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R2 fight for mom

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dredubb

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Hello everyone! I've been fighting for about 8 years for my mom who has severe dementia as a result of several strokes caused by her service-connected hypertension. I'm her fiduciary and POA, so I've been handling this on my own. I want to thank everyone who has shared their stories, because I wouldn't even know about SMC if it weren't for this forum. Our VSO gave up the fight as soon as mom obtained a 60% rating.

I recently got her to SMC-L with K this month, but I feel the VA has still missed a condition in her medical records and made some errors in determining her current rating. Honestly, she should have been TDIU since 2012 but she was stuck at only 20 or 30% for her resistant hypertension at that time. She never received a full workup and the correct medication until it was too late.

She is currently in need of a memory care facility, is wheelchair-bound and housebound with a hoyer lift for the last several years, and needs total assistance with all activities of daily living. With all of her conditions and her need for total assistance that otherwise would render her to a nursing home, I'm pursuing SMC-R2.

Oddly enough, they just gave her K due to Loss of Use of both buttocks, but didn't give her LOU of both lower extremities or even LOU of both feet. She literally cannot walk or transfer without the help of at least two others. I thought from other threads that the inability to perambulate equates to LOU of BLE?

They also have her rated for 60% urinary incontinence (highest level they give), but don't have her rated at all for bowel incontinence which should be at 100% itself and is mentioned in her medical records upwards of 30 times!

We had a C&P exam in December and all of these items were missed.

So the question is, what's the best path forward to R2???

Also, section 8 of her Decision Letter is quite confusing to me. Can anyone help explain it?

The Redacted Claim letter and List of Disabilities are attached.

 

Mom ClaimLetter-2024-3-14.pdf Rated Disabilities Veterans Affairs.pdf

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Im with you.  The decision makes no sense.  They granted "loss of use" of buttocks (but denied any higher levels of SMC).  Those statements conflict each other.  Thats like saying we decided to give you a pay raise, but we arent giving you any more money.  

SMC R2 is a massive amount of money (around 10k per month) and VA wont give that to you, until they beat you half to death with paper first.  Here is what VA wont tell you:

Quote

If a rating specialist (especially a newbie, maybe a 20 year guru can get away with it) signs off on giving a Veteran a huge check, it raises eyebrows, big time.  So, they just would rather not do that and just deny, and let a judge, such as a BVA judge or CAVC judge do it instead.  The VA will deny this happens till the cows come home, but we know better. 

I think you are gonna need a pro to help you.  Probably someone who knows SMC inside and out, like CCK law.  You could appeal it yourself to the BVA (they likely would).  Then, get CCK law to represent you at the CAVC tor represent you (for the eaja fees) and try to fix it again yourself at the board remand.  

But, the faster way is to call CCK law now, and let them handle it. That decision is so messed up I cant imagine them not taking on this case.  They probably got the effective dates wrong, too.  They probably used the date of the c and p exams.  

    I dont think a HLR will fix this because there is probably missing evidence..you indicated her medical record indicated inocontinence 30 times, yet it was not mentioned.  That probably means missing evidence under 38 cfr 3.156.  

   I have at least 20 years practice with the VA, and have answered thousands of questions on this forum since 2007.  I would not do an "R2" without professional help because its "above my pay grade".  In other words, I would turn it over to cck law, or a similar firm, myself, and did so, 3 times..all resulted in remands at the cavc and 90 percent of my fees were paid by EAJA so I paid almost nothing for attorney fees.  (But I did the BVA myself, but I would not do the BVA in regard to R2).  

   I think it was Lemeul who made it to R2, and he is the only one I have ever known to get er done.  Maybe he will chime in.  

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Posted (edited)
4 hours ago, broncovet said:

Im with you.  The decision makes no sense.  They granted "loss of use" of buttocks (but denied any higher levels of SMC).  Those statements conflict each other.  Thats like saying we decided to give you a pay raise, but we arent giving you any more money.  

SMC R2 is a massive amount of money (around 10k per month) and VA wont give that to you, until they beat you half to death with paper first.  Here is what VA wont tell you:

I think you are gonna need a pro to help you.  Probably someone who knows SMC inside and out, like CCK law.  You could appeal it yourself to the BVA (they likely would).  Then, get CCK law to represent you at the CAVC tor represent you (for the eaja fees) and try to fix it again yourself at the board remand.  

But, the faster way is to call CCK law now, and let them handle it. That decision is so messed up I cant imagine them not taking on this case.  They probably got the effective dates wrong, too.  They probably used the date of the c and p exams.  

    I dont think a HLR will fix this because there is probably missing evidence..you indicated her medical record indicated inocontinence 30 times, yet it was not mentioned.  That probably means missing evidence under 38 cfr 3.156.  

   I have at least 20 years practice with the VA, and have answered thousands of questions on this forum since 2007.  I would not do an "R2" without professional help because its "above my pay grade".  In other words, I would turn it over to cck law, or a similar firm, myself, and did so, 3 times..all resulted in remands at the cavc and 90 percent of my fees were paid by EAJA so I paid almost nothing for attorney fees.  (But I did the BVA myself, but I would not do the BVA in regard to R2).  

   I think it was Lemeul who made it to R2, and he is the only one I have ever known to get er done.  Maybe he will chime in.  

I am waiting at the BVA for SMS-t paid as R2 for TBI victims.  Still waiting for the Haskell v McDonough, now Laska V McDonough decision with Margaret Laska having successfully substituted for Herbert Haskell.  

8 Months since the hearing.  I think a couple of CAFC remands favoring veterans and one that was a class action that I am submitting a 10182 on, the PCAFC decision that bodes well for challenging the VA's here to fore, unchallengeable medical reports, is slowing the CAVC and the BVA.

For the SMC-t, I have the qualification that was argued to be additionally needed by the Appellee VA Counsel in the hearing at about 58 minutes. (see one of my posts for the link.)

But if the argument had been for me, I am in much better shape than Haskell was.  His only problem was he had a qualified nurse to dispense his medication to him, she just was not ordered to do it by the VA.  Mine is ordered by the VA and paid for by the VA through community care.  I do not have a live in caregiver since my wife passed.  But my sister monitors me and the house with her cell phone from a block and a half away.

I sit in front of the computer all day in a bathrobe monitoring HADIT and a date site to try to find a live in caregiver. 

I need help to get dressed because I cannot lift my elbows above my shoulders an need to be monitored for falls.  But I am not bed ridden.  Just need someone to find me if I wonder off in a drift off that happens very infrequently.  But for many of us, our conditions needing care is defined by our worst day, not the day the social worker calls on us.  And they cannot seem to grasp that.  We could go out and cause an accident that would take someone else's life or burn our house down endangering firemen and neighbors.  Possibly with us in it.

Edited by Lemuel
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Lemeul:

    I think one question the OP was suggesting is are you represented by CCK or similar law firm, or PRO SE, or maybe a VSO?  

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On 4/5/2024 at 8:05 AM, broncovet said:

Im with you.  The decision makes no sense.  They granted "loss of use" of buttocks (but denied any higher levels of SMC).  Those statements conflict each other.  Thats like saying we decided to give you a pay raise, but we arent giving you any more money.  

SMC R2 is a massive amount of money (around 10k per month) and VA wont give that to you, until they beat you half to death with paper first.  Here is what VA wont tell you:

I think you are gonna need a pro to help you.  Probably someone who knows SMC inside and out, like CCK law.  You could appeal it yourself to the BVA (they likely would).  Then, get CCK law to represent you at the CAVC tor represent you (for the eaja fees) and try to fix it again yourself at the board remand.  

But, the faster way is to call CCK law now, and let them handle it. That decision is so messed up I cant imagine them not taking on this case.  They probably got the effective dates wrong, too.  They probably used the date of the c and p exams.  

    I dont think a HLR will fix this because there is probably missing evidence..you indicated her medical record indicated inocontinence 30 times, yet it was not mentioned.  That probably means missing evidence under 38 cfr 3.156.  

   I have at least 20 years practice with the VA, and have answered thousands of questions on this forum since 2007.  I would not do an "R2" without professional help because its "above my pay grade".  In other words, I would turn it over to cck law, or a similar firm, myself, and did so, 3 times..all resulted in remands at the cavc and 90 percent of my fees were paid by EAJA so I paid almost nothing for attorney fees.  (But I did the BVA myself, but I would not do the BVA in regard to R2).  

   I think it was Lemeul who made it to R2, and he is the only one I have ever known to get er done.  Maybe he will chime in.  

Well, that's a no go. CCK said they won't be able to take on the case. I'll see if I can go to the BVA myself. I do believe I can get her an L #2 based on loss of use of both lower extremities, which should get her to O and then R1 or R2 from there. We shall see! 

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14 hours ago, broncovet said:

Lemeul:

    I think one question the OP was suggesting is are you represented by CCK or similar law firm, or PRO SE, or maybe a VSO?  

I am represented by Chisholm, Chisholm & Kirpatrick.  But my case is in line with their Haskell and now Laska v McDonough case.  They are also representing my wife's claim before her death.  These are both TBI SMC-t paid as R2.  And yes, The VA will take the case to the CAFC for Laska, insuring the Secretary's privilage of rewriting law through the writing of his regulations.  And CCK is taking up other issues including remands not addressed by AOJ from my 2017 BVA Decision and the remand to the BVA to address my "Legacy Appeal" including evidence provided post slamming me into AMA without written consent.  By creatively reading my suggestion we could do by email questions from the Judge if the hearing was going to be to complicated and long.

According to the VAGC my wife will be denied even though her TBI caused her death eventually.  I should be approved even though I am not falling as often as my wife was before her death.  However she was admitted to the hospital and then a rehab center which is not the case for me.

So now I finally have a good attorney in it for the long hall.  And there was a recent CAFC decision I sent them that they say they are definitely going to use in my case re; EED.  Attached.  Possibly even for my epilepsy back to my first claim in 1974.  And what will be the effective date for SMC?  My wife was my caregiver from 1985, the effective date of my TDIU eventually needing a cell phone to keep track of me in Japan.

I meet the standard set in the hearing by the VA GC for SecVA.  But I am not nearly as bad off as Haskell was.  If I get SMC-t, it will only demonstrate the VAGC cannot write the regulations any fairer than Congress did the Code.  We are still waiting for the CAVA to render their decision.  

CCK had denied representing me earlier.  I had a pro bono at the CAVC for the remand.  A refusal of representation does not mean it is not a good case.  Attorneys have only so much of a load they can handle before they would get in trouble for not adequately representing their clients.  In my case they have already done a lot of the work and are waiting for a CAVC decision on the other case that is very similar.  They have video of the VAGC saying what I have, a nurse controlling my medication, would qualify me for SMC-t and because Haskell did not have it, he was not qualified under the law.  My nurse fills a dispenser and reorders the refills as necessary.  I live at home with a family caregiver that is not yet approved.  Another example of the VA not approving VA benefits just because they want to delay, deny and wait until we die to avoid the payment.

240324 CAFC 22-1504 Thomas v McDonough EED PTSD.pdf

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