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    • Temporary 100% post surgery/convalescense pay
      Whats up guys, hopefully someone out there can help me out here. Ok I had surgery on my right knee (service connected) on 4-13-16 at the VA hospital in Phoenix. I applied for convalescense pay the day before which was 4-12-16. My surgeon wrote a statemwnt saying I would be out of commission for 8-10 weeks or more if "desired strength in leg is not met" how long does the VA take to process something like this? And my understanding is the VA doesnt pro-rate meaning my convalescent start date is 5-1-16 and for 8 weeks will that be from 5-1-16 until 7-31-16? I currently am at 40% so i get $699.36/month. With convalescense do they pay 100% per month (in my case its $3187) or will they pay one lump sum for both months? Thank you     Quote   Edit
    • Ankylosing spondylitis. Rheumatologist diagnosis
      Hi all. Got a good one for you again. I saw my rheumatologist today and was diagnosed with Ankylosing spondylitis. It affect both my feet and my right hand. Apparently this condition is related to rheumatoid arthritis and when i start treatment i will have to take shots for the rest of my life. I just got low balled at 30% for bilateral plantar fascitis which i just found out is related to to ankylosing spondylitis. My question is do you think i should file a claim and will this get services connected??? So internet research i have seen said RA is easier to get service connected but this is another new road i must go down so i would apperciate some Knowledgable feedback. This condition also affect my neck and back and i did have some back issues in my service medical records. Thanks all and i look forward to youtlr replies. 
    • CUE? Not using SMR?
      What I see missing here is any mention of 38 CFR 1154(b) Combat enhancement. VA did not give  him enhanced credibility in 1983. In fact, they didn't even mention it which they would be required to discuss by law (and then discount as not being probative). That is CUE. VA is required to take any testimony about his feet in the combat environment as Gospel. It's clear they had the STRs when they made the 1983 decision. Presumption of Soundness at entry on the physical sets the injury metric.  If he had flat feet when he left, then it occurred in service -38 CFR 3.303(a). If he says he got flat feet and he has a PH and CIB, VA cannot argue otherwise. Having proved CUE, all he has to do is show that the error manifestly changed the outcome. The 2015 grant is proof of that. The only thing that could poke a hole in this balloon would be an unappealed BVA decision which would have rendered the subject closed. No appeal up to the BVA on any of those reopens following 1983 means a CUE  claim is still viable for 1983 as well as any follow on denials in the interim. Personally, I'd go for it. I'd get an atty. because it's going to be a cat fight for that many dineros. Sorry about that sugar. Your email didn't mention the medals and the CIB. That's a whole different ballgame. Anyone who would die in combat for their country gets a bye on their testimony as being credible without corroboration. 
    • NOD / DRO or TARP?
      Also, I want to point out that my husband returned from his 2nd tour in October of 2008. I do not believe I would have said that I was that concerned with him returning when he had just got back as was stated in the decision. He usually has at least a couple of years between deployments.  I could be wrong, I don't remember. I do recollect saying that when he was gone, a lot of the memories of what we did and seen during the invasion returned or bothered me more..?.  Sorry, I can't be sure.
    • Dr Ellis IMO
      Thanks for the info Flores.  I actually called the clinic this morning.  I am in the process of gathering my records and will be sending them out hopefully by Monday.  They said that they are currently scheduling for the end of June, beginning of July.  The lady sounded very nice.  I am looking forward to meeting Dr. Ellis soon.   Good luck on your claim. Travis  
    • Pending Case Dispatch
      They said it was remanded back to the RO.
    • 25 Year Long Service Connected Disability Denied After C/p Exam.
      Thanks all for the kind words. And yes I do sometimes feel that i don't deserve anything as i did not do combat. And there is way too many service men and women who have given up way more and come home with less than they left with. So it is even harder to stand up and ask for help when I see those Brothers in Arms coming home with severe injuries and some coming home with the Flag we all swore to defend. Thomas that road of drinking and drugs i went down and it almost destroyed my whole family. And after spending 30 days locked up in a rehabilitation hospital i don't care to go back again. I have been sober now for over 2 years have not had a drink and don't miss it none at all. I still pain medications but the VA limits that now and I have to sign that contract every month to get it. I do want to mention something I feel is Good News... As I look at the eBenefits website almost constantly to see if any changes are made. Good news tonight when I looked at it as one of my Open Claims is now in the Notification Stage. And then I looked to see and they had approved my second application to include my wife and kids on. Of course my daughter is in college and my son is 25 now, which they did not accept him as a dependent. That means they may have approved my Claim for Depression and Anxiety. But most likely they are going to a New condition and I will have to fight for the back pay. But since my previous Claim is in the DRO stage and I am awaiting the outcome of it. This new claim for Depression should move over to it now and be included. Is that correct as I can't file another NOD on it til the DRO issue's a SOC first. Anyways here a screenshot of them accepting my wife and daughter as dependents and also a screenshot of the awaiting Notification letter to be delivered. . 
    • NOD / DRO or TARP?
      After some digging, I was not able to find my complete original 2009 decision. I did however find my PTSD appeal decision from 2011 and the rating part of my 2009 letter. I must have separated the 2009 letter at some point to prove I had a 10% service connection, but didn't want them seeing the notes. I hope this is enough to maybe point a path. I can't express how much I appreciate what you guy's are doing here. I have never been comfortable sharing this stuff with anyone, To the point that I have been doing this with just my husbands help because I did not want to talk to a VSO that I don't know. But I see on here that everyone is helping everyone fight the same fight. Thank you very much!  In reference to the previous questions: It appears I did file the DRO route, and no, I did not continue the appeal to the BVA. I actually found where I started to fill out the VA form 9, but I was so fed up with the OKC VA back then that I must have said "screw it". Big mistake on my part I know. Appeal Decision 2011.pdf Original Rating 2009.pdf

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Gardener

Question On Effective Date

14 posts in this topic

I posted the other day that I was still waiting for my favorable portion of the BVA decision. This decision was "stuck" at the AMC with other remanded issues. I just spoke with someone at the 800 number and was informed that a new entry was posted with today's date (23rd), and that it was now at authroization.

I wanted to ask a question concerning the effective date (obviously jumping the gun, but curious none-the-less).

All little background. I originally filed for service connection in 2003. I was notified in 2006 that I had been granted service connection (at the % that made me eligible to file for TDIU), and this was made retro back to 2003. Then, after receiving this favorable decision I filed for TDIU (3 weeks later). I became unemployable in 2000 (by SSDI) solely due to this condition (medical documentation from doc was a part of my file when I filed in 2003 stating that I was no longer employable), but VA only granted 70%. Anyway, I wanted to ask what my effective date would be?

Would it go back to 2003? (since I was not notified of the favorable decision making me eligible to apply for TDIU until 3 years later: remember it was retroed back to 2003). Or, could it possibly go back to the date placed on SSDI solely due to the same condition due to the documentation from doc that was part of the file at the time of the original filing?

I am concerned that they will only go by the date on the IU claim form of 2006, but I could not have filed until I received the decision giving me the necessary % (original claim was for service connection).

Sorry for the long post, but any input would be appreciated

Gardener

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You filed for and was granted SSDI in 2000 but you did not file for VA SC until 2003. Why?

If a claim has not been filed then the VA has no obligation to pay comp because they have no idea that you want to claim.

Now if when you filed for SC in 03 you were already SC for something else and mentioned IU (even though you did not have the %) you might have a shot at getting a start date of 03 but because you waited until 06 when you were finally awarded 70% and met the %. The VA I would think will only grant your claim back to the date it was filed which would be 06.

That being said this is only my opinion but I think you are hoping beyond hope on getting the 2000 date when there was not even a claim filed. You might get 03 but that to is going to be a reach if you did not mention that you were unemployed at the time. If you did THEN you could get 03 but that is going to be your best I think.

Good luck though and let us know how it pans out!?

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Wow, I think if you filed a claim in 2003 and informed VA that you were unemployed and or awarded SSDI, then your retro should go back to 2000. Your post stated that you filed in 2003 and VA finally awarded your claims in 2006. Did VA request your SSA records and if they are in your VA C-File then VA should pay the earliest date that you became unemployable which is 2000.

JMO

Edited by pete992

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Thanks for the replies

The VA does have the SSA records, so I guess we will see what effective date they come up with. The TDIU was granted by the BVA and the BVA decision even references the SSDI, and doctor statements (unemployable) from 2000 that was granted solely for the SC condition.

Would the records from the doctors (that were a part of my file when I first applied for sc) that stated I was unemployable in 2000 (which put me on SSDI) equate to an inferred claim for IU when they granted the 70% in 2003?

Will post the results.

Gardener

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3.400 Effective dates: Date entitlement arose or the date claim was filed whichever was later. In your case if a VA doc stated you were uneployable and they have this evidence then you should NOD the decision and ask for an earlier effective date. ALso remember there are several paragraphs that superceed 3.400.

Edited by jbasser

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"Would the records from the doctors (that were a part of my file when I first applied for sc) that stated I was unemployable in 2000 (which put me on SSDI) equate to an inferred claim for IU when they granted the 70% in 2003?"

I would think so.If the VA was also aware of the SSA award.

VA hinges on the filing date of the 21-8940 form in most cases for EED and retro but there is topic I posted here about the "date entitlement arose" which could help you.

It is hard to know what the VA will do in your cases as to the proper EED.

This discussion might help you-

I always give my husband as personal example of how 'when entitlement arose' works.

Filed claim for higher rating of his 30% SC PTSD in late 1992. Filed Sec 1151 claim in 1994.

Sent TDIU form in late 1992 or early 1993,

Sent SSA award in 1993 solely for PTSD.

He died 1994, claims re opened by me. denied denied denied- fought them with evidence

Awarded 100% SC P & T PTSD posthumously 1997 with an EED back to 1991.Sec 1151 claim awarded in 1998.EED 1994.

Nov 1991 was his EED for VA 100% SC-the VA used the same date that SSA did to determine when SC caused unemployability.

They never acknowledged the TDIU form at all. They can't really award a deceased vet TDIU so I guess this is why they awarded him 100 % P & T .

I feel that even when the date entitlement arose is prior to their receipt of the TDIU form (another reason we should send it and not wait for them to send it to us-as they save money when the use the 70% criteria to send it out)-

and this favorable entitlement date could be evident by a SSA award for the same disability-

the VA hardly ever recognizes the entitlement date could be more favorable that the TDIU form receipt date- and even if they do- they dont award it and hope we do not challenge this date.

In my husband's case the evidence was so clear that they could not have gotten away with the TDIU receipt form date.They never even acknowledged he sent it in.The VA also wrote to 2 Senators and my Congressman that SSA had refused to send them his SSA records,after I questioned a SOC denial I got. It was a lie.When I found out about this VA lie I made a major fuss,and soon thereafter they awarded him posthumously.

The SSA were crucial to his claim and so VA had every reason to make up a big one. The reality is his authorization forms for his SSA records remained in his file for almost 6 years - 3 years after he died but the VA never attempted to get those records.Until I raised hell when they lied to congressional inquirys. I had re-opened his 1151 claim and also filed a FTCA tort claim and was sending them and the OGC continuous evidence of their malpractice at same time I was supporting the 100% SC claim so they were not happy with me at all.They admitting to causing his death shortly after the 100% posthumous award came.

It pays to double check on SSA records and whether the VA follows through with attempting to obtain them.

An SSA award is in essence an independent medical opinion and if solely for the same SC condition,the VA MUST award TDIU or 100% SC (Washington V Derwinski) tp://www4.va.gov/vetapp03/Files/0310533.txt

Edited by Tbird
added link to Washington v Derwinski

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Thanks for the replies

The VA does have the SSA records, so I guess we will see what effective date they come up with. The TDIU was granted by the BVA and the BVA decision even references the SSDI, and doctor statements (unemployable) from 2000 that was granted solely for the SC condition.

Would the records from the doctors (that were a part of my file when I first applied for sc) that stated I was unemployable in 2000 (which put me on SSDI) equate to an inferred claim for IU when they granted the 70% in 2003?

Will post the results.

Gardener

That could be the case but I was wondering why you did not file in 2000 when you were granted SSDI? My point is when DM2 was added as a presumative in 2001 I think those that filed before got nehmed to their denial date but those that had DM2 and had not filed got only 1 year back from their claim date and those that got the DX later only go from their claim date of course.

Now if you did not file a claim in 2000 for VA benefits because you did not know you could, wouldn't the date only go back to the date you filed?

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This regards TDIU for an AO condition?

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Berta,

No it does not. I believe that Stillhere was just uses the DMII as an example.

Gardener

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I think your claim is perfect example of an inferred claim for IU. The VA knew you were on SSD. They should have inferred IU. You are going to have to fight for the EED, of course.

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Okay, here's what I see. You "may" be able to get them to go back to 2003 but they shouldn't, since the 2003 claim was an original claim. When you received the 2006 decision you should have filed a NOD, rather than filing for TDIU. If you were awarded a percentage that made you eligible, for TDIU, and it wasn't discussed, in your 2006 decision, you may be able to CUE that, which may allow you to go back to 2003 but not if they discussed TDIU in that decision. The fact that you didn't file in 2000, when you got SSDI, kinda bars you from getting that date. jbasser posted 3.400 which is your answer. I don't see an inferred claim back to 2000 but there may be an inferred claim to 2003, which would help the CUE issue.

This is not to say you couldn't win back to 2000 but I believe it's "highly" unlikely. You can't overturn 3.400 and the issue of the date the claim was filed. jmo

pr

Edited by Philip Rogers

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Gardener- can you give us a link to or the Citation Number and Docket number of the BVA decision?

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Hi Berta,

Thank you for your help, it is greatly appreciated.

I really do not feel comfortable giving this information out. Not due to distrust of anyone on the board, but due to the fact that anything placed on a public forum can be read all over the world.

If I can answer any specific question you have, in order for you to be able to help me better, I would be more than happy to do so. Again, I value your input.

Gardener

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I really do not feel comfortable giving this information out. Not due to distrust of anyone on the board, but due to the fact that anything placed on a public forum can be read all over the world.

Gardener

Gardener,

Just so you know - all BVA cases are posted on the BVA web site's public forum and

can be read anywhere in the world.

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