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So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

It was closed on March 25, and va.gov just states claim closed and nothing more.

Hopefully, I get good news.

Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 

Everyone needs to read our stories so they can try to avoid these screws by the va...
Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

Here is how they managed to drag mine out 18 years:

1.  They never adjuticated my decison until 2009, where they called it "moot".  

2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

7.  Mr. Attig won a remand, and advised me to get another IMO.  

8.  The board awarded my earlier effective date in Feb. 2020.  

     So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  

"Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  

Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
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I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

"...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

 

I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

 

Does this help?

Thanks for that. So do you have a specific answer or experience with it bouncing between the two?

Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

...................Buck
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Precedent Setting CAVC cases cited in the M21-1
A couple months back before I received my decision I started preparing for the appeal I knew I would be filing.  That is how little faith I had in the VA caring about we the veteran. 

One of the things I did is I went through the entire M21-1 and documented every CAVC precedent case that the VA cited. I did this because I wanted to see what the rater was seeing.  I could not understand for the life of me why so many obviously bad decisions were being handed down.  I think the bottom line is that the wrong type of people are hired as raters.  I think raters should have some kind of legal background.  They do not need to be lawyers but I think paralegals would be a good idea.

There have been more than 3500 precedent setting decisions from the CAVC since 1989.  Now we need to concede that all of them are not favorable to the veteran but I have learned that in a lot of cases even though the veteran lost a case it some rules were established that assisted other veterans.

The document I created has about 200 or so decisions cited in the M21-1.   Considering the fact that there are more than 3500 precedent cases out there I think it is safe to assume the VA purposely left out decisions that would make it almost impossible to deny veteran claims.  Case in point. I know of 14 precedent setting decisions that state the VA cannot ignore or give no weight to outside doctors without providing valid medical reasons as to why.  Most of these decision are not cited by the M21.

It is important that we do our due diligence to make sure we do not get screwed.  I think the M21-1 is incomplete because there is too much information we veterans are finding on our own to get the benefits we deserve

M21-1 Precedent setting decisions .docx
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Any one heard of this , I filed a claim for this secondary to hypertension, I had a echo cardiogram, that stated the diagnosis was this heart disease. my question is what is the rating for this. attached is the Echo.

doc00580220191213082945.pdf
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Need your support - T-shirts Available - Please buy a mug or a membership
if you have been thinking about subscribing to an ad-free forum or buying a mug now would a very helpful time to do that.

Thank you for your support
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OK everyone thanks for all the advice I need your help I called VSO complained about length of time on Wednesday of this week today I checked my E benefits and my ratings are in for my ankles that they were denying me 10% for each bilateral which makes 21% I was originally 80% now they’re still saying I’m 80% 

I’m 50% pes planus 30% migraine headaches 20% lumbar 10% tinnitus and now bilateral 21% so 10% left and right ankle Can someone else please do the math because I come up with 86% which makes me 90 what am I missing please help and thank you

I was denied SC for IBS and GERD IN 2011. In 2019 I was awarded SC for GERD. This CUE  is for 2011, both GERD and IBS. There are some odd aspects regarding the 2011 decision, the way it was written and the C&P report and the way it was written. I've tried to present this as clearly as I can. Note: the decision contradicts itself. the decision also contradicts the C&P Report. Honestly, I think the rater just got confused because the C&P was so poorly written. *THIS CUE HAS NOT YET BEEN SUBMITTED*Please let me know what you think. Appreciate all comments and suggestions. Thanks.

 

VA RATING DECISION MARCH 23 2011 GERD IBS.pdf C P REPORT 7312010 GERD IBS.pdf GERD IBS CUE 2011(1).pdf

C P ADDENDUM REQUEST RE DIAGNOSIS 7232010.pdf
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14 Questions about VA Disability Compensation Benefits Claims
When a Veteran starts considering whether or not to file a Veterans Affairs Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about when it comes to filing Veterans Affairs Disability Claims. [Reprinted here with permission from Veterans Law Blog]
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Disabled Veterans Property Tax Exemptions by State
Alabama 
A disabled veteran in Alabama may receive a full property tax exemption on his/her primary residence if the veteran is 100 percent disabled as a result of service and has a net annual income of $12,000 or less.
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Thanks everyone for their answers and advise and yes Ido have a VSO American legion but unfortunately I still have to manage to work and call times are mornings only almost impossible to talk with him.

 I am gonna try to get ahold of him tomorrow but u have to call right at 0730 eastern OR call list fills and never get on his list sucks!

The worst thing I’m going through is that I’m stuck in limbo I can’t file on my other things I can’t add nothing I can’t do anything basically my hands are tied, this is complete wearing on me mentally Not to mention I’ve been out of the service since 95 was six service-connected disabilities and then thrown to the wayside as a young adult with no knowledge of how what or when by the VA  now that I’m middle-aged my service-connected disabilities Have gotten so severe that I have multiple secondaries until I came across by chance a VSO in my county that helped me out back in 15 I’d still be at a loss and left at the wayside forgotten about now that I’ve been back in the system And have a 80% rating the VA now is trying to drop two of my ratings because I feel that this DRO rview is going to put me at 100% or really close  in a way to just keep us down and out and causing worse injuries by forcing ourselves to do what we have to as humans to survive in the workforce that you can’t really physically do anymore sucks all the way around! 

Permanent and Total from cck-law..com
1:10 What is Permanent and Total Disability?

2:05 Conditions that automatically receive a permanent and total rating (P&T)

2:32 Conditions less likely to receive P&T

4:29 How to find out if your VA rating is permanent

6:03 Is there a VA form to apply for Perm and Total status?

6:39 Viewer Question: If you have permanent and total Social Security Disability Insurance (SSDI), are you automatically entitled to P&T disability at the VA?

8:03 If you receive Total Disability for Individual Unemployability (TDIU), are you permanent and total?

8:26 The advantages of having Permanent and Total VA Disability Other Protections from VA Rating Reductions

10:26 Stabilized Ratings

11:26 Continuous Ratings

12:57 What to do if VA proposes a rating reduction

16:03 Final Thoughts & Tips

https://cck-law.com/news/newsfaq-friday-permanent-and-total-pt-disability/

 
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Veteran Population by State
https://hadit.com/veteran-population-by-state/

veterans-statistics-by-state-2018.pdf
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10 Tips to Help You Keep the Compensation and Pension Exam (C&P exam) in Perspective
Reprinted here with permission from Veterans Law Blog

I encouraged you to keep the exam in perspective. What is that Perspective? Honestly, it comes down to recognizing that the purpose of the C&P Exam is NOT to convince the doctor that your injury is service connected, but to let him or her conduct their exam and draw their conclusion. In the end, your current disability either is or is not related to military service.  Regardless what the doctor says, what the VA Rater says, the limitations or symptoms either are, or are not, related to your time in service.

A doctor’s opinion can’t change what is or is not.  It’s just another piece in the puzzle of proof. And the C&P Exam is just another piece in that puzzle.  It is not the only piece – but if we view it as such, we often make our claims harder than they have to be.  And we certainly make them more stressful.

#1 Every C&P Exam has 2 Goals.

The first goal is to have the doctor confirm that your injury, disability, or limitations are related to your military service – to prove the Nexus Pillar – and/or to establish the degree you are disabled – the Impairment Pillar. The second goal is to draw out the  “evidentiary gap” in your claim through a C&P exam. The evidentiary gap is the difference between what is IN the record, and how the VA SEES what is in the record. If you are denied service connection, it is almost always because of an evidentiary gap – and rather than throwing a haystack at the RO and then yelling at the VA for not finding the needle – let the Examiner tell you what is missing by reading his/her opinion.

They tell you what is missing by what they focus hardest on. The key is NOT to provide excessive amounts of information in your C&P exam – keep your answers short, and “make” the doctor get into your file to review the evidence. It is THEIR report which shows the evidentiary gap – not your statements in the C&P.  Which brings us to the next tip….

#2: Answer only the questions the doctor asks.

If the doc asks “How are you doing”, and you throw the entire history of your claim at her over the next 15 minutes, what happens? She zones out. She doesn’t hear what you are saying, and may find it hard to care about what you are saying. I get emails every day – some are 8-9 pages of micro-detailed histories of a VA Claim. It’s hard to read them.  It’s hard to understand them.  It’s hard to pick up the phone and call that person because I know I’m going to get more facts that I don’t need. Listen, I’m really good at doing this work, and while there are some real shit-bird doctors out there, there are some really good ones.  They know how to call out the information they need, to get the facts to understand the situation. So just answer the question you are asked – not the question that you want to answer. But when you do answer the question, follow Tip #3

Continue Reading Here
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C-File: Requesting Your VA Claims Folder
VA Claims Folders, the infamous C-File We can not stress enough how important it is to: View your VA Claims Folder at the Veterans Affairs regional office (find your Regional VA Office here) Call the VA at 1-800-827-1000 and request an appointment to view your C-File (VA Claims Folder).

Ensure that all the records in your VA Claims Folder or C-File are yours.
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VA Law
Everything Veterans Affairs does with your service connected disability compensation claim, is governed by law. You may want to bookmark this page as a reference as you proceed with your claim.

It can be a bit daunting. Just remember the U.S.C. is the law, the C.F.R. is how they interpret the law and last but certainly not least is the V.A. adjudication manuals that is how they apply the law. The section of the law that covers the veterans benefits is Title 38 in the U.S.C. in the C.F.R. is usually written 38 C.F.R. or something similar.

 










U.S.C. United States Code United States Code is the law and the U.S.C. is the governments official copy of the code.


U.S.C.A. United States Code Annotated U.S.C.A. contain everything that is printed in the official U.S. Code but also include annotations to case law relevant to the particular statute.


C.F.R. Code of Federal Regulations The C.F.R. is the interpretation of the law


VA M-21 Compensation and Pension Manual


VA M-21-4 C & P Procedures


VA M28-3 Vocational Rehabilitation


VA M29-1 VBA Insurance Manual
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Rating "Protections"
The VA has several regulations governing various levels of "protection". The terms "permanent", "protection", and "total" are misnomers due to the various ways the VA has defined them.

Here is some information on VA ratings protection (but the word "protection" has a different meaning to the VA). The exception to these rules is if they can prove fraud.

5 years

The key part to remember about the 5 year rule is found 3.327(a) indicating that these are guidelines which are not necessarily set in stone. The key takeaway for most veterans is reduction should not occur if there has not been material improvement over 5+ years or if the veteran is over the age of 55.

 

10 years

In brief, ratings in effect for 10 years cannot have service connection severed.

 

20 years

In brief, a disability rated for 20 years cannot be reduced below the lowest rating percentage it has held for the previous 20 years.

 

P&T

 

TDIU

 

 

 

Disclaimer: I am not a legal expert, so use at own risk and/or consult a professional representative. The VA updates their regulations from time to time, so this information may become outdated.
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HadIt.com Branded 11oz Coffee Mug for sale
11oz Coffee Mug with HadIt.com Logo and Motto $12
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