Bone Cancer

[Jbo]

I'm 100% disabled for prostate cancer and filing for SMC for stage 4 bone cancer.  I can't find what percentage it would be ratebale for and I have not been scheduled for a C&P exam.  I've submitted all CT scans &  MRI scans with letters from my doctors.

In addition I've also filed for diabetes 2, neuropathy, sleep apnea and tinnitus.  I've had a C&P exam for the diabetes & neuropathy with no decision yet also no C&P scheduled for the bone cancer.

My question..what is the secondary rate for stage 4 bone cancer would it be SMC-S  or somthing else?   Will I receive SMC-K compensation for all the additional issues ? 

thank you for any help

[Jbo]

On 12/6/2021 at 1:05 PM, asknod said:

I had one Vet who eventually died from it (with the bone cancer, too.) He received 100% under DC 7538 until he died. However, more importantly, Jbo must understand that bone cancer is a separate and distinct disability even though it is secondary to the prostate cancer. Thus, it gets a separate 100% rating by operation of law. I filed my Vet for SMC L for A&A under §3.352, SMC L for the loss of use of the lower extremities under §4.71a DC 5012, SMC O for two SMC Ls (one of which was a&a) under §3.350(e)(1)(ii), and R1 (§3.350(h) because the prostate cancer so thoroughly disabled the Vet that he needed a higher level of A&A for it. I also asked for and received an advancement on the docket under §20.900(c) which I urge BJbo to do as well. See attached BVA decision- https://www.va.gov/vetapp18/files9/18139787.txt.  Sadly, he died four months after I won the R1 for him.

I'm a little confused what is meant by separate and distinct  disability.  Is the compensation different or does bone cancer automatically recieve 100% rating?  I haven't been scheduled for a C&P for the bone cance yet. they have all the CT and MRI scans with a letter from my doctor saying it's stage 4 and all the records going back to '16 for bone cancer.

I have had my C&P for diabeties 2 and neuropathy that seemed rather useless just a bunch of questionsit was done by a NR not a doctor.  

I'm also receiving compensation for erectile dysfunction and SMC for my wife last year I was getting $3,433.  

I also have to catheterize myself two to three times a day to keep everything flowing properly. I've never filed for that, I'm not sure that's even something the VA compensates,my wife does help me with this sometimes when I have an issue doing it.  

 

[Berta]

The link from CCK I posted here on Monday states:

"If you are service-connected for an active cancer, VA should automatically assign a 100 percent disability rating.  This rating continues for as long as your cancer is active, and then for another six months following the successful completion of a treatment program, such as chemotherapy, radiation, or surgery.  Six months after your cancer treatment ends, VA will schedule you for a Compensation & Pension examination to evaluate the current status of your condition.  If the examination shows that your cancer is no longer active and is in remission, VA will evaluate the cancer based on its residuals.  For example, erectile dysfunction and urinary incontinence are common residual symptoms of prostate cancer.  If prostate cancer is no longer active, VA will likely reduce the disability rating for that condition and assign new ratings based on the severity of the veteran’s erectile dysfunction and urinary incontinence if present."

It seems you already receive SMC with additional for the wife( A & A) but the amount does not jive with the SMC chart for 2021. Maybe you get multiple K awards?

https://www.military.com/benefits/veteran-benefits/special-monthly-compensation-smc-tables.html

If we can see the award ( cover your C file # ,name address prior to scanning and attaching it here) we could better understand what VA actually awarded.Please attach the Evidence list as well.

 

 

 

 

Edited December 8, 2021 by Berta

[Jbo]

I'll try posting my C file. 

I've been rated 100% for prostate cancer 20 yrs. and what you discirbed is what happened to me.  My question was what is the meaning of "separate and distinct" for bone cancer when filing for secondary.
 I didn't understand what differance it makes and does it automatically get a higher rating like SMC L

 

[Marine Corp 69/70]

Jbo. I would call CCK because they specialize in SMC claims and you need help, look up there number and give than a call ( like yesterday) as soon as possible. If they take your claims it means (a) you have a good case (b) you can spend all your time fighting your cancer which is your (ONE) number Priority.   Good Luck  Semper Fi Brother

[Berta]

I dont think posting your C file here is a good idea-

Many of us have C files that are Enormous.

My husband had two claims pending when he died and had never been denied. My C file is enormous because I had to fight over both of his pending claims, both of which succeeded , as well as th subsequent AO IHD claim and the AO DMII claim.

A few hours before he suddenly died,he made me

promise to continue those claims, in the event of his death.He was worried that I would never receive DIC.

His pending claims were  for

1. higher rating of his 30% SC PTSD-posthumously granted about 2 1/2 years later.

2 Claim under 1151 for malpractice,that in his words could eventually cause his death.

Granted after FTCA settement, about 3 years later- DIC under 1151 for VA's "multiple deviations" from a "Usual standard of care." all of which caused his death at age 47. Changed to direct SC death due to AO DMII after my daughter, a veteran , urged me to file that claim.

It would help if we could see the last decision you got and the evidence list they used.

And the rating sheet.(redact C file #, name, address)

But I also suggest that you try to seek a vet rep from the Big 6 preferably,who could take the time to review your records and determine how to word the claim.

I would think they would  word it as a secondary claim-but they might have a different theory of entitlement to use. 

I dont know how much help CCK can give you now because the claim has not been denied, but they are a GREAT vet law firm!

 

You asked :

"  My question was what is the meaning of "separate and distinct" for bone cancer when filing for secondary." 

These are two different issues-but a secondary SC disability could set the stage for SMC:

 

"These matters come to the Board on appeal from a March 2016 rating decision that granted entitlement to service connection for ED as secondary to service-connected prostate cancer, and granted SMC based on loss of use of a creative organ; the Veteran appealed for an earlier effective date. During the pendency of the appeal, an earlier effective date of January 20, 2015 was granted, as this was the date of receipt of his original claim of service connection for prostate cancer."

(This is a very long complex decision specific only to the veteran claimant but the VA did the right thing by awarding SMC due to the secondary award.)

https://www.va.gov/vetapp20/files10/20068569.txt

I can give a personal example:

My husband was 100% SC P & T for PTSD.

He also had an indepenent "separate and distinct" rating over 60% for a Section 1151 stroke on a posthumous rating sheet.

Perhaps someone could have claimed the stroke as seconday to the PTSD- possible....if a doctor agreed,with a strong IMO/IME  but this was an obvious 100% SC plus over 60% "as if SC" so I filed it that way- (it was a CUE searchable here-because VA had failed to consider SMC,).

VA also was awarded direct SC death in 2009 due to diabetes mellitus from AO (Vietnam)

They never rated the DMII because this was a malpracticed issue but I did not raise the malpractice in the claim.The medical evidence (his VA med recs) spported that anyhow.

I could, and might, as I am still eligible for accrued benefits, file for a direct SC rating on the 1151 stroke as "secondary" to the DMII. 

Others here might well have better personal examples of the difference between SMC S criteria and secondary issues.

 

 

 

 

 

 

Edited December 9, 2021 by Berta
cloud

[FormerMember]

VA considers a disease or injury separate and distinct if it involves a different bodily system. Look at the ratings in Part IV of 38 CFR. A muscular issue is a ratable "condition". An eye condition is separate and distinct from a muscular condition. A skin disease is different from an eye condition. A gastroenterological condition like GERD is obviously  separate and distinct and a  different bodily function  than brain cancer.

See? There are separate and distinct parts of your body like the lungs (pulmonary) or heart (cardio) that have nothing to do with prostate cancer. It appears in SMC ratings to prevent pyramiding of ratings:

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or

additional single permanent disability or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate[...]  In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l)

If you are 100% for prostate cancer, and you have bone cancer, it may be secondary to the prostate cancer but it (bone cancer) involves the bones and is a different bodily system separate and distinct from your prostate gland. Or your heart. Or your lungs. Or your kidneys. Or your eyes etc. 

Once you are awarded a 100% or TDIU for a single disease process, you become eligible for A&A. If you have two 100% ratings (or a TDIU and another 100%), you are technically entitled to another a&a as long as the second 100% is separate and distinct from the first and involves a different bodily system. All you have to do is show the second disease/injury also requires the need for a&a. You can have more than one a&a. This the "backdoor" way to get to R1.

Edited December 9, 2021 by asknod