lotzaspotz

I filed one for my husband in 2008. We had an attorney handling other appeals for him who told me this was the closest most Veterans come to winning. We were trying to accomplish moving an appeal out of the old Appeals Management Center where it sat for a very long time by standards back then. The Judge kept giving the VA deadlines for updates, I think three, before the action was accomplished. Then the petition was declared moot.

If the Board remands an appeal because an SOC was never issued under a Legacy claim, can a Veteran waive the SOC if the Veteran chooses to do so?

If this involved records that were in the service medical records and thus should have been in the VA’s subsequent custody, File a supplemental review request, citing 38 CFR 3.156 (c)(4), which speaks to this in particular, I think. https://www.law.cornell.edu/cfr/text/38/3.156 In reviewing the claim based on that regulation, if the Rater sees your evidence supports the claim and the earlier effective date, that regulation speaks to a grant with the earlier effective date. If not, you will have options available to you through the appeal process. I don’t think this is a CUE. Obtaining your service medical records falls under the VA’s obligation to assist you in gathering evidence, aka “Duty to Assist.” However, you cannot base a CUE on the VA’s failure to meet this Duty to Assist. See 38 C.F.R. sections 20.1403(d) and (e).https://www.law.cornell.edu/cfr/text/38/20.1403. So, it’s not a “CUE,” in the formal sense, although it is a “cue,” as clearly there was an error perhaps in transmission between the military and the VA, or a scanning error at the Evidence Intake Center, for instance.

On what basis did the VA find your independent medical opinion inadequate to link your GERD to the treatment you take for service connected asthma? If your private doctor can address that point, you can submit a supplementary review request if you want to try to keep it local at the Regional Office. If you can’t or don’t want to get new and relevant evidence, you can file a higher level review request with the Regional Office. If you no longer want the RO to handle it,, you can file a Notice of Disagreement, with or without new evidence, to the Board of Veterans Appeals in Washington, DC. Personally, we have had more success with the Board correcting the RO’s lack of thoroughness and accuracy with many of my husband’s appeals. My husband had two DBQ’s by treating physicians completed and submitted for secondary service connection for GERD linked to pain meds taken for service connected conditions. The RO denied with no C&P exam. We were under the old system pre-AMA, so we submitted a DRO review request. This resulted in a Rubber stamp denial, again with no C&P exam. We then appealed to the Board. The Board granted the claim for GERD without a C&P exam.

Someone asked me this and I hadn’t come across this before. The veteran’s VSO evidently used the wrong form to file the claim. The veteran did not know which form was used, but six months afterwards, the mistake came to light somehow and the VSO corrected it. If the claim is granted, has the veteran lost six months of compensation?

Perfect example of "don't give up and don't die!" We're at 24 years and pending in our house. So glad you finally received your rating! Now, can we draw on your experience to help others just starting out?

Is there a deadline post separation that limits a veteran from filing for service connection for a hysterectomy?

I don't know, but I figured if that was information the VA needed to make a rating decision, they would have included it on the DBQ for GERD. If it's not there for the non-VA doctor to answer, it wouldn't be there for the C&P examiner to answer, either. Only, there was no C&P exam offered, despite the DBQ's by treating MD's and evidence of prescriptions taken to treat SC conditions over the course of several years.

I'll look for those, too. Thanks Buck. The DBQ said GERD on it. Can't figure that out. And no rating exam, either. Looks like another learning experience for me.

They did opine on what caused GERD. They addressed the specific medications he takes for service connected disabilities and the length of time he's taken them. I just wanted to know where on that form does it ask for a "baseline" level of GERD because I can't find it. Evidently, neither could the MD's. I think they would have addressed that specific question if they could see where it had been asked.

Good morning, all. Can someone tell me where the DBQ for GERD asks about a baseline level of GERD? My husband's treating private physicians, one a GP and the other a gastrointestinal Board certified specialist, both completed DBQ's. The claim was denied solely because they both did not describe a baseline level of GERD, but I don't see that question on the form. That appears to be the only reason it was denied. The VA had release of information letters for the doctors, but we provided copies of all the records ourselves. I don't know why, if that one isolated piece of information was missing, the VA didn't let the doctors or my husband know (we could have addressed that prior to a denial). Plus, there was no C& P exam provided. We thought this might have been an oversight, but it wasn't, the denial without a rating exam was repeated by the DRO. The claim regarded certain medications taken for service connected conditions for many years that have a clinical connection to causing GERD, as the doctors reported.

Trust your gut instinct, not what you're necessarily hearing from your previously MIA VSO. This matter won't be resolved in the short term, so do you trust him enough to not continue to worry about your status in the interim? Past performance is a good indicator of what to expect in the future. Anyway, if you are still open to the attorney option, I highly recommend Doug Rosinski. He's argued in person before the Court of Appeals for Veterans Claims, speaks nationally before veterans law attorney groups, and you can google him for more background. If you want to hear him argue, he's on the audio at the CAVC on the Larry Robinson case heard on July 15, 2016. He's also a veteran. http://www.djrosinski.com/

Bronco, I have a question on the life insurance. My husband has held this insurance about eight years or so. We were never told about it prior to that (even though he would have qualified for it) and when he won an appeal on an earlier effective date, we applied for it. He has now been 100% schedular for 20 years, but that wasn't awarded in real time. We clawed back through Appeals of either ratings or effective dates a little bit at a time, so each time, we gained a little more retro for him. So, does the 20 year period that must pass before you can cash out the face value of the policy start from the date the veteran is rated 100%, or does it start when the policy is actually issued? The veteran doesn't pay premiums, so the VA isn't losing any money in the deal either way, I would think. Thanks!

Thank you!

I have a question, if anyone here can assist. Have any of you been awarded a compensable rating (at least 20%) for a ventral (abdominal) hernia, even though you were never formally prescribed a belt/truss? The reason I'm asking is the VA is interpreting DC 7339 (ventral hernia) at the 20% disability level as requiring a prescription for a belt. However, the rating criteria doesn't state that a prescribed belt is required - what it does say is that the need for a belt is "indicated." What is the legal definition of "indicated?" Usually, when the VA requires something of this nature, it clearly says so. Also, I found a Board appeal where the veteran was awarded 20%, but clearly stated during a Board hearing that he didn't wear a belt. His appeal for an increase to 40% was denied, but the Board let him keep his 20%. This rating hadn't reached the 20 year mark, either. Thanks for any additional information you may be able to give.