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VICDE

Working Toward R-1

Question

I recently filed a claim for the VA to look at my total record and determine if the totality of my service connected condition combine qualifies for a second SMC L-aid and attendance determination or that of SMC O or R1. I had researched the BVA site and internet the last few years and found that such determination where, for a time, hard to find.  However, now there seems to be an abundance of search determinations for me to review and pattern my case by.  One case that is very similar to mine is actually posted here by Jamescripps2, I believe his name here is.  Also, I have profited greatly, knowledge wise, from periodically reviewing ASKNOD.  His post are a combination of education, humor, and other information but mostly shows he cares about the veteran and is not judgmental as some sites that cater to our needs are.

Anyway my situation is as follows:   I have worked my way up to SMC M though a steady reading of posts, BVA decision, CFRs and posts here and another similar site.  I have two 100% ratings: one for mental issues and another for my heart, kidneys, and blood pressure combined.  However, James raised an interesting point about separating some issues in order to achieve the maximum rating as the VA is supposed to be doing.  By my reading chronic congestive heart failure diagnosis alone requires a 100% rating as I have been diagnosed with that.  Further, I don't know the history of Jame but he indicated that he has a 100% rating for chronic kidney disease stage three, I also have this disease at stage 3b, and  it seems he is rated 100% for this condition alone as well.  Yet, all of mine are combined into blood pressure.  So this is why I am thinking of separating these condition from one to two or possible three.  My 100% heart, kidney, blood pressure was a new rating in which it seem SMC L was not looked at by the record. Although I believe it said that no reason to bring it up if the condition doesn't warrant it ( read this somewhere can't remember which regulation it is from).

This post resolves around a claim that I am specifically asking for SMC O or R1 due to my medical conditions being evaluated in light of needing aid and attendance absent of any condition that were used in the original determination which was only one as far as i know - Mental.  My M came when they added a new back dated rating for my Heart and other stuff mentioned above.  I have 25 disability ratings currently (I counted) and expected a few more with a pending appeal due to several favorable C and P examination. Why so many?  Because I live overseas in the Philippines and to get care (free) requires service connection so I have fought for every service and secondary that I could get by my record and understanding of the regulations.  From reading here and the CFR I understand that condition must be separate but I did not truly understand till I read posting between James and ASKNOD posts and discussion back and forth.   

The questions are this The doctor connected my lower back spine degeneration to my cervical spine degeneration thus it is secondary. Therefore all it's secondaries are also not necessarily independent disabilities on their own.  However, the spine condition was used initially in my SMC P at L 1/2 prior to my SMC M determination and has a termination date or whatever its call that starts the day before the new SMC M started; thus it is not used in any determination for a rating now.  The SMC M determination is solely predicated on my heart, blood pressure and kidneys.  I had vocation rehab medical opinion from my PCP that basically said all activities were extremely limited and I was pretty much able to role and bed and open my pie hole only (due to pain, pain medication, heart, mental, orthopedica problems, etc).  Further, I was not qualified even to work on my own outside my house.    

In my prusuit of R1 I asked him to do a 2680 since that was his opinion based on conditions other than the mental - which I have and SMC L for already.   I also asked my PCP doctor at the VA to fill a similar form as well since the volcation rehab opinion was so bad. The ortho  came back right away, (not able to leave home other medical appointments, need assistance medication management due to bilateral upper and lower 'severe radiculopathy", need help dressing, etc) in other words almost all answered in the affirmative expect feeding myself.   Still pending the PCP 2680.  However, I have had two C and P with no promises till results are in but from the doctors comments it seems his comments on my lower back exam. radiculopathy and right shoulder exam would be extremely favorable as well.  But, since I already have the Ortho 2680 and my PCP opinion from Vocation Rehab (2016 was the date; old I know) and numerous C and P's (old as well) in past indicating the need for regular use of a cane for balance issues: this seems it should be enough for the determination by the regulations. I know from ASKNOD posts, I believer it was, that there are differences between post 911 LOU for housing and LOU for compensation. I was originally trying to get the SAH but the findings seem to open up new possibility.  However using a cane can't be seen as LOU for compensation I am sure but maybe for post 911 SAH.  However, what about the chance for R1 as it seems like all the requirement are there?  Any help or advise would be appreciated.  This is a long post I am sure I forgot some things please ask it it would help offer advise.

 

Thanks,

Vic

Added later: Here is a similar case remanded by the court back to BVA and approved/rated: https://www.va.gov/vetapp18/files3/1814284.txt  .   Don't know if a precedent but proves it is possible.

Edited by VICDE
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VICDE

you should look up  on the hadit radio podcast shows in the hadit archives   and find the show where James Cripps was a guest and he talked about how he was getting the Upper SMC for the different conditions he had..and what he did to get them.....  or PM him here on Hadit

I believe once a Veteran has been awarded SMC -S Helps with his/her credit-ability and comes up with a more severe condition  or his condition has got worse he needs to put in a claim for that condition as long as you have medical documentations (Records) to back you up and A Qualified Dr opinion in your favor that the condition is and meets the SMC Criteria for that SMC Your filing for.

Remember SMC's are based off the severity of the condition ...how it effects the Veteran  ect,,,ect,,  way of life.

Edited by Buck52

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Chronic kidney disease for stage three does not result in 100%, being on dialysis would though.

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Oceanbound and Buck 52 thank you for your comments.  Yes, Buck52 I understand about the IMO, I think.  The Ortho doctor who performed my exam and 2680 was previously a C and P doctor until the VA switched over to outside providers.  He is the one who decided that I needed so much assistance due to lower back and 4 extremities of "severe radiculopathy" (his words) pain, multiple Ortho problems and pain medications, I guess these are what he used in deciding that I needed help with most activities of daily living.  He is also is one of the regular doctors I see during my VA visits here, so he is also experienced at evaluating me every few months. My pain meds are: Oxycontin, Lidocaine patches, Capsicin cream, Gabapentine, and Baclofen. I have medicine for gouty as well.  I also have about 10 plus other medications for various conditions.  I am pretty much in a zone most of the day as some of the others also cause drowsiness especially the psyche medications.  I will listen to the podcast if I can find it but from it posts it seems I have done much of what he has done already prior to coming here.  However, there are still many pointers I am sure that are not listed here.

Oceanbound, thanks I previously only read the post of Jamescripp2 from before where he indicated he was stage III kidney disease at 100%.  However, he never mentioned the dialysis part. I would rather pass on that and not meet that threshold if I can avoid it.  I thought that dialysis was required as well but if he had been successful, I was thinking it never hurt if you don't try.  In the Navy they use to say ( I will paraphrase) that if you ain't trying everything to succeed you ain't really trying.

 Again thanks.

 

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On 10/12/2019 at 8:19 AM, Oceanbound said:

Chronic kidney disease for stage three does not result in 100%, being on dialysis would though.

Oceanbound, I have done some additional research, as I always do if told I am not correct. I believe this is the only proper way for me to learn.  I think your reply although correct is not 100%.  The CFR implies that other conditions other than dialysis can result in a 100% condition as long as the symptoms or lab values are present.  It states, and I have emphasized the basis of my reasoning in bold below:

Requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular

https://www.law.cornell.edu/cfr/text/38/4.115a

But this is besides the point. The point is am I at or near R1 now with the Ortho eval, voc rehab medical opinion, and waiting on the the other 2680 from my PCP or is something else required.

Thanks for your imputs in advance

My account was just updated already in preparation for decision with estimated completion date of 25Oct- 5 Nov 19.  That's quite fast I think, seeing as how my file date was 05 Sept but I have already had 4 exams and included a lot of evidence.  I am expecting to fight after an initial denial but we will see. I will update my posts.

Edited by VICDE
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