...Consider the need for SMC and A&A

[chris_2pher]

Hello everyone. First post here. Hope all is well.

Currently 70% PTSD with TBI and on IU since 2010. I also have 40% total of other ailments (back, neck, knees). My wife is my official VA caregiver and on the Post 9-11 Cargiver program.

In 2018, I made attempts to get a higher rating but was denied not long after the OTC appointments. I then submitted an appeal to the BVA.

In Feb of 2024, I received a letter from the VBA that a 100% rating for PTSD with TBI residuals was granted. A few more pages in the letter regarding Diagnostic Code 8045. It is written that the 'VA should consider the need for Special Monthly Compensation for such problems....."

It also states a remand for sleep apnea.

I have searched the internet about this topic but still don't understand. I did not apply for SMC at all. Does this mean they are going to switch me? What do they mean about remand?

Please chime in if you have any insight. I would love to hear from you. Thank you in advance.

[relatively happy camper]

Back in the '80's-'90's the VA was required to consider an SMC "s" rating for either housebound or A&A, for any claimant who received a 100% schedular rating and if the VA failed to consider that SMC rating, by either awarding it or denying it, that claim remained open.  (It was one of the reasons I won my SMC award in 2020.)  I believe that is still in effect, which is why they are considering it for you.  The fact that your spouse is your caregiver should be favorable evidence, towards that end.  I would make sure that the claims people know that!  Don't assume that just because she is getting paid for it that they know!  jmo

[chris_2pher]

10 hours ago, Rattler said:

How about you take a sharpie and block out your indemnifiable information such as your name address and social security no etc. and post it hear so all of us can look at it. Or you can send it to me in a private message and I will do it for you and post it.

To send a PM click on my name or broncovet's and click on private message. I will send you one now to reply to.

I'll make some copies and block out my info, then will scan. It'll take a bit because its 15 pages.

[Lemuel]

On 3/17/2024 at 12:31 PM, chris_2pher said:

Hello everyone. First post here. Hope all is well.

Currently 70% PTSD with TBI and on IU since 2010. I also have 40% total of other ailments (back, neck, knees). My wife is my official VA caregiver and on the Post 9-11 Cargiver program.

In 2018, I made attempts to get a higher rating but was denied not long after the OTC appointments. I then submitted an appeal to the BVA.

In Feb of 2024, I received a letter from the VBA that a 100% rating for PTSD with TBI residuals was granted. A few more pages in the letter regarding Diagnostic Code 8045. It is written that the 'VA should consider the need for Special Monthly Compensation for such problems....."

It also states a remand for sleep apnea.

I have searched the internet about this topic but still don't understand. I did not apply for SMC at all. Does this mean they are going to switch me? What do they mean about remand?

Please chime in if you have any insight. I would love to hear from you. Thank you in advance.

You are in the same place I am except my wife died before her SMC was approved.  CCK is handling mine now.  Look for the U Tube, Haskell V McDonough hearing.  Sound like that may be where you are. 

Is your wife a nurse?  Do you have epilepsy with your TBI.  Do you have space outs?  How much of your PTSD reactions are actually "complex partial seizures".  Look these things up with your wife.  She has observed you and will know.  Because of the anosognosia that goes with epilepsy, you will not be fully aware of having epilepsy unless you have a major seizure.

Because of my epilepsy medication I have the nurse control my medication.  Once a week, she fills up a dispenser.

SMC appears to be started, or at least has to have the input of your P C.  There is a form you fill out and process through benefits.  It goes to your P C for evaluation.  Or at least that was what happened in my case when I was advised to put in for SMC.  You can get SMC for your wife also.  

I have two claims at the BVA now with CCK as my attorney.  One SMC for me and one SMC for my deceased wife while she was alive.  Both for TBI and both will probably be delayed until the Haskel v McDonough (Now Laska v McDonough with his wife substituting).  I just checked.  The decision is not in yet.  Probably being delayed because the 3 Judge panel has their clerks working overtime to make sure they are not overturned in which ever way they go.  The case will undoubtedly go to the CAFC, the second highest court in the land on appeal by either side that does not win in the CAVC decision.

I think I am going to ask CCK to get an interim order from the CAVC to grant the SMC level the Secretary is willing to grant pending the outcome of Laska v McDonough no. 22-1018.  I will have to sell my home and move into a nursing home very soon if I do not get the extra money to pay the extra help I am having to hire.  

The thing is you have to sell or sign it over to a nursing home to get in for when your bank account runs dry from paying more than $10,000 per month when you are only getting 5,000 per month.

I would download the VA Form 21-2680 and fill it out and submit it if I were you.  One original to benefits and a second original to your P C team.

Bing Videos link to the Haskel v McDonough hearing on U Tube video.  The last 10 minutes are the most important.

 

[Lemuel]

11 hours ago, Rattler said:

How about you take a sharpie and block out your indemnifiable information such as your name address and social security no etc. and post it hear so all of us can look at it. Or you can send it to me in a private message and I will do it for you and post it.

To send a PM click on my name or broncovet's and click on private message. I will send you one now to reply to.

Better to put it on a thumb drive and take it to a library, preferably a University Library where there is better security, and use Acrobat to redact your .pdf files that you want to share.  I have Acrobat on my computer that I can use to redact.  I was necessary when I was filing my own briefs to the CAVC in previous attempts to get my epilepsy S C to my TBI.  It has to be "observed, witnessed or confirmed" by a medical professional to be SC.  ROs and DROs only accept the witness part and ignore a confirmation and beginning of treatment by a neurologist.

 

[chris_2pher]

1 hour ago, Lemuel said:

You are in the same place I am except my wife died before her SMC was approved.  CCK is handling mine now.  Look for the U Tube, Haskell V McDonough hearing.  Sound like that may be where you are. 

Is your wife a nurse?  Do you have epilepsy with your TBI.  Do you have space outs?  How much of your PTSD reactions are actually "complex partial seizures".  Look these things up with your wife.  She has observed you and will know.  Because of the anosognosia that goes with epilepsy, you will not be fully aware of having epilepsy unless you have a major seizure.

Because of my epilepsy medication I have the nurse control my medication.  Once a week, she fills up a dispenser.

SMC appears to be started, or at least has to have the input of your P C.  There is a form you fill out and process through benefits.  It goes to your P C for evaluation.  Or at least that was what happened in my case when I was advised to put in for SMC.  You can get SMC for your wife also.  

I have two claims at the BVA now with CCK as my attorney.  One SMC for me and one SMC for my deceased wife while she was alive.  Both for TBI and both will probably be delayed until the Haskel v McDonough (Now Laska v McDonough with his wife substituting).  I just checked.  The decision is not in yet.  Probably being delayed because the 3 Judge panel has their clerks working overtime to make sure they are not overturned in which ever way they go.  The case will undoubtedly go to the CAFC, the second highest court in the land on appeal by either side that does not win in the CAVC decision.

I think I am going to ask CCK to get an interim order from the CAVC to grant the SMC level the Secretary is willing to grant pending the outcome of Laska v McDonough no. 22-1018.  I will have to sell my home and move into a nursing home very soon if I do not get the extra money to pay the extra help I am having to hire.  

The thing is you have to sell or sign it over to a nursing home to get in for when your bank account runs dry from paying more than $10,000 per month when you are only getting 5,000 per month.

I would download the VA Form 21-2680 and fill it out and submit it if I were you.  One original to benefits and a second original to your P C team.

Bing Videos link to the Haskel v McDonough hearing on U Tube video.  The last 10 minutes are the most important.

 

First off, I'm so sorry to hear about your wife. My heart goes out to you and your family.

My wife is a former Medical Assistant at Kaiser and my caregiver with the VA Caregiver Program.

I don't have space-outs but I do have episodes where I don't realize where I am or remember how I got there. But I do snap out of it and say, "Nooooow I remember!". Then I continue my day.

My wife does my meds from ordering and administering, as well as food prep. I burned my parent's kitchen. lol. Pretty much keeps me out of danger.

I do not have representation yet. Depending on some outcomes, it may be beneficial.

I'm wondering if I should regret simply applying for an increase. Now that they mention SMC and A&A as a possible result.

 

[broncovet]

Few people, if any, ever regret applying for an increase.  The worse that can happen is that it gets denied, and you can always appeal.  Its an old wives tale that if you apply for an increase you will be reduced instead, and its inconsistent with regulations.  Anyone can get reduced, whether or not you apply for an increase, "if" your conditions improve to the extent of the following regulations:

(Its actually hard for the VA to reduce you if you are P and T or over 5 years, as the following regs show):

Quote

§ 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ______ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.