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SMC question being separate and distinct

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Dot09

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I noticed a post a while from bronco stating that when determining SMC secondary conditions can not be used in the calculation for the 100 plus 60 for SMCs housebound. For in stance if I had a rating of 50 percent migraines secondary Bipolar 2 Panic Attacks then the 50 percent migraines could not be used because you are not separate distinct from the service connected condition. Is that correct?

My current 97% rounded 100 % schedular p/t

-70 percent bipolar 2 panic attacks- tdiu counts towards  100 requirement 

-30 percent right shoulder-counts towards 60 requirement

-20 percent left shoulder-counts towards 60 requirement

-10 percent right wrist-counts towards -60 requirement

-10 percent left wrist-counts towards -60 requirement

-10 percent tinnitus -counts towards -60 requirement

-0 percent right ear hearing- does nothing

-0 percent erectile dysfunction- does nothing 

-50 percent migraines- does nothing because it is not separate distinct

-50 percent sleep apnea- does nothing because it is not separate distinct 


Claims yet to be filed

-Gerd secondary/aggravation shoulders medication NSAIDS/benzodiazepines/antidepressants/bi polar panic attacks stress/obesity -30 percent 

Diagnosis- gastroesophageal reflux disease-2017 

30-Persistently recurring epigastric distress with trouble swallowing, heartburn, and regurgitation, with substernal or arm and shoulder pain, resulting in considerable impairment of health

-IBS secondary/aggravation Gerd medication Malox/bipolar 2 panic attacks stress/shoulder medication NSAIDS/antidepressants -30 percent 

No diagnosis 

30% rating for people who suffer from severe symptoms. Alternating diarrhea and constipation, consistent diarrhea, and constant abdominal stress are all considered severe symptoms under this rating.

-Cervical strain aggravation right/left shoulder inflammation and flare ups -0 percent 

Diagnosis- Neck pain-2011

-Lumbar aggravation right/left shoulders over exertion -0 percent rating 

Diagnosis- displacement of lumbar intervertebral-2016

-left hearing loss of direct/ secondary/aggravation tinnitus -0 percent

No diagnosis 

 

In total if awarded it would bring me to 99% schedular combined bringing a 100 % schedular p%t

 

Also my Right shoulder, Left shoulder, Right wrist, Left wrist, and tinnitus will hit its 20 year protection in 2024. I will wait until then before I file my claims. In the mean time I will continue to be treated and document evidence to strengthen my claims.

P.S. since I’m being represented by an attorney for a BVA appeal on my CUE from 2014 and an increase in Mental Health 2022 claim. I’m sure it will be a couple years before they decide. That will allow my protections to settle in and then I will file.

Edited by Dot09
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Pac-Man 
Actually my attorney is dealing with this now on my cue and increase for mental health. She needs to get the tdiu separated from the shoulders. Because currently I am tdiu for bipolar and right and left shoulder. I need it to be for one condition alone which she has great hopes for. Basically it needs to be tdiu for mental health alone. Basically she is filing a cue because the VARO did not submit my imo or dbq to the raters even though it was logged in the vbms database. The records in 2014 showed that I was at the 70 percent rating displaying occupational and social impairment in work, family, and school ect ect. The VARO violated the regulations when they decided to send the first three pages of my imo of my shoulders and failed to forward the other five pages on mental health and my dbq completed by my psychiatrist of 8 years. In the 70 percent rating it is clear that occupational and social impairment in work, school, and family is a major point that shows an individual cannot maintain substantial gainful employment. Therefore I am asking the BVA to consider that my mental health alone renders me unemployable. In addition to filing a cue claim if that fails I also have a increase claim for mental health in which she is also trying state that I should be tdiu for mental health alone. So basically if the cue or eed doesn’t succeed it will win eventually for the 2022 claim for a increase to 100 percent and smcs. So my bases are pretty much covered and it’s just a matter of getting a earlier effective date. I also could be denied from the 2022 increase claim but still being at 70 tdiu percent that still warrants me smcs in which I am unable to maintain substantial gainful employment.

Regardless if I get the increase to the 100 percent for mental health that still precludes work and if I keep tdiu and receive smcs that also precludes work. All in all my service connection disabilities prevent me from working and I have no intentions on going back to work. I would be setting myself up for failure for possible reviews for reduction, loosing my tdiu, loosing my smcs and my ssdi. Therefore at this time work is and will be out of the question.

P.S. My attorney didn’t believe it to be necessary to have a vocational expert evaluate me on how my mental health affects my substantial gainful employment. Personally I would have liked to do it to put that file nail in the coffin. I believe I have all the right evidence to win my claim.

Also thank you for always responding to my post. Much is appreciated 

Edited by Dot09
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In addition my attorney believes I don’t need a vocational expert opinion but I do. I just want to put the final nail in the coffin to shut them up. What are your thoughts on getting a vocational expert opinion stating that I can’t maintain substantial gainful employment due solely to my mental health at 70 or 100 percent. 
 

P.S. All my evidence is due 11/2/23. Do I have time to schedule and complete a exam? Can my attorney absolutely confirm my case will be successful. Therefore I would like to spend the 500-600 dollars to ensure my case.

Edited by Dot09
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In 1987 I received a vocational assessment from the Waco VARO VOCAB counselor stating I was not capable of gainful sustainable employment without further education and he approved my claim for completion of accounting degree at a local central texas college that I then graduated in 89 with accounting finance degree.  His 87 assessment help me continue my 50% PTSD rating until 89 and then it was reduced to 30% and discontinued in 91.

However if he had said I was capable of gainful employment then my PTSD would have probably been reduced or terminated much earlier.  A two edge sword.  I would listen to my attorney if I had one.

My comment is not legal advice as I am not a lawyer, paralegal or VSO

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Thank you dustoff for your reply. Yes I am definitely going to follow my attorneys advice. It’s just so hard after 19 years doing my claim to just stop but I need to have trust in my attorney.

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