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  1. Entered Active Duty (EOD) Released from Active Duty (RAD) Conditions rptd within a year of release of active duty generally don't need opinions for service connection. It doesn't mean that they are automatically SC, but it does mean that the determination of SC or not is made off the findings of the examiner on the DBQ, along with your service records, your Enlistment physical vs your Discharge physical, stuff like that. After 1 yr (or, to really muddy it up if you filed an intent to file within 1 yr of RAD you get until 1 yr from THAT where a medical opinion isn't requested by VA) the doctor has to write an opinion with rationale based on your STRs, anything from VAMC, your ENL and DISCH physicals, private records that we have as evidence to submit with your exam request, and send that back to us along with the regular DBQ (disability benefits questionnaire). ***EDIT*** Private medical records have to be sent to us, or you have to give us release to request them (and some providers still ignore us, meaning if you want those records as evidence you have to get them anyway. VA also does not pay providers for records- some charge). If we don't know that you get treatment from somewhere, we don't know. A 21-4142/4142a release form is good for 1 yr from when you send it. After that, even if you are still getting treatment from a particular private provider we can't just request more records because we did so "that one time.....". We have to have a new release. Also, 21-4142/4142a were updated recently and the new form date at the bottom says "JULY 2021 ". The forms immediately prior to a form update are good for 1 yr after its updated (the month/yr at the bottom), i.e. your VSO that just scans the same old sheet and emails it to you may or may not be the updated form. Same with whatever you download off the internet from "whereever". Not all those various private sites update their forms, or their information about conditions, contentions, legal stuff, VA regulations changes, etc. Basically, kids, what I'm saying is that if you need a form for something- claims, appeals, support of claims, records release, whatever- get it off the VA website (or do a google for the form name or number and it will usually take you there, too) otherwise you and/or your POA run the risk of us sending a form back to you saying "its the wrong form version, the updated form is attached, please complete and return..." . Example: https://www.veteransdisabilityinfo.com/files/va-form-21-4142.pdf Still using the form from 2012. https://formswift.com/free-write/edit.php?documentType=va-form-21-4142-6-2014&ses=75e13d123a06a126751791e8e839db8b&key=197787961 Still using form from 2014.
    2 points
  2. No, because I’m not a clinician or a contractor. Generally a statement would be on an exam within 1yr RAD- SC opinions aren’t needed for general medical exams, though a Gulf War opinion is requested for MUCMI issues on Gulf War gen meds. They are their own thing and look for specific things. Outside 1yr any claimed contention needs an SC opinion, unless it’s for an increase. The opinion is a separate DBQ with rationale and answers to specific questions regarding the condition and whether it’sSC or not. The clinical dbq is just measurements and findings.
    2 points
  3. The site he’s pointing at is not for private providers, it is (or was) for training c&p clinicians) the course links he’s pointing at are from 2015. (EVERONE) VA doesn’t go around sanitizing the internet of things except it’s own sites. Just because something is found out there about VA rules or exams is not ‘official’ or up to date information unless it’s in our site. Including NVSLP, Hill and Pontin, CCK, etc. and especially not links on any hired guns sites that promise to do medical exams or help you for a few. I know that this site is not using current training because I went through some of the Gulf War training set on this site this morning, and parts of it are based in FLASH, which has not been supported in current browsers to varying degrees for a few years, and was completely discontinued on 31DEC2020. I’ll look at the rest and try to post later. Time for work , and it’s been a bit stressful lately.
    2 points
  4. Here is the deal. In order to determine etiology (whether your condition is related to service), the doc renders an opinion. He was not there, so he can not establish a fact, but he can make an educated guess as to the likeliness of whether or not your condition is related to military service. This is called a nexus. There are actually 3: 1. Independent Medical exam. This is the doc recording the facts of what he sees. Your temperature, your blood pressure, lab results such as cholesterol levels, are not opinions, they are facts measured by a doctor. 2. Independent medical opinion. An IMO need not examine the patient. Instead, he reads the other doctors medical exams (the patients history), listens to the patient, and renders an opinion. You see the patient IS competent to tell the doc things like: (example) "Yea, I fell out of a tree and broke my arm in service". So, if the doc sees an xray of your arm, with a fracture consistent with falling out of a tree (x) years ago, he can render his opinion that its at least as likely as not your (event in service) fall out of a tree, caused your fracture which led to your current diagnosis of arthritis. The doctor makes a "statement" in your medical records that he thinks its likely your tree fall caused your arthritis. His statement is an opinion, but its based on other doctors statements and diagnosis. A previous doctor, such as a military doc, makes a statment such as: "I viewed the Xray, and it shows a fracture of the right posterior humerous about 1 cm from the elbow. " 3. Independent medical evaluation. This is a combination of the two above. The doctor examines you, does tests he feel are appropriate such as blood pressure, cholesterol, etc. He then reads your history. He also speaks to you, establishes your age, medical history etc. For example, he may ask you if you have asthma. (Some things are not included in medical records, so they simply ask you). The doctor will likely ask you other questions, such as do you have a history of alcohol or substance abuse. Based on your medical history, doctors statements, your statements, what he observed on your medical tests as well as previous medical tests, and his vast medical experience, he makes an evalution of what he thinks is your medical history, and often makes a prediction of the outcome, such as you are likely to have arthritis in your arm due to the previous fracture. All 3 of these, above have medical statements. I will explain it this way. A medical statement is like a motor. You cant drive the motor, but your car is rather useless without one. The motor is one part of many to your complete car.
    2 points
  5. <<<I recently file for basic regular aid and attendance 3.352(a) but was denied for a higher level of aid and attendance under 3.352(b). >>> Let's analyze this, Mr. Brinson. There are two different levels of Aid and Attendance as you note. Regular A&A is awarded under the aegis of §3.350(b)(3) and the criteria for qualifying is described in §3.352(a). Actually there are three "types" of A&A. VA considers SMC S to be an inferior version of A&A which it is not. It's Housebound. From the above and the prior thread, it sounds like you feel you should be awarded R 2 automatically without climbing the SMC ladder to get there. §3.352(b) describes the criteria for entitlement to the higher level of A&A known as SMC R 2 which is described in §3.350(h). First, let's clear the air on A&A at any level as it applies to your case. You have a rating for LOU (loss of use) of your lower extremities which entitles you to one SMC L under §3.350(b)(1). A careful reading of §3.350(e)(1)(ii) describes the requirements to first attain SMC at the O rate. It informs us that we need two (2) awards of SMC at the rates between L and N or a single rating of SMC N 1/2 plus a K rating to reach SMC O. You have one rating of SMC L and seek a second SMC rating of L for A&A. As §3.350(e)(1)(ii) states in no uncertain terms, a second award of a rating between L and N must be independently ratable apart from your current award of LOU of your lower extremities. In simple terms, it means you are forbidden from claiming a need for A&A due to your loss of use of your legs. That would be pyramiding. You can claim, and I would, that your 100% rating for incontinence is separate and distinguishable from your loss of use of your lower extremities. By operation of law, VA cannot combine your incontinence with a LOU of anything unless it involves paraplegia under §3.350(e)(2). We discussed this in a prior thread on this subject several weeks ago. You indicated then that your incontinence was not a result of the LOU of your extremities. The catch on obtaining entitlement to the "higher level of A&A" (R 2) as described in §3.352(b) is simple. As I described in §3.350(h) above, you need to have two ratings between SMCs L and N to get to SMC O. Having a rating of SMC N 1/2 plus K will not get you to R 1-just to SMC O. Once you obtain what VA refers to as the "maximum rate" of SMC O, if one of your two SMCs between L and N includes A&A at the regular A&A rate (§3.350(b)3)), then and only then are you "promoted" to R 1. You cannot get there any other way. You cannot simply say you need the higher level of A&A under R 2 or that the sum of your disabilities argues in your favor. Once you reach SMC O, entitlement to the higher rates begins. There is no way to "jump" from SMC L to R 1 or R 2. To attain R 1, you will need two things essentially. The first is that you have been awarded the SMC O rate. You have not been awarded SMC O yet. Test #2 is that you need one of your two SMC rates that get you to SMC O between L and N to be the regular A&A awarded under §3.350(b)3) and §3.352(a). You do not have this yet either. If you had these two SMC rates, this would only entitle you to R 1. At that point, you would need to qualify further for R 2. In order to move up from R 1 to the "higher level of A&A" or R 2, you would need to fulfill all these requirements in §3.352(b)(3): (3) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. (4) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(3) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. (5) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. (6) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial. (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. Where many Vets run afoul of R 2's provisions is overlooking §3.352(b)(1)(iii): (iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. I win the vast majority of my clients' R 2 claims by showing some things that most would overlook. Note the discussion in §3.352(b) about what constitutes the meaning of "personal health-care services". I frequently rely on the physical therapy codicil. If my client doesn't employ a personal health care service for the client's physical therapy, I have them hire one. As long as they are under the supervision of a doctor or the equivalent, it meets the R 2 requirement. One spouse met this by taking her husband to the local community pool in her neighborhood several times a week and swimming with him to increase his muscle tone. Because she began doing this in 2015, The BVA Judge awarded the R 2 back to 2015. If you begin the physical therapy route tomorrow morning, that will be the effective date of R 2 absent any other considerations. So, in summary, Mr. Brinson, you could prove A&A is in order due to your inability to attend to the wants of nature to qualify. Just being able to to get to the water closet doesn't mean you can transfer without the A&A of another. Remember always, you do not need to meet each and every requirement listed in §3.352(a). One deficiency in the activities of everyday living will do. If you have a nasty case of PTSD or TBI, you can also cite to that saying you need to be protected from hazards or dangers incident to your daily environment. What if there was a fire? Would you be able to escape without the help of another? You cannot use the argument that if you fall out of a wheelchair that you would not be able to regain your seat without the help of another. That is considered part of the loss of use and would be pyramiding. To most easily grasp the idea of what I'm attempting to impart, try reading Breniser v. Shinseki. Breniser explains "condition" as used in §3.350(b). There are essentially 4 conditions which will get you to R 1 or R 2. I also use the two A&As technique wherever applicable. It will require the baseline requirement of the disability in question (incontinence) being rated at the full schedular rate of 100%. You meet that requirement so the next question is probably "Why did they deny my SMC L for A&A"? Simple. It would lead to O and R 1 and they are not inclined to grant that without a pitched battle. You can win this yourself but it will require going to the BVA on appeal because no one at your Local Fort Fumble wants that on their resume. And secondly, no one at the local level probably even has the intelligence to even know you can do it legally. Best of luck.
    2 points
  6. I believe it would take a pulmonlogist to properly opine on the claim.Or an expert in Fibromyalgia, who would have the most recent medical literate to support the claim-but I dont know if you claimed the fibro as a potential cause of the OSA. I thing that would be even a stronger way to go than the MDD meds. I personally would do both. We have the right, as claimants, to advance any possible way of entitlement to SC. But it all depends on the meds you take for each of those disabilities and the PDR and many other sites on line have detailed info and side affects of all medications. The opiner did not mention any VA prescribed meds in the page of th decision you posted. You could also find their name on the actual C & P exam and gripe to LHI,VES, QTC or whatever outfit did the exam,if they were not qualified to do it- but then again the claim still needs to associate both of your SCs with the medications side affects,--- anything that could cause weight gain and OSA. It might help to get a service officer as well, (vet rep)and feel free to copy my replies, so that they can see how the claim could be supplemented with evidence.
    1 point
  7. You are correct- BVA cases are unique to the veteran who filed the claim- however they contain a wealth of info as to how to prepare and support a claim with evidence.They also cite VA regulations and Precedent opinions such as the OGC pres Op in one of the links I gave you-as well as precental US CAVC decision. They are not "evidence" except in rare situations. I had a very old BVA decision that contained a "clue"-I was using my own old BVA case as "evidence" but the RO ignored it. I called General Counsel. Then the VARO could not ignore what the BVA had stated to me long ago- and which was still a valid established regulation. But Evidence is Everything and you could follow my advice yourself to present to the VA any medication info that could support your claim, along with the medical profile you have from the VA, as well as the fairly well established medical links above in my replies, and any other evidence you can find. These are bonafide very good medical sites. You might find more than I did. ".I guess it's just the luck of the draw..or maybe they had a better medical opinion given than myself. " I dont believe it is the luck of the draw- it is either getting a solid IMO/IME in difficult cases like this,or doing all of the leg work yourself. MANY if not most vets here succeeded without IMO/IMEs- I am sure. we do not get a fair shake from the C & P proess at all and this is why an IMO/IME can do wonders. In one of his IMOs for me Dr Bash quoted the VA endocrinologist and said what she had stated was "medically inaccurate" and stated how her opinion was not valid at all. Also she said I used a DVD acronym from Merck which the VA uses as well. Some had put into my husband medical records DVD (diabetic Vascular disease )and did not cross it out like the diabetes entry. She , as a VA endocrinologist, had the audacity to say it meant that the veteran "Denied Venereal Disease" -DVD. I jumped on that right away= the veteran had VD in service,and on his rating sheets and Never denied having inservice VD. The last incident O had like that was that a doctor opined on my claim and stated it was an inperson interview. By then my husband had been dead for 2 decades! I complained to the White House Hot Line and someone from the VHA called me and he said something so stupid I wont even get into it.I used the situation as "evidence" as well as the fact that this VA doctor had been relegated to the AO registery department long ago and I guess they didnt want her to be actually dealing with VA patients. I won that claim, very fast after that. These VA opiners people are slick. I have had to knock them down many many times. I am convinced that most of them love to have the power to deny claims that have validity. Then again if they awarded too many claims due to their opinions they would probably be off the C & P examiner list. ".I guess it's just the luck of the draw..or maybe they had a better medical opinion given than myself. " Maybe they did but we cannot rely on a good C & P exam outcome at all. I read at the BVA a denial from a female veteran who also was trying to get OSA associated with her SC disabilities. She had no IMO/IME and did not attempt to provide significant evidence herself. I had no doubt that with a little more evidence she could have potentially succeeded. I will re read your decision again to see if there is anything else I could add.
    1 point
  8. To the original poster Donnie : This is an old BVA decision however: "FINDING OF FACT Providing the Veteran with all benefit of the doubt, sleep apnea is aggravated by medications taken for major depressive disorder." The Veteran's Major Depressive disorder was already service connected. https://www.va.gov/vetapp14/Files4/1427494.txt In this more recent case (2016) " "Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities." https://www.va.gov/vetapp16/Files4/1634144.txt Also some medications can cause OSA: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5346880/#:~:text=Several medications (atypical antipsychotics in,can induce or exacerbate OSA. Both decisions contain a lot of info as to how the veteran succeeded. This would need a Very strong IMO/IME, that follows the IMO/IME criterias here at hadit. The Opinion independent doctor should have access to your inservice STRs, Military Personnel records, and all othe health care records. They would also need to bolster their opinion with any good medical excerpts etc.
    1 point
  9. Two kinds of blood pressure medication recalled for possibly too much of a carcinogen. Two kinds of blood pressure medication recalled for possibly too much of a carcinogen (yahoo.com)
    1 point
  10. Like I said, until we are cleared to use it by National and the infosec people figure out whatever they need to figure out so as to make it a secure method of contact (HIPAA, etc), the only people that can use it are in Outreach, and some of the MST coordinators- but not for medical stuff. We have a whole group in our RO specifically for calling veterans about things, and we (individual VSRs/Raters) can also call directly if we need clarification of somethin. This is completely different than the phone bank people- don't know about the other RO's. From personal experience over the last year and a half (wow) it would help if veterans would actually pick up the phone when I call them to ask and clarify something like "what arm are you claiming, left or right" or "what do you mean by 'body aches'- body aches isn't a diagnosable disability so I need some more info....", or "I can't read X,Y,Z on this - what years/place/whatever did you serve, or where did the event happen..." They don't, so I have to send them a letter instead, and then wait for them in many cases to ignore it and not respond. Or the ones that do respond with sarcastic or profanity laden statements that are no help. Telling me to call the Taliban to get more information on your reported incident doesn't help you, or me, one bit- plus, it all ends up in your file.
    1 point
  11. They shouldn't have- it establishes a personal connection to the veteran, making that claim ineligible to be worked on by that VSR again, first off. 2nd, Email has not been cleared as an approved method of contact by InfoSec at any level. The reason the email address is listed on the 526ez is so we can put it into our system here, and it gets attached to the exam request as a method of contact so the vendors can contact you regarding exams. We- VSRs and Raters, are not supposed to use email as a method of contact.
    1 point
  12. Lavish I don't know the difference between the two either, but it's part of the VA's process, and I don' think you want to address it at this point. The new exam may be a ACE exam where the reviewer needs clarification from the examiner and the answer is likely to be already in your medical records. VES should be contacting you on when it will be and probably tell you to stand by in case the examiner needs a verbal response from you. Often they don't. Let the process unwind and then go from there IMHO.
    1 point
  13. GB you junks me..... I went for a C & P on October 7th. Had to drive 110 miles one way because I made the send me to a real doctor. They made me wait 2 hrs. for an 11:00 AM appointment. The the bitch low balls the ratting does not look at anything in my folder did not look at the evidence I presented at the appointment. So they gave me 10% on my knees that have disabled me from 2008 VIA workers Comp and SSDI. Yup GB its all your fault. (NOT)
    1 point
  14. If you are claiming 30 years of retro you can bet the VA is going to look at your claim inside and out regardless of what appears to be an open and shut case. Nobody at the VA wants to sign off on $250,000 in back pay for a vet. That is what I was asking for and it took 6 years to get to finally get to a big "NO".
    1 point
  15. Great post, PWRslim. In as much as we may WANT to help a Veteran, you can lead a horse to water, but you cant make him drink. I have a family member who finally applied, got 70 percent, but refuses to apply for PTSD/TBI which he undoubtedly has. (He has a purple heart from a bomb going off and taking sharpnel in his head and feet). His reasoning is that "the government could take his guns away" if he gets rated for PTSD/TBI. This isnt true. Its a logic error, actually. It goes something like this: I have 3 rocks, all of which are round. Therefore all rocks are round. The government will protect its citizens from people who are "a risk to others or themselves" but not necessarily those who have been diagnosed with PTSD or TBI. Not all people diagnosed with PTSD or TBI are crazed people ready to take a gun to Chucky Cheese. And, not everyone who does take a weapon to Chucky Cheese and starts shooting has PTSD or TBI. Case in point: Columbine school shooting. Neither of these boys were in the military nor did they have TBI. But they were bullied by their class mates, and wanted revenge. Revenge is never a good thing, except in the movies, played by hollywood actors.
    1 point
  16. Fyi, too, depending on your term of service and when it falls 3.317CFR covers general sleep disturbances as presumed as a result of Gulf War exposure, so, maybe you don't have apnea, per se', but you DO have sleep issues, circadian rhythm problems, other respiratory issues that might contribute to sleep issues (sinusitis, asthma, or rhinitis chronically- ALSO on the list as a presumed condition as of August) This discusses (click here) the particulate matter announcement specifically, but scroll down further and it also discusses Gulf War Mucmi's (Medically Unexplained Chronic Multi symptom Illnesses)
    1 point
  17. IMHO (IN MY HUMBLE OPINION), you can’t trust this metrics. It does not line up with VA.gov, my days of waiting for a decision is well over this time period. Then again the VA.gov is also unreliable so who really knows.
    1 point
  18. I am from NEW YORK so what I have been told is reason for these claims to be taking over 1 yr and 6 months now, is due to the fact that I live in a very dense populated area of veterans. I'm just outside of NYC. How long has your claim been taking to complete? I too never knew about Compensation until I started working and a coworker spoke to me about it, even after I had been to the VA to register after I separated from the Air Force. I also didn't later about Lawyers that can help you file and them legally can only take 20-30% of your backpay if you win. So be sure you DO NOT pay an upfront fee to a lawyer who will hep you file claims, that is not legal. This will is now a MONTH since my claim moved to the Evidence gathering, Review, and Decision status. I understand covid hit, but I agree with what others said about raters not doing their jobs. I had my one disability for over 5 yrs at a 30% which last yr VA decided they saw improvement and reduced me to 0%, EVEN after my Dr. had written numerous letters stating "Veteran continues to suffer from disability with no improvement after a yr of treatment, recommend to stop treatment at this time". Also I had sent in other evidence to show illness still exists with no improvement, but I get this crazy decision and all the VA states is "The evidence you sent us is how we came to the decision" haha I was baffled. This whole process is very SUBJECTIVE and disturbing at times the way they rate. You gotta hope your rater had a good week for him/her to give you a proper rating basically I shall keep you all posted, awesome feedback I greatly appreciate it and lets keep it going to help others.
    1 point
  19. I may be totally wrong and or off but since you already had your hearing, and the judge is currently reviewing your appeal. Your appeal may be ahead of this new movement. It does not mean that it still won’t take a while, but it should be sooner than later.
    1 point
  20. @Vync If the metrics were my work, I would add more details. I think that the VBA should rework claims and appeals so that the Veteran can monitor all activity in a claim. Maybe if they knew we were watching them, they would make fewer mistakes. As it is, so much happens behind closed doors, they appear to be unaccountable to the people they serve.
    1 point
  21. If you look at my posts, you'll notice that you and my husband have something in common. The VA says that 100% P&T makes you ineligible for TDIU. We say there's no such statute. Although it looks like you have a good case for TDIU based on your 70% rating for PTSD, the schedular rating happened first. What's the difference? You can work, if you're able, without restrictions with a 100% schedular rating. My husband managed that for awhile. Not so with TDIU, since you're unemployable. Plus, some people think TDIU puts you under more VA scrutiny to try to find excuses to revoke that status than under 100% schedular. About SMCs, it looks like your only option at this point is to apply for housebound status on VA Form 21-2680. You can google it, or simply write a letter to your VA Regional Office, send it certified mail, and they should send it to you. Be specific about what you're claiming and why, don 't simply ask for the form. I would do a little research on what exactly "housebound" really means in VA-speak. Find out ahead of time what you're going to have to prove. You don't need to see the VA in person. We've never traveled to the VA Regional Office in 20 years, since it's a 5 hour drive one way and not necessary to accomplish something we can do via certified mail. Although the rest of the discussion may not help you today, it may help someday if you amass additional ratings above your schedular 100% rating of at least 60%. Then you could also base an SMCs application strictly on your ratings without having to prove you 're housebound. This discussion in that case will be of great interest to you. Of course, if you currently qualify for housebound status, the other is a moot point. Just a general observation- when I first came to hadit, I didn't know or understand a lot of the discussions around me. The questions we ask when we're new are sometimes answered in more depth than we can process at the moment, but since we're too new to see the big picture, we think the thread's been hijacked when it really hasn't been. We bring our personal experiences to the table hoping they may help other people. Sometimes that information sparks additional comments from other hadit members, and we All learn something that helps us along in our struggles with the VA. I hope you get some value from the entire thread, if not today, then sometime in the future when you can understand how it may be relevant to your situation. Just my opinion.
    1 point
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