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  1. 6 likes
    I went before a social security judge a month ago and I just got the letter from the judge today. I am now considered disabled by the US Government!!!!! Im getting back pay of $2300 a month times 26 months. I think thats 58k or so but 6k will be going to my lawyer. As far as I know there is no tax so I should get a check for around 50k. Ive been unemployed for three years and struggling to scrap by so this is truly a God send!!!!! Ironically the same exact issues that get me 70% from the VA got me a Disabled decision from the Social Security Administration. The VA rates me... 50% hearing loss 10% tinitus 10% left shoulder 10% right shoulder 10% right wrist For a total of 70% I really cannot believe this!!!!!!!!!! I feel truly blessed!!!! I was devastated a year ago when I paid Dr. Bash 9k to do IMEs and the VA still kept me at 70%. My lawyer says his letter is what got me considered disabled!!!!! So it ended up working out for me. Thank you Dr. Bash!!!!!!!! 70% from the VA plus the Social Security disibility monthly money combined is more than I ever would have gotten from being 100% from the VA. I get 1650 from the VA and 2300 from Social security Disibility. 3950 a month tax free!!!!!!!!!!! I can finally rest.....
  2. 4 likes
    The equvalent of the DRO review will always be done after you elect traditional appeal anyway. They will do the same no matter before you get the SOC, which is done by a Sr. rating member. If they find the error that you are appealing valid, they can correct it on the spot and approve your claim. A few cases might benefit from a face to face, but the majority it is nothing more than spinning your wheels. Selecting the DRO is not doing much more than adding months or a year + before you get in the appeal line.
  3. 3 likes
    Spine is rated on either movement or bed rest. (They dont prescribe bed rest anymore from what I see.) Forward flexion is the primary reason they give increases, but they also use extension, left to right etc in the regulations...but I have not seen that yet. If you can bend no more than 45 degree forward, you will max out at 20%. Under 30 degree bend=40%. Just pain with any flexion issue past 45 degrees is 10%. Exception to this is – If there is an abnormal spine contour (like scoliosis), or if you have muscle spasms, or if you guard your spine movements enough that you walk abnormally, then the condition is rated 20%. http://www.militarydisabilitymadeeasy.com/thespine.html Link is a detailed breakdown of the spine rating system. They told me I had a strain also, turned out that it was a disc herniating out of the front of the spine, less pain misdiagnosed in 1979, 1980, 1982 and 1983 before my ETS. They also said I was born with scoliosis, so I lived with the pain for over 30 years. Then a Spine Surgeon told me he saw my story before, the slipped disk caused scoliosis, and over the last 3 decades, it got much worse. 4 Level spine fusion and service connected now. Back in the early 80s there was not such thing as an MRI, and it was common that herniated disks were misdiagnosed because they dont show up on xrays. Suggest you find a good spine specialists, let him/her give you a good exam, and ask for an opinion about why you have been in pain so long. Take your records.
  4. 3 likes
    I suggest you google this as to what you could do because this can be a common problem.: www.benefits.va.gov/.../m21.../9-24-15_Key%20Changes_M21-1IV_ii_2_SecF.docx It seems to me that this M21 link is about making sure the vet who has applied for TDIU had no working income at some point as well as verify the veteran had on the job SC problems. You could state with any evidence you have ( phone bill etc) that you could not contact any of your former employers and tell them if any are closed.(with proof maybe from google that the business closed or even a buddy statement or copies of any Unemployment comp you might have received when they closed. Have you filed tax returns even if you had no income?Sounds odd but some people do that.Copies of them would be proof of no income. A lot will depend on the pdf for VOC Rehab and how they fill it out. Did you need documented accommodations at the college? Proof of that would have to be considered as well by VA.
  5. 3 likes
    I was just reading about Berta's favorite, and Alex was discussing one of his. So, please give your "favorite regulation" for helping Vets win claims, and why. I will start: Mine is 38 CFR 3.156, "New and Material Evidence". Why I like it: It enables Veterans to often get an earlier effective date, WITHOUT a CUE. You can get an earlier effective date if you submit New Evidence WITHIN the APPEAL PERIOD, that is, on a "pending claim". (38 CFR 3.156 B) OR You can get an earlier effective date if you submit New "Service Records" (anytime!) 38 CFR 3.156 C. Caveat: It does not work well unless you can use NEW SERVICE RECORDS (3.156 C) OR you submitted the new evidence when your claim was pending (3.156 B) Reason: If you submit new evidence and its NOT new service records or on a pending claim, your new effecitive date will be the date you submitted the new evidence (bummer). Berta: Please tell us why you like 4.6 and how it will help Vets, and the rest of you who have used a regulation to better your claim, tell us about that one, too!
  6. 3 likes
    I have several Favorites the one that sticks out in my mind is the 4.6 Evaulation of evidence! §4.6 Evaluation of evidence. The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. This is usually why we have the ''prep for decision'' & VCAA FROM 2000 I like too! But What about the veteran that has their evidence and VA fails to read it or say they don't have it and denies his/her claim and they have to get the appeals line....when other wise they had the evidence to prove their claim. Due Process seems to not mean anything with the VA. This is a question that gets ask a lot and I have no answer for?
  7. 3 likes
    I think you have 60 days from the Date of the Award/Denial letter to request a BVA Hearing. A Nam Vet buddy that was waiting for his DRO Hearing, after 18 mos he got a DRO Review Denial and SSOC. Turns out he never submitted the mandatory N & M Evidence required for the DRO Process. He kept telling me he thought it better to turn it in at the Hearing, BIG Mistake. His other mistake was not verifying that his VSO had requested an actual Hearing. Semper Fi
  8. 3 likes
    He just fired 2 employees at the Phillipines VA---( I hope I caught the right place ..I was getting out of the shower ) Fox will repeat the news.....sounds like one was a VA 'CEO" who tried to bribe a whistle blower.I know I heard the firing part well. There is no doubt that the VA swamp will be drained. When I get more info I will post it here.
  9. 2 likes
    Steve This appears to be your remand: https://www.va.gov/vetapp16/Files4/1627475.txt As you know I felt your 1151 claim was superb. But this sure concerns me: “However, the Board notes that the many volumes of VA and private records do not actually include reports of the actual surgeries forming the basis of his 1151 claim. Such procedures were said to have taken place at the San Diego VAMC in March 2008. See 310 pg VAMC in Virtual VA at p 52. This would include no actual records of the biopsy procedure of the pancreatic cyst or the ERCP resulting in complications of a leak into the abdomen or the subsequent lengthy hospitalizations from March to April and April to May of 2008. Additionally, the release form is not shown to be in the current records, although this as well as the surgical records were apparently available to the January 2015 VA examiner who addressed the 1151 claim. An effort must be made to obtain the VA records not already of record that are in the VA's constructive possession. See Bell v. Derwinski, 2 Vet. App. 611 (1992). “ That VA ERCP caused the necrotising pancreatitis.Even your VA doctor agreed with that fact. It might seem odd that this critical evidence is missing, but it is not odd, at all, believe me.I went through the same crap with my Section 1151/FTCA issue in 1995 As the BVA states they had this stuff in January 2015. I guess the VA called their MF in- (MF Mysterious force who removes critical documents from med recs and C files, to deny the claim.) Then they often put the documents back. when the claim is denied. The Jet Fuel claim costly long toxicologist report was useless in my opinion. Still you had enough evidence on that claim for a remand. This 1151 claim needs a strong IMO from a real doctor. I laid out here (available under a search) considerable info to support your 1151 claim in the past...I wish I had MD after my name because it would be so easy to write that IMO.But then again I have never seen those records when they screwed up the ERCP....the procedure info -that is now missing. The SOC however was evidence of the screw up in my opinion. I have asked the new Secretary recently to consider some suggestions I had on reducing the backlog as well as the high rates of malpractice in the VA. I told him I am aware of the hidden proven cases as well..which neither Congress nor the public know about….blatant malpractice that VA awards at RO levels when they have no choice,due to probative evidence, such as strong IMos, and I told the Sec exactly what crap my VARO ( Buffalo) pulled on me and pulled it on the General Counsel and their VACO medical professional as well. I quess I am not the average claimant because I raised a ruckus at OGC and VACO many years ago about what they-the Buffalo VARO ) did. They did not get away with it. It is coming back to bite them again. They will deny 1151 claims as long as they can get away with it.They will lose ,misplace, and manipulate the evidence any way they can.I made it clear that I cant be the sole claimant VA has done this to.But maybe I am the only one willing to gripe to the Secretary about it. I saw no POA or attorney on the BVA case.Do you have anyone representing you now? I sent a copy of my Secretary Shulkin to President Trump as well ,to follow up on something he received from me a few weeks ago and I certainly expect a reply based on some sensitive info I gave them. I hope you consider an IMO/IME for the 1151 claim.I really didnt think you would need one based on what you posted here in the past but now I think they are definitely trying to screw you.
  10. 2 likes
    If your doctor says that you can work then you're looking at the possibility of being re-examined and reduced because in your doctors opinion your symptoms are no longer severe enough to constitute a 100% mental health condition rating.
  11. 2 likes
    Here's the deal. For me anyway. Tendinitis and arthritis, can and should be claimed separately, but, you will only get one rating, i.e., if they gave you the max for tendinitis, you would get 10%, and if you got the max for arthritis, you would get 10%. But in the end they will only give you 10% total. Not both. I know this, because I have this on both my shoulders. The reason you want to fill on both is if you loose one, you may get the other. Now, the big money is in ROM (Range of Motion). Tell in the claim that it hurts to move your arm (shoulder pain). They should measure your ROM. Here is where you can get up to 40% if I remember correctly. You get more if it is your dominate shoulder. I get 20% (dominate) for my right and 10% for my left. Just so you know, if service connected, you get 10% for arthritis from an x-ray. That's an easy 10%. ROM on the other hand is subjective. You will NEED to tell the examiner when you feel pain (first feeling) when he moves your shoulder through the ranges. DO NOT let the examiner wrench your arm past pain. And don't YOU move past pain. You are trying to show the examiner when pain first starts because you are claiming pain. Hope this helps, Hamslice
  12. 2 likes
    "1. If the appellate period has expired, is the only option a normal CUE? "Yes- unless maybe a 38 CFR 3.156 re open is possible. "2. If the decision was appealed, does it make any difference?" No, if the appeal was denied as well or actually even if it was awarded ,but it still appears to have a legal and detrimental error in it. Most of my CUEs were in my award letters. Like this Quote
  13. 2 likes
    If you feel the medial evidence they had warranted a different Diagnostic Code and higher rating, by all means file a CUE against them. All diagnostic codes are found in the VA Schedule of Ratings here: They are about half way down your scroll bar.It is a long document. The CUE rests on what evidence they had. Check over the Evidence List as well as the Diagnostic codes they used. Based on what you said they stated in the decision and the C & P results this does look like a CUE to me. Was that C & P the first one you had for this condition? Maybe I should say instead, was that C & P exam the Only one you had for this condition? I have a CUE pending whereby, in spite of my evidence -which they chose to ignore- they used as older rating that I filed CUE on years ago but didn't even copy the older ratings correctly. This is why I asked if this was the only C & P exam you had.
  14. 2 likes
    Apply for TDIU and "let the chips fall where they may". I don't sugarcoat things and at the end of the day. It'll boil down to new medical evidence and an IMO. I'm seeing the VA put a "smackdown" on VA doctors IMO's. Meaning they're harder to come by at most VAMC. A great VA doctor won't let "bean counters" tell them how to practice medicine. Bypass the DBQ and ask your VA specialist to annotate in your VA medical records that you're TDIU. Good luck, don't give up, and stay involved with your claim.
  15. 2 likes
    The only communication I had from the DAV was begging for money!
  16. 2 likes
    Thanks for the advice. 100% VA and SSDI is pretty much the ultimate win. Im still waiting for my ssdi letters telling me my actual numbers ect. I will take it to the VA once received.
  17. 2 likes
    Congratulations. By the way, social security is not necessarily tax free. It depends on your other income, and you may have to pay taxes on at least a portion of it.
  18. 2 likes
    Not really familiar with your particular situation and I've never been to the BVA. With that said, I did have to wait 4.25 yrs for a DRO Hearing 06/14. During that waiting period, I did get other Awards, CAD, SA, PTSD and an IU Denial in 09/12. Both 2010 NOD and 9/12 IU NOD Awarded 06/14, so the wait was worth it. Instead of chasing your tail, trying to track down the BVA Law Judge, sit back and try to relax. Your going to know the disposition of your Case in the near future. Exactly how long did it take you to get to this point? Less than (5) yrs? Your BVA adventure is almost over, you either win or your next stop is the CAVC. Semper Fi
  19. 2 likes
    Yes. Especially with knees, when one is bad the other compensates and it goes haywire also. To win Service connection for your right arm secondary to the left, you will need these things: 1. Current diagnosis of condition. 2. A nexus or medical statement which says that your Right shoulder condition is at least as likely as not secondary to the (Service connected) left shoulder condition.
  20. 2 likes
    The wait times vary greatly from RO to RO. Also, we generally do not trust the wait times VA publishes, because they tend to publish numbers that make their executives look good. You can look on the monday morning reports, however, if you like: http://benefits.va.gov/reports/detailed_claims_data.asp According to that report, avg claims are about 115 days. If you believe that, then you beleive the polls that says Hilary Clinton will win the election.
  21. 2 likes
    I mentioned this before but just to clarify..... If you find that VA has ignored your probative evidence, that is a violation of 38 CFR 4.6. If they send you a 5103 waiver and you again list and enclose the evidence with the 5103 waiver,because you probably sent it in with your claim anyhow but just in case, and even if a RO employee verifies that have that evidence, and yet they still ignore it, that is a CUE, under 38 CFR 4.6. You cannot file CUE on the actual Duty to Assist policy.You can file CUE on their Violation of that policy,if you can apply 38 CFR 4.6 to your CUE. I just filed 4 CUEs with the Director via email. And am still awaiting IRIS complaint response on the whereabouts of my timely I-9....a separate issue. I cannot file the Motion to Advance on the BVA Docket until they find my timely filed appeal and reinstate it. CUEs on 38 CFR 4.6 violations are not difficult to file.And should be filed ASAP. Otherwise they will probably cause a remand.
  22. 2 likes
    Hey- You need to focus on getting this resolved, buddy. I've seen multiple people suggest ways forward- You've done a very good job of laying out issues to us, now you need to do so to someone that can do something about it. I fully agree with your characterization- There's lots more to it than that- I just don't want to distract you even more. We can chat after you get this resolved. Is either of your senators on SVAC? Cong on HVAC? Nearby state/district that does - Where you could get an address?
  23. 2 likes
    First: GEt a copy of the exam and READ what he said. What they tell you is not always what they write down. However, based on what he told you, this is a "deal breaker". It sounds like you are not diagnosed with PTSD. To get sc you must have 3 things DOCUMENTED IN YOUR FILE: 1. Current diagnosis. (PTSD if thats what you applied for). 2. In service event or "stressor" .(or aggravation) 3. Nexus, or medical link that your PTSD is "at least as likely as not" caused from xx event while in military service Based on what you posted, YOU do not meet the criteria above. However, dont dismay. Order your cfile and read it and see if another doc supplied the above. If not, then you will likely need an IMO/IME BUT VA does not trust private docs to diagnose PTSD (unfortunately). YOU must have a VA doctor diagnose PTSD to be compensated for it. You can get service connected for depression (diagnosis) instead of PTSD. However, you still need the 3 Caluza triangle elements, which I outlined above.
  24. 2 likes
    I agree with whoami. VA is required to adjuticate entitlement to SMC S housebound, whenever the VEteran reaches a single 100 percent disability. I have the same thing, and Im in appeals now. There are 2 methods for the Veteran to get SMC S Housebound, and an additional 60 percent is NOT always required. 1. The 100percent plus an additional 60 percent. 2. Housebound "in fact", which often requires a C and P exam to see if you are "substantially confined" to your home. I agree with you that Howell suggests that it is not correct that a Veteran "never leave his home" for housebound. He need only not leave his home "for work". If you are not working, then you are not leaving your home "for work". YOu can do this one of 2 ways: 1. You can hire an attorney. Best way. If the VA made a CUE error, and its likely they did by not adjuticating your claim for SMC S, when you were awarded a single 100% disability. You may not have to pay for the attorney, if EAJA pays your fees. Likely. 2. You can do it yourself or with a VSO. VSO's, and VA employees are often not on top of new developments such as Howell.
  25. 2 likes
    Buck52, Let me be the first to agree with what you had to say "Read up on the Laws and CFR's..." It took me YEARS to come to understand that you really don't want the VA to do anything except rule in your favor. I spent years learning the laws, the rules, the ins and outs....before I finally realized that fighting the VA with little or no knowledge of the "system", is like going into combat with guns, but no ammo. Case in point: I just won a CUE after I sat in front of a Review Officer, ready to do battle because I did my "homework"; the Review Officer asked me a few questions, I answered them correctly, with my face looking straight at him, with no hesitation. ALL because I was ready for anything he threw at me. He took all of 15 minutes to rule in my favor, AND to put the icing on the cake, he also threw in Permanent TDIU as well! Moral of the story? Educate yourself. P.S., Just learned yesterday that my CUE will be taken all the way back to 1990. CHA CHING $$!! Allan
  26. 2 likes
    Get the IMO! The IMO is the most important factor to you getting 100% or TDIU. I had three doctors who helped me by writing IMO/IME's when I got P&T back in 2002. They resided in Tampa Florida, but since then two have retired. This is the problem with being an old timer. I would not trust a VA doctor as far as I could throw the Empire State Building. I had evidence fro Voc. Rehab., A Vet Center and I was already on SSDI for the SC condition. I still believe the IMO's were what tilted me over the TDIU hump. I had an ex-VA doctor write me an IMO. The VA never gave me anything I did not have to fight tooth and nail to get. No gifts from the heartless bastards. John
  27. 2 likes
    Be careful as to how you approach any VA Dr About a compensation claim, there instructed not to help in the claim process, so it could very well back-fire on you. & (it could cost them their job) Stay in VA Treatment/if you have good insurance private treatment is ok too but the VA Treatment would be better (in my opinion.) It's best in my opinion to seek a private specialist Dr for the IMO/IME in the medical field that your claiming,and letting that Dr know how the VA likes things worded , you need to let the private Dr Know this and bring him/her your past Medical Records/Medications list to read about what it is your claiming and the Dr needs to use this 4 letter sentence'' is least likely as not'' I have read Mr veterans medical records and examined him thoroughly & it is my opinion that '' It is least likely as not'' that this veterans injury/disease incurred while he was in the military. Just be honest an up front with the Dr ask the Dr for his/her Impression & GIVE A FULL RATIONAL REPORT TO INCLUDE HIS CREDENTIALS AND EXPERTISE. Note: this is mostly for Service Connection... For PTSD they will rate you on your symptoms as for as what your rating should be and you can look up your symptoms as to what you should be rated or to be given a fair rating. Here is the criteria for rating purposes. General Rating Formula for Mental Disorders Rating Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 100% Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 70% Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 50% Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 30% Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 10% A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.
  28. 2 likes
    Stay with the VFW and get IMO from your VA psychiatrist. The psychiatrist needs to state you're more likely than not able to maintain gainful employment. He/she can enter this statement straight into your VA medical records. You can then copy this statement right off myhealhyvet. If you're not still actively being treated for PTSD. This could be a problem. If your not working you should apply for SSDI too. JM2C
  29. 2 likes
    You did not mention this, but I assume this is a RO denial. Dont feel like the lone ranger, Alex estimates 85 percent of first time claimants are denied. Personally, I have had 14 different regional office decisions, and was only awarded benefits in 2 of those. So, my percentage of denials is 86%. (If you divide 12 by 14, you get 86% denial rate) You need to file a NOD disputing the denial. Since you are service connected, you can focus on the disability percentages. You should consider posting the "reasons and bases" for denial, as its a good idea to try to refute the RO's reasons for denial in your NOD.
  30. 2 likes
    Cough- Choke Cough- Whaaa? What's your RO?? People have had those pending for years, literally years! Good for you!
  31. 2 likes
    FEAR: False Expectations Appearing Real. a statement: "at least as likely as not related to military service" is gold. Dont leave home without it. What is in your wallet?
  32. 2 likes
    You are good. The above is a clear nexus statement.
  33. 2 likes
    Thank you. This snafu made my Motion to Advance on BVA docket even easier. I had it almost finished 2 weeks ago but have many Church situations I am involved in and didnt sent the Motion in yet. Vets you do Not have to be 75 years old or catastrophically disabled get a MTA granted. Survivors of vets can get a Motion to Advance as well My neighbor was looking at my post on those regs here but I dont have time to find them. If your situation falls under 20.900 Rule 900 (38 CFR ) due to "administrative error resulting in a significant delay in docketing the case" or "interpretation of law" as explained in the regulation, you can request this type of Advancement on the docket . I was going for the 'interpretation of law' criteria first ( due to OGC Pres Op 08-97) but then VA made it EASY for me ( due to the I-9 snafu) to add my evidence for "administrative error resulting in a significant delay in docketing the case" .too! 38 CFR, 20.900-Rule 900 under (C) (1) The only evidence I need for that is the IRIS response I got the other day and a copy of Page 6 from the BVA Appeals Pamphlet and the back of the I-9 form.
  34. 2 likes
    GOOD for YOU! Flores! As I said before here many times, it will take VETERANS to change the systems well as any swamp draining the President and new Secretary will do. I just filed a VA OIG complaint on my situation and have my letter to Sec Shulkin ready,but was waiting for him to be confirmed....maybe I will send it today anyhow.....I have contacted President Trump twice pre -election and day after he was elected but this was just general statements as to how incompetent the VA is. It has some acronyms but I need to edit spell them out My opening line to Secretary Shulkin is Dear Mr Secretary: I am a Gold Star Wife and the widow of a decorated Vietnam Combat veteran, whose untimely death ,at age 47, was caused by VA malpractice. I have enclosed FTCA settlement and also my Section 1151 DIC award as proof and the subsequent awards of his multiple service connected disabilities, and as you can see the VA killed an Agent Orange Combat veteran by malpracticing on his DMII and IHD due to his exposure to AO in Vietnam. I am sure that will get his attention with a copy to Pres Trump as well. I have 4 -5 suggestions in the letter on how to reduce the backlog and also I am copying every single bogus VA decision I have received in over 20 years from the Buffalo VARO and sending them to him and Pres Trump. I won them all except the one that is pending but my point is that this crap should not happen to veterans or their survivors.If the VA violates their own regulations we have to MOVE FAST to get that error corrected. The VA knows full well that veteran claimants are all DISABLED and some could even die during the claims process, and that goes for many of their survivors as well. VA isn't our enemy -Time IS-and they take full advantage of that fact. They cannot continue to circumvent established VA regs and case law and deliberately ignore our evidence. This is part of my complaint to the OGC...I do feel retaliated against and discriminated against as well. "I have filed IRIS complaints that so far have not resolved my issues. I do know that VAOIG does not handle claims issues but this is far more than a claims issue. If I am the sole Buffalo RO claimant this has continually happened to for over 20 years,it is discrimination. Because I have no idea how many veterans or widows they have pulled this on in the past." ------------------------------------------------------------------- I am willing to do my part as a civilian to help change the VA ,but I sure hope others like you will do their part too! Flores, you know how to fight back and that is what it takes! I had the edit this I forgot ...the IG complaint form is different since we got a new IG. They ask who caused the problem so I dropped a dime on the two RO people who screwed me ....and how they did it....by completely ignoring my probative evidence and failing to apply established VA case law and regs to the claim (plus th OGC Pres Op 08-97) Then they asked for Witnesses and I stated Anyone at the Buffalo VARO who can read. .
  35. 2 likes
    Thank you Broncovet. I prepared my war plan and know why this happened. Just like the way they violated my VCAA rights in my DMII claim and also refused (at first) to re open my DIC claim (that DMII award was a 5 or maybe 6 figure monetary amount,when all the ancillary benefits were paid) and the BVA caught that VCAA violation,they have again chosen to retaliate against me as a claimant because they know there is more retro involved. I asked them to apply OGC Pres Op # 08-97 to their last decision on my SMC CUE award, within my Nehmer decision. They said they had paid all benefits due me in the retro. They never listed the Pres Op as evidence and I assumed they never read it but now I know they DID read it. It means another CUE win and more CASH for me. The Pres Op clearly states that any veteran with a 1151 rating and a direct SC rating will receive "ALL" compensation the VA owes them.There are about 4 or more OGC Pres Ops regarding 1151 and this one is the clarify again some of those other opinions. This was written after the Gardner Moratorium , which was lifted and which I was in ,in 1997, prior to this opinion. The word "all" is highlighted in the opinion and stated three times. (# 08-97) https://www.va.gov/ogc/opinions/1997precedentopinions.asp No veteran or their survivor as an established accrued recipient (I have searched for years) has ever had a 100% SC P & T award,plus a separate 100% P & T 1151 award. And No claimant has ever made this challenge as far as I know at the BVA or the CAVC. No claimant I know of has ever used this Pres Op to support any of their issues. My audit of their accrued award to me revealed they completely disregarded the veterans proper 100% P & T 1151 comp. We have had here, over the past 2 decades veteran who succeeded 1151 awards that were "combined" with SC comp or paid as " secondary conditions." I think, based on this opinion, that the VA has screwed them all. Thank you Broncovet...You are the only member here that has ever taken the time to reply to questions I have had over the past 20 years about my own issues. I sent another IRIS complaint ,with the very same info in the copy you pasted from ( I scanned the page fro BVA Appeals Pamphlet ) asking how the VA has Re -written the regulations in 38 USC,38 CFR, MR1-1MR, regarding the one year appeal option, yet never told veterans, VSOs, rep vets or vet lawyers about their new version of established VA case law. Like my last CUE battle last year ( they LOST again) this will take up my time,as I breathe down their necks with our best weapons of all.. Established VA case law, and regulations, to include OGC Pres Ops. I have 2 people at the Buffalo VARO who I want POTUS to FIRE. (edited- make that 3 people-I forgot a DRO)
  36. 2 likes
    Andyman73, please accept my sympathies for the situation you had to go through. And please know that VA has a ton of resources and programs that will hopefully help ease this pain as time goes on. Definition of MST per Title 38 U.S. Code 1720 D : Psychological trauma resulting from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty, active duty for training, or inactive duty training.” Sexual harassment is defined as "repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character.” There is no indication that both victim and perpetrator must be military, only that the assault, battery or harassment must occur while the victim was serving on active duty, active duty for training or inactive duty training. Question: You mentioned regular therapy sessions. I notice on your profile that you are currently service connected at 80%. Would you happen to be service connected for any psychological conditions? The reason I ask is because VA does not service connect "MST" as a condition, rather, we service connect the residual psychological conditions that were caused by the MST. And since VA does not give separate evaluations for any psychological conditions, if you currently have a service connected psychological condition, we would treat your claim as an increase (while also providing all the resources for MST victims and examining the entire record for evidence that the event may have occured). There wouldn't be a separate rating for MST, it would get added onto the other psychological condition (assuming the MST was conceded). If this doesn't apply to you, then disregard this entire paragraph Evidence that can help support a claim for MST: Any DOD form that is used to report incidences of sexual assault/harassment, and investigative reports. (these don't seem to apply to your case) "Markers" Markers are things like seeking counseling, pregnancy tests/STD test requests at sick call, statements from roommates, family, clergy members and fellow service members, transfer requests, work performance deterioration, substance abuse, episodes of depression/anxiety/panic attacks with no identifiable cause, economic and social behavioral changes, relationship issues/divorce, sexual dysfunction. "Markers" are not limited to this list.
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    My recommendation is to wait. But that's just based on the information I have. Its in the final stages. If you start sending stuff in before it is adjudicated (additional evidence, duplicate evidence etc..) it could delay your claim. Sometimes the system auto generates a claim status, when in fact, the claim is much further along. The system sometimes has hiccups. I've been assigned claims to work before that say RFD (ready for decision), I quickly glance over it to see what i'm dealing with and notice that the entire claim is rated, the award has been processed and the veteran has been notified and probably received their first payment. I'm honestly not sure why it would keep going back and forth. That is part of the process before it gets to my desk and I'm not confident enough to give an opinion other than the known occasional hiccups. "Preparation for decision"...I"m going to assume this means "Ready for decision" I'm not sure if Ebenefits and the system at the RO use the same terminology, but when a claim is RFD, that means its in a queue waiting in line for a rater to work it. I'm not sure what the suspended letter is, but we do have a term we use, "suspense" which basically tells us when the claim should be moved on to the next step. If nothing happens in the system that automatically closes that suspense, then there will be an "alert" for us to check up on it. For example: Claim is sent ready for decision with a suspense date of 2/14/17. 2/15/17 arrives and it hasn't been rated. The system sends an alert (hey, this claim was supposed to be moved on in the process by this date, what gives?) We see that somehow it slipped through the cracks and it is put on a priority list. However, if someone does work it before that suspense date, it automatically closes that date and creates another for the next step in the process (the majority of the time). When was your claim filed? Is it an original claim?
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    They(DRO) are required to review my appeals before they are certified for the BVA. Glad some of our vets were successful at the DRO level. I personally have ZERO confidence in getting a fair decision from my VARO. One of my appeals is a 1151 based on medical negligence by the VHA. No DRO would grant my 1151 at the VARO IMO. I know it will be a wait, but as it stands, I will never give up
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    You're welcome. Evidence of a chronic condition and evidence showing that it is at least as likely as not that the condition manifested during service is crucial when it comes to any claimed condition, especially musculoskeletal conditions. Our job as raters when we initially get the claim is to make sure the claim was developed correctly and to review all evidence that is required to make a fair determination. If we get a claim, review all pertinent evidence in the file and there is no mention or evidence of a claimed condition in the service treatment records and the C&P/private physician examiner did not give a current diagnosis, our hands are basically tied. However, there are exceptions that apply to specific cases. If you were a paratrooper or your service file documented multiple jumps then we could service connect a related, musculoskeletal condition that was first diagnosed after service with no mention of it in the service treatment records. I think its up to a year after service (I'd have to check the manual). I only work pre-discharge claims and I haven't come across that situation for some time. I don't know your full situation, but please note... When you receive compensation for this claim, If you ever get activated again, you will have to notify VA so we can stop payments. Be mindful that more likely than not, the stop payment won't process until after you're back on active duty and there will be an over payment and VA will withhold any over payment from future compensation awards after your final discharge. Also, I would encourage you not to wait to file a claim for any disability regardless of whether or not you think will get better. The sooner you file your claim after service, the better. A lot of conditions are deemed "chronic" if they manifested up to a year after discharge. Sorry for the long response and I hope I didn't ramble or get off topic. If you have any questions, don't hesitate to ask. If I don't know the answer myself, I have access to a ton of resources and can get you an answer.
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    Agreed. I want a fresh set of eyes to look at my appeals(BVA).NOT a person at the VARO since it seems there is an inherent reading comprehension problem in St. Petersburg I will prevail at the BVA level when my appeals go in front of them. All I'd get from the VARO is more delays, unfavorable decisions, if I chose the option for a DRO review. Total waste of time for me. If you want a clear drink of water, go to the head of the stream.
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    Long time reader of Hadit, first day member. I signed up to spread the good news and pass along my thanks and appreciation to all of you (and ask a math question in another thread). I am very thankful to all those who have posted and replied. This site and VBN gave me much information and inspiration as I worked thru my claims over the past 18 months. On 30 Nov E-bennies showed all my claims and deferred issues have finally been closed and reflected on the letters you can download...100% P&T!!! . Extremely thrilled and a bit in shock and disbelief. I want to pass on my excitement and hopefully some inspiration to those who are trudging thru the VA disability claims process. Keep at it! Every diagnosis and condition you obtained as a result of your service is a testament to the sacrifices you made for this nation. There are laws established to compensate you for that pound of flesh and mind you have given...be it in combat or back stateside in training, from stress, long hours, rough conditions, etc. Don't ever feel guilty about your compensation or seeking compensation. You earned it orders of magnitude more than anyone has ever 'earned' their mortgage deduction or welfare or food stamps. Those are entitlements...VA disability is legally deserved indemnification benefit from our US Government employer for the workplace injuries we incurred. It is only accessible to those who sacrificed in service to the nation. Yes the 'process' is a lot of red tape, but in my case the process MADE me seek the medical attention I needed to find out what was causing my issues so I would have the diagnosis to go with the symptoms for a proper claim. The money is nice, but truly I am thankful to the VA for this process because it is a forcing function to actually seeking root cause and not accepting the 'just take some Motrin' party line that the military docs told me for 21 years (guess what Motrin/Aleve/NSAIDs make a Hiatal Hernia/GERD worse and it doesn't fix a torn meniscus in the knee nor a laberal tear in the hip!) So don't forget that piece of this 'process'. While you are working your claims, and determining your issues, you are actually taking control of your health. Bottom line: 100% P&T whoo-hoo!! Thanks to all the posters for the information to keep me going. To all those still in the fight, keep at it! God Bless You All, and God Bless America! Rocketeer
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    Thanks Flores....I'm going to submit my claims as a FDC as well. I appreciate your input....he was a very nice person, really knew his stuff. I will definitely update this thread as it has been a LOT of work on my end to get to this point with the VA and hopefully my experiences will help others!
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    I was rated in April of last year on several conditions. I applied for a rating on peripheral neuropathy of my feet and hands and had a nerve conduction study done and attached to my request. When I received my rating they incorrectly stated that for my legs/feet I was rated at 20% because a higher rating of 30% couldn't be assigned as it required incomplete paralysis. They should have used the Sciatic Nerve criteria which actually has 5 different potential ratings. Is this an area where I should ask the VA to CUE theirselves? Under the rating criteria they must have utilized the wrong rating criteria, as the C&P exam referenced the Sciatic Nerve. 30% isn't even an option under 8520 there is actually levels they neglected to address: My C&P Sciatic nerve Right: [ ] Normal [X] Incomplete paralysis [ ] Complete paralysis If Incomplete paralysis is checked, indicate severity: [ ] Mild [X] Moderate [ ] Moderately Severe [ ] Severe, with marked muscular atrophy Left: [ ] Normal [X] Incomplete paralysis [ ] Complete paralysis If Incomplete paralysis is checked, indicate severity: [ ] Mild [X] Moderate [ ] Moderately Severe [ ] Severe, with marked muscular atrophy How Sensory Loss Should be Rated M21-1lll_iv_4_SecG. This document was updated in January of last year. b Assigning Level of Incomplete Paralysis The table below provides a general description of each level of incomplete paralysis of the upper and lower peripheral nerves. Degree of Incomplete Paralysis Description Mild subjective symptoms or diminished sensation Moderate absence of sensation confirmed by objective findings Severe more than sensory findings are demonstrated, such as atrophy, weakness, and diminished reflexes. Issues addressed related to atrophy, weakness and diminished reflexes C&P b. Deep tendon reflexes (DTRs) Rate reflexes according to the following scale: 0 Absent 1+ Decreased 2+ Normal 3+ Increased without clonus 4+ Increased with clonus Knee: Right: [X] 0 [ ] 1+ [ ] 2+ [ ] 3+ [ ] 4+ Left: [X] 0 [ ] 1+ [ ] 2+ [ ] 3+ [ ] 4+ Ankle: Right: [X] 0 [ ] 1+ [ ] 2+ [ ] 3+ [ ] 4+ Left: [X] 0 [ ] 1+ [ ] Nerve Conduction Study: 6/16/2015 "Brief neurological exam: Symptom focused neurological exam shows loss of sensation in the hands and feet, absent ankle jerks and give way right foot dorsiflexion weakness. VA Podiatry notes: Musculoskeletal: The major joints of the foot and ankle have adequate ROM bilaterally without crepitus. Dorsiflexion of the hallux and foot is weak bilaterally. Remaining muscle groups have adequate strength. " Sciatic nerve. 8520 Paralysis of: Complete; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.......................................................................................................... 80 Incomplete: Severe, with marked muscular atrophy.............................................................. 60 Moderately severe ............................................................................................. 40 Moderate............................................................................................................ 20 Mild ................................................................................................................ 10 There is actually a "Moderately Severe" rating where I believe I should have been rated as I may not have severe paralysis I certainly exceed the criteria spelled out in M21-1lll_iv_4_SecG for "Moderate".
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    I don't know how this applies in the context of an appeal remand - Or if it really has any actual effect except to create more bureaucracy: III.ii.1.D.3.a. How a Claimant Establishes He/She is Experiencing Extreme Financial Hardship If a claimant states that he/she is experiencing extreme financial hardship and submits documentation to support the assertion, accept the claimant’s statement as factual. Documentation to support the assertion of extreme financial hardship includes, but is not limited to, an eviction notice or statement of foreclosure notices of past-due utility bills, and/or collection notices from creditors. Important: A Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM) may designate that a claim requires priority processing because of extreme financial hardship even though the documentation described in this block does not exist. Remember: Append the Hardship corporate flash to a claimant’s record when extreme financial hardship has been adequately demonstrated.
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    They will pay your child retro chapter 35, not sure if the state of florida department of ed pays back the tuition and fees, you may want to call them on that..........they did not for my children. The va will however, take back all the $$ you received while your child was in college that they receive retro chapter 35 for, which I was fine with. Just a heads up on those things :) Best of luck to you on your PT!!!
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    Victor Ray It's totally up to you who and what you want to do to help you with your claim that;s certainly your choice my advice is just from my past experience with veterans claims mine and there's & is only my sole opinion. When a veteran has the probative evidence which is usually medical records to be a positive or favorable outcome to substantiate his/her claim and VA fails you your due process by ignoring your evidence or just not reading it .or don't comply with there own Law & Regs it's time for that veteran to do what it takes to see to it that he is fairly treated and gets his benefits he solely deserves. How that veteran works his claim is certainly his business and that's one of my reasons I mention emailing your Congressman /or Undersecretary of VA ,they do and can put a bug in the R.O. Ear and that my friend will shake the tree and things will start to happen with your claim. Although some will disagree and that's fine to me in my humble opinion what ever it takes to win, a veteran has to do it. No one can tell you what they will do or rate you but we can get fairly close to what you deserve in regards to your well earned benefits. Read up on the Laws and CFR's....and use there own words against them to help your claim!!! Here is an Interesting Read please read this. : click on the link below http://www.reviewjournal.com/news/las-vegas/veterans-say-legitimate-claims-routinely-denied-or-ignored jmo
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    Andyman73- Glad to see you are moving along- just for information - anything you write in therapy is retained by you or shredded by you. I am at the 3 year mark for MST Treatment, glad I did utilize these techniques - I continue in treatment because of an added component of attempted murder with my assault. Ongoing parole blocking for the inmate who went on to murder his next victim....My experience is if you are able to do the hard work in the beginning it will pay off.. Best of Luck.
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    DRO Hearings has its pros & cons in my opinion I think it matters a great deal in what type of DRO the veteran gets. Is it the Luck of the Draw? Yes IN MY OPINION IT IS JUST THAT. All DRO's are not alike although they are suppose to be unbiased and go through intense training. Attitude/ Personality makes a world of difference when Adjudicating claims and making decisions. One thing I remember the DRO mention in his BASES AND REASONS SECTION in my Award packet He mention : ''Although a propose reduction was mention in this veterans records by a VA Medical Dr that his disability was not as as bad as he claims and as shown improvement, this reduction action will not be taken, with a DRO and a Qualified Rating Specialist present at his hearing it is obvious this veteran condition of his disability is Real & has shown to worsen and a increase is awarded and not a reduction, expedited of this veteran claim will be used in today's Hearing'' TDIU P&T granted and disability is as nature / chronic with no future exams scheduled. When you have a Physical S.C. Disability, you can face them face to face, this is physical evidence to facts found''. This was in 2002 I surely believe the DRO knew what this VA Dr tried to do to me and the DRO Took it upon himself to rebut this VA Dr. using my new & material evidence and seeing my S.C. Disability first hand. Then they are the predetermine DRO's and with an attitude that looks for reasons to deny and not award & they are common sense DRO's That want to help us. pro & con? sure. its unfortunately its like this & hopefully this will change in the near future. The thing is why not elect a DRO Hearing and take that chance rather than getting in the BVA waiting game..if your DRO Hearing don't work out then there's always the BVA Train & your EED Stays.
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    My suggestion on what to do would be to pay all debt off, get 100% debt free. Put 10-15 grand in an emergency only fund and don't touch it unless it is a real no other option emergency. Learn to live debt free. Pay cash for needs. Be very careful not to classify WANTS as needs. Always refrain from impulse buying for wants. Think about it for 30 days and see if it is still a want. Most of the time you will forget about it. Take a little bit, go enjoy a nice vacation and get that out of your system. When the pressure of credit payments are over your head, it can be a heavy weight. Paying cash for needs can save a whole lot of money and you can end up having much more using your money to pay for things instead of paying interest on things. Just my opinion. I have been buried in debt before and am now debt free and man does it feel a lot better.
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    "I DON'T KNOW WHETHER TO CHECK MYSELF IN THE HOSPITAL OR WAIT TILL TOMORROW I GOT PAIN MANAGEMENT ORIENTATION TOMORROW. HOW THE HELL DID I GET TO WHERE IM AT." Never hesitate to do something when this happens.....it could be a side affect from some med..........maybe you should get to an ER right away........ We are all Mad......... dont allow anger to control you..... call 1-800-273-8255 too if you feel you need to talk this out....