A&A should have been an inferred claim. The decision, if granted, involves six figures in back pay after legal fees. It should be over with and done within eight months to a year if it is a single judge decision. A full panel decision in the case could stretch it out to maybe two years.

Considering that I have already been granted the maximum benefit in a partial grant, and was paid for the issue, the retro is a fixed amount and does not accumulate more retro with time as most claims do. 

After this pending Court decision, however it goes, the only thing left for me is R-2, should I ever need it, a burial plot and a flag. So far, it has been a long hard fifteen year road to prosecute what was called a frivolous claim. Never again can the VA say, "Mr. Cripps", "we never, ever used Agent Orange in the Continental United States"!

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  • HadIt.com Elder

James

u  quoted ''Considering that I have already been granted the maximum benefit in a partial grant, and was paid for the issue, the retro is a fixed amount and does not accumulate more retro with time as most claims do. ''

What about them no inferring the A&A  you should get retro back to 2011   correct?  I MEAN YOUR LOOKING AT A RETRO AWARD SAY 3.500 PER MONTH  that's  a whopping retro amount=''the retro is a fixed amount and does not accumulate more retro with time as most claims do. ''

I never heard of that above 

Anyway fight tooth and nail for that my friend.

keep us posted  I wish you the best.

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Yes Buck, If A&A would have been inferred, as it should have been, the retro would have gone back to 2011. SMC "O" and A&A at the rate of R-1 was finally granted in 2016. Considering what has just been said, I have been drawing at the maximum rate starting in 2016. With that in mind, if I win at the Court the retro will be due from 2011 through 2016 because I have been paid the proper amount from 2016 through the present date. Yes, you are spot on with the whopping retro amount x 59 months.

Along the way there have been ancillary and other benefits such as automobile grant with adaptive equipment, Special adaptive housing grant, clothing allowance, (three per year), a HISA grant, and many ILP items furnished. Up until now it has been quite an accomplishment for a pro se vet, but at the court I will need/use professional representation.

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  • HadIt.com Elder

Roger that James

I hear CCK LAW are pretty good reps...and also WODS&WOODS Attorneys. I do think Woods &Woods specialize in the EED...But don't quote me on that..

Personally I don't think they should hold or ''count'' the ILP stuff that you received  ''such as automobile grant with adaptive equipment, Special adaptive housing grant, clothing allowance,  but never under estimate the VA, they will try to squeeze that in and make a deduction if they can  but I don't think they can do that  with your retro amount owed to you...but then again this is way above my pay grade.

That 59 months sounds Great.

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