Would anyone be willing to look over my husbands new report and DBQs concerning separate ratings for TBI/PTSD A&A Headaches?

[Vet Dog and wife]

 

Would anyone be willing to look over my husband’s new report and DBQs concerning separate ratings for TBI/PTSD A&A Headaches? we also posted a lot of his VA claim docs too.

 

Thank you all very much for all your prior advice. you have helped my husband so much and we truly appreciate all your help.

Edited May 1, 2019 by Vet Dog and wife
need help

[Vet Dog and wife]

 

Answers to Berta's questions  

I will try to look over all of the downloads later today- Thank you so much

Have you posted in the downloads, the last decision the VA made on your husband? Yes 1998 was my husbands last decision, and it is also posted above

If not can you scan and attach it here- I can review it for possible CUE. I posted everything above

Have you formally filed a re-opened claim for the separation of the PTSD and TBI-? We filed an intent to file and are getting ready to submit the new evidence.

If so can we see the actual claim you filed that these DBQs involve? (cover the personal identifying stuff prior to scanning anything you attach here) I

In a past post somewhere I mentioned the 6 tests the VA gave my husband to separate his PTSD from his traumatic brain injury due to a Section 1151 stroke.

He was granted 100% SC P & T for PTSD and also 100% P & T for the 1151 stroke. (posthumously)I hope the DBQs covered that medically,in your husband's case,with a full medical rationale. I am not sure if it did, but we could get another report and needed DBQs when we return to the U S

With 100% solely  for any SC he would be eligible for SMC S consideration. Yes, in the past you recommended that

I assume he does not receive the SMC S award. no

The A & A award is a higher level than SMC and depends on medical evidence.

Because my husband could fed himself and button his clothes, the VA did not award A & A, just SMC S under two theories of entitlement.

I accepted the SMC S  and was satisfied with that.The SMC was awarded under a CUE anyhow. The other CUE they awarded was far more important than the A & A to me.

If we have A & A vets here they can help you best with that part of the claim.

If you use our search feature maybe some of those A & A posts will pop up-

And maybe the newest VBM has some new info on A & A- I will check.

I am working on one of the most important issues for veterans that I have ever dealt with.It takes quite a bit of my time. Thank you for all your help for veteran’s Berta

MRCPsych (Member of the Royal College of Psychiatrists) 

https://en.wikipedia.org/wiki/MRCPsych

The Certificate of Completion of Training (CCT) is the certificate that medical doctors in the United Kingdom receive to indicate that they have completed training in their chosen specialty and are therefore eligible for entry onto the specialist or GP register.

Certificate of Completion of Training - Wikipedia

Thank you very very much Berta you're awesome

Edited March 26, 2019 by Vet Dog and wife
add info for Berta

[Berta]

Your evidence is SUPERB!!!!!!!

But after reading most of it- I have not found the 1998 decision yet but will look again, I think it will not matter to try to get 2 separate 100% ratings- one for the TBI and one for the PTSD-

What I mean is this- 100% SC  PTSD plus 100% additional SC, would only warrant SMC (100% plus 60) or Housebound award.,

reading the info brought me back to this in one of your older posts:

"In 1998 my husband was diagnosed with “dementia due to head trauma with mood disorder and post-traumatic stress disorder” by the VA and he was rated with a 100% permanent and total service-connected disability.  code 9304

That decision might contain a SMC CUE but I need to find that decision here.

Your situation is similar to mine. In a different way- but basically the same thing-  a delimma .....Because

Secretary Wilkie is going to address some new AO presumptives in the next few months .

I had written to former Sec Shulkin on the NAM report, suggesting that any veteran ( like my husband) with AO IHD who also has suffered a Stroke due to ischemic brain disease, which is more than likely due to their AO IHD, should be granted the stroke as AO prsumptive.

My letter was far more medical than that- Shulkin was a doctor- I knew he would see the medical rationale right away.

Shulkin used two of my claims process suggestions , from a different letter I sent to him, to revise M21-1 MR as part of the VA Modernization Act, but he was fired around the time I had written the letter as to the AO stroke issue.

For me however I had already proved to VA that two 1151 disabilities my husband had were also direct SCs under AO.

The dilemma for me is  the same as your husband's

if stroke becomes an AO presumptive, it would simply become a direct SC disability ,in addition to his SC for PTSD.Only because of Nehmer -which does not apply to your husband, the VA would owe me some cash-

VA already awarded the SMC CUE and I received the retro SMCs award.

VA OGC Pres Op, the evidence for my 4 pending CUEs,

provides both SC and 1151 monetary payments. I am the first person who ever used this pres op to challenge a VA decision.

So what I am thinking is that 100% SC PTSD in addition to 100% SC for the SC TBI (which is not 1151 in your case) would not provide your husband with any additional comp as a dual 100% direct SC payment.

 

It does set the stage ( the evidence you have) for a SMC S award and if they committed a SMC CUE in 1998, that would mean some significant retro. 

Or they could possiblely  award A and A- but I think they would have to award SMC S first and than work on the A & A claim as a separate new issue, or maybe award another level of SMC, based on the SMC regs in 38 USC 1114.

You have excellent evidence for a higher rating than the 100%, but what  I see at this point is the SMC S award....and if the 1998 decision contains CUE, they would have to pay SMC S back to that decision date.

I will try to find the 1998 decision here- 

and I suggest that when you send this evidence in to the Intake Center that you are claiming the highest level of SMC your husband is entitled to, by virtue of the medical evidence in VA possession.

The criteria for the higher SMC levels are in our SMC forum.

There is no question that he, in my opinion, should receive SMC S, but the higher levels have a specific criteria I will post next.

100% SC plus 100% additional SC warrants SMC S.

100% SC plus additional 100% SC under Nehmer (AO) warrants ,in some cases Mega retro.

100% SC plus additional 100% 1151 "as if" SC involves, per General Counsel Pres Op 08-97, which states that " congressional intent " is to not  deprive a veteran or their survivor ,of all monetary benefits they are eligible for, whether direct SC or additional 1151 awards.

The word ALL appears 2-3 times in the Pres Op and is underlined at the OGC web site.It has never been revised, altered , or withdrawn.

VA had already begun settlement talks with me and the opinion does not state 'except for Rodney Simmons and/or his Surviving spouse.'

It has bever been challenged before and even NVLSP never heard of any challenge , by using it as evidence for a VA claim.

I will also check within the newest VBM by NVLSP for anything that could help you- I suggest that all advocates be willing to spend the money for this consistently wonderful law book all about the VA claims process.

However I feel your evidence is Superb!- and the SMC S award is what I envision right off the bat, with the date of the claim as the EED.

If they committed the same CUE, as they did in my husband;s 1998 posthumous award, then the SMC retro will be far greater than back to the date of this ITF claim.

I wish I could give you an estimate of what they paid me for retro SMC S under my CUE but I have questioned the entire audit, as it does not make sense, and two past VA audits I questioned brought me over forty thousand dollars , because they made mathematic errors on the retro amounts.

We all have to check and double check their "audits" for proper payment.

 

 

 

 

 

 

 

 

 

 

 

Edited March 27, 2019 by Berta

[Berta]

We would need to see the 1998 decision, the evidence list , and also the rating sheet.

It may or may not be a CUE.

Rating sheets holds the key to many CUEs.

The 1998 decision I received was a DIC 1151 award that contained the 100% past posthumous rating for my husband's PTSD, then some NSC ratings, than a rating that totalled 80% for his Stroke.

100% SC plus 80% Stroke (1151) equalled SMC consideration.

The 80% rating was wrong , I fought it and they raised it to 100% for the stroke - however the Director of my VARO- this is the part of my White House complaint that is still open- the director insisted, in spite of all documented evidence to the contrary, that my husband was 100 % due to the stroke but it was not permanent.Yet the 1151 decision states that it contributed to his death. 

I already rattled of my evidence here that they had, and that was verified to me by some VSO there. Since my WH complaint, (which prompted a bill in the Senate) ,I have had contact with a few people at my RO who actually know how to read. And who know the Director is lacking in knowledge of  basic VA 101.

This means any vet who dies with a 1151 or  even direct SC condition contributing to their death ,that was also 100% in their lifetime, might die and their spouse could be denied DIC- if they deal with the Buffalo VARO, and the VA says their disability was total but not permanent at death.

Death makes all continuous 100% disabilities Permanent at death.

This was not an issue when they awarded my husband 100% P & T for SC PTSD 3 years after he died.I had more evidence for the stroke at 100%

P & T then I had for the PTSD 100% P &T award.

 

 

Edited March 27, 2019 by Berta

[Vet Dog and wife]

New finished report

 

 

Edited May 1, 2019 by Vet Dog and wife
New finished report

[Vet Dog and wife]

46 minutes ago, Berta said:

We would need to see the 1998 decision, the evidence list , and also the rating sheet.

It may or may not be a CUE.

Rating sheets holds the key to many CUEs.

The 1998 decision I received was a DIC 1151 award that contained the 100% past posthumous rating for my husband's PTSD, then some NSC ratings, than a rating that totalled 80% for his Stroke.

100% SC plus 80% Stroke (1151) equalled SMC consideration.

The 80% rating was wrong , I fought it and they raised it to 100% for the stroke - however the Director of my VARO- this is the part of my White House complaint that is still open- the director insisted, in spite of all documented evidence to the contrary, that my husband was 100 % due to the stroke but it was not permanent.Yet the 1151 decision states that it contributed to his death. 

I already rattled of my evidence here that they had, and that was verified to me by some VSO there. Since my WH complaint, (which prompted a bill in the Senate) ,I have had contact with a few people at my RO who actually know how to read. And who know the Director is lacking in knowledge of  basic VA 101.

This means any vet who dies with a 1151 or  even direct SC condition contributing to their death ,that was also 100% in their lifetime, might die and their spouse could be denied DIC- if they deal with the Buffalo VARO, and the VA says their disability was total but not permanent at death.

Death makes all continuous 100% disabilities Permanent at death.

This was not an issue when they awarded my husband 100% P & T for SC PTSD 3 years after he died.I had more evidence for the stroke at 100%

P & T then I had for the PTSD 100% P &T award.

 

 

Thank you so much Berta, I reposted what I think you were asking for

[Vet Dog and wife]

On 3/16/2019 at 11:08 PM, Vet Dog and wife said:

 

 

New DBQs and reports I posted earlier.  Thanks again Berta

Edited May 1, 2019 by Vet Dog and wife
New finished report