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  1. 3 points
    As a veteran who fought for SC for almost 30 years, and now accredited, I would ask you to review any and all DBQs and show me where there is a box that says "Is the condition at least as likely as not SC?" This option is available on the ones used by VES/QTC/LHI occasionally. However, regardless of what the VBA says, the general rule is as it states in your attachment ( VHA Directive 1134) above: 1. Service connection and disability ratings for VA benefits are purely legal determinations belonging exclusively to the Veterans Benefits Administration (VBA). VHA providers often do not have access to military medical records, and may not be familiar with all the health issues specific to military service, such as environmental exposure. Additionally, the issues of service connection and disability ratings are governed by statutory and regulatory provisions beyond the scope of VHA examination and/or primary care. Consequently, they are often not well suited to assess causality of a current condition in a manner helpful to inform the VBA adjudication process. VHA providers who wish to provide medical opinions that state causality must include clear and specific rationale citing evidence to support the conclusion reached, and should employ standard language appropriate for medical opinions (such as “at least as likely as not”, etc.) As for the second document (VHA Directive 2000-029), it is obsolete. It was issued prior to 2010. I don't wish to argue with you. I'm sure you feel I'm wrong. I litigate each and every day for Vets. I live and breathe VA law and study new techniques. I pay $3,000 a year to maintain that accreditation by taking the required CLEs. If I don't know the answer, I use Westlaw to confirm it. Westlaw costs $59 a minute to access. If I thought using VA doctors was a viable option, you would have heard about it years ago, sir. The CAVC and the Fed. Circuit would have tons of cites saying a VA doctor's word is gold. Now, if you are familiar with VA case law and precedence, you will know that a medical opinion is based on knowledge (the claims file and private medical records-or VA medical records). VHA doctors can fill out generic DBQs listed at the link above. If they do opine, it rarely has any bearing on a win. If they have not researched your case via the claims file, it isn't a probative nexus, sir. Try talking your VA doctor into reading a 2,000-page c-file and providing a IMO with supportive, peer-reviewed studies. I see hundreds of "nexus letters" by doctors. VA ignores them if they do not specifically note they have reviewed the claims file. You are welcome to believe what you will but speaking from experience, depending entirely on a VA doctor for a nexus is not advised. Here's a few from my file I find very much on point taken from Fed. Circuit and CAVC decisions: >The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). >However, Dr. Bash did not address contemporaneous evidence, including VA and private treatment records from throughout the period under consideration, that note the Veteran was, in fact, ambulatory, albeit at times with the assistance of a walker or cane. His opinions are conclusory, inconsistent with contemporaneous clinically recorded data (which he does not acknowledge), and cannot be afforded any substantial probative value. >See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 304 (2008) Remember, we are here to help Veterans win. Each must tailor his defense to win using proven techniques. As an example, if you try to submit a psychiatric evaluation from a private doctor at the beginning of your claim, it will be rejected even if it's probative. VA's shrink must always opine first. It's the law. VA c&p doctors/nurses offer their assessment of a disease or injury for the VBA adjudicators to study. It is not binding on VA. I've had hundreds who said "Yep. It's due to AO. A month later I get the denial saying it isn't. I take no pleasure in arguing with any of you here. My desire is to teach you what you need to succeed. As they say, you can lead a horse to water but you cannot make him drink. You are free to ignore my advice and it will not hurt my feelings. I've helped thousands over several decades attain SC-usually IU or 100% +. It's a recipe-just like baking cookies. If you choose to substitute baking soda instead of the baking powder called for, you don't get what you desire. Many tell me I'm wrong here at Hadit. Considering I have never lost a claim or appeal yet (knock on wood), I take it with a grain of salt. I wish the best for all of you. VA screwed me in '89 & '94. Every win is a b*tchslap for that treatment I received. They should never have said I was not in Vietnam.
  2. 3 points
    My guess would be that yours is not a difficult claim to adjudicate so they were able to get it (almost) finished faster than expected. Based on the info you shared, there's no way they'll reduce your rating. Regarding the term "moderate to severe", it's important to put it in perspective. 90% to 95% of the country is not suffering from two serious debilitating mental disorders at the same time. Here's Dr. Mark's off-the-cuff, unscientific, for-illustrative-purposes only, 11-point "severity scale" that I just typed out as a "thought experiment" to give you a sense of where "moderate to severe" fits on the continuum. Rating - Description 0 - No symptoms, no history of disorder. 2 - Mild symptoms but frequency, intensity, & duration insufficient for DSM-5 diagnosis of disorder. 4 - Mild symptoms that satisfy DSM-5 diagnosis for the disorder. Experiencing symptoms more often and with more intensity - harder for him to say "it's just a bad week" or similar. Wife said he seems dejected, less energy, motivation flags. He'll bounce back for days or even a week or two but that's becoming less often. Calling in sick to work more often. Supervisor said management has commented on his declined productivity. 6 - Moderate symptoms that cause noticeable and significant social and occupational impairment; frequent distress, dispirited; interpersonal relationships strained, even with her children; school functioning has clearly declined. Got a "C" in one course and two Incomplete grades. Decided to hold off on continuing college coursework, even though she is close to earning all credits for bachelor's degree. 8 - Moderate to Severe - frequent painful symptoms much of the time despite assiduously seeking treatment and following his doctors' advice; significant social & occupational dysfunction; probably will need to seek medical leave, reduce work hours, or may end up not being able to work. Psychiatrist has discussed options for "treatment-resistant depression", e.g., ECT (electroconvulsive therapy); the new ketamine-like medication; Lithium; Abilify; etc.; psychologist recommended VA's 6-week residential treatment program for PTSD in Sheridan, WY. 10 - Severe - very frequent, soul-crushing painful symptoms most of the time despite assiduously seeking treatment and following his doctors' advice; substantial suffering is obvious; significant social impairment, and no longer able to work, at least for the next several months or longer. [The above is not an official, unofficial, actual, or real mental health scale. It's just a way to put symptom severity and functional impairment in perspective for illustrative purposes only.]
  3. 3 points
    @acesup I was previously in the same boat. My DRO appeal was granted on July 31, 2018. I learned the hard way that White House phone calls and Congressional Inquiries don’t work. Last month (February), I called the VA 1-800 # like I did everyday, three times a day. And the representative said she would give me the number to the VA liaison for my regional office which is Baltimore. Long story short, her office was directly across from the person who oversees the entire appeals Dept. The liaison took action on my behalf and was quite upset about the whole ordeal. My claim was closed the very next day and money in my account three days later.
  4. 2 points
    "Could negligence be considered as the VA prescribing me NSAIDs for decades instead of in smaller brief periods?" Certainly it the VA knew of the risks of NSAIDS in those links above and how they can cause heart problems. "I assume that for 1151's, it is not best to let the VA formulate their own opinion. Or, if I file and win approval for the regular secondary claim, might that suffice? " Yes, filing as secondary might suffice. If not there is no time limit on a 1151 claim. "I assume that for 1151's, it is not best to let the VA formulate their own opinion. " That's right- they even got a Doctor to opine that my husband died possibly of a cocaine overdose. He (they named the doctor in the decision)was very upset when I called him up- he had no idea the VA had the full 6 page autopsy which included a toxicology report because he was an organ donor. My husband didn't even drink- the only meds he took were prescribed by the VA.Psuedoephdrine for sinus problems which the med recs revealed he did not have, which contraindicated the lisinopril for his HBP which was at the wrong dose.I also proved that the Switch and Swallow they sent him by mail for years was not for what they told him it was for, It was for, as I proved, oral candidiasis ,that he incurred due to high elevates of sugar in his saliva. One more thing to prove he had DMII and the VA knew it. I am waiting for a C & P in which some quack formulated an opinion that was so ridiculous- and did not even consider the opinion I had, that when I get the actual opinion- thought it would be here by now- I am filing a complaint with the WH Hot Line, and with the firm he/she came from. I actually do not even believe a real doctor or anyone with any medical background , did the opinion. I mentioned that to 3 or 4 people in the VA system recently and they did not seem shocked when I said that.
  5. 2 points
    I met a vet here on the older board many years ago and we corresponded from time to time about his issues- and after 35 YEARs he finally succeeded in getting a proper resolve.His claims included direct SC, CUE , as well as an 1151 issue. The BVA reversed a past decision and the cash is in the bank- a Very large retro amount- he has not gotten the formal award letter yet. He dealt long ago with the same RO I deal with and in those days I tried to help him all I could because we both were dealing with idiots at this RO. Maybe the best thing I could do is give him encouragement- and he was as proactive as he could be. He also had a solid IMO for at least one claim. I wish it was not true but ,if we do not know basic VA case law and the regulations that control our claims,and are not willing to fight back, and continue to collect as much evidence as we can, all very difficult for anyone disabled as it is, our claims will be doomed. But this vet I heard from today and I both have received multiple denials in the past yet we never gave up.That is the secret to success-persistence and evidence.
  6. 2 points
    I have hypogonadism as well, and receive testosterone from the VA. Im 42 (ugh). While its not had much effect on my depression over all in the last 2 yrs, it has helped my energy levels through the day so Im not completely exhausted from mundane tasks. Quality of life is important but its not a cure all. I self inject, incidentally, its not that difficult once you get the hang of it, and they provide the needles and syringes. I would recommend drawing your dose with a larger needle, like a 20 gauge (still pretty small), then switching needle tips on the syringe and using a 22 gauge to inject. Reason being is that piercing the top of the container to draw out your dose dulls the tip of the needle just a bit, and its noticable when you use the same needle to draw and then inject. Trust me on this. VA used to give me sets of both gauges, for awhile, then they stopped. Not sure why, but in any case you can, for about 20.00 a box of 100, get syringes and needles for self injecting from Amazon without a pharmaceutical license or anything like that. That way I am still able to draw with 1 needle and inject with another. Its pretty simple. I have not had benefits reduced, but depression is long term treatment resistant type so it depends on what yours is and its cause. If you go outside VA it will be at your cost and I don't know what that costs. I get my dosages 2 to a bottle, and I reorder from VA pharmacy online. I take shots once a week. If you have insurance that will cover it, why not, but if you can get it for free from the VA, I would. You'll have to go in every three months or so for the first year so they can monitor your doses and make sure you are compliant with injections (basically, that your levels are static) and that you aren't having any other issues. Keep in mind that if you start taking testosterone your testes will stop making it and it will basically render you sterile. Not 100%, but your S count will drop to the point of being unable to have kids if that is a concern. Your doc should fill you in on all this, too.
  7. 2 points
    SMC is a quality of life issue. You assemble it like Legos. Okay. There is no requirement to get to SMC S prior to ascending to SMC L. LOU (loss of use) of lower extremities is one SMC L. If you had LOU above the knees, It would be M. If the catheter causes you to need Aid and Attendance, that is another SMC L. Two Ls advance you to SMC O. If one of the Ls is for A&A, then you get R1. You could have two entitlements to A&A and get R1. The c&p for SMC is basic. You have to prove by medical records you have been dx'd with LOU of two extremities. VA does use the VAF 21-2680 for determinations. I've never heard of a SMC L c&p taking four hours. Generally, you medical records reveal the determination you have been dx'd with the LOU or the need for A&A- but not always. The M 21 states only a VA examiner can make a LOU/ A&A determination. Thus, even if a QTC/VES/LHI doctor says yes, VA can still say no. I am currently in that situation with one of our Hadit members right now. He deserves A&A and they refuse to grant. The good news is the Mariano v Principi decision. If you have a dr. saying yes and VA says no, that's equipoise and by operation of law, they have to grant it. Sadly, I almost always have to go to the BVA to achieve them.
  8. 2 points
    BroncoVet touches on an interesting precept with attys/agents. Most of us will never touch a new claim but will advise you to use a VSO to file it. The reason is simple. We are forbidden by law to charge you to file a claim. We only can enter in to the fray once a denial is issued. It also is a good experience to discover what "hands on" really means in claims development. I do not fault VSOs for their lack of ability. They are not trained to do this. They are glorified mailmen. They fill out your 526 and deliver it. I have learned to file an 8940 at the outset of a claim regardless of whether a client is working. I've won on a Vet being "marginally employed" in a sheltered work environment. He was a CPA working for himself and all but unemployed but for some of his oldest clients. The VR&E angle is good but time consuming if attempted after filing. With the new AMA, you want that in your file at the outset if possible. I advise you begin that asap and prepare it as a tool ahead of time. I never procure an IMO until I lose. Why waste the money? I'm an undying optimist that VA might be agreeable and give my client his due. Of course, I was convinced we were going to win in SEA in 70-72. As with all techniques, VA is learning to deny IMOs by sending out to get second opinions. This is called developing to deny and is forbidden by Mariano v Principi and §3.304. Thus, I always ask for a SOC asap and submit it to a VLJ. I just got back from a TB hearing in Oakland before VLJ Matt Blackwelder last Thursday. My client has Hep C and he admitted to snorting toot in 88. He has no medrecs. They burned up in 73 or so VA says. I had to explain to the judge that Stage 4 cirrhosis takes 50 years-not 30. 1988 doesn't fit the medical scenario. You could never accomplish a win like this without an extraordinary IMO presented in person to the judge. He read it while we sat there and nodded in agreement. I never forecast wins but I feel good on this one. Absent qualified counsel, he could never have won it on his own or with a VSO. A videoconference would never have conveyed my client's advanced debility from the cirrhosis. One thing I cannot impress on you folks here. There is no template for a claim. Each of you is unique as are your circumstances. There is some commonality in how it is done but each one must be produced based on the evidence you possess-and most especially- what you do not possess. I like to use this as the ultimate example of what you can create with absolutely nothing to work with but negative evidence-or worse- no evidence whatsoever. The gentleman was advised in 2015 by his VSO not to waste his time filing as he could never win it. We shall see.
  9. 2 points
    Hi Everyone I've learned so much from this site over the past 5 years. I was granted service connection for PTSD (02/28/2019) and I am in the same boat. My effective date is the date of my last C&P (01/31/2019) even though I had a diagnosis from a private doc from and never let my claim close. I just filed an appeal using the higher level review lane (03/28/2019) so I will try and post my timeline and eventual outcome.
  10. 2 points
    VA quit allowing their doctors to opine on Veterans' conditions and whether they are service connected back in 2010. You'll have to look to an outside source in the private sector to get the opinion [option]. You can use an PA-C, PA, or ARNP but an MD is the best. VA often uses registered nurses at the ROs to make the decisions. They are called "VA examiners". Good luck.
  11. 2 points
    I wouldn’t pay a lawyer for something you and a good service Officer can do for free. You’ve got a lot of options, but going it alone is a bad one. If you’ve got issues after a surgery by the VA look into the possibility of filing an 1151 Claim. It may be wise for legal counsel on that approach. Discuss it with a service officer first and any recommendation she/he may have. TDIU you can not be working if you file. Filing for SS is an option too. Their standards are different for rating conditions and based on your length of work history. A medical option by a VA doctor is the best option. She/he must state in the option that your condition is due to or more likely than not due to your d/x disability. Maybe even permanent and total in nature. Again, this needs to be an MD.
  12. 2 points
    Did you file for and get temporary 100% after your surgery? Depending on the surgery you had, and the results, I believe you could possibly be entitled for a temporary 100% benefit for 5 months, if you file a claim for it with the appropriate documentation (mainly the Surgery Report). Of course that is only if you're already SC for whatever caused the surgery. As far as the side effects of the medication, getting any compensation out of the VA for a temporary problem that is now resolved might be like pulling hen's teeth. VA disability compensation is not set up for what is considered "acute and transitory" symptoms, such as a short-term bout of depression or other temporary symptoms you're reporting here. There may be a slim possibility of filing an "1151" claim, it's not a subject that I pretend to know much about, but it might apply in your case. It is basically a claim for problems caused by improper treatment or malpractice, etc. It also seems unlikely that you'd have an 1151 claim, because treating nerve pain and depression with Cymbalta is common. (I take it for exactly those issues.) There is information about the 1151 approach in these forums, just have to see what you can find that might apply. However, reading over your post again, I have questions: Did you have a medical professional that evaluated the side effects you experienced, and evidence that they were caused by the Cymbalta? Did the doctor who prescribed it tell you to wean yourself, and why and how you should do that? Did a medical professional diagnose the depression and blame it on the Cymbalta? And do you have all of that in written opinions or in your medical records? Without diagnosis and nexus opinions from qualified medical professionals, there's not much for the VA claims folks to work with. Hopefully others will chime in with their knowledge about problems like yours. Hope your back and everything else is getting better. Two years ago, I had a 4-level lumbar fusion (TLIF with laminectomy and lots of titanium hardware), so I feel your pain. I filed for and received temporary 100% at the time, and got paid 5 months of it with SMS (S). (Since then, I've been granted TDIU and SMC (S) back to 2009, that's another story). Best of luck with your claim.
  13. 2 points
    I personally believe that a letter from your spouse or significant other is one of the most important pieces of evidence you can have inside your claim. I believe that many examiners and raters do not consider them important and tend to dismiss them and give them no credibility. However, on appeal it is something that seems to be a deciding factor in overturning a poor rating decisions by the BVA. There are two important pieces to this letter that I believe is critical. 1. Your spouse should only list symptoms they see. They should never state in the letter a diagnosis. If your letter has a diagnosis in it and your spouse is not qualified to render a diagnosis the rater will immediately ignore it. 2. Your spouse should state how your disabilities impact your day to day living. What things you could do in the past but cannot do now because of your disabilities. No one is more qualified to stated how your daily life is impacted than your spouse. I think anything else in the letter would be overkill but that is just one man's opinion.
  14. 2 points
    In addition to the excellent advice you've received from your fellow vets, I'll briefly share from an examiner's perspective. I learned from my friends who are veterans and from the many veterans I evaluated over the years that the "rules of the game" change dramatically when services members leave the military and enter the world of being a veteran. In the military, seeing the doc for anything that's serious or chronic will likely hurt your career and you'll go from "Awesome member of the team" to "Potential liability". Then, when you enter the world of being a veteran all of a sudden everyone is exclaims, "What?! You haven't sought treatment? You gotta do that man." I don't mean in any way to discount the advice you've received here--I totally agree with it. I'm simply highlighting the stark contrast between life in the military vs. life as a veteran. My main point is that decent C&P examiners know that there are many possible reasons why a veteran hasn't sought treatment before. When and if it seems appropriate (trust your gut) tell your examiners in a brief, matter-of-fact way (like you did here) why you put off treatment for so long. Don't belabor the point. Finally, as others have said, when you go for treatment appointments, try to put your disability claim out of your head. Ask yourself, "If I didn't have a pending claim, what would I say? How would I act?" I've had severe allergies since I was a teenager and they're awful. People who don't have them really don't understand (unless they're medical folks.) But over the years my doctors have found treatments that work for me and now the allergies are a nuisance, but tolerable. Allergies are just one of the ailments you're dealing with, but my point is that treatment is often quite helpful. All the best, Mark
  15. 2 points
    As a C&P examiner, I took letters from spouses seriously. And, if a vet was accompanied by his or her spouse and asked me to speak with him or her, I would always do so as it often helped me to better understand the frequency, intensity, and duration of mental disorder symptoms and associated functional impairment. Unfortunately, VA does not require examiners to interview family members, and there are not any specific requirements for examiners about how to regard letters from family members. Nonetheless, letters from "lay witnesses" could help, even help a lot, and they're unlikely to hurt a veteran's claim. Veterans law attorney Chris Attig recommends submitting lay witness statements as a "Declaration", which he explains in a blog post. Note that Mr. Attig calls it a "sworn declaration" whereas other legal websites, and the relevant U.S. Code, call it either an "unsworn declaration" or simply a "declaration". In my experience reading Mr. Attig's blog over the years, he offers well-written, important, accurate information for veterans and their representatives. I don't know Chris Attig personally, but I respect him and value his opinion. Although they don't mention using a Declaration, the law firm Chisholm, Chisholm, & Kilpatrick has a good article, accompanied by a question & answer video titled, How to Use Lay Evidence for VA Disability Claims. There's an easy-to-understand, informative article on the Martindale (legal publisher) website that discusses Declarations in general, i.e, the article is not specific to veterans law: When to Swear and When to Declare: Affidavit or Declaration? by Matthew J. Bakota (21 May 2012). Finally, here is the statute itself: 28 U.S. Code § 1746 - Unsworn declarations under penalty of per­jury. I'm not an attorney, but it looks pretty straightforward. If it were me I would write exactly what the law specifies at the bottom of a family member's letter, and ask them to date and sign it: Note this part: "... under penalty of perjury ...." Chris Attig offers important advice in the blog post I mentioned above: I hope all your exams go well SwiftSig! ~ Mark
  16. 2 points
    That evidence should carry the day.
  17. 2 points
    A claims file request made by the veteran is legally designated as a Privacy Act request, not a FOIA request.
  18. 2 points
    It’s been a long road 4 years and 7 months long but finally WON! Never thought at my age I would ever see P&T. Now on to SS. Thank you to everyone who has posted. This site has helped me along the way in so many ways!
  19. 2 points
    Which one of the following best describes your situation? This is a general idea of how they will rate it. They don't go off of one statement a doctor will place on there, it is more of a puzzle and finding out which once you fit into. After looking it over page 9 is where I would look to see how they will rate it. If I am reading this correctly the 70% seems to fit. But I am not a rater, so It will based on what they see.
  20. 1 point
    Hello Hadit friends! I am so excited! I logged into Vets.gov today and my husband's rating has finally changed. His migraine percentage was updated to 50% and overall rating to 70%. We have been waiting almost 14 months since the judge granted the increase on migraines. Thank you Jesus! I don't know how long we will have to wait on retro......but we are so happy to see this update!
  21. 1 point
    "How could this be considered a Section 1151 claim?" If it fits into the Section 1151 , 38 USC criteria : In part: "U.S. Code Title 38. VETERANS’ BENEFITS Part II. GENERAL BENEFITS Chapter 11. COMPENSATION FOR SERVICE-CONNECTED DISABILITY OR DEATH Subchapter VI. GENERAL COMPENSATION PROVISIONS Section 1151. Benefits for persons disabled by treatment or vocational rehabilitation 38 U.S. Code § 1151.Benefits for persons disabled by treatment or vocational rehabilitation U.S. Code Notes Authorities (CFR) prev | next (a)Compensation under this chapter and dependency and indemnity compensationunder chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran’s willful misconduct and— (1)the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by theSecretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was— (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable; or (2) the disability or death was proximately caused (A) by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title, or (B) by participation in a program (known as a “compensated work therapy program”) under section 1718 of this title." https://www.law.cornell.edu/uscode/text/38/1151 There is more but that involves FTCA offset stuff. "Can a veteran file both an 1151 and regular/secondary claim for the same issue?" Yes- because we can file under any potential theory of entitlement.One might not work , but another theory of entitlement could. might I had a BVA appeal once that the BVA dismissed as moot. I had filed under two theories, probably under direct SC and also 1151- I have had 4 main 1151 claims. The BVA dismissed because I had won that claim at the RO level and didnt know I could have withdrawn the I-9 appeal. It might have been the initial 1151 DIC award I got. VA fights 1151s aggressively. I didnt have a lawyer or any IMO when I filed my wrongful death FTCA claim. My evidence was impeccable- I have a pro se background, but it was heartbreaking to discover how poorly the VA had treated my husband. He filed a Section 1151 claim before he died. Then Pres Clinton said in a speech that the VA was the best Gov run health care system in the world and my husband thought he better withdraw his claim until I reminded him that Clinton had to be taught to salute- what did he know about the real VA- nothing. I used the regulations for the basis of the claim he dictated to me, and then I used it for my formal DIC claim. It was the same "cause of action" I used for my FTCA claim. My VARO, even with a copy of my settlement with the USA (under auspices of VA) ignored that and denied my 1151 claim again. I did have an offset factor but I still needed a formal DIC award under 1151, when the offset factor had been deducted.I called the OGCand told them they owed me more money-they really didnt but it got their attention. The OGC sent my VARO an order to grant the 1151 DIC. It is almost impossible to get a 1151 award without a strong medical opinion. In your case there have been strong studies as to the negative affects of NSAIDs. "I was recently diagnosed by a non-VA endocrinologist as having Cushing's. I filed a claim earlier this year for it along with a letter from her stating that is was caused by steroids used to treat my asthma and spine issue (both of which are service connected). " That too sounds like a strong claim, either under 1151 or secondary to the asthma if that is SC. ." I asked the cardiologist if Cushing's could be a factor and he said no. However, I found plenty of articles online showing that is can be a factor." I am not surprised at that. One point I need to make as to 1151 claims-there is plenty info here at hadit on them- I proved that VA took "acts" and caused "Omissions of Acts , " that were not consistent with those of the standard medical community for my FTCA and my 1151 claim. Acts and Omissions of acts is legalize and it all meant that no real doctor would have taken the steps the VA did, regarding diagnosis or treatment, even though they ( VA) could have,at some point, properly diagnosed and treated my husband. The result of these acts and omissions of acts caused his untimely death at age 47. The very first peer review they did caused the Regional Counsel to call me up within months of receiving my 1151, to discuss a settlement based on a probative Peer medical review-the doctor who did that agreed with all of my charges on the prime cause of death. But suddenly the RC,the doctor , and the review disappeared and I had to start all over again with the OGC.That was OK- when I found out what the VARO withheld from them I faxed it to them and I won. When I discovered another disability they had malpracticed on-because my daughter insisted I file another claim, DMII from AO, I filed that as a direct SC claim. No diagnosis and no treatment whatsoever from VA. I provided Dr Bash with a timeline and with referrals to specific records and I had a freebee brief opinion from a former VA Neurologist who had left the VA. His entry to confirm diabetes had been crossed out. I could not claim the same death due to 1151 on a different theory than what I had alredy won on. So I filed it as direct SC death. It was the most important claim I ever filed and brought with it numerous other ancillary benefits- even a Chap 35 refund of my college tuition and also the REPS Benefit. No diagnosis and no treatment whatsoever. He should still be alive and here with me on line. He tried to help vets on the old Prodigy web site circa 1990. If you do file either way or both, this will take a strong independent medical opinion. His malpracticed AO IHD heart disease as well was never rated by VA until I won my Nehmer claim-that grew out of a CUE I had filed in 2004, still sitting at my VARO in 2012, set for BVA transfer..... Which should never take 8 years.I call that VARO malpractice. That's OK.I won that 1151 CUE claim anyhow.
  22. 1 point
    Sure, you can talk to your doctor about it. I talked to my VA neurologist about CBD oil. He said it is approved for certain forms of epilepsy. Off the record, he said clinical research is being performed and the potential to treat chronic pain is very promising. This information should help you out: https://www.publichealth.va.gov/marijuana.asp
  23. 1 point
    I spoke with my psychologist and went back over the things that happened to me while in the marines and it was hard but she referred me to the MST coordinator at the clinic and I see them Monday. She stated in the notes that my emotional trauma does not need to be verified and was genuine. It gives me relief that they seem to be done trying to think I am lying. Thank you all for your information and support.
  24. 1 point
    Kudos for bettering yourself. However, It’s a fact. When you complete VOC Rehab? They VA will deem you employable. You WILL lose your TDIU. I think you could argue the rental property issue, but that’s out of my lane.
  25. 1 point
    I just got to chime in. The time frame is too long. However, initial changes earlier in the process could help tremendously. 1. I would love to see a class explaining the process conducted every Tuesday at every VA hospital/facility explaining the claims process. Simply, most veterans don't have the best understanding of the process ad this would help tremendously. 2. Next, outsource some of the heavier caseloads to Regional Offices with smaller caseloads. I'm convinced a tired worker is more likely to make mistakes when confronted with large case loads. Mistakes prolong a veterans wait times. 3. Last, hire more workers at the Regional Office. Reduce the individual work loads and have no worker with more than 10 claims at any time.
  26. 1 point
    First, just because he was denied doesn't mean the RO is correct. Next, Are the issue claimed in his medical records? If they are, does he have medical documentation the issues are still present current? Last, will the doctor write a nexus connecting the current disability with the issue listed in his medical file? Get the information needed and file a NOD. NEVER GIVE UP
  27. 1 point
    SO the lesson to be learned is when a veteran receives a SOC and it doesn't seem right, you see if you can find it in the M21 and then compare it the CFR. Then you can provide new and relevant evidence to support the law, not m21. Thank you , Tbird for sharing this site. You probably have done it many times before but I just saw it. Great resource!
  28. 1 point
    Thank you , Tbird for sharing this site. You probably have done it many times before but I just saw it. Great resource!
  29. 1 point
    I am so sorry for your loss. Some of this does not make sense to me: "She is getting SS for him, DIC and SBP and part of my benefits as well. I just need someone to put me in the right direction" How do you know that? It would be possible that she gets SSA for the child and maybe for herself ,until the child is 16.fully legit. It would also be possible that he signed up for the SBP program ( I assume he was a Military lifer ) and that would make some sense-if he continued to pay it for her. I do not see how she could get DIC and you do as well....??? that definitely does not make sense. Also ( I am a Gold Star wife) and the GSWs fight aggressively to try to get SBP without the DIC offset or vice versa- she is qualified to be a Gold Star wife- so are you. You also would be eligible for SSA for the child you have and possibly a Mother's Benefit, as I was before my daughter joined the Military. " I am receiving VA benefits from him." What benefits, do you get a DIC monthly benefit? It should be more than mine is because you have a child . I get $ 1,319.04 p/m as the unmarried surviving spouse of my husband. Have you app;lied for SSA benefits for the child you had with him? But still...... can you scan and attach whatever the VA sent to you regarding the "apportionment" Before you scan and attach it here , cover your name, address, and C file number. He might surely have had Military insurance. My daughter still has hers ( $200,000) maybe more by now but that goes to the beneficiary he listed when he purchased it. We need more info. His child with the former wife would be eligible for DIC. I dont see how the former wife could eligible for it.
  30. 1 point
    That child was HIS child and is also entitled to HIS benefits after his death, also that child was his FIRST child and in many States that child's financial needs come before any subsequent children (which often is the case for child support purposes, also not relevant in the situation). It matters not whether the child's father was active in his life. That child had no choice in the matter. The child should also be receiving part of his social security benefits and I hope the child's mother has also applied for them as well. You said you have children (plural) but one child with your spouse who was killed while serving. You either have children from a previous relationship or subsequent children, do you not think their father should support them in life and death? This isn't about you, this is about the child.
  31. 1 point
    I guess I should chime in. I went with Dr Bash, who first reviewed all my records then a year later I flew to DC, I think JFK, and Dr Bash did a full head to toe exam, clothed, on me in the airport, right inside Starbucks!!!!!!! Today im 90% IU and P&T!! I should be SMC but decided to stop other claims and now new stuff arising from SCd issues. May e in the future I may file but for now I just done with everything VA.. Dr Bash knows his stuff and the SSDI Judge said in her own decision hismedical opinion held more weight than any VA MD becausethe VA hid th eir own EMG reports from her!!!!!!!!!I had to give her the reports at the hearing in 2014!!! Bestof luck on who you choose… Hes been 100% correct on my diagnosis every single one of them...
  32. 1 point
    I have seen the VA send veterans to c/p exams for the same condition within months sometimes less than 12 months of a previous exam , I've also seen it with a 18 months..... so yes they can and do.
  33. 1 point
    Unfortunately DRO hearings are taking a long time right now. I have no idea what is making them take so long but I am in the same boat.
  34. 1 point
    Just to make sure I understand correctly, you are currently receiving disability compensation for PTSD at the 70% level. Is that correct? If so, I am wondering if the letter asking you for more details on your stressors might be a mistake. Verifying stressors is something that happens before a veteran is service connected for PTSD. Once you are service connected why would they go back to the service connection question? It's like them saying, "You are service connected for PTSD, so we want to confirm that you have PTSD." As Spock would say, "that does not compute."
  35. 1 point
    A lawyer is going to advise you to get an IMO or IME. @asknodhas already advised this so save your money. DIY the first time, with the help of a good VSO. How to find a good VSO is the issue. Interview the one you are asking to help and get a feel for how they react to your questions. Anyone who advises you not to file because you may be reduced you pass over. Anyone that balks at an 1151 also pass over. As @MPsgthas advised you may want to look at SS disability if you have used up your FMLA. I went out on FMLA and then applied for SS and TDIU after my doctor wrote a letter saying I was disabled due to my military disability but SS took two years and TDIU took ten. It is not an easy road, do you have long term disability insurance at your place of employment? That is what carried me through.
  36. 1 point
    You'll need to obtain your service medical record to confirm that your complaint during your May 2008 physical exam was clearly and unmistakably documented. Here is one way to request a copy of your service medical record. You will be making a FOIA/PRIVACY ACT request for a copy of your service medical record only. Be advised it will take approximately 5-6 months, but in the meantime you can file an intent to file to start your effective date; and still be getting treatment to build more medical evidence. va3288.pdf2017-01-18+Claims+Intake+Fax+Coversheet-1.pdf So let me see if I understand. 1. According to your post, the in-service event/injury was first mentioned May 2008 2. You have been treated for your shoulder in 2017 and 2018 . You might have a diagnosis, but you'll need to check your treatment notes. What you will need is lay evidence(buddy statement...same difference) from a buddy (in-service), family, friends that knew that you had hurt your shoulder and they will need to report what symptoms they witnessed from you after you hurt your shoulder, such as; guarding, wincing in pain, limited range of motion, decreased strength. But, it has to only be what they have seen; they can't make a diagnosis. You need to have what's called "continuity of symptoms or chronicity of symptoms" to fill in the gap from 2008 to the present day. If you have treatment notes ,submit that with your evidence. You will need a Nexus of opinion stating the minimum threshold of "at least as likely as not" your shoulder condition is due to or the direct result of military service. I hope this helps you get the ball rolling. Best wishes.
  37. 1 point
    Excellent points broncovet & JKWilliamsSr. I've studied mental health C&P exam issues intensively for 8 years, and I continue to learn important details by reading this forum. Y'all are awesome.
  38. 1 point
  39. 1 point
    I had to reach back out to them as well. 2 day turnaround. They will mail another IMO report to you.
  40. 1 point
    I just returned from the Ellis Clinic. I was examined for five medical conditions by Dr. Ellis. The IME opinions turn around time was about 1 week, from the time of my appointment until the time I received the opinions. Two of the opinions I received needed tweaking, so I gave the Ellis Clinic a call. I was told to fax them a detailed letter and Dr. Ellis will review the matter. I will be submitting relative service treatment records in support of my letter, as the clinic destroys all of the records once Dr. Ellis completes his IME. I am in the process of preparing my letter and submitting it to them. I sincerely hope that Dr. Ellis is conducive to making some changes to the opinions that are needed to strengthen my evidence. Will update results when my inquiry is complete. Anyone who has had this type of experience is welcome to share their experience and state whether it ended satisfactorily.
  41. 1 point
    Yes he can but I will say wait for the BBE. We never know which way the rater will go. I can only advise patience and a calm demeanor. We have all been through this at one time or another and worrying only makes us older than our years.
  42. 1 point
    Does the "stumpy579 administration" has a hotline?, so I can ask "Betty" where we are at with the survey. Nice, Hamslice
  43. 1 point
    The stumpy579 administration usually takes between 16 and 29 months to complete surveys.
  44. 1 point
    Look here: https://www.benefits.va.gov/WARMS/bookc.asp Find knee (probably under muscular skeletal) and compare your symptoms and diagnosis from your doc notes to whats listed. Each percentage rating has criteria you have to meet, primarily range of motion, though pain can be rated as well. Make sure you have a relatively regular attendance to doctor appointments so you have a good record of how the condition affects you, then file.
  45. 1 point
    It sounds like you need a forensic IMO. They would need to review your service records and VA records and state that they did than and then provide a nexus between your service and current chronic condition. This is a high hurdle to make but it sounds like your only option. I looked for local doctors that did IMO's and found a neurologist that performed two IMO's for me. It is expensive unless @Buck52 or @broncovet can offer something else it looks like that is your only route.
  46. 1 point
    To autumn: Remember, there is a difference between a claim denied and an appeal. A claim denied remains viable for appeal for a year. An appeal is anything you file a NOD on. Once you file the NOD, you have completed the first step of what we call the "substantive appeal" to the BVA. After issuance of a SOC, you have 60 days to take the second step by completing the substantive appeal by the filing of the VA 9. Yes, a rebuttal filing to the SOC will delay the suspense date of 60 days by giving you 30 days from the receipt of a SSOC in which to file the VA 9. The important thing for all to remember is that you can have a claim denied this morning and then put it into the rocket docket to the BVA after the 19th. If it's a CUE, you would gain nothing by having a Supplemental review as you are prohibited from introducing new evidence. Likewise, a HLR, which is no more than a DRO review camouflaged in a new dress, is a dead end as well. I've won two DRO reviews- the Phoenix folks caved in and CUE'd themselves 9 times on a Vietnam Parkinson's disease denial and the second was the CAVC ordering the VA to pay me SMC back to 1994 in 2016. That's mighty slim pickings. I hear from all my fellow VA litigators that the RAMP at the local level is a chimera. Approximately one in five is getting a favorable outcome. CUE claims are excellent candidates for this process. First, you cannot add any new evidence. Second, VA invariably denies all CUEs anyway. Lastly, who wants to take a CUE through the 6-year system to the BVA? When you file a CUE, you are calling VA idiots out for screwing it up. You cannot add evidence so it's a brilliant way to unclog the system. VARO raters use the M 21 and it will almost always yield a denial. The BVA, on the other hand, is a Veterans Law Judge (VLJ) with real legal training. They can ascertain the truth in an unbiased decision. It used to be that VLJs pretty much toed the line and acquiesced to the VASEC and the OGC precedents. This is no longer true. With new precedence coming down from the CAVC or the CAFC almost daily, our legal chances of success in a true courtroom before a real law judge have increased 100-fold since the era of the 60s when the BVA came into existence. In my 30 years doing this, I have found one truth. Many of us look at our claims from our own point of view. This tainted view prevents us from considering whether it's actionable. I always take the devil's advocate stance and try to defeat my client's claim with logic and reasoned argument. If I can, then I won't take it. If it's plausible, I will always be tempted to fight it. Unlike some VA litigators, I keep my caseload down to a dull roar. I will never become a VSO with 250 Vets. 60-80 is more my idea of a manageable number. Besides, I like talking to my clients and sharing their highs and lows. With that number, when a real CUE barnburner shows up, I usually take it. RAMPing up to the BVA is the cat's pajamas in this situation. Why wait in VARO purgatory for years?
  47. 1 point
    I have searched BVA, CAVC, and talked to a few lawyers about this-over the years, and never found anyone who challengd a 1151 decision with this regulation: So I have done that that. My husband was 100% P & T SC for PTSD and also 100% P & T for a Section 1151 Stroke that contributed to his death. I have 4 separate DIC theories of entitlement - 2 under1151 and 2 under direct SC.....my original 1151 DIC was turned into direct DIC in 2009. The OGC Pres Op - written after the 351 moratorium I was in, ( 351 became 1151 in 1997) states in part: .” We stated that “the language and legislative history of [38 U.S.C. § 351] make clear that Congress intended that all veterans’ monetary benefits payable for service-connected disability or death be payable for qualifying disability or death resulting from, among other things, medical examination or treatment in the same manner as though the disability or death had been a result of military service.” VAOPGCPREC 80-90, at 3 (emphasis in original).” And: “. In that opinion, we clarified the statement in VAOPGCPREC 80-90 that “all veterans’ monetary benefits payable for service-connected disability or death” are available for disabilities compensated under 38 U.S.C. § 351. We explained that the statement “was generally intended to encompass all disability and death compensation and DIC benefits,” but not necessarily all other ancillary benefits available to veterans suffering from service-connected disabilities. VAOPGCPREC 100-90, at 2-3. We stated that “section 351 entitlement may also provide entitlement to certain ancillary and special service-connected benefits depending upon congressional intent.” Id. at 3 (emphasis in original).” And: “HELD: "Disability compensation may be paid, pursuant to 38 U.S.C. § 1151 and 38 C.F.R. § 3.310, for disability which is proximately due to or the result of a disability for which compensation is payable under section 1151.” https://www.va.gov/ogc/opinions/1997precedentopinions.asp The word "all" is mentioned twice, underlined as emphasis in the opinion, and does not eliminate any affected veteran or their survivor who is eligible for accrued benefits. My Nehmer decision included an award of CUE for my husband's 1151 IHD and Stroke and appeared to apply this Pres Op to the first 6 months of his 1151 disability- but he had the 1151 stroke 100% P & T for 2 years peioe to his deatgh ( and IHD msdiagnosed, Sced to AO , since 1988)-I filed CUES on all of that. This opinion has never been withdrawn or altered in any way and was prepared by OGC the same year I settled under FTCA. Oddly enough it is not in M21-1MR as far as I know under their 1151 info, and might be one of many OGC opinions, that veterans and their survivors never even know about. I filed multiple CUEs a few months ago- regarding this issue and fully intend to see a positive result. The evidence is from the OGC above, but also involves a 'congressional intent'. VA had a brief statement at their web site for years which seems to have been taken down. It said under their limited 1151 info, that veterans cannot be "deprived"of their 1151 awards but I think many have been "deprived" of the intent of Congress by VA's failure to apply this established VA OGC opinion. If VA has "combined 1151 issues with SC ratings, that to me is a deprivation of "all". My CUEs all involve violation of 38 CFR 4.6 and they have ignored probative evidence within OGC Pres Op 08-97, and copies of the opinion were sent with each CUE. My RO likes to lose , remove from the C file, and/or ignore probative evidence.
  48. 1 point
    Victor, Even if the raters weren't trained, but told to apply the regs to the best of their ability, we'd all be in so much better shape SCD % wise. At least the raters could read the evidence, the examiner's opinion, and the CFR regs, and more often than not, make the right decision. But...that's not the case, they are trained, and told to deny most claims, at least the first time around. And if that's not the case, then how do you explain why we're even here, on Hadit, in the first place? Much less why Hadit even exists? As for being kept in the dark, if I didn't know better, Victor, I'd say you have got to be the single oldest living mushroom! All those years being fed bs and kept in the dark! Makes you quite the fun guy!!! But hey, I love mushrooms! Lol! Semper Fi
  49. 1 point
    I also revoked the DAV's POA, just recently. I had a few claims denied back in Jan/Feb of this year. However, the DAV recommended a decision in November of 2015, before these claims were even at the RO's office! When I called them, and waited the 4-6 weeks for their return call, the guy on the phone told me that all my claims were denied...so, that tells me the decision the DAV recommended was to deny all my current claims. So, in my personal experience, all the DAV did for me was stand in front of me and block my every move. They should be ashamed of themselves.
  50. 1 point
    "so i QUIT my job due to my illness in 1/11 and now I have to wait around for these NON-VETERANS and idiots to work on my claim. While working at the VA i noticed many patients that are 100% have never even deployed? I guess it's who you know not what you have done. Trust me I met many liars and crooks at the VA." It will be good for your claim if your MH doc states that you are unemployable due to your PTSD and supports the opinion with full medical rationale. FWIW - there are many veterans employed by both, the VAMC's, VBA and the VARO's. Being deployed is not a prerequisite to service connection or the percentage evaluation. There are thousands and thousands of veterans that never left USA soil and / or served during Peace time, yet experienced injury's on active duty, that leave them with life long residual disability. A vet is a vet and we have no reason to try to penalize vets that were not deployed to a conflict or a war. There ARE some very, very good people employed by VA, VBA and the VAMC's both veteran and civilian. Somewhere during having your claim issues adjudicated - there were some thing done right or you wouldn't even have the current 80 percent SC yet. Difficulties are not limited to the NY VARO. There was a court order last year that finally forced the VBA to re-adjudicate claims (Nehmer) for disabilities due to herbicide exposure. Those vets have had to wait 10 - 20 - 30 and 40 years. This alone took some of the VBA's work force off of general claims. It is clearing out now and more claims will get adjudicated. I see your frustrations and agree it's not a great system, but for now - it's what we have and other countries sure don't offer any of these benefits to their veterans, so in that respect we are much more fortunate. Hang in there. JMHO
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