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For Anyone Who's Interested Here's Part Of My "s" Award Argument


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12 replies to this topic

#1 Philip Rogers

 
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Posted 11 March 2012 - 12:35 PM

"38 U.S.C. § 1114(s) does not state disability(ies) “following the combined rating schedule“. The combined rating schedule, according to 38 CFR Book C, Schedule for Rating Disabilities, 4.25 Combined ratings table:
“Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in table I opposite 60 percent and under 30 percent.”

Once a Veteran reaches ‘0%’ efficiency, it is not possible to rate disabilities in regard to a Veteran’s “efficiency”, otherwise a negative efficiency would be created. 38 CFR Book C, Schedule for Rating Disabilities, 4.25 does not afford negative efficiencies, nor does it allow for disability ratings over 99% which would be rounded to 100%.

M21-1. Part I, Appendix A: SPECIAL MONTHLY COMPENSATION UNDER 38 U.S.C. 1114(s) - 38 CFR 3.350(i) TOTAL PLUS 60% OR HOUSEBOUND SMC Code 48 (change 37)
S-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and additional service-connected disability(ies) of (**) , independently ratable at 60 percent or more from (date) .

S-2 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and being housebound from (date).
*Cite disability rated 100 percent under regular combined evaluation.
**Cite disability(ies) establishing entitlement.
Note that the 100% rating states “under regular combined evaluation, but is NOT stated for the 60% rating.

M21 clearly states INDEPENDENTLY ratable at 60 percent or more, further it notes **Cite disability(ies) establishing entitlement., yet the 100% rating directly states “under regular combined evaluation”. Independently rated, does not imply that the rating must be “independent” of the disability that created the 100% rating, as 38 U.S.C 3.350 (i) directly states, “separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.” Thus there are 3 requirements: 1) independently rated 60% 2) separate and distinct from the 100% sc disability 3) involving different anatomical segments or bodily systems. Congress knew how to express itself differently, had it intended to permit results to the contrary. Thus, if a Veteran is rated at 100% for MS, receives an additional rating of 60% for dysfunction of the bladder, due to MS, the Veteran meets the first requirement but would not be meet the second requirement under 38 U.S,C 3.350(i) as the 60% rating was not separate and distinct from the 100%. If a Veteran was 100% due to MS, received a rating of 40% for a heart condition, 20% for bladder dysfunction, due to MS, 10% for injury to knee, and 10% for scars, the Veteran would be entitled to SMC(s), as 60% of the disabilities are not associated with the effects of MS, and meet all three requirements as set forth in 38 U.S.C 3.350(i).

I further contend, that if the SMC (s) 100% plus 60% required the additional 60% to be a combined evaluation, as oppose to an INDEPENDENT rating of disability (ies) wording that is used in M21-1. Change 423 Appendix A: “CODE 18A. GRANT-When total disability ratings are assigned in service-connected disability cases under the authority of paragraph 16, of the rating schedule, add, immediately preceding the service-connected combined evaluation, the code phrase.” would also be used in the before mentioned M21-1 (change 37) coding. It is not.

Congress was very careful in it‘s language in respect to SMC evaluations. Since a Veteran can not receive compensation in excess of 100%, Congress created SMCs. No where does it state that ratings in excess of 100% are to be combined using the combined rating schedule. Had Congress wanted all ratings in excess of 100% to be combined using the combined rating schedule, they would have so stated. Not only must we infer that Congress knew how to express itself differently, had it intended to permit the contrary result, it would have made such previsions in 38 U.S.C 4.25. Since combined rating is determined by remaining “efficiency”…ie. According to combined rating table 99% disability leaves an “efficiency” of 1%, any additional disability ratings would have to be deducted by percentage from that 1%, thus a person with an “efficiency” of 1% who is further rated at 90% + 90% would have an “efficiency” of 0.81%. Theoretically, no one would ever be entitled to SMC 100% plus 60% .

Therefore I have a well grounded claim for SMC (s)"


Please feel free to comment either favorably or unfavorably. (I really don't bite, no matter what you may have heard or feel!)

pr

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#2 Teac

 
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Posted 11 March 2012 - 03:16 PM

Philip,

You present a compelling arguement, who knows your case may set a new precidence. I wish you the best..

#3 Berta

 
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Posted 11 March 2012 - 03:41 PM

YES, that is a very compelling argument!!!!

Very well written too.


although 38 CFR states the regs, M21-1MR tells VA how to handle the regs-


good for you on that reference to M21


One thing about CAVC cases, the court does not consider 'new' evidence but they would have to consider established VA case law in 38 CFR and M21-1MR.


Philip - I saw that you get 100% for PTSD/alcoholism


Don't forget that, if you ever develop anything that could be attributed to the past alcoholism, then Allen V Principi might well award that type of new claim.
Allen V Principi is explained in this BVA decision:
http://www.va.gov/ve...es2/0415694.txt




“No compensation shall be paid if the disability is a result of the veteran's abuse of alcohol or drugs. 38 U.S.C.A. § 1131. The law precludes compensation in two situations: 1) for primary alcohol abuse disabilities, i.e. alcohol abuse disability arising during service from voluntary and willful drinking to excess; and 2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001).


The law does not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. Id. at 1381. However, there must be clear medical evidence establishing that the alcohol or drug abuse disability was caused by a veteran's primary service-connected disability. Id. “


I hope you dont get more disabilities but if there would be a strong medical connection due to the PTSD/alcoholism, that would also put you into the “S” 60% criteria, and this is something to consider down the road if the court denies the claim there, and then you could- if “S” is granted solely on that basis and not HB -due to this newer claim, at a regional level-
you could possibly file a motion of CUE against the BVA denial, to obtain any retro lost if the CAVC case does work... possibly if the BVA decision overlooked something critical.........that could establish a legal error in the denial....

Maybe I sound half baked here but

these regs have to be played with ,based on the established medical evidence, and although I feel you do have a compelling argument for appeal,
there are other things sometimes to consider.

If the VA would present their convoluted rationales in the same articulate way you raised your argument here,
it would be wonderful.

Edited by Berta, 11 March 2012 - 03:46 PM.


#4 Philip Rogers

 
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Posted 11 March 2012 - 03:43 PM

Thanks but if I recall correctly WAC-vet75 gave me most of my ammo. Actually, I truly don't remember, as I submitted it about 18 months ago but I don't think I could have done something that good by myself! ;-) I do think it is a compelling agrument. Thanks again!

pr



Philip,

You present a compelling arguement, who knows your case may set a new precidence. I wish you the best..



#5 jvretiredvet

 
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Posted 11 March 2012 - 08:02 PM

I see this as an "reductio ad absurdum" argument, but good luck anyway.

"38 U.S.C. § 1114(s) does not state disability(ies) “following the combined rating schedule“. The combined rating schedule, according to 38 CFR Book C, Schedule for Rating Disabilities, 4.25 Combined ratings table:
“Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in table I opposite 60 percent and under 30 percent.”

Once a Veteran reaches ‘0%’ efficiency, it is not possible to rate disabilities in regard to a Veteran’s “efficiency”, otherwise a negative efficiency would be created. 38 CFR Book C, Schedule for Rating Disabilities, 4.25 does not afford negative efficiencies, nor does it allow for disability ratings over 99% which would be rounded to 100%.

M21-1. Part I, Appendix A: SPECIAL MONTHLY COMPENSATION UNDER 38 U.S.C. 1114(s) - 38 CFR 3.350(i) TOTAL PLUS 60% OR HOUSEBOUND SMC Code 48 (change 37)
S-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and additional service-connected disability(ies) of (**) , independently ratable at 60 percent or more from (date) .

S-2 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and being housebound from (date).
*Cite disability rated 100 percent under regular combined evaluation.
**Cite disability(ies) establishing entitlement.
Note that the 100% rating states “under regular combined evaluation, but is NOT stated for the 60% rating.

M21 clearly states INDEPENDENTLY ratable at 60 percent or more, further it notes **Cite disability(ies) establishing entitlement., yet the 100% rating directly states “under regular combined evaluation”. Independently rated, does not imply that the rating must be “independent” of the disability that created the 100% rating, as 38 U.S.C 3.350 (i) directly states, “separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.” Thus there are 3 requirements: 1) independently rated 60% 2) separate and distinct from the 100% sc disability 3) involving different anatomical segments or bodily systems. Congress knew how to express itself differently, had it intended to permit results to the contrary. Thus, if a Veteran is rated at 100% for MS, receives an additional rating of 60% for dysfunction of the bladder, due to MS, the Veteran meets the first requirement but would not be meet the second requirement under 38 U.S,C 3.350(i) as the 60% rating was not separate and distinct from the 100%. If a Veteran was 100% due to MS, received a rating of 40% for a heart condition, 20% for bladder dysfunction, due to MS, 10% for injury to knee, and 10% for scars, the Veteran would be entitled to SMC(s), as 60% of the disabilities are not associated with the effects of MS, and meet all three requirements as set forth in 38 U.S.C 3.350(i).

I further contend, that if the SMC (s) 100% plus 60% required the additional 60% to be a combined evaluation, as oppose to an INDEPENDENT rating of disability (ies) wording that is used in M21-1. Change 423 Appendix A: “CODE 18A. GRANT-When total disability ratings are assigned in service-connected disability cases under the authority of paragraph 16, of the rating schedule, add, immediately preceding the service-connected combined evaluation, the code phrase.” would also be used in the before mentioned M21-1 (change 37) coding. It is not.

Congress was very careful in it‘s language in respect to SMC evaluations. Since a Veteran can not receive compensation in excess of 100%, Congress created SMCs. No where does it state that ratings in excess of 100% are to be combined using the combined rating schedule. Had Congress wanted all ratings in excess of 100% to be combined using the combined rating schedule, they would have so stated. Not only must we infer that Congress knew how to express itself differently, had it intended to permit the contrary result, it would have made such previsions in 38 U.S.C 4.25. Since combined rating is determined by remaining “efficiency”…ie. According to combined rating table 99% disability leaves an “efficiency” of 1%, any additional disability ratings would have to be deducted by percentage from that 1%, thus a person with an “efficiency” of 1% who is further rated at 90% + 90% would have an “efficiency” of 0.81%. Theoretically, no one would ever be entitled to SMC 100% plus 60% .

Therefore I have a well grounded claim for SMC (s)"


Please feel free to comment either favorably or unfavorably. (I really don't bite, no matter what you may have heard or feel!)

pr



#6 Philip Rogers

 
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Posted 12 March 2012 - 08:18 AM

jvretiredvet - Okay but thanks, anyway.

pr

#7 Pete53

 
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Posted 12 March 2012 - 07:26 PM

I see this as an "reductio ad absurdum" argument, but good luck anyway.


Its the VA that is absurd.

#8 Wings

 
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Posted 12 March 2012 - 08:56 PM

I do think this needs draft needs to be cleaned up and organized a little, I was getting lost trying to follow the logic. My brain is trained to follow order A-Z, 1, 2, 3

As I recall, you are fighting them on two fronts (also called arguments):

the first argument is that you do in fact meet the statutory requirement of 100% + 60% but the Secretary's application of the combined ratings schedule produces absurd results.

the second argument is that you do in fact meet the statutory requirement for "substantially housebound" but the Court has already ruled on that issue in Harris (citation).

~Wings

#9 carlie

 
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Posted 13 March 2012 - 02:06 AM

As I recall, you are fighting them on two fronts (also called arguments):

the first argument is that you do in fact meet the statutory requirement of 100% + 60% but the Secretary's application of the combined ratings schedule produces absurd results.

the second argument is that you do in fact meet the statutory requirement for "substantially housebound" but the Court has already ruled on that issue in Harris (citation).

~Wings


Ditto - and I would be sure both theories are stated, supported and addressed by BVA.

#10 Philip Rogers

 
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Posted 13 March 2012 - 03:16 AM

I thought I did and yes, it is confusing!

pr



Ditto - and I would be sure both theories are stated, supported and addressed by BVA.



#11 Philip Rogers

 
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Posted 13 March 2012 - 03:20 AM

wings - That is what was sent 1.5yrs ago and is what they just denied. I'm going to talk w/Bergmann & Moore, this wk, I hope, and maybe some others. I'm definitely going to the court, if only to address the 100+60 combined ratings table issue. Thanks!!!

pr



I do think this needs draft needs to be cleaned up and organized a little, I was getting lost trying to follow the logic. My brain is trained to follow order A-Z, 1, 2, 3

As I recall, you are fighting them on two fronts (also called arguments):

the first argument is that you do in fact meet the statutory requirement of 100% + 60% but the Secretary's application of the combined ratings schedule produces absurd results.

the second argument is that you do in fact meet the statutory requirement for "substantially housebound" but the Court has already ruled on that issue in Harris (citation).

~Wings



#12 Wings

 
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Posted 13 March 2012 - 08:26 AM

wings - That is what was sent 1.5yrs ago and is what they just denied. I'm going to talk w/Bergmann & Moore, this wk, I hope, and maybe some others. I'm definitely going to the court, if only to address the 100+60 combined ratings table issue. Thanks!!!

pr


x
x
x

I would raise both issues; that will keep the attorney's busy and the judges dissenting ;-) But whatever you decide, I support you! HUGS! ~Wings

#13 Philip Rogers

 
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Posted 13 March 2012 - 12:13 PM

Thanks, kiddo!!! It'll be headed to the court and we should have an answer in just 4-5 yrs.

pr



x
x
x

I would raise both issues; that will keep the attorney's busy and the judges dissenting ;-) But whatever you decide, I support you! HUGS! ~Wings






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