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SMC Half Bumps

SMC Half Bumps

Good Morning ,

Once you receive SMC L, can you keep getting awarded for half bumps for every 50% unrelated disabilities?

 

 Thank You Very Much!

Mark

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SMC Half Bumps

Mark777

Hello Everyone,

some months back after receiving SMC L1 for A&A, I filed for a half bump increase due to a 50% unrelated disability (Sleep Apnea). To my surprise, this turned into a Higher Level Review (HLR). The result was my A&A was turned into SMC S1 bashed on the VA’s determination that the rater granted for non service related disabilities. I found that odd due to the fact that I am rated 100% PTSD with the Psychiatrist Evaluation clearly stating that I was a danger to myself or others. I really didn’t know how to appeal and decided to leave it alone until my other claim came back. 
I just received the results of my new claim awarding me A&A for 100% rated loss of use of both feet. I was awarded SMC L1. Which brings me to my questions:

1. Shouldn’t this have been awarded at least SMC N 1/2 based on another 100% rated disability and then another half step for my unrelated 50% Sleep Apnea?

2. How do I turn this into what I believe should be SMC R1 due to 2 A&A? The VA said I would need to file a new claim, contradicting what the website says. Do I just upload Buddy Letters in the new Buddy Letter forms with the Psychiatrist Evaluation (highlighting the danger to self/others)

I am sorry if this doesn’t make sense and is confusing.

 Thank You Very Much!

Mark

Related Post: 

SMC Half Bumps

Long Post Please read help with Advice! SMC Aid and Attendance exam

Hello everyone, (LONG POST BUT PLEASE READ AND HELP)

So I’ve been browsing this forum for a while and see that there is a lot of knowledge and really good advice so am hoping I can get some insight as well as some advice.

My brother is a disabled veteran I help care for him.
He retired from the Army 2016, 5 years ago in June. Served 3 tours, 2 tours in Iraq, and 1 in Afghanistan. While deployed his job was in mortuary affairs processing of remains so am sure you can only imagine the things on his mind and what he still lives with daily. The military in 2003, 2004, 2009 was not the military it currently is if you mentioned you had issues, like PTSD your career was over.  My brother made it in the Army for 17 years he should have been in my eyes, retired medically.

 Once he returned from his tours he was always getting himself trouble or just having issues with his command. His wife at the time tried so many times to let those in charge of him that he was not right, suffering in silence. Before he retired his command took him to a mental hospital because of statements that he made. Basically he made homicidal statements. He spent 2 weeks in the mental ward. At that time my brother could barely even walk, he would go to work and go see someone in medical and they would send him home to rest. 
When he finally retired after 6 months he got a VA rating of 70% I worked with his wife to help with the kids and his care.  In 2018 we finally got him approved for 100% with TDIU VA benefits and SSDI. At that time of his approval of 100% he only had PTSD at 70% and a bunch of other ratings at different percentages getting him SMC-S.  

Fast forward because I want to provide the information needed but also do not want to make this long.  So while my brother was in Iraq he suffered a TBI he has  a rating for TBI which was at 0% with a couple of other ratings for his residuals of TBI.  So in 2019, his neurologists recommended I open a claim for sleep apnea secondary to both his TBI and PTSD. I did, and I requested that his TBI and PTSD also be looked at by submitting a claim to have the percentages raised.

Well, after 5 CP exams> which were for the following. TBI, Headaches, PTSD,  Central Nerve System, TBI Resduials, Sleep Apnea, Gerd, all of his ratings were looked at.
At our first CP exam, the cp examiner asked why I was not getting SMC for Aid attendance, which to be totally honest I did not know about. My brother wife did try to get approved for the caregiver program and she was denied stating that the program was for Vets that would show improvement over time and that my brother first needed to start seeing a VA therapist for mental problems at the VA.   He was already being seen by the local Vet center by a therapist so he did not want to change and she was trying to manage him and the kids and did not have the fight to keep fighting the system.

Yesterday I looked on healthevet and ebenefits to check the claim and what I saw was the following 
the claim actually went into Gathering Evidence after it was in Pending decision approval about a week half ago but the RATED Disability have changed some of having new date of  7/2019 when I put the claim in:

20% radiculopathy right  lower extremity (femoral)
20% radiculopathy left lower extremity (sciatic)
0% residual Head scar
10% painful head scar
20% radiculopathy left upper extremity (ulnar nerve)
0% TBI (“This was his rating for TBI when he retired”)
100% PSTD with TBI ( ” PTSD was by itself and at 70% but now it is combined with TBI and at 100% but then my question is why is TBI still listed showing 0%)
30% radiculopathy right upper extremity (ulnar nerve)
20 % radiculopathy left lower extremity (femoral)
10% Tinnitus 
10% Gerd
0% right forearm scar
50% migraines and Vertigo
0% right hip femoral acetabular limitation of extension
10% left hip femoral acetabular limitation of extension
20% Lumbar spine degenerative arthritis 
20% Cervical spine degenerative arthritis
10% painful right knee scar
10% right hip femoral acetabular impingement syndrome with thigh impairment

sleep Apnea looks like it was denied (” I do not know why as I have not received the packet”)

All the Nerve ratings went up!

Also in March of this year, we submitted the aid and attendance form 21-2680 we submitted because we did even know about aid attendance was possible and also because when we went to our first CP exam the cp examiner suggested we look into SMC T for aid and attendance.  When we submitted the form my brother’s wife and myself wrote letters explaining what we do daily for him, this is what cp examiner recommended.

So my brother wife actually left her job to care for him because when he first retired she would come home from work and either her or the kids would find him on the floor he would fall and just stay there until someone arrived home, he almost burned the kitchen once because he put bread in the toaster and then went to sleep and forget about it, he has been arrested for driving at top speeds of 125 trying to get away from what he says are terrorist. So he no longer drives, she drives him everywhere, but everywhere is his appointments he barely goes out, he has severe rage and anger just can not think properly and even appropriately. Really bad memory problems
She helps him out of bed every morning because his legs are pins and needles she makes sure he brushes his teeth, she showers him and dresses him, makes his meals, he decided he would not eat after the burning of the kitchen toaster, so if she or the kids or me  do not give him food he just will not eat he saw allot of burned bodies so the toaster burning surely triggered something.  she manages his meds because at first he was over medicating or just not taking them. When he wakes up with nightmares talking about the dead bodies he sees she calms him down, he becomes suicidal at times and even makes a lot of homicidal statements. He wants nothing to do with our family other than his wife and kids and me,,,,, he pretty much keeps to himself.  A lot of the guys he served with in Iraq doing the same job as him have committed suicide.  My dad and me try to help him and his wife and the kids as much as we can, if I can give her a break here and there I try to.  We are all in agreement that the man who left for Iraq on his first deployment is no longer the same person.

So to my questions??

1. Yesterday I got a call from LHI that they need to schedule him for AID and Attendance CP exam? I have no idea what this is and how to prepare him for this exam he likes to have knowledge of what his appointments are for? And actually gets very angry when he does not and starts saying he wants to go home!!!

2. If he has one rating at 100% which be PTSD and TBI would the VA consider him for SMC L? If so why do they need an exam if the VA form from his Va dr was provided?

3. Based on the Ratings above what would his SMC rate be if any?

4. Any advice on how to get his sleep apnea service-connected secondary to his PTSD or TBI or both?

5. Also he has ED it’s in his medical record and it was asked about that when they did the exams for TBI residuals and Central nerve system, but I see nothing on his ratings ?
I know that how that claim is back to gathering Evidence is not final but if ED is not listed is that something I should fight for him?

Any advice and help would be greatly appreciated.

 

Related Post: 

E BENEFITS

Hi,

   I was hoping someone can explain to me what my e-benefits says about my compensation below. i don’t understand the whole thing.

SMC (S-1)Effective Date : 07/29/2014

Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of status post patellofemoral arthroplasty with degenerative arthritis, right knee rated 100 percent and additional service-connected disabilities of radiculoapthy, left upper extremity (also claimed as fingers, atrophy and nerves), major depressive disorder to include anxiety (also claimed as posttraumatic stress disorder and panic attacks), impairment of supination and pronation, right (claimed as forearm and arm condition), medial and lateral epicondylitis, right elbow, impairment of supination and pronation, left (claimed as forearm and arm condition), painful scar, right knee, medial and lateral epicondylitis, left elbow, independently ratable at 60 percent or more from 07/29/2014 to 07/01/2015.

Rating Date : 07/05/2017

Proposed reductions

This issue came up here recently and I prepared this article on the subject.

As I write this there have been 17,555 decisions at the BVA on proposed reductions, since 1992.
We have no idea how many other proposed reductions were rectified at the VARO level, and never got to the BVA -my husband’s was one of them-and the NOD was scathing and I used the regs they used AGAINST THEM, and they changed their tune and we dont know  how many proposed reductions were never appealed by the veteran. They accepted what the VA said and probably could have gotten the reduction restored.

The Worse thing any veteran can do is to ACCEPT a proposed reduction without trying to appeal it !!!!!!!!!!!!!!!!!!!!!!

2,268 BVA decisions  appear from 2020 to 2021 so far on this difficult ad even horrifying aspect of the VA claims process.


ORDER

The reduction of the rating for posttraumatic stress disorder (PTSD) from 50 percent to noncompensable, effective February 1, 2019, was proper.

FINDINGS OF FACT

1.  A September 2015 rating decision granted service connection and assigned a 50 percent rating for the Veteran’s PTSD from August 21, 2014, the date of receipt of his claim for service connection; the rating decision and a September 2015 notification of the rating decision informed the Veteran that since there was likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination.

2.  The Veteran failed to report for an October 2019 VA PTSD examination; he did not provide good cause for missing this examination.

3.  An October 2019 rating decision proposed reducing the Veteran’s PTSD evaluation from 50 percent to noncompensable, and an October 2019 notice of the proposed reduction advised the Veteran he had 60 days to indicate his willingness to report for an examination or to submit new evidence showing the proposed action should not be taken.  

4.  A February 2020 rating decision reduced the Veteran’s PTSD evaluation from 50 percent to noncompensable, effective February 1, 2020, after meeting all due process requirements in executing such a reduction.

CONCLUSIONS OF LAW

The reduction of the disability rating from 50 percent to noncompensable for PTSD, effective February 1, 2020, was proper.  38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.105, 3.655.
https://www.va.gov/vetapp21/files2/a21004495.txt
These claims warranted a successful restoration of the veteran’s percentage:.
https://www.va.gov/vetapp20/files6/20038667.txt
https://www.va.gov/vetapp20/files5/a20008653.txt
In this case:
 “In August 2019, a VA RO proposed to reduce the disability rating of the Veteran’s service-connected left lower peripheral neuropathy from 40 percent to 20 percent. In September 2019, the Veteran requested a predetermination hearing to address the proposed reduction. The evidence of record demonstrates that a predetermination hearing was not held prior to the rating reduction being effectuated in a December 2019 rating decision. “
“CONCLUSIONS OF LAW

1. The reduction in the rating of the Veteran’s right lower peripheral neuropathy disability from 40 to 20 percent disabling, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 

2. The reduction in the rating of the Veteran’s left lower peripheral neuropathy disability from 40 to 20 percent disabling, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 

3. The reduction in the rating of the Veteran’s femoral nerve peripheral neuropathy disability of his left lower extremity from 10 percent to noncompensable, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 

4. The reduction in the rating of the Veteran’s femoral nerve peripheral neuropathy disability of his right lower extremity from 10 percent to noncompensable, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344.”
2. After completing the requested actions, and any additional development deemed warranted, readjudicate the issues of entitlement to disability ratings greater than 40 percent for the service-connected right and left lower diabetic peripheral neuropathy. Allow the Veteran and his representative time to respond before returning this issue to the Board, if any portion remains denied.”
https://www.va.gov/vetapp20/files4/a20005778.txt

“ORDER

The reduction to 70 percent being improper, restoration of a 100 percent rating for service-connected posttraumatic stress disorder (PTSD), effective January 1, 2018, is granted.

“FINDING OF FACT

The notification of the proposed reduction was improper because it relied on a single examination without comparing it to the most recent prior examination and without reference to or compliance with the procedural requirements of 38 C.F.R. § 3.343(a). “
Thus, the Board finds that the AOJ relied on a single examination without comparing it to the most recent prior examination and without reference to or compliance with the procedural requirements of 38 C.F.R. § 3.343(a).  Moreover, the record does not illustrate clear error in the assignment of a 100 percent rating.

Accordingly, this procedural error renders the rating reduction void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999); Wilson v. West, 11 Vet. App. 383, 386-87 (1998).  Therefore, restoration of the 100 percent disability rating for PTSD as of January 1, 2018, is warranted.”
https://www.va.gov/vetapp20/files5/20034828.txt
All of these are painful to read but the reductions due to missing a C & P exam are proper.This case  has some good CAVC citations for anyone with PTSD who the VA pulls this BS on.
ORDER

As the reduction of the Veteran’s disability rating for service-connected posttraumatic stress disorder (PTSD), with alcohol use disorder, from 100 percent to 70 percent, effective November 1, 2017, was not proper, restoration of the 100 percent rating is granted.

Special monthly compensation (SMC), pursuant to 38 U.S.C. § 1114(s), is granted effective November 1, 2017, subject to controlling regulations governing the payment of monetary awards. 

“FINDINGS OF FACT

1. The notification of the proposed reduction was improper because it relied on a single examination without comparing it to the most recent prior examination and without reference to or compliance with the procedural requirements of 38 C.F.R. § 3.343(a).

2. As of November 1, 2017, the Veteran has one service-connected disability rated as 100 percent disabling with other service-connected disabilities independently resulting in a at least a combined 60 percent rating.”

https://www.va.gov/vetapp20/files7/20044483.txt

( another case whereby the VA did not follow the regulations- can you imagine how stressful those reductions were to the veteran with PTSD?


“ORDER

The reduction in the disability rating for the Veteran’s service-connected posttraumatic stress disorder with major depressive disorder (hereinafter “PTSD”) from 100 percent to 70 percent, effective December 1, 2019, is void; restoration of the 100 percent disability rating is granted.

“Under the General Rating Formula for Mental Disorders, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as persistent danger of hurting self or others.  Based on the Veteran’s lay reports of symptoms during the August 2019 VA PTSD examination, and after resolution of all reasonable doubt in his favor, the Board finds that there was no actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work.  This is because the evidence available at the time the RO proposed reducing the disability rating demonstrates a level of impairment consistent with the previously assigned 100 percent disability rating.

For these reasons, the Board finds that the RO did not properly apply the provisions of 38 C.F.R. § 3.344 in the September 2019 rating decision.  As noted previously, when a RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio.  Greyzck, 12 Vet. App. at 292.  Thus, the appropriate remedy in this case is a restoration of the 100 percent disability rating for PTSD effective on the date of the reduction, December 1, 2019.  See Hayes v. Brown, 9 Vet. App. 67, 73 (improper reduction reinstated effective date of reduction).  The appeal is therefore granted.”
https://www.va.gov/vetapp21/files5/a21009918.txt

This is 38 CFR 3.344
https://www.law.cornell.edu/cfr/text/38/3.344

The worse thing any veteran can do is Accept a proposed reduction.

There are excellent articles from Vet attorneys on how to combat a proposed reduction:

https://www.veteranslawblog.org/va-benefits-reduction/#:~:text=When the VA decides to,a temporary retreat of symptoms.
( Chris Attig)

https://www.hillandponton.com/can-i-stop-va-rating-reductions-on-my-disability/  ( Matt Hill)
https://cck-law.com/blog/what-happens-when-va-proposes-to-reduce-my-disability-rating/   (CCK)
and M21-1MR ,Part III, subpart iv, Chapter 8, Section D

Manyof the decisions restoring the veterans proper comp $ use the term Void Ab Initio:

 

“VOID AB INITIO

THELAW.COM LAW DICTIONARY & BLACK’S LAW DICTIONARY 2ND ED.

Latin, void from the beginning. Never legitimate or valid”

In essence meaning the VARO f—ed up royally. Thereis no other way to describe their ineptitude sometimes.

The NOD I prepared for my husband, when they tried to lower his PTSD from 30 to 10% was a beauty.

After he died I was able to get his PTSD % up to 100% P & T, with an EED three years after their ridiculous proposed reduction crap.

He was so angry and upset he could not handle the NOD so I wrote it for him. Then he calmed down and said maybe the VA is right…..???

I laughed and said they are usually never right when they pull this crap. After he read and signed the NOD and read the regulations he was mad as Hell again-because their reason for reduction was ABSURD! They changed their tune and dropped the proposal due to the NOD.

But I will repeat this again fast because ( we are under a tornado warning—-)

A veteran who gets a proposed reduction must act fast to combat it. VA could have easily broken the regulations as they did in some of the above cases.

 

Or they can choose to do nothing. Some of the reductions above were proper, some were far from proper and legal. And the restored ones are heartbreaking to see how a legitimate deserving veteran was treated so negligently by the VA claims process.

 

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