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Showing content with the highest reputation on 12/01/2015 in all areas

  1. 3 points
    Hey Broncovet, first to you. Your post. No words. Read it, read it to Jimmy. We both cried. You should be a profiler! Thank you so much. Ok, here is an update and hopefully some more information that will help figure this out. This child is pictured on our state's AdoptUSKids website and wants to be adopted. He is 18 years old. Had been in foster care. No parental rights to consider. The short bio said he longed to be adopted and talked about it every day. I made all the calls to confirm everything on our end. We are not looking to be foster parents, just adopt this one 18 year old. We are not able to take care of children, but an 18 year old is not in that catogery. DCS finally called. Seems they are not too interested in finding him a home and perhaps don't even know where is he now. Kids get put out on the street. I begged for them to find his caseworker and try to reach him. It is cold and rainy here in TN. Last night, I laid there thinking, is Jordan ok? I am going to try and find him somehow. Otherwise, the odds are really against him. Thank all of you for your support, help, advice and prayers in this Journey to find Jordan. Thank you again, Debbie
  2. 3 points
    The problem you experience is contained in 38 CFR 3.350(a) Ratings under SMC K. Read this sentence and I will turn it into Vetspeak. This special compensation [SMC K] is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability, provided that the combined rate of compensation does not exceed the monthly rate set forth in 38 U.S.C. 1114(l) when authorized in conjunction with any of the provisions of 38 U.S.C. 1114 (a) through (j) or (s). Translated, this means you can have no disability ratings whatsoever and get as many Ks as you want as long as they do not exceed what is paid out as SMC L. Concurrently, you can be entitled to a 100% schedular rating and get as many Ks as you qualify for as long as you do not exceed the SMC L dollar amount. SMC S (which is a compendium of your 100% rating PLUS the $346.84 bump for the SMC S) still permits you to have K ratings -but again- as long as they do not exceed the SMC L barrier. The roadblock will always be the "does not exceed the monthly rate set forth in 38 U.S.C. 1114(l) " when you are also getting SMC S ( or 100% schedular plus more than six (6) SMC K ratings) . For the record, a male can only qualify for seven SMC Ks. A woman can achieve eight because she can have loss of breast(s) as well as loss of creative use of her ovaries for reproduction. For argument's sake, you could be entitled to X number of K's. The only limit is explained in the above paragraph. When you are granted SMC S via a"substantially housebound" interpretation or via the 100% plus 60% (which you qualify for because of your ratings percentages), the SMC L metric kicks in concerning how many SMC K ratings you can have. The VA set the limit by saying you cannot exceed the amount granted under SMC L. Note that they did not say "If your SMC S and all those Ks exceeds SMC L, then we're going to pay you at the "L" rate. They did not. They said it cannot exceed the amount paid for SMC L. SMC L currently pays $3,617.02 for a single Vet. I'm not going to add up your children and spouse. Those would not be included towards the ultimate $ figure limit anyway. If you are a single Vet at SMC S, you get $3,253.67 per month. SMC K is good for $103.23 per month per K rating. Thus $3,253.67 + $103.23 + $103.23 + $103.23= $3,563.36. That is three SMC Ks on top of the SMC S. Note that if you add a fourth SMC K of $103.23 to it, you will exceed the rate paid for SMC L which is forbidden. Nowhere does it say you get to jump to the SMC L pay scale or magically gain entitlement to Aid and Attendance. VA is very stingy with their funds. Qualifying for SMC L is set in stone. BroncoVet enunciated the requirements above. Proving the need for Aid and Attendance is usually decided based on how Form 21-2680 is answered. One missed question on this test disqualifies you for it. If all that was not confusing enough, if you are entitled to any of the SMCs L through O including intermediate rates (1/2 steps), your added-on SMC Ks cannot exceed the rate of payment for O/P, which is $5,075.60 per month. You would have to add the $103.23 "K" multiples for each rate between L-O/P to see where you exceed the O/P rate. An example here would be if you qualified for the N 1/2 rate of $4,808.00 per month and had two SMC Ks. A third "K" would take you over the O/P rate. There are no K ratings after O/P in the R1 and R2 levels of Special Aid and Attendance. To say Special Monthly Compensation is misunderstood is a masterpiece of understatement. It's almost a juris doctorate in its own right. It took me years to understand it and they occasionally change the rules as they did in 2011. When in doubt, Powerpoint it. Parse every "if...then". I can show you how it is technically (and legally) possible to advance to R2 from SMC L based on only two of the requirements of SMCs L-O by legally pyramiding. This (in conjunction with 3.352) is the only regulation in 38 CFR that actually permits pyramiding. SMC has more twists and turns than the Mississippi River. I've even explained it to VA lawyers who get lost in it. I hope this helped.
  3. 2 points
    thats a good point. I filed for sleep disturbance awhile back after my PTSD. They denied it as not service connected but also that any sleep disturbances that i had that were caused by my PTSD would not be rated seperately. Basically they said i did have sleep disturbances but since they were PTSD they were denying a seperate condition. However that is going to bit them soon with my apnea claim that will date back if i do it right. If you have issues that are all part of the "family" of symptoms for your MH disease and cannot be attributed solely to a completely different condition they wont be seperately rated.
  4. 2 points
    Just remember that you are SC'd for a MH illness. PTSD is the same as Anxiety is the same as Depressive Disorders Is the same as Obsessive disorders...not in reality and symptoms but in the VA world and how you are rated. its the same. No matter what they call it its rated based on the same criteria and that is based on how it affects your life. I was DX'd with PTSD, but to me, as far as my Rating from the VA goes, i wouldnt care if they called me today and said "ya know we think you have leaky pink elephant brain syndrome and not PTSD, but its still Service Connected and will be reflected in your C File wihtin the month." Leaky pink elephant brain or PTSD the criteria for Mental Health ratings are all the same. However i do get where you are coming from in that you want the VA to recognize whats actually wrong with you, to recognize your PTSD and not keep on jerking you around. Thats where im at with my TBI. My highest rated compensable symptom would be migraines for that. Im already SC fro migraines and once my appeal is done I will have a higher rating than what they would rate my TBI for. my TBI rating wont really do me any good. But i want to do their jobs and recognize it. As far as Tinnitus goes. As mentioned above, its all based on your MOS. Ive attached the VA Fast letter on tinnitus as well as the MOS list of presumptives. If your MOS is listed on here as "MODERATE" to "HIGHLY PROBABLE" then basically the VA will concede to you that you have it. If you dont have that listed under you then you will have to prove up a event that caused it. So... 1) you are listed under the moderate/highly probable. They screwed up. I would prepare an NOD (consider if you want to appeal anything else on your decision and appeal that on the same NOD, you have a year, no rush) and I would put down just that your MOS was listed as moderate/highly probable under the VA Fast Letter 10-35 which the VA concedes is sufficient to establish and in service event. That combined with the current diagnosis of tinnitus (i hope that you C&P for that lists that??) warrants a rating. 2) you are not listed under moderate/highly probable. The list is not perfect. when you look under Navy Hospital Corpsman they considered low risk. Well for the ones who work in navy hospitals yeah. But our Docs that were with us in the Marines were exposed to the same Big botta booms as we were in the infantry squads. So what you are going to have to do is establish an inservice event and get the nexus between them. What i would do is compile as many buddy statements as possible, if possible get as high a ranking man from your unit in there. If you were cool with your CO then get him to basically state, that X happened on X day and it was a large explosion, etc. In addition find a friendly local Audiologist that would provide a nexus letter for you. Basically they will be writing that they reviewed your service history read the buddy statements and have concluded that the noises you experienced in service (or the one event if that is what you had) has caused you to develop tinnitus (subjective tinnitus) here is a post i wrote about tinnitus https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwj_pOGQ2LrJAhWJRiYKHcv4ADsQFggcMAA&url=http%3A%2F%2Fhowtoapplyvabenefits.com%2F2015%2F09%2F19%2Fhow-to-win-a-tinnitus-claim%2F&usg=AFQjCNElztbpynxooEvLUm1hGtEbQ59wsA Duty-MOS-Hearing-Loss-Probability-Chart-VA-Fast-Letter-10-35.pdf
  5. 2 points
    He's getting Comp, not pension. It just might be cheaper, to keep her. The divorce decision needs legal consultation, most def, especially if kids under 18 are involved. At this stage, has to be some work around's. Tell him to turn off his hearing aids. Semper Fi
  6. 2 points
    Most of the positive experiences I have been hearing about (and reading) are by Acting Veterans Law Judges-i.e. 5 year FNG BVA staff attorneys- who are on the VBA's payroll and still have an interest in seeing VA's good name defended. Fortunately, a lot haven't been given the "briefing" until they are "too fair to the Vet too frequently". After that, they straighten up and fly right. They make errors in VA's favor and take Dep. Head Honcho Laura Eskinazi's lead. When she barks, you follow suit. Adhering strictly to the equipoise argument to a fault is a lovely concept that dies early on and then they begin to remand too frequently. Constipation. Vito Clemente is an excellent example of the opposite-a JAG Army Vet judge. He strongly sides with you if your story is solid. If you have wishy washy evidence and a poor credibility problem from some UCMJ hijinks, you're gonna get the hairy eyeball. If you're a combat Vet, you get the royal treatment and a firm handshake from him. I accomplished more before we turned on the microphone (10 minutes) than the ensuing 45 minutes of testimony. I won on both counts based on my own logic and correct law. Mark Hindin is a horse of a different color. The man pointedly ignored the evidence in the c-file before him not once, but twice. I copied each document along with the date stamp for the Travel Board Hearing. A year later, he insisted on an argument that began "Nothing was submitted after the premature SOC." He was spot on correct. It was submitted with the NOD a month earlier than the SOC. Semantics is everything. If you let your little people (those Future Acting Law Judges who work for you) hamburger your cases and just hand them to you for a signature, it makes you look like a boob. But when you do it twice full well knowing your legal reasoning is defective the second time out, then it is malice aforethought. I lost due to his laziness and stupidity. I won based on the law. His revenge was to prolong the claim another 18 months by purposefully continuing to approve only half of it . The AMC followed his orders. Secretary Bob and his krewe believed his holding and handed me a SOC and told me to pee on a flat rock. All because they believed Judge Hindin was right. Veterans arrive in DC with the worst cases that are so underdeveloped as to embarrass me to think VSOs would treat us this way. 75% are defective or thrown out because the Vet's evidence is lame or absent. If no one ever told you how to play rocks paper scissors, you might lose at it. It is not, however, the Veterans Law Judge's fault that the Vet's legal helpers arrived empty-handed begging for the benefit of the doubt. Never blame a VLJ for their rate of denials/wins. Sort it out. A remand might feel like a sucker punch and year's delay but sort that out, too. A remand is a way of the VLJ saying "Why is this here? You forgot to do this, this and this. Fix it and readjudicate it. If you still deny it, fill out the SSOC and send it back to me. And please be quick about it." A remand is another bite of the apple if your legal representatives would recognize it and take advantage of it. An appeal should never leave a Regional Office without the Social Security file on board. It is the cause of 48% of all remands the first time out. There ought to be a box they have to check off on the Form 8 that says "Roger. SSI info on board."
  7. 2 points
    I agree with Green. This is your best course of action. Lets say you go see them face to face again and you explain. If they say yes yes yes ok your right, then you ahve to wait and HOPE they get your records right. As stated by green by sending a Secure message to your PCP your concerns can be addressed to him as well as having those concerns become part of the official medical records. I would write them and do a point by point discussion. Keep it factual no emotions. "After my visit on XX/XX/XXXX i checked my exam notes and noticed some discrepancies regarding what was discussed and what was recorded. 1)Acid Reflux: I conveyed that the omeprazole was currently helping to reduce the symptoms associated with GERD. In the notes it states that I was no longer taking my medication and that my symptoms had dissapeared. This is not entirely accurate. I am currently taking my medication and did not go stop taking the medication prior to the visit. I also wish that the record reflect that the symptoms have been dissipated and are helped by the medication but they have not disappeared entirely. 2) The Notes state that multiple tests were conducted, however we did not conduct the following.....etc etc I realize that the clinic has a multitude of patients and that its possible that another patients exam might have been similar to my own which would account for the discrepancies noted above. Please feel free to contact me regarding the following at 123-45-6789. I also wish you to know that i am very detail oriented about what is and is not in my record so i wanted to let you know I would also be requesting that the VA ammend my medical records and will be sending that request to them once we have a chance to talk about it. Thank you Sir.' Keep it cordial and when dealing with someone from the VA that has screwed up that you always use the adage "never attribute to malice that can be attributed to ignorance." By that i mean when you TALK TO THEM be defferential like i was above and say "oh im sure it was jsut a mistake, etc." dont be confrontational. The time to be confrontational and passive aggressive is once they DONT DO THE RIGHT THING. Then you use the law and their own regs to MAKE them do what THEY SHOULD HAVE DONE IN THE FIRST PLACE. Even at this point, and at every point NEVER YELL,SCREAM, CURSE, ETC. You do not want to go through what others have where they are labeled "dangerous" etc and require escorts.
  8. 1 point
    Got a call this AM from the VA SA Clinic and they got my results back from the sleep study I did ''last month'' via Choice Card I have SA and they ask me to come in get the C-PAP Machine and they would show me how to use the machine...I am excited now now I might can get some much decent sleep/rest I am not sure this has anything to do with PTSD or not.??..but may submit it for my claim not sure it would be secondary or not? because my PTSD Claim is still gathering evidence and have no decision yet. anybody know? Thanks .................Buck
  9. 1 point
  10. 1 point
    thank you all for the gat input. a little m,ore back ground i was a 93F field artillery meterologist and much to my dismay it was not on the tinnitus mos list so i will definately have to appeal that one. i am blessed i got my foot in at 30% but it gets me after having doing ptsd research that they rated me as mh disorder when issues such as sleep disorder, and things like depressing were not mentioned. i am 38 on the 26th of this month and was in prison for 71/2 for an assault case and just got out. it said i still have an open claim for a possiable incarceration adjustment, anybody know anything about what that might mean??? under ptsd criteia anxiety and ocd are symptoms. as far as affecting my employment i had to get a job in order to live and got one that goes with my social probles. i work in a warehouse by myself and there are only two other employees i do not have to deal with. if i change jobs i will drive a dump truck again so i do not like working around many people. they also did not address my hyperarousal being constanty on guard and i hate it because i can not find a happy middle. i go from either 90 to nothing so basically my isssue is it not being recognized as ptsd, the lowball on the percentage i was hoping for at least 50 maybe 70 considering my symptoms with their criteria listing. thanks again to all you for you feedback and i will get the exam results soon. i did a foia request for them yesterday because VES did my c and P exams and i will be sure to get my c file also soon so i can get things lined up for my appeal. you all are wonderful and i apperciate each and everyone who responded!!! god bless Jason
  11. 1 point
    oh yeah you will want to wait for a PTSD DX. (originally meant to say "you will NOT want to wait") I am mixing up a lot of different folks cases etc. so apologies. You were applying for PTSD right but havent had a formal diagnosis yet correct? If so, and its up to you, I would file it at the same time. Reason being If they deny PTSD then they will most likely, assuredly, deny SA. However you might get yourself a little beautiful nugget out of that. Lets say they deny SA based on the fact that you do NOT have PTSD. If they do that and dont make the argument about weight, neck size....and then eventually you win you appeal for PTSD you have a good case to appeal the SA as well and win, since now condition that was necessary to SC it is now SC'd... Never know. and it never hurts, plus if you have to go to mat for one or both you will still have the retro date locked in. Yeah its 100x better to have all the ducks in a row in a claim, ime, exam notes, good buddy statements etc. But i would file for SA now, before the new regs come out jan 1. Im not 100% ready, and its not 100% guaranteed that pending claims will be grandfathered in, but its better than guaranteeing they wont be
  12. 1 point
    By the time the examiner repeated this cycle for the 3rd time, I was speaking very slowly and clearly, making sure I was enunciating every syllable of each word correctly, to make sure he wasn't just misunderstanding me. Was getting quite dramatic with my speaking. When I was at my regular MH session and the doc was reading my journal notes, he all but busted out laughing at the part where I had refered to the examiner as a snake oil salesman from an old western movie. Andyman
  13. 1 point
    i used laymens terms for along time, but i found that was misconstrued to often to not mean what i meant. I asked for my medical records from the VA in another state i was in. Nothing. another request. nothing then a iris saying it was being worked on. then a month later (2 months total) i re contacted them via Iris stating the regs saying if i do not hear back in 5 business days that it was in the mail i would write the OGC etc etc citing the specific regs and using the VA's lawyer language. within 24 hours i had heard back and received a phone call stating it would be in the mail by monday (was friday) it was and i got it tuesday.
  14. 1 point
    As a former 0811 (field artillery) Marine, the VA denied my tinnitus claim while granting 0% for reduced hearing. Go figure. My MOS is a "high Probable" on that list and they still denied it. They referenced my post-deployment health survey which DID state I did not have tinnitus. Yes, I marked "no" on that survey because the Navy doctor who issued the survey to us said to only mark conditions "...that ONLY incurred IN THEATER". I already had tinnitus at that point so I marked "no". It cost the VA a years worth of back pay after I got a couple buddy statements backing up my claim. Instead of granting equipoise to the fact that I was an 0811 versus one (1) document that stated no, they sided with themselves and against the veteran in clear violation of the law. I stated so in my NOD and the de novo review agreed and called it a CUE. Semper Fi, Sgt. Wilky
  15. 1 point
    You can try keying your disabilities into "The SMC Formula", here: The SMC Formula - NC4VETS NEWSLETTER This is a power point presentation and you will need power point (or the open office version) to open the file.
  16. 1 point
    I suggest that you tell your friend to find a good law dog (attorney/lawyers) that is familiar with VA disability law and child support/alimony support. There are some county judges that will order disabled veterans to pay a certain amount of child support/alimony support based on the veterans disability. Veterans disability is exempt from garnishment but the judge can still order/force the veteran to pay or go to jail. Your friend will need a good law dog to avoid this issue. ARE YOUR BENEFITS EXEMPT FROM CLAIMS OR CREDITORS? Compensation payments are exempt from claims of creditors. With certain exceptions, the payments are not assignable and are not subject to attachment, levy or seizure except as to claims of the United States. http://www.vba.va.gov/pubs/forms/VBA-21-8764-ARE.pdf
  17. 1 point
    Congrats bud, I too got diagnosed a while back, but decided not to file for now. Figure I will let the Boat coast along for a while, before I decide to rock it again.
  18. 1 point
    Get an attorney to represent you after the first NOD and your VSO will drop you so fast it will make your head spin. If you end up appealing a denial to the U.S. Court of Veterans Appeals, you'll find that VSO's can't help you at that level, and you'd be smart to have an attorney with some historical familiarity with your issues, anyway. Having an NVLSP attorney is nice, but not on a come and go basis playing ping pong with your representation with a VSO. JMO.
  19. 1 point
    don't make process harder than it is you don't have to quote any regulation to do this very simple process because you are not require to know all regulations just quote the problem you have.
  20. 1 point
    Sad to say that this happens all the time bud. I just got rid of my PCP at one VA hospital, and got transferred to a Local Dr that is part of the VA clinic system. My last PCP on my 1st Dr Visit, asked how I came up with the diagnoses of Crohns Disease, TBI and Migraines. I told her that I am SC for all while I was active, and crohns since 2009, WTH. I also had another PCP that put notes in that I was a 45 yr old Female Recovering Alcoholic, yet I am a 33 yr old male, and never drank a day in my life. Good luck and keep us posted.
  21. 1 point
    you don't have to do all that shit to get records corrected go to patient advocate at the VA clinic and file a complaint with them and get it resolve in a day. Anything you summit now is part of your records whether its a phone call ,email, or in person every call or questions is part of records
  22. 1 point
    I would log onto myhealthevet and send a secure message stating the error in the notes directly to your new PCP, even ask that he amend his notes. Reason I suggest this is it will become part of your myhealthevet blue button notes. Someone recently posted the process for submitting a formal complaint/appeal for incorrect notes on this site. I'd do a search to see if you can find it.
  23. 1 point
    This a reason we need to be recorded at all C&P exams stop all this BS. and now possibly with MH Sessions. This can be defeated but because this VA Therapist wrote in his/her own conclusion of lies...now the veteran has to go do all this other shi# to get this corrected, (as to broncovet information above) I believe I would make copies of this session when the therapist said all these lies and confront him/her about on the next session. I'd sure tell this therapist I said NO such a thing and you know that &.show a copy of what he stated & ask...why did you say these things that I never said ...it caused my claim to be denied, for this I will report you and request a decent non-lying therapist. JMO ...................Buck
  24. 1 point
    TiredVet: Do you have the parents consent? That could be a big deal. Altho I have never officially adopted someone over 18, my wife's daughter asked me if she could call me Dad (her real father is deceased). I told her it would be an honor. So, she gets treated just like the rest of the kids....yelled at, drop by unexpectedly, etc. (Ok, I dont really yell at my kids...that is what a spouse is for!) Seriously, I have never had a child that asked to be my kid before. None of the others had any choice. I suppose that means if she "asked" to be my child, she can also UN ask to be my child, too, tho. Let me tell you a story..its true. I grew up on a ranch in Western Colorado. It was a Cattle and sheep ranch. We had "lambing" season in the spring. It means you slept in a sleeping bag near the sheep, and set the alarm (we had a wind up alarm clock) every 2 hours. You would take the flashlight, and go out among the sheep and look for ewe's giving birth. Then you bring the new mom in a warm pen, out of the snow and cold, so the lamb does not freeze. You are also the head honcho in charge of assisting with difficult births, but I digress. Since we had 300 ewes, you usually found one or 2 who had just given birth or were in labor. Now, one ewe can feed 2 lambs. 3 is too many, and the stronger two will starve the weak one. If you have a "single" then you can give the ewe another one from one of those with triplets, or when the ewe dies giving birth, which happens somewhat frequently. An orphan lamb is called a "bummer" lamb. They get their name because kids about 10 years old, in the area would adopt "bummers" and raise them. (You realy need a milk cow to do this as a bunch of bummers drink lots of milk). The sheep ranchers in the area often did not want bummers. They just dont make sense financially, it takes more labor to raise them than you can sell them for. You could get a couple dollars for them if you hauled them to the cattle auction, but that probably was not worth it either. So, kids would "ask you" for them. Kind of like "bumbing a cigarette". Most of the ranchers would give away bummer lambs, but only to kids who asked. A kid who did not want to raise bummers and neglected them, would likely find the lamb in the field dead, just like if it had no parents. That is why they are called "bummers" because kids would "bumb" them like a hobo does a cigarette. I found out raising bummers is hard work. Filling bottles every 4 hours.. So, we tried to get the single birth ewes to accept an orphaned or triplet lamb. Many do, they are called nannies, they just will take any lamb. Others, you have to trick them. The way you do that is this: You take the afterbirth from the single moms lamb and tie it around the bummer. She smells the afterbirth and she thinks its hers, too and accepts it. My brother and I (who only birthed lambs on weekends, my mother did it through the week), saw the value of a "nannie". An orphaned lamb is pretty much doomed to death, without either a human or a nannie to take care of it. As a result my brother and I both kind of become "nannies" to unwanted local kids. We dont really adopt them legally, we just help and mentor them. It sounds like you make a great nannie.
  25. 1 point
    Thanks again! I called the VA number on the link you provided and was told that the age of adoption did not matter. There is a real crisis in the USA of children aging out of foster care with no home. Even though we are aged ourselves, an 18 year old should be pretty physically self sufficient. We have an extra bedroom and a LOT of love. I am going to try as hard as possible to have him here to spend Christmas. Wow. Maybe that bump on the head a few months ago had one good outcome. Since last March, I have researched, prayed, and now put in an official request. Homelessness had always been a cause for me. Realizing that foster children just get ousted for the most part broke my heart.
  26. 1 point
    Andyman I stumble across this info maybe it might help ? if nothing else at least you know if you get award established for the secondary it becomes considered part of the original condition. §3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.(a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. ..................Buck
  27. 1 point
    There is no "statutory" Aid and Attendance, like there is a "statutory" housebound. SMC S housebound is not a "building block" for higher levels of SMC. You need to meet this criteria, for SMC L: § 3.352 Criteria for determining need for aid and attendance and “permanently bedridden.” (a) Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance (§ 3.351(c)(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. ....(c) Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.end of regulation quote. However, there are about 60 kinds of SMC, as this article explains:EligibilitySpecial Monthly Compensation (SMC) is very difficult to understand – even experts in veterans benefits can find it confusing. So you are not alone if you find the SMC program difficult to figure out. This article introduces the SMC program. However, it cannot explain every detail. For additional questions, see the Vets101 article on Getting Local Help to find a qualified representative. There are about 60 levels of SMC divided into 9 letter categories: -K, -L, -M, -N, -O, -P, -R, -S, and -T. If you get SMC, the VA will tell you which of these categories of SMC you qualify for. Some of the letter categories also have in-between levels, which are shown by a “½” symbol after the letter. Here we’ll introduce the basic eligibility requirements for the main categories of SMC benefits. Many of the eligibility requirements use specific technical language that may be difficult to understand. You may need to talk to an expert to figure out exactly what level you qualify for. Eligibility for Specific Levels of SMCTo receive an SMC (k) award you must have one of the following:Anatomical loss (or loss of use) of:One handOne footBoth buttocks (where the applicable bilateral muscle group prevents the individual from maintaining unaided upright posture, rising and stooping actions)One or more creative organs used for reproduction (absence of testicles, ovaries, or the creative organ, ¼ loss of tissue of a single breast or both breasts in combination) due to trauma while in the service, or as a residual of service-connected disabilitiesOne eye (loss of use includes specific levels of blindness)Complete organic aphonia (constant loss of voice due to disease)Deafness of both ears that includes absence of air and bone conductionTo receive an SMC (l) award you must have one of the following:Anatomical loss (or loss of use) of:Both feetOne hand and one footBlindness in both eyes with visual acuity of 5/200 or lessPermanently bedriddenRegular need for aid and attendanceTo receive an SMC (m) award you must have one of the following:Anatomical loss (or loss of use) of:Both handsBoth legs at the region of the kneeOne arm at the region of the elbow with one leg at the region of the kneeBlindness in both eyes, having only light perceptionBlindness in both eyes resulting in the need for regular aid and attendanceTo receive an SMC (n) award you must have one of the following:Anatomical loss (or loss of use) of both arms at the region of the elbowAnatomical loss of both legs so near the hip that it prevents the use of a prosthetic applianceAnatomical loss of one arm so near the shoulder that it prevents the use of a prosthetic appliance, along with the anatomical loss of one leg so near the hip that it prevents the use of a prosthetic applianceThe anatomical loss of both eyes, or blindness in both eyes that includes loss of light perceptionTo receive an SMC (o) award you must have one of the following:Anatomical loss of both arms so near the shoulder that it prevents the use of a prosthetic applianceBilateral deafness (both ears) rated at least 60% disabling, along with service-connected blindness with visual acuity of 20/2000 or less in both eyesComplete deafness in one ear or bilateral deafness rated at least 40% disabling, along with service-connected blindness in both eyes that includes loss of light perceptionParaplegia-paralysis of both lower extremities, along with bowel and bladder incontinenceHelplessness due to a combination of loss (or loss of use) of two extremities with deafness and blindness, or a combination of multiple injuries causing severe and total disabilityTo receive an SMC (p) award you must have one of the following:Anatomical loss (or loss of use) of a leg at or below the knee, along with the anatomical loss (or loss of use) of the other leg at a level above the kneeThe anatomical loss (or loss of use) of a leg below the knee, along with the anatomical loss (or loss of use) of an arm above the elbowThe anatomical loss (or loss of use) of one leg above the knee and the anatomical loss (or loss of use) of one handBlindness in both eyes, meeting the requirements listed for SMC (l), (m) or (n)To receive an SMC (r) award you must:Be receiving the maximum SMC (o) benefits and require:Aid and attendance, orAid and attendance of another person without which you would require hospitalization, nursing home care or other residential type careTo receive an SMC (s) (Housebound) award, you must either:Meet all of the following:You have a service-connected disability rated at 100%You have a qualifying, additional service-connected disability (or disabilities) that is completely separate from the first disability and is independently rated at 60%You are approved for VA disability compensationOR Be housebound:Your disabilities must directly cause you to be substantially confined to your home and the immediate premises or, if you are in an institution, to the ward or clinical areasAlso, it must be reasonably certain that your disability or disabilities and confinement will continue for the rest of your lifeTo receive an SMC (t) award you must:Need regular Aid and Attendance (A&A) for the residuals of (results of) Traumatic Brain Injury (TBI)Not be eligible for a higher level of A&A under SMC (r)(2)Need hospitalization, nursing home care, or other residential institutional care without in-home A&AEligibility for Aid and AttendanceUsually, you may qualify for regular Aid and Attendance (A&A) benefits based on any of the following circumstances: You need the regular help of another person to perform everyday living activities, adjust prosthetic devices, or protect yourself from the hazards of your daily environment. Even if you are able to perform some of those functions, you may still be able to qualify for A&A, because the VA will consider the particular personal functions that you are unable to perform in connection with your condition as a whole.You are bedridden because your disability (or disabilities) requires you stay in bed, not because of any treatment you have had, such as surgery; ORYou are a patient in a nursing home because of a mental or physical incapacity; ORYou are blind, or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or have concentric contraction of the visual field to 5 degrees or less.For more information on disabling conditions that the VA considers for A&A, read the glossary entry for Disabling Conditions Relevant to Aid & Attendance. When you apply for A&A, your evidence must show that you actually need personal assistance from others. But you don’t need to show that you need it all the time, just that you need it regularly. Certain spouses may also qualify for A&A benefits. If you are a veteran with a 30% or greater combined VA service-connected disability rating, and your spouse needs the aid and attendance of another person, you may be entitled to get a spouse-related A&A payment. Usually, if you get VA disability compensation and you qualify for A&A benefits, the VA will pay you at the SMC-L rate instead of your normal monthly disability compensation. There are exceptions to this, which can sometimes get you even more compensation. These exceptions can be read in the glossary entry for Exceptions to the SMC-L Rate for Aid & Assistance. If the VA finds you eligible for SMC-L, your monthly compensation from the VA will come on or about the first day of each month and will not be subject to federal or state taxes. Source: for further reading: https://www.vets101.org/a/58/d1.aspx
  28. 1 point
    NOTHING is certain with VA. I simply recommend you apply and try it. Expect the royal Runaround, and you are unlikely to be disappointed, but persistance should win. Make sure you have all the paperwork, the adoption from the judge, birth certificate, etc.
  29. 1 point
    Andyman check this one out CFR 3.159 (c) Authority: 38 U.S.C. 5103(a), 5103A(a)(2)) (c) VA's duty to assist claimants in obtaining evidence. Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. In addition, VA will give the assistance described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual attempting to reopen a finally decided claim. VA will not pay any fees charged by a custodian to provide records requested. However my advise is to write a letter and state these CFR's a copy of your C&P exam/show how he avoid your evidence ect,,ect,, Also site the reasonable doubt CFR 3.102, &3.159 (C) if the VA fails to include all your submitted evidence this possibly could open the door for a CUE. to whom it may concern , send to your claims intake center..be sure to add your claim Number and date sign it. JMO ..................Buck Buck
  30. 1 point
    It is not unusual for someone to wait for a long time to seek treatment. Delayed onset {condition} exists. It took years for me to seek help for depression secondary to my SC pain because I did not realize that help was available. Sometimes doctors try to rephrase questions and re-ask them later to see if they can get a different response. You did yourself a favor by sticking with your earlier statements. Then again, this doctor could just be another anti-veteran hack.
  31. 1 point
    I agree with asknod. ''Once the appeal issues are ready for decision (RFD), ideally, NODs should be worked from the oldest pending to the newest received, with the exception of priorities, which include Homeless Veterans, Seriously Injured/Wounded Veterans, Congressional Inquiries, and Financial Hardship cases, etc. Priorities are worked before all other pending claims. This also means that a Veteran who has filed multiple NODs over time, may only receive a decision concerning his oldest pending NOD, while the issues contained in his other “younger” NODs remain pending. The file is reviewed and decisions are rendered. If all of the issues within an NOD can be granted in full, a rating is prepared to grant the issues. Otherwise, we must issue a Statement of the Case (SOC) to the Veteran, which provides the applicable VA regulations and explains the reasons for the decision(s). Once an SOC is issued, the DRO process is complete. If the appeal continues, it is now under the Traditional appeals process. DRO authority does not extend beyond the issuance of the SOC. In order for a Veteran to continue the appeal, the VA must receive a Substantive (Formal) appeal, which is a VA Form 9, Appeal to Board of Veterans’ Appeals, or an equivalent statement of intent to continue the appeal. There is no legal requirement that a specific VA Form must be received in order to continue an appeal, but VA must receive some form of communication in writing from the Veteran or his Representative indicating an intent to continue the appeal. A Veteran has EITHER the remainder of one year from the initial decision notification letter, OR 60 days from the date the SOC was mailed, to file his Substantive appeal. Otherwise, his appeal rights for those issues expire, and the NOD is closed. If the Veteran has filed a timely Substantive appeal, the next step in the appeals process is to certify the appeal to the Board of Veterans’ Appeals (BVA), which is to transfer jurisdiction of the appeal to BVA. However, the Regional Office cannot physically send the claims file to BVA until all pending NODs and all pending claims have been decided. There can be no appeal issues pending before the Regional Office at the time the claims file is sent to BVA; otherwise, BVA will issue a Remand instructing the Regional Office to issue an SOC on any pending appeals. Additionally, if the veteran has requested a BVA travel board hearing or BVA Video conference hearing, the claims file remains physically at the Regional Office until the BVA hearing can be scheduled. In the past, if any additional evidence was submitted which related to the issues under appeal, then the Regional Office had to review the additional evidence, and if the appeal continued, it had to issue a Supplemental Statement of the Case (SSOC) explaining why the additional evidence did not change the prior decision and give the Veteran 30 days to reply. If yet more evidence was received, another SSOC was issued with another 30 day reply period. There was no limit to the number of SSOCs which could be issued. The appeal could not be certified to BVA until all of evidence in the claims file had been considered at the Regional Office level. If an appeal was certified to BVA and additional evidence was subsequently received, the Regional Office had to either obtain a waiver of jurisdiction from the Veteran or his Representative, or the appeal had to be removed from certified status and another SSOC issued. Following the 30 day reply period, if no additional evidence was added to the claims file, the appeal could be re-certified to BVA. This is the stage where many delays occurred because many Veterans have multiple appeals pending in various stages of the appeals process. Additionally, they will also have new claims pending in various stages of initial development. Therefore, every time additional evidence was added to the claims file, the Regional Office Appeals Team had to review all of the appeals to determine if an SSOC was necessary. If so, then any appeals already certified to BVA had to be removed from certified status, and the process continued to repeat itself until such time that all evidence in the claims file had been considered in a decision at the Regional Office level. It was only then that we could physically transfer the file to BVA jurisdiction. Effective February 2, 2013, Section 501 (Automatic waiver of agency of original jurisdiction review of new evidence) of Public Law 112-154 took effect. This change in law established an automatic waiver of Regional Office (agency of original jurisdiction) review of evidence received after receipt of the substantive appeal. The evidence is subject to initial review by BVA unless the appellant specifically requests, in writing, initial review by the Regional Office. However, to date, we have received no guidance from Compensation Service and Pension and Fiduciary Service on how to implement this provision. Therefore, at least at the Milwaukee Regional Office, we are still issuing SSOCs until we receive guidance to do otherwise. I would also note that I personally have seen two separate BVA Remands dated from April 2013, which is after the change in law, in which a BVA judge noted there was evidence in the claims file received after the substantive appeal which the Regional Office had not considered. Both Remands ordered the Regional Office to consider this evidence as part of the reasons for the Remand. Hopefully, however, Section 501 of Public Law 112-154 will help us certify and transfer appeals to BVA in a much more timely manner. It will also, hopefully, reduce the number of Remands caused by the submission of additional evidence without a waiver of review by the agency of original jurisdiction. As you can see, the appeal process is complex and concerns remain. As there is no requirement to use a standardized form to file an NOD or a Substantive appeal, it is easy to miss an appeal as it may be hidden on page 22 of a veteran’s handwritten statement. Furthermore, it is not always clear if the Veteran is actually filing an appeal or not. For example, use of the word “reconsider” may or may not mean disagreement. We try to clarify intent with the Veteran or Representative, but even then, the Regional Office may consider the veteran’s statement to be a new claim and issue another Rating Decision, but then BVA considers the same statement to be a missed NOD and Remands the issue for the Regional Office to send an SOC. VA’s primary focus over the past several years has, understandably, been to find ways to break the backlog of claims. This has resulted in Journeyman RVSRs feeling constantly pressured to produce more and more decisions at a faster and faster rate, while, at the same time, having their jobs threatened if their accuracy drops in the process. There are, unfortunately, experienced Journeyman RVSRs who have either quit or retired because they could not tolerate the pressure any longer. This has resulted in trainee RVSRs (Rating Specialists) being released to single-signature rating before they are truly competent or comfortable in their duties'' ................Buck
  32. 1 point
    Your Appeal, YOUR DECISION. If you don't mind waiting up to a year for the DRO's decision and/or are adverse to a face to face, your DRO Review material. VA has a Reg regarding the receipt of "New & Material Evidence," automatically triggering a VARO Review of your Denied Claim by a Sr Rater or actual DRO, while giving deference to the original Denial Decision. As opposed to your actual DRO Review or Hearing, where no deference is given to the original denial decision. Just maybe, that's why you had your recent unexpected C & P. You originally asked for a DRO Review, right? You won't receive any VA notification of a DRO being assigned to your appeal. If in fact, your denied claim isn't receiving the VARO Review due to your submission of post decision N&M Evidence, your Appeal is in "The Stack" to be worked. You'll receive an Award/Denial Letter along with a SSOC in the near future, 6 to 36 months. You might want to set up your Direct Deposit account to Text MSG you with all transactions. If Your Claim is Awarded, the Retro Deposit usually hits your bank account about 2 weeks prior to the VA Big Brown Envelope arriving. Semper Fi
  33. 1 point
    I wanted to add this In-case a claim is denied at the RO DRO Hearing, the veteran can also file A NOD...and disagree with that decision. and the veteran will either get another chance at a DRO Hearin (useing a different DRO) OR the veteran will have his shot at the higher ups BVA/.CAVA...If this happens its known as the hamster wheel and will take a longer time to decide the claim. jmo.. ..........Buck
  34. 1 point
    if you want to know why the VSR requested a C&P...simply ask why? &get the facts he based that decision on? Actually DRO hearing is best to let the DRO Decide the claim and get it expedited, especially if you have clear and probative medical evidence! AND NEW MATERIAL AND NEW EVIDENCE TO PRESENT AT YOUR HEARING TO HELP SUPPORT YOUR CLAIM. DRO has the Authority to ex cute a claim decision on the spot win or lose...keeping your claim at the RO Level is usually faster than going on to the BVA/CAVC as Johnn999 mention. If you decide to request a DRO hearing at your local RO request that you also have a rating specialist at your hearing also....just always remember good pro evidence wins claims. DRO hearings are not all that bad as for as pressure...a DRO is there to look deep into your claim and support it as the best he can in the veterans favor, usually if a DRO denied a claim its because of ''lack of evidence or the evidence was not clear or a specialist was NOT used in a IME. TO SUPPORT THE EVIDENCE. A Well Qualified specialist will have more clout with a DRO/Rater over a General VA C&P Exam JMO .............Buck..
  35. 1 point
    IME/IMO=new evidence. If the evidence is in equipoise the vet is supposed to win. Tie goes to the runner. I say "supposed" but I would want much more evidence on my side. With a DRO Hearing you get good ones and bad ones, but evidence will win in the end.
  36. 1 point
    SMC K does not provide for Loss of or loss of use of Prostate. If you become impotent, the provisions for loss of use of a creative organ would be for application. Here's the spec sheet for peeing problems. Rate particular condition as urine leakage, frequency, or obstructed voiding Continual Urine Leakage, Post Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence: Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day 60% Requiring the wearing of absorbent materials which must be changed 2 to 4 times per day 40 % Requiring the wearing of absorbent materials which must be changed less than 2 times per day 20% Urinary frequency: Daytime voiding interval less than one hour, or; awakening to void five or more times per night 40 % Daytime voiding interval between one and two hours, or; awakening to void three to four times per night 20 % Daytime voiding interval between two and three hours, or; awakening to void two times per night 10 % Obstructed voiding: Urinary retention requiring intermittent or continuous catheterization 30% Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: 1. Post void residuals greater than 150 cc. 2. Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec). 3. Recurrent urinary tract infections secondary to obstruction. 4. Stricture disease requiring periodic dilatation every 2 to 3 months 10% Obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year 0% Urninary tract infection: 0%
  37. 1 point
    If the appeal is successful, take special note of the effective date to see if you agree with it.
  38. 1 point
    You have it about right. Generally, from 19% to 31% are allowed (awarded), 40-49% are remanded, and 15% to 38 percent are denied. We used to say its 1/3 for each, but remands are quite a bit higher than either awards or denials. If you have an attorney, your chances improve. YOu can find more specifics, here: http://www.bva.va.gov/Chairman_Annual_Rpts.asp On page 25 of the report it lists the "allowed", "remanded", and denied for each class, such as DAV, attorney, etc. IN my opinion, try to get a low "denial" rate, because neither a remand nor an award necessarily means you get compensation., but a denial means you dont get anything. The reason is VA LOVES to "award" zero percent compensation and that counts as an "award" to VA, but I have never been able to pay any bills with my 2002 "zero" percent compensation, ever.
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