Nexus letter if I have photographic proof?

[LKF050813]

Hello, new here. Working through getting an increase on my s/c issues and it has been brought to my attention I should have had my left knee s/c this whole time (medically retired 12 years ago). I have photographs of me competing in triathalons while wearing a knee brace on my left knee while on active duty. Platts data with my matching bib number backs up the dates of the photographs. Is this enough for the VA to service connect or should I still get a nexus letter? I’m s/c for pes planus and right knee, so could definitely get a letter for left knee secondary to those issues, but would prefer to just submit what I have. It seems like a smoking gun, but don’t want to assume how the VA will look at this.

Thank you!

[LKF050813]

4 minutes ago, pacmanx1 said:

The reason why I was awarded two separate increased ratings and assigned two separate TDIU ratings is because the VA failed to correctly process one of my original claims. I filed the claim around 1998 and it was denied, I then filed a NOD that got lost for two decades (20) years. It took me 20 years complaining about my lost evidence. When the BVA finally reviewed my records and granted my claim/appeal, the regional office low balled it and I filed a new NOD. The BVA finally found my NOD and granted me an unadjudicated (still open and pending) claim dated prior to my 100% schedular rating. So, with their help they back dated my awards

The only way you can get an earlier effective date, you will have to prove that you have a disability that should have been rated prior to your 100% rating. If the VA denies your TDIU rating and grant you 100% schedular. Yes, you can appeal and request a TDIU rating based on your current symptoms.

If I appeal the TDIU, do I not get paid for the 100% P&T back pay (since my intent to file date) and regular pay while the TDIU appeal is ongoing? 
 

I don’t think I have any other disability that I can claim that precedes what I’m claiming currently. The only way I see a path for a retro back pay is to get awarded TDIU with an EED going back to my last day of gainful employment.

[LKF050813]

13 hours ago, Lemuel said:

Yes, combined total is better than TDIU.  But no, why give up what you should have had.  The extra-schedular claim to the Director of Compensation Services is reviewed at the Central Office.  The AOJ did not forward my claim for review and I mistakenly thought their decision, which appeared blanket at the time, was all I could get.  Nothing prevents you from increasing schedular after you have TDIU.  And a higher schedular helps with SMC.

Since they are two separate channels, one at the AOJ, and the other at the Central Office, and the AOJ was required to submit your case for TDIU to the Secretary even if you did not meet any of the presumptive qualifications.  I suspect your TDIU will be much faster and now money is worth more than future money.  It will buy more bread or gasoline.

I’m currently at 80%, looking to increase to 100% P&T regular scheduler, but also applying for TDIU at the same time. My original thinking was to get one or the other, but didn’t realize I should be trying to get both and can use the TDIU award to try for the EED going back to my last day of gainful employment.

What is SMC?

[pacmanx1]

2 minutes ago, LKF050813 said:

If I appeal the TDIU, do I not get paid for the 100% P&T back pay (since my intent to file date) and regular pay while the TDIU appeal is ongoing? 
 

I don’t think I have any other disability that I can claim that precedes what I’m claiming currently. The only way I see a path for a retro back pay is to get awarded TDIU with an EED going back to my last day of gainful employment.

You do not need a new disability; you would just have to prove that the VA should have granted you a TDIU based on your evidence and your symptoms of record. 

[pacmanx1]

1 minute ago, LKF050813 said:

I’m currently at 80%, looking to increase to 100% P&T regular scheduler, but also applying for TDIU at the same time. My original thinking was to get one or the other but didn’t realize I should be trying to get both and can use the TDIU award to try for the EED going back to my last day of gainful employment.

What is SMC?

When the VA granted you 80%, they should have discussed TDIU in that rating because the 80% already makes you eligible for TDIU.  SMC-S is about $300.00 to $500.00 extra above the 100% or TDIU pay rating.  

 A veteran can be awarded SMC-S if he/she is rated a single 100% schedular rating plus an addition 60% or a single TDIU rating with an additional 60%.

Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,

(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

(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.

 https://www.ecfr.gov/current/title-38/chapter-I/part-3/subpart-A/subject-group-ECFR6477ad08d327384/section-3.350

 

[Lemuel]

8 minutes ago, LKF050813 said:

I’m currently at 80%, looking to increase to 100% P&T regular scheduler, but also applying for TDIU at the same time. My original thinking was to get one or the other, but didn’t realize I should be trying to get both and can use the TDIU award to try for the EED going back to my last day of gainful employment.

What is SMC?

SMC is special monthly compensation.  There are different levels for veterans that have amputations or loss of use of more than one limb or meet the criteria of not being able to fully take care of themselves.  Need help with basic needs like bathing or getting dressed.

Adding to what pacman said above, your spouse can also be eligible.  And there is an SMC-t that is paid at R2 or a little over $10,000 a month total disability compensation.  

Chisholm, Chisholm, and Kirpatrick (referred to as CCK on Hadit) is taking clients while a case on SMC-t is in the works.  The CAVC and CAFC have recently created "class actions" out of cases where the VA has gone astray with the law.  Haskel v McDonough now Laska v McDonough is stayed on SMC-t, a CCK case.  With the courts ordering the BVA to create classes on cases like the Program for Comprehensive Assistance for Family Caregivers, PCAFC on February 29, 5 days after my sister was denied as a family caregiver is an example.

The PCAFC case set a precedence against the VA saying that medical reports were unreviewable.  The denial of PCAFC was done by the VAHA not the VABA and because it was a "Health Administration" decision was considered unreviewable by the BVA even though the decision may have not been compliant with the regulations.

Finally the Courts are holding the VA to account.  This should break the backlog of veterans claims in the "Delay, Deny, Wait Until They Die" mode.

 

[LKF050813]

Thank you for the thorough explanation, from both of you! I just spoke with my VSO to explain some of this to him and he told me the VA is going to tell me to pack sand. Thanks for the vote of confidence…

”Finally the Courts are holding the VA to account.  This should break the backlog of veterans claims in the "Delay, Deny, Wait Until They Die" mode.”

I’ve never heard that saying before, but it is sad and shockingly probably true.