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      The following is on my About page, but some have been asking how this all happened. So here is my little story. Tbird US Navy 1983 – 1990 E-6 HadIt.com the website domain registered Jan 20, 1997 the domain is registered and paid for through Jan 21, 2023 at which time I plan to register it for another 15 years Lord willing and the creek don't rise. I guess the best place to start is Jan 1991; I had gotten out of the navy Dec 1990. At my separation seminar, there was a DAV rep Jim Milton he told us to bring our medical records in and he would look through them for us and let us know if we should file a claim with the VA. Well, bless his heart, he opened my medical file, reads the first insert, looks me straight in the eye, and says you will be 50% for the rest of your life and he would file the claim for me. 50% was for surgery I had in the service. True to his word he met with me and talked with me for a long time filled out my paper work and urged me to file for PTSD. 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Up to the pysch ward I went, blah, blah, blah, a few days later I was released with a promise of a call from the out patient program, which I would soon be entering. Blah, blah, blah, after many missed communications, and no call backs I was at the Day Hospital everyday M-F. And this brothers and sisters is where I began to learn and formulate my plan for HadIt.com. Veterans, veterans everywhere…I spent a year in the day hospital and about another year at a sheltered workshop before I got back on my feet. So I just talked to veterans everyday waiting for appointments, waiting for prescriptions, waiting for a vet rep and I started to learn the system. While in the navy I was data analyst and had to learn a 5 volume manual and just about anything you were suppose to do was in that manual. So I figured there must be a manual on how to do a VA claim or at the very least regulations. 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So taking my lesson from the squirrels earlier I started to gather, gather, gather…and learn HTML and work as a marketing systems analyst and work my claim. 1996/1997 major PTSD cork blows and unemployed. Working my claim, working the website. 20 Jan 1997 register HadIt.com domain name right after getting off the phone with the VA and saying I've had it with this. As fate would have it the old DAV board goes down just as mine opens up and folks start to wander in. So HadIt.com has two main components the website which supports the discussion board with links, articles, research resources etc. The website starts to grow, I can't tell you how many times I had to switch servers for space and features. I continue on a downward trend and in 1998 ended up back home in St Louis living in my sisters basement in therapy and working it, I swear I would have swung a dead chicken around my head at midnight naked if I thought it would have helped. The website continued to do great during this time, I just stayed in the basement bought new software, new books, and learned how to make things work and I continued to use this knowledge to make HadIt.com better. My 100% finally came through from the VA and I had a friend who is an advocate who helped me thru my SSDI claim, he was literally at my side thru the entire process and that came through for me. My therapist and sister continued to try and get me to leave the basement, but to no avail. At some point in 1998 or 1999 I put a counter on the website and was shocked to discover how many visitors we were getting. Time goes by my sister gets married and I move from the basement to the upstairs, there is much celebration that Aunt T is living in the light again. More time goes by and I settle into my life in St Louis and spend more time on the site trying new things, finding more information. 2003 I buy my own home VA loan. For years now I have just considered HadIt.com my job and I get up every morning go to the office and work for several hours, take an afternoon break and see where the rest of day takes me. I have a place in the office to use the computer and a comfortable to place to read journals and articles and take notes. Blah, blah, blah so that is my story and HadIt.com's intertwined.
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      VA Training and Fast Letter Forum Index The following is the index with links to the various Training and Fast Letters plus a few miscellaneous. These letters are not necessarily in the original formatting. I have tried to present them in an easy-to-read form instead of some forms as originally presented. Some of the paragraphs were WAAAAYYY too long. lol - HadIt.com Member fanaticbooks Something to be aware.... Some of these letters may be rescinded, outdated, or otherwise no longer viable. I have still included them because sometimes they provide additional insight or just plain more information than the newest version. Use them wisely. The oldest letters will display at the bottom with the latest letters displayed at the top, all in sequential numbers. Coding of the letters... FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin Training Letter http://www.hadit.com/forums/index.php?/topic/40694-va-tl-00-07/ http://www.hadit.com/forums/index.php?/topic/40693-va-tl-00-06/ Fast Letter Number Title http://www.hadit.com/forums/index.php?/topic/44262-va-fl-11-15/ http://www.hadit.com/forums/index.php?/topic/44260-va-fl-11-13/ http://www.hadit.com/forums/index.php?/topic/44261-va-fl-11-11/ http://www.hadit.com/forums/index.php?/topic/44310-va-fl-11-09/ http://www.hadit.com/forums/index.php?/topic/42151-va-fl-11-03/ http://www.hadit.com/forums/index.php?/topic/40957-va-fl-10-49/ http://www.hadit.com/forums/index.php?/topic/40958-va-fl-10-46/ http://www.hadit.com/forums/index.php?/topic/40959-va-fl-10-45/ http://www.hadit.com/forums/index.php?/topic/40960-va-fl-10-42/ http://www.hadit.com/forums/index.php?/topic/40961-va-fl-10-39/ http://www.hadit.com/forums/index.php?/topic/40962-va-fl-10-35/ 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Bva Denied My Smc For 100% + 60% "s" Award . . .

123 posts in this topic

Posted · Report post

I've kinda been expecting it! I even explained about the issue of using the "combined ratings table" illegally and enclosed reference to a BVA decision. So I'll be filing my appeal to the CAVC next week. I'm rated 100% + 20% + 10% + 10% + 10% + 10% which should be added together, for the needed 60%. Guess we need the CAVC to clarify the rule.

pr

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Posted · Report post

Yep, the only way to find out is to take it to court. If you win or lose on the "combined ratings " issue for SMC that will clarify it for other vets.

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Posted · Report post

I've kinda been expecting it! I even explained about the issue of using the "combined ratings table" illegally and enclosed reference to a BVA decision. So I'll be filing my appeal to the CAVC next week. I'm rated 100% + 20% + 10% + 10% + 10% + 10% which should be added together, for the needed 60%. Guess we need the CAVC to clarify the rule.

pr

PR, Maybe the Court has already decided the "issue" in the past; can you post the Reasons and Bases or some part of the Decision that will help me search for suppoorting case law? ~Wings

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Posted · Report post

Wings, thank you!!! I'll post the reasons and bases, later tomorrow, as I don't type well and just the SMC reasons and bases section is 10 3/4 pages long. I believe it needs to go to the court as I've never seen any precendence cases and I think they settle and award, prior to the court addressing the issue. (jmo) They do address the issue of the ability to "leave the home to earn a living" as being part of the housebound issue. They also state my credibility is questionable, but I note it's only when it's favorable to me and not when it's favorable to them. I'm sure an attorney can pick this apart.

pr

PR, Maybe the Court has already decided the "issue" in the past; can you post the Reasons and Bases or some part of the Decision that will help me search for suppoorting case law? ~Wings

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Posted · Report post

pr - sorry to read about this set back.

This "ain't" the last bite at this issue for you, but I think your

deadline is 120 days but am not positive right now.

I too am interested in the Reasons and Bases.

Carrie - over at Bergmann & Moore, has been VERY helpful

with all of my questions in the past.

There's a contact on the homepage if your interested.

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Posted · Report post

Yes- and Jerrel told me Carrie might be doing a SVR show in the future on Bradley V Peake.

Yikes -I just remembered-

I think it is set for next week March 14th and he asked me to be on the show---I almost forgot!~

Flip- take them by the Goonyats on this one!!!!!!!!!!!!!!!!!!!!!!!!!!

Am I nuts or isnt this recent BVA decision from Steven D Reiss at BVA the same scenario as yours is?

Maybe you should ask the BVA by form of a Motion , to go CUE themselves!!!!!

Or ask for this specific law judge to re do your decision.

Or maybe the BVA had some valid rationale for the denial but I cant fathom what that involved.

Is the above the same BVA decision I posted the one you used to support your claim?

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files5/1146258.txt

In Part:

“As detailed above, the Board awarded a TDIU, effective August 12, 2009, solely because the evidence of record, to include an August 2009 VA examiner's opinion, sufficiently indicated the Veteran's psychiatric symptoms are of such a severity that they alone produce unemployability. Accordingly, although PTSD has not been rated 100 percent disabling, for SMC purposes this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Thus, at this time and given the absence of any evidence or assertion that he is permanently housebound, the Board determine if, since August 12, 2009, the Veteran's other service connected disabilities, separately or combined together, are ratable at 60 percent.

Since September 1, 2009, the Veteran's respectively service connected disabilities, other than PTSD, result in a combined 60 percent disability evaluation. For this period, combining the 30 percent disability evaluation for bilateral hearing loss; the 20 percent disability evaluation for a left ankle neurological disability; the 10 percent disability evaluation for tinnitus; the 10 percent disability evaluation for a left ankle orthopedic disability; and the 10 percent disability evaluation for a residual left ankle shell fracture wound scar, yields a combined 60 percent disability evaluation. Id. “

signed by

STEVEN D. REISS

Veterans Law Judge, Board of Veterans' Appeals

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Posted · Report post

We are planning to have Carrie on the show next week.

We hope to get some clarification as to why the VA uses the Combined rating schedule over and above 100 percent,

Once a veteran reaches 100 percent, or IU his residual value should be zero.

Go get em Flip. I am with you on this one.

Basser

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Posted · Report post

Currently trying to figure out how to scan into my computer, so I can post.

pr

Sounds like lots of fun - wish I were there : -)

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Posted · Report post

Here's the first six pages of the SMC reasons and bases section.

pr

Scan3.pdf

Scan4.pdf

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Posted · Report post

Okay, here's the other 5 pages of the SMC reasons and bases.

pr

Scan5.pdf

Scan6.pdf

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Posted · Report post

Berta - no, I don't think so. This guys added up to 80% using standard math addition and mine only adds up to 60% using standard math addition. The whole point is once you are 100% disabled they can't use the "combined ratings table," as it penalizes the claimant twice for the same disability(s). I believe it needs to go to the court. jmo

pr

Yes- and Jerrel told me Carrie might be doing a SVR show in the future on Bradley V Peake.

Yikes -I just remembered-

I think it is set for next week March 14th and he asked me to be on the show---I almost forgot!~

Flip- take them by the Goonyats on this one!!!!!!!!!!!!!!!!!!!!!!!!!!

Am I nuts or isnt this recent BVA decision from Steven D Reiss at BVA the same scenario as yours is?

Maybe you should ask the BVA by form of a Motion , to go CUE themselves!!!!!

Or ask for this specific law judge to re do your decision.

Or maybe the BVA had some valid rationale for the denial but I cant fathom what that involved.

Is the above the same BVA decision I posted the one you used to support your claim?

http://www.va.gov/ve...es5/1146258.txt

In Part:

“As detailed above, the Board awarded a TDIU, effective August 12, 2009, solely because the evidence of record, to include an August 2009 VA examiner's opinion, sufficiently indicated the Veteran's psychiatric symptoms are of such a severity that they alone produce unemployability. Accordingly, although PTSD has not been rated 100 percent disabling, for SMC purposes this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Thus, at this time and given the absence of any evidence or assertion that he is permanently housebound, the Board determine if, since August 12, 2009, the Veteran's other service connected disabilities, separately or combined together, are ratable at 60 percent.

Since September 1, 2009, the Veteran's respectively service connected disabilities, other than PTSD, result in a combined 60 percent disability evaluation. For this period, combining the 30 percent disability evaluation for bilateral hearing loss; the 20 percent disability evaluation for a left ankle neurological disability; the 10 percent disability evaluation for tinnitus; the 10 percent disability evaluation for a left ankle orthopedic disability; and the 10 percent disability evaluation for a residual left ankle shell fracture wound scar, yields a combined 60 percent disability evaluation. Id. “

signed by

STEVEN D. REISS

Veterans Law Judge, Board of Veterans' Appeals

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Posted · Report post

Carla - I spoke to their intake guy and he advised me to wait for this decision. I'll be in touch with them, again, next week.

pr

pr - sorry to read about this set back.

This "ain't" the last bite at this issue for you, but I think your

deadline is 120 days but am not positive right now.

I too am interested in the Reasons and Bases.

Carrie - over at Bergmann & Moore, has been VERY helpful

with all of my questions in the past.

There's a contact on the homepage if your interested.

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Posted · Report post

Philip,

I an not clear as to what smc you were requesting A&A SMC L, or Housebound SMC S, so I will address both SMC's.

Please keep in mind this is my opinion based on my prior expierence as a vso, and my own claims where I have been awarded housebound and then later A&A. My opinions are not always correct, and va decisions are not based on my opinions.

I read the reason for denial and the reasoning used to deny seems very clear.

They specifically state that statements made by you and your ex-wife are not creditable , when compaired to the other evidence in the case. but....

From what I read, you don't meet any of the single qualifications that would entitle you to A&A or housebound anyway.

You are able to bathe, cook, clean, take medications, leave the home alone, make long extended trips out of state, attend medical appointments without help, you drive or someone drives you and you do make trips alone or with a friend to the store or resturants. There wasn't anything in the denial that indicated you needed help to do any of the things that your can do. While it indicated your mother cooks for you at times or reminds you to bathe, it does not state you need help to cook or bathe. As such based on what I know about A&A your do not meet the qualifications of an award.

As to the additional 60%.

The 60% only comes into consideration for statutatory awards of Housebound SMC S, not A&A. The veteran must have a single permanent disability evaluated as 100-percent disabling AND, another disability, or disabilities, evaluated as 60 percent or more disabling. You additional ratings combine at 50% . At no time have I ever known the va to add disabilities ratings together they are always combined using the combined ratings chart.

I know that reasonable people can disagree on how the va should add/combine ratings above and beyond the 100% rating, but as you said unless the issue is decided in court the arguement for adding and not combining will be just that an arguement and the va will always win that battle.

Now as to an award of Housebound SMC S, either the veteran must have actually be housebound or be rated 100% plus have an additional seperate or combined rating of 60% or more. Based on the information in the denial you are clearly not housebound.

Now for A&A the veteran must be rated 100% and have shown an actual need for aid and attendance as outlined above. If a veteran shows an actual need, and has an additonal seperate rating of 50% or more his award for A&A would be at the L 1/2 SMC Level.

I don't like to agree with the va denials, but I really don't see a valid claim for either Housebound or A&A. Please, I am not saying the VA is correct, I am just saying I think they are correct, the va has been wrong before in other matters and can be wrong again.

I really hope that you achieve that which you set out to do, but I honestly don't see a valid claim based on what you have presented here. I really wish I could say otherwise, and I do wish you the best outcome possible.

(For what it is worth, if I added my disabilites together I would be at 250 so I wish the va did add and not combine because my A&A would be at a higher level than it is now.....)

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Teac We have been over this before.

Under Bradley V Peake the decision stated that a Vet who is considered IU is also eligible to be awarded SMC S.

You do not have to have a 100 percent schedular rating,

This is not Hadit's first go around with this issue.

The main question here is why the VA uses the combined rating schedule over and above 100 percent.

Once a Veteran reaches IU or 100 percent their residual should drop to zero. This is just another scheme the VA uses to Rip Off the veteran population.

On the other hand this issue will be decided at the court level once and for all.

If you really want a breakdown of Bradley V Peake, I suggest you listen to the Next Bergmann-Moore SVR show. We will break this case down and They will explain it in great detail.

Basser

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Teac - thank you for your input and don't take it personally but I disagree, obviously, otherwise I wouldn't be pursuing it. I meet A&A just on the protection of oneself aspect. Additionally I need someone to remind me to take my meds. As for the HB issue, I have been unable to leave my house "to work," meaning 5 days a week, eight hrs a day, 40 hrs a week, for over 23 yrs. Just because someone eats out once in a while, attends medical appointments and picks up groceries, doesn't mean they aren't HB. The key word is "substantially" housebound which doesn't mean all the time but means frequently or for the most part.

I did note that we were not "credible witnesses," however, they accepted that I "allegedly stated that I was flying to NC to buy homes." First off, I don't fly, period. I had purchased a home, in NC, and was going there for the winter. Someone else drove me here. There are too many inconsistencies, in their reasoning.

Anyway, at this point it's about the 100+60. Thanks again for your input.

pr

Philip,

I an not clear as to what smc you were requesting A&A SMC L, or Housebound SMC S, so I will address both SMC's.

Please keep in mind this is my opinion based on my prior expierence as a vso, and my own claims where I have been awarded housebound and then later A&A. My opinions are not always correct, and va decisions are not based on my opinions.

I read the reason for denial and the reasoning used to deny seems very clear.

They specifically state that statements made by you and your ex-wife are not creditable , when compaired to the other evidence in the case. but....

From what I read, you don't meet any of the single qualifications that would entitle you to A&A or housebound anyway.

You are able to bathe, cook, clean, take medications, leave the home alone, make long extended trips out of state, attend medical appointments without help, you drive or someone drives you and you do make trips alone or with a friend to the store or resturants. There wasn't anything in the denial that indicated you needed help to do any of the things that your can do. While it indicated your mother cooks for you at times or reminds you to bathe, it does not state you need help to cook or bathe. As such based on what I know about A&A your do not meet the qualifications of an award.

As to the additional 60%.

The 60% only comes into consideration for statutatory awards of Housebound SMC S, not A&A. The veteran must have a single permanent disability evaluated as 100-percent disabling AND, another disability, or disabilities, evaluated as 60 percent or more disabling. You additional ratings combine at 50% . At no time have I ever known the va to add disabilities ratings together they are always combined using the combined ratings chart.

I know that reasonable people can disagree on how the va should add/combine ratings above and beyond the 100% rating, but as you said unless the issue is decided in court the arguement for adding and not combining will be just that an arguement and the va will always win that battle.

Now as to an award of Housebound SMC S, either the veteran must have actually be housebound or be rated 100% plus have an additional seperate or combined rating of 60% or more. Based on the information in the denial you are clearly not housebound.

Now for A&A the veteran must be rated 100% and have shown an actual need for aid and attendance as outlined above. If a veteran shows an actual need, and has an additonal seperate rating of 50% or more his award for A&A would be at the L 1/2 SMC Level.

I don't like to agree with the va denials, but I really don't see a valid claim for either Housebound or A&A. Please, I am not saying the VA is correct, I am just saying I think they are correct, the va has been wrong before in other matters and can be wrong again.

I really hope that you achieve that which you set out to do, but I honestly don't see a valid claim based on what you have presented here. I really wish I could say otherwise, and I do wish you the best outcome possible.

(For what it is worth, if I added my disabilites together I would be at 250 so I wish the va did add and not combine because my A&A would be at a higher level than it is now.....)

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Teac We have been over this before.

Under Bradley V Peake the decision stated that a Vet who is considered IU is also eligible to be awarded SMC S.

You do not have to have a 100 percent schedular rating,

This is not Hadit's first go around with this issue.

The main question here is why the VA uses the combined rating schedule over and above 100 percent.

Once a Veteran reaches IU or 100 percent their residual should drop to zero. This is just another scheme the VA uses to Rip Off the veteran population.

On the other hand this issue will be decided at the court level once and for all.

If you really want a breakdown of Bradley V Peake, I suggest you listen to the Next Bergmann-Moore SVR show. We will break this case down and They will explain it in great detail.

Basser

Basser,

With all due respect,

I don't see anything in this thread in reference to bradley v Peake or anything that even required bradley v peak to be raised. Philip was not making any claims based on bradley v peake (was he) his claim is based on a 100% schedular rating. If he had raised bradley v peake I would have cited the requirements which are; TDIU awarded based on one 60% rating, and an additional seperate or combined rating of 60%.

Trust me, I am fully informed about bradley v peake and have posted many times concerning Bradley v peake, again this is one instance were I didn't think it needed to be addressed. I actually have an appeal pending concerning bradley v peake where the va failed to award me housebound when I was TDIU for my 60% back issue, and I had a seperate 60% award for asthma, ( this was prior to my now 100% + ratings) Houston has had my appeal for over a year.

I did however, state my opinion concerning ratings above and beyond 100% schedular ratings. It is my opinion the va never intended any rating to be added using normal math, regardless of how high a veterans rating is. There is nothing in any va rule, or regulation nor is there anything in law that states the va will drop residuals to zero when the veteran has received a 100% rating. As I said, reasonable people may disagree on this and perhaps the courts will have to decide the issue flat out. I wish the va would drop residuals to 0 after a veteran reaches the 100% rating, I would benefit greatly from such a ruling, but frankly I think it is just another reason ( in a long list of reasons) that some veterans use to appeal a denied claim and nothing more. Of course the va makes a lot of mistakes so who knows.....

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It does seem pretty clear that this SMS/S issue will have to be decided

by the court - in regards to the additional 60 percent being figured by using the

VA's combined ratings versus independent, separately added NOT COMBINED

additional disabilities of 60 percent.

The reg does have the words,

Has additional service-connected disability or disabilities independently ratable at 60 percent

We can hash it out here all we want but ultimately this will be up to the court.

My question is why has the court ruled on this yet or has this issue hit the court level

by another claimant yet ?

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It does need to get to the court to be decided. Go get them PR. You have been a real asset to us here and we all appreciate your input on our issues. Your experience as a VSO and a friend are an asset to Hadit.

J

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Also, I don't remember reading this part on the issue of SMC/S.

(i) 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,

(I BELIEVE BRADLY V PEAKE ADDED IU)

(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

http://edocket.access.gpo.gov/cfr_2011/julqtr/pdf/38cfr3.351.pdf

What's the feedback on this ?

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Teac We have been over this before. Under Bradley V Peake the decision stated that a Vet who is considered IU is also eligible to be awarded SMC S. You do not have to have a 100 percent schedular rating, This is not Hadit's first go around with this issue. The main question here is why the VA uses the combined rating schedule over and above 100 percent. Once a Veteran reaches IU or 100 percent their residual should drop to zero. This is just another scheme the VA uses to Rip Off the veteran population. On the other hand this issue will be decided at the court level once and for all. If you really want a breakdown of Bradley V Peake, I suggest you listen to the Next Bergmann-Moore SVR show. We will break this case down and They will explain it in great detail. Basser

JB, You nailed it!! ~Wings

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Carlie, Bradly (dealing with issues of TDIU) is not applicable to to PR's decision as he is already 100% +60%.

Wings,

I agree TDIU is not an issue here, but as to being 100 + 60... that is a matter of opinion since Philip's 60% only combines to 50% and there is nothing in any va law, rules or regulation that states to drop the residuals to 0 once a veteran is rated 100% and to add the additional disabilities instead of using the combined rating tables. I sincerely hope that the issue is decded in his favor, but I just don't think the BVA or Court of Veteran Appeals will agree with this newest idea/arguement.

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I think I was the one who first brought up Bradley in this thread - so I will take the heat on that-

and actually we have beaten that dog to death here already in past discussions on this case.

Since Carrie is doing a show this Wednesday , whether on Bradley V Peake or SMC in general it would be good to pose the question to her as to the additional 60 % disabilities and the proper way VA is to consider them regarding SMC S.

However I need to comment on your actual decision Philip because

I was hoping the VA would have awarded a higher level of SMC posthmously when they awarded my CUE claim last month.

The evidence they used certainly made enough sense that I can live with it but then again I might appeal the award....

They awarded S under Section 1151 but didnt go to a higher level with rationale such as "the veteran can button his clothes" TRUE I told them that.But he could not tie his shoes.They overlooked that.

Althugh they granted on upper and lower extremity weakness, they failed to consider how dificult it was for him to even bend over.

He also could not tell hot from cold due to the 1151 stroke ,requiring me to check his shower water and also stay in the bathroom with him so he didnt fall while in the shower due to his muscular weaknesses.He even would slip sitting on the shower chair due to SC balance problems.

When the VA put him into the 21 day inhouse program, he got lost on a field trip, due his his multiple SCs and didnt shower for 21 days because he couldnt tell hot from cold and they have no shower accomodations like the shower seat and metal hand handles he needed.

I was present when a VA doctor asked him hw far he could walk.

VA told me he would never walk again so any type of walking was quite an accomplishment for him and he learned to walk again himself with minimal VA rehab.

The C & P doc said Can you walk 3-4 blocks? and he said Yes and missed my gesture that this was wrong. I should have spoken up. He could walk only about 200 feet without extreme fatigue and leg weakness.

I asked him why he said Yes and he said he could not recall what a 'block' was due to his SC memory loss.We live in the country-no 'blocks' here.

He was a danger to himself and to others. They ignored evidence regarding that.

In any event my long point here is, the S award requires proof of being housebound.

In your case, they could have overlooked evidence that might have altered their opinion. They sure did in my claim. I just noticed more mintes ago because I wanted to see exactly how they determined the S award posthmously.

Has anyone ever diagnosed you with agoraphobia? Did VA rely on past information but not consider your current status might require S even if the older stuff didnt?

I agree that this is a case for a lawyer. And Carrie ,as a lawyer herself, might be able to clarify the 60% Issue for SMC S on the next SVR show.

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Wings, I agree TDIU is not an issue here, but as to being 100 + 60... that is a matter of opinion since Philip's 60% only combines to 50% and there is nothing in any va law, rules or regulation that states to drop the residuals to 0 once a veteran is rated 100% and to add the additional disabilities instead of using the combined rating tables. I sincerely hope that the issue is decded in his favor, but I just don't think the BVA or Court of Veteran Appeals will agree with this newest idea/arguement.

x

x

x

I have to read the files PR has uploaded, because as read 38 CFR 3.351, it is an EITHER OR regulation: either 100% plus 60% Or "substantially housebound" --you do not need to meet a + b, just one or the other. ~Wings

P.S. I would claim entitlement under 38 CFR 3.351(d)(2), holding that the plain meaning "substantially confined" does not require 100% confinement. I would cite Roberson v. Principi (Fed. Cir. No. 00-7009. May 29, 2001), "Roberson asserts that the Court of Appeals for Veterans Claims misconstruedsubstantially gainful occupation” to mean “100% unemployable.” Roberson bases his allegation on the court's statement that “there was sufficient evidence of record at the time of the RO's January 1984 decision to reasonably conclude that the veteran was not 100% unemployable.”  Roberson v. West, No. 97-1971, slip op. at 6. Roberson asserts that the plain language of the regulation does not require the veteran to show 100 percent unemployability in order to prove that he cannot “follow substantially gainful occupation.”   We agree."

38 CFR 3.351 Special monthly dependency

and indemnity compensation, death

compensation, pension and spouse’s

compensation ratings.

(d) Housebound, or permanent and total

plus 60 percent; disability pension. The

rate of pension payable to a veteran

who is entitled to pension under 38

U.S.C. 1521 and who is not in need of

regular aid and attendance shall be as

prescribed in 38 U.S.C. 1521(e) if, in ad-dition to having a single permanent

disability rated 100 percent disabling

under the Schedule for Rating Disabil-ities (not including ratings based upon

unemployability under § 4.17 of this

chapter) the veteran:

(1) Has additional disability or dis-abilities independently ratable at 60

percent or more, separate and distinct

from the permanent disability rated as

100 percent disabling and involving dif-ferent anatomical segments or bodily

systems,

or

(2) Is ‘‘permanently housebound’’ by

reason of disability or disabilities. This

requirement is met when the veteran is

substantially confined to his or her

dwelling and the immediate premises

or, if institutionalized, to the ward or

clinical area, and it is reasonably certain that the disability or disabilities

and resultant confinement will continue throughout his or her lifetime.

(Authority: 38 U.S.C. 1502(c ) 1521(e))

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Carlie, Bradly (dealing with issues of TDIU) is not applicable to to PR's decision as he is already 100% +60%.

Yes, I'm well aware pr's claim for SMC/S has nothing to do with IU.

I made no implication that it did, the relevance of what I posted is found in the underlined.

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Just to clarify some things. This claim has been under constant prosecution since 1999. I was originally awarded 30% for PTSD, in 1989. I appealed, eventually getting 50%, then 70%, then TDIU in 1997, and then in 1999. I finally won my appeal retro to 1989, getting 100% schedular for PTSD, alone. At that time I was denied HB & A&A (as inferred issues) At about 11 months after the decision, I applied for HB, figuring I was essentially HB because I rarely left my house, due to the anxiety it caused. I've never applied for "agoraphobia," however do believe I have it. If the claim is won, it will/should go retro to 1989, which "I believe" is part of the reason they continue to deny.

In 2010 they added the additional disabilities, which total 60%, using simple addition. We should not discuss simple addition vs the combined ratings table in my case, as the court needs to decide that issue and I am headed there.

Much of their reasons and bases are false. I've had a pin in my knee since 1971 (after a suicide attempt - m/c vs auto) and haven't had a "normal gait" since 1971 and about 12 yrs ago was told I need a knee replacement. My gait these days is akin to Walter Brennan, in the TV show he had yrs ago. As for walking I doubt I could do 200 yds, w/o much pain and resting every 30-40 yds. I don't fly!!! I have a severe fear of crashing, so I don't. Probably relates to my having to jump outta my first plane rides (yup, Airborne, all the way) Duh!!!!

The important part to me, is that I could "lie" and win but I am always truthful, to a fault. So their calling my credibiliy at issue really irritates me, especially when they accept everything else, "if it's favorable to them."

We'll see what happens.

pr

I also need to add that I was found TDIU in 1997 and again in 1998, by a DRO, but my 1999 retro win, for 100%, superseded those TDIU awards and made them a non-decision or moot. There are numerous other errors they make but I'm not going to take the time to spell them out here. Please note that the BVA judge specifies I have been "unemployed" versus "unemployable," even tho there are many references to me being unemployable by my counselors and caretakers. In fact, enough that the original BVA judge awarded me 100%, in 1999, due to those statements. I was found 100%, for PTSD, based on the 38 CFR 4.16©, that was in effect prior and changed on 10/8/96, as when a rule changes, during the appeal process, the claim is adjucated based on the rule that is most favorable to the claimant.

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