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#1 USNDW

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Posted 19 May 2011 - 03:56 PM

I have been reading posts, asking questions, reading USC codes and Title 38 and I am more confused now than I ever was.

For SMC. If I have a rating that is 60%, Service connected right knee with chronic resiudals following TKR. Can that rating be established as could or would be able to grant me TDIU??

If it was established that that single service connected condition at 60% could grant me IU, then would I be able to combine my other ratings to meet the 60% criteria for SMC S???


I have seen a lot of posts that state the rating for IU must be 70% to be considered total for the purpose of SMC S, is that true?



Are Bi-lateral conditions considered when computing the rating % necessary to qualify for IU and then SMC S?

I have the following ratings

60% Right knee, failed knee replacement x2 (and just recently diagnosed with Complex Regional Pain syndrome in that knee as well. Can that 60% be increased due to CRPS)
10% Left knee
30% Adjustment disorder
30% sleep apnea
30% cervical
20% lumbar
10% For bothe right & left lower limbs, radiculopathy
10% left shoulder radiculopathy
10% Bi-lateral Plantar Fasciitis
10% Left hand arthritis
10% Tinnitus
10% Hypertension
and a bunch of service connected 0%

My inital rating provided me TDIU and a 90% schedular. I filed a NOD and was granted the 60% for the right knee vice the 30% the rater initially awarded. Added the hypertension and left shoulder since then as well. Currently have a NOD for
seronegative RA, increase for left knee following a menisectomy & prescribed full length leg brace. Active claim for automobile allowance.

#2 Berta

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Posted 20 May 2011 - 05:22 AM

Is the 10% left knee secondary to or a bilateral percent solely due to the SC right knee?

"Currently have a NOD for
seronegative RA, increase for left knee following a menisectomy & prescribed full length leg brace"

and "10% Bi-lateral Plantar Fasciitis" which sure must be aggravating the other stuff.

Have you compared the medical evidence that they used for the 60% to the Schedule of Ratings?

Have that specific disability gotten worse since they awarded?

Have you claimed it (the 60% disability) has been aggravated by the left leg disability -which sure has gotten worse- and warrants a higher rating that way?

"I filed a NOD and was granted the 60% for the right knee vice the 30% the rater initially awarded"


Did you formally appeal the 60%?

"I have seen a lot of posts that state the rating for IU must be 70% to be considered total for the purpose of SMC S, is that true?"


Can you refer me to one of those posts?

#3 Berta

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Posted 20 May 2011 - 05:24 AM

forgot to ask:
"My inital rating provided me TDIU and a 90% schedular."

How did VA consider and deny SMC at that time? what was the date of that decision?

#4 Berta

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Posted 20 May 2011 - 05:41 AM

sorry-I should have focused on your first question first-

60% Right knee, failed knee replacement x2 (and just recently diagnosed with Complex Regional Pain syndrome in that knee as well. Can that 60% be increased due to CRPS)

Yes.
The BVA would not have remanded this claim if CRPS was not a ratable disability:
http://www.va.gov/ve...es4/1034802.txt

Did the diagnoser of the CRPS document in your med recs that the CRPS was a direct result of the SC knee?

Can you tell me the diagnostic codes they used for each of your ratings pertaining to both knees?

#5 WAC-Vet75

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Posted 20 May 2011 - 09:10 AM

If, you receive TDIU for one service connected disability rated at 60% or more, and have additional disabilities rated at 60% or more, separate and distinct from the disability that afforded you the TDIU, AND involves different anatomical segments or bodily system(s), then you would be eligible for SMC s. You would have to have medical evidence that you can not obtain, or maintain employment due to your knee condition, and apply for TDIU for it. I would venture to say that the VA would then schedule a C&P. I did not have to have a C&P for my TDIU, as my medical evidence, provided by VA Physicians, my employment record, and my statement was sufficient to establish TDIU.

#6 USNDW

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Posted 20 May 2011 - 01:28 PM

Well, the Fast letter says a single condition that was the reason for IU, OR could be considered for IU. My right knee condition is the main reason I was medically retired, and I was approved for SSDI, while on active duty, and the date SSDI found I could no longer work was January of 2007, prior to the left knee being injured, and the daignosis of the multiple orthopedic conditions, inflammatroy arthritis, sleep apnea, hypertension, and adjustment disorder. So I would have to think the right knee at 60% which is the maximum rating even with amputation was, or is able to be a single disability rated at 60% that would keep me from seeking gainful employment.

The Fast Letter does not specifically state that a condition that would qualify the Veteran for SMC S has to have been determined to cause the Veteran IU, or that IU has been awarded for that single SC condition. That is why I am confused. If the qualification now states that the condition "could be" the sole reason for IU, then the VA can grant SMC S.

The CRPS was just diagnosed, and it was consistent with the right knee surgeries and treatment causing the CRPS. The doctor didn't comment on CRPS in any other joint than the right knee. But I don't know if the VA can rate 60% due to chronic residuals of knee replacement, 5055, and rate the right knee with CRPS, or Neuralgia. If 60% is the maximum rating for a leg, can they rate another condition that is present??

#7 jbasser

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Posted 21 May 2011 - 01:26 AM

Keeping it simple you must have 1 single solitary sole condition rated as total with another combined rating of 60 percent or he housebound to receive SMC S.


J

#8 HM1retiredUSN

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Posted 21 May 2011 - 08:00 PM

Well, the Fast letter says a single condition that was the reason for IU, OR could be considered for IU. My right knee condition is the main reason I was medically retired, and I was approved for SSDI, while on active duty, and the date SSDI found I could no longer work was January of 2007, prior to the left knee being injured, and the daignosis of the multiple orthopedic conditions, inflammatroy arthritis, sleep apnea, hypertension, and adjustment disorder. So I would have to think the right knee at 60% which is the maximum rating even with amputation was, or is able to be a single disability rated at 60% that would keep me from seeking gainful employment.

The Fast Letter does not specifically state that a condition that would qualify the Veteran for SMC S has to have been determined to cause the Veteran IU, or that IU has been awarded for that single SC condition. That is why I am confused. If the qualification now states that the condition "could be" the sole reason for IU, then the VA can grant SMC S.

The CRPS was just diagnosed, and it was consistent with the right knee surgeries and treatment causing the CRPS. The doctor didn't comment on CRPS in any other joint than the right knee. But I don't know if the VA can rate 60% due to chronic residuals of knee replacement, 5055, and rate the right knee with CRPS, or Neuralgia. If 60% is the maximum rating for a leg, can they rate another condition that is present??



Your residuals status post knee replacement are a musculoskeletal disability. A nerve condition, while secondary to your knee replacement is okay, and does not run afoul of the amputation rule. This is not pyramiding, since musculoskeletal and nervous system are separate and should be evaluated as such.

#9 USNDW

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Posted 21 May 2011 - 11:22 PM

Thanks for that. I was wondering because I had read that a limb could only be rated the maximum amount of the amputation, but then I have seen awards that went above the amputee rule, and until now didn't understand how

#10 Philip Rogers

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Posted 22 May 2011 - 04:41 AM

Keeping it simple you must have 1 single solitary sole condition rated as total with another combined rating of 60 percent or he housebound to receive SMC S.


J



J - I continue to disagree!!! The additional ratings do not need to be combined, altho that is how the VA is apparently administering it at present. The additional ratings need only "add up" to the additional 60%. Anyone who's additional ratings add up to 60% should apply for the SMC "s" award, and if denied, appeal, appeal, appeal . . . . It's like money in the bank. When you win you'll get a nice retro check. Or you can listen to the VA and others(J) and not apply and get nothing, zero, zip, etc. It's your choice! jmo sorry J!

pr

#11 USNDW

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Posted 23 May 2011 - 12:10 AM

Yeah,

they could rate the right knee as total, a single 60% rated disability. The rest of my ratings easily can be combined to reach the 60%. I have 3 other ratings at 30% each, 1 for 20% and about 8 at 10%.

As I said before, I also currently have a NOD for Seronegative arthritis which was diagnosed only 6 months after I retired, so it is a presumptive. I had signs of the arthritis, and treatment records for it while still active so either way it should be found service connected. They denied it last time because they never requested the records from my private docotr, which I gave them the name, phone number, address and dates of treatment. I also sent a package of information that included the tests, X-rays, and bone scan which confirmed the systemic problem in every joint. They tell me they never got the package, but they did have in the evidence a record from the VA that they pulled at the same time. I only signed 1 release of info and it was in the package I sent, so how they came out with 1 piece of paper and did not receive the rest of the package really isn't possible. I am sure that is going to be rated at least 60% at a minimum because my doctors have noted it is totally incapacitating and I cannot work because of it, and my fatigue levels are 20% of normal.

We will see. I sent a letter to the VARO DRO asking that they consider the SMC when they complete the NOD appeal

#12 Berta

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Posted 24 May 2011 - 05:51 AM

," so how they came out with 1 piece of paper and did not receive the rest of the package really isn't possible."

I believe strong from personal experience that this is deliberate on VA's part to selectively ignore critical evidence.

Do you have a vet rep?

"We will see. I sent a letter to the VARO DRO asking that they consider the SMC when they complete the NOD appeal"

"They tell me they never got the package, but they did have in the evidence a record from the VA that they pulled at the same time. I only signed 1 release of info and it was in the package I sent"

Have you firmly advised them to consider the entire packet you had sent to them? Do you have a proof of mailing receipt to scan onto the letter?

I get furious when I read stuff like this.
Years ago I was so fed up with Buffalo RO for refusing to acknowledge my evidence that I sent it all to former temp VA Secretary Mansfield with a postage paid envelope enclosed asking him to send it to my regional office.

I thought this would make them read it.

They got it all from him and still refused to read it.6 years later it got read by the BVA and they awarded the claim.

This stuff doesn't happen in a vaccuum.It is part of the stall tactics the VA uses.

Edited by Berta, 24 May 2011 - 05:52 AM.


#13 Teac

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Posted 24 May 2011 - 08:56 PM

You have a huge problem. That is you are already rated 100% total. The va is not obligated to even consider TDIU if you are already rated 100%.

But on the other hand.. if you were rated 60% with TDIU and also had the smc .. and then the va revoked the TDIU and awarded 100% and you lost the SMC at the same time.. According to Bradley v Peake the VA would be required to
award TDIU and the SMC even though you could be rated 100%. This is because the va is required to award the maximum benefits allowed.


But as I said, once you are rated 100% the va is not obligated and by law will not consider TDIU... they will say it is a moot point...



You also would have to show the knee is the reason that you don't work, that may be hard to prove if you have been out of work for a while, and never raised the issue, or if you had a career that didn't require much walking or standing....


Don't want to discourge you but remember the va looks at all the evidence not just the medical records.....




At least this is how I understand the delima...

Edited by Teac, 24 May 2011 - 09:07 PM.


#14 Teac

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Posted 24 May 2011 - 09:06 PM

Your residuals status post knee replacement are a musculoskeletal disability. A nerve condition, while secondary to your knee replacement is okay, and does not run afoul of the amputation rule. This is not pyramiding, since musculoskeletal and nervous system are separate and should be evaluated as such.



The problem with this reasoning is that the va did not always rate nerve injuries seperate from musculoskeletal ratings.


For example.. I have DDD lumbar region, rated at 60% , it caused siatiac nerve damage , muscle problems , and drop foot... I was never rated for the nerve damage as at that time (1999) it was considered part and parcle of the back injury. I was awarded a K award for the drop toot.... Truthfully, under the new rating schedule I don't think I wouild ever get a 60% rating for my back, and I would be lucky to get a 30% rating for the siatiac nerve.. but the VA does not re-rate based on the new schedule just to lower a rating.. And besides one 60% rating is better than two 30% ratings because of the combined ratings chart...

#15 USNDW

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Posted 24 May 2011 - 11:42 PM

Thanks for the replies, I appreciate the inout.

I do not have a Vet Rep. and have never had one. I received my award within 30 days of retirement, TDIU with DEA benefits and then later the NOD and additional shoulder and hypertension ratings. I talked with 2 before filing my own claim but the response I got was not encouraging so I went it alone.

I did verify that they finally received the packages I sent, the last 2 anyway, and after I asked why I have to send them something 2-3-4 times before they admit they received it I have not had an issue of them not receiving my mail. Crazy. Now they have the medical reports and tests to confirm that I was diagnosed with an inflammatory (unidentified) arthritis condition affecting every joint in my body which occured within the 1 year presumptive period. Arthritis is presumptive and I was seeking medical treatment while active duty anyway and it is in my records, and they have seen them and have rated multiple joints with arthritis.

If the VA can say that since I am 100% the TDIU and SMC S is moot, why didn't they write that in the fast letter?? There is nothing in the fast letter about a Veteran who is 100% schedular based on multiple disabilities being unable to qualify for SMC S under the Bradley case. I read that thing about 10 times to make sure and it does not clarify that, and in fact states the VARO must maximize the Veterans benefits and in order to maximize them they would have to consider the highest single rating in the award and determine if that single disability would qualify the Veteran for TDIU, which my right knee at 60% would because of the severity of the condition. As I mentioned earlier that is the reason I was awarded SSDI, along with the side effects of the pain medication I took because of the right knee condition (service connected).

I did originally have a TDIU rating, and when I was awarded the 60% for the right knee I inquired about SMC and they denied I qaulified. It wasn't until after my hypertension and left shoulder were rated did they say I was 100% schedular. That is why I wrote overload. Every answer I get on the question is not specifically in the fast lett 09-33, or the rating process did not occur as it should have making it in even more confusing.

I snet a letter to the RO asking that the question be considered when they review my NOD.

Again, thanks everyone for your input, when I get a final answer, whether right or wrong I will post it.

#16 jbasser

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Posted 25 May 2011 - 06:02 AM

J - I continue to disagree!!! The additional ratings do not need to be combined, altho that is how the VA is apparently administering it at present. The additional ratings need only "add up" to the additional 60%. Anyone who's additional ratings add up to 60% should apply for the SMC "s" award, and if denied, appeal, appeal, appeal . . . . It's like money in the bank. When you win you'll get a nice retro check. Or you can listen to the VA and others(J) and not apply and get nothing, zero, zip, etc. It's your choice! jmo sorry J!

pr


The best chance to get this discombobulated issue out in the open is for a Veteran to file an appeal, get deined, appeal to the BVA, Get denied and finally get it into the Court where it could be a precedent setting issue. It may even take a hgigher court to do it. That is what is needed, for the current status quo we are at the mercy of the VA on this issue.

j

#17 Philip Rogers

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Posted 25 May 2011 - 08:20 AM

j- that's what I'm hoping to do, w/my claim. It's been back and forth for 20 yrs and it was just remanded, back to the BVA, after another RO denial. In the mean time I recommend all who may should file, now, and not wait. Thanks!!


pr



The best chance to get this discombobulated issue out in the open is for a Veteran to file an appeal, get deined, appeal to the BVA, Get denied and finally get it into the Court where it could be a precedent setting issue. It may even take a hgigher court to do it. That is what is needed, for the current status quo we are at the mercy of the VA on this issue.

j