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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. I would not file the PTSD claim, nor even discuss it. By Feb 1991 I had moved to the San Francisco bay area and was staying at a friends apartment and pretty much I was just a puddle. In desperation one night I called suicide hot line, I had no job, no idea about going to the VA. They talked with me for a long time and explained to me that I could go to the local VA hospital even if I did not have insurance. Now, I know what you are thinking if I was 50% why didn't I just go to the VA in the first place, two reasons 1, this was Feb 1991 and the 50% didn't come till May and 2, even if it had come through it is unlikely that I would have had the mental acuity at the time to put the two together. I relate this here because it is where so many of our brothers and sisters are coming from, perhaps where you started. Fuzzy and unsure, in pain and sometimes homeless they come to the VA hospital for help. And that is where I ended up. 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. So I found out about the Code of Federal Regulations, United States Code, Veterans Affairs Manuals and so on and so forth. Of course this was 1991/1992 I was living in a tiny studio apartment in a particularly bad neighborhood, working in a sheltered workshop making a nickel per envelope I stuffed throw in PTSD and you will see that it was a difficult task for me to get somewhere where they had copies of these, let alone that they would let me look at. And there was so much knowledge around me, it was like the gold rush in those days, I could just sit on a bench a veteran would sit down next to me a little conversation later I had another nugget, I made copious notes. Phone numbers to call, ask for this guy or that guy he'll give you the straight scoop and they'd slip me a piece of paper with a number on it. You want to read this regulation or that one and another slip of paper into my hand. I spent a lot of time on those benches watching the squirrels they gathered their nuts and I gathered mine :) So I'm thinking I could put a little handbook together print it out and hand it out at the VA. Or perhaps fliers. Still formulating, time goes by, 1994/1995 I am being treated for PTSD regularly and doing and feeling much better and I go to work for a company as a marketing systems analyst and I discover the internet. Well let me tell you that was perhaps one of the most significant life changing events I have ever experienced. And I might add finally a positive one :) It seemed only natural to me that surely there must be a website that contained all the knowledge I wanted, well as it turned out not so much, lots of stuff but I wanted to get straight to the claims information and there was a lot of stuff to wade through to get to it. 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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For Anyone Who's Interested Here's Part Of My "s" Award Argument

13 posts in this topic

Posted

"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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Posted

Philip,

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

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Posted

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.

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Posted

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..

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Posted

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

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Posted

jvretiredvet - Okay but thanks, anyway.

pr

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Posted

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

Its the VA that is absurd.

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Posted

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

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Posted

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.

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Posted

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.

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Posted

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

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Posted

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

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x

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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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Posted

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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