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marathonjon

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marathonjon last won the day on August 2 2020

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  • Service Connected Disability
    90%
  • Branch of Service
    Air Force

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  1. My attorney hasn't filed yet, so I don't know what they'll use. They're very good, so if they think there's a CUE, I'm sure they will file for one. BTW, VA denied my HLR based on 38 CFR 3.114. They said it wasn't a "liberalizing issue" because there wasn't a regulation change. However, they did change 4.71a. Isn't 38 CFR considered a "regulation"?
  2. Good suggestion, I will write Rep Jon Tester and invite other veterans to do the same. This doesn't affect just shoulders, it affects anything where the VA increased the benefit in the past or where they might increase it in the future.
  3. The VA raised the minimum rating for diagnostic code 5201, limitation of motion of the arm, from 10% to 20% back in May 2016. If you're still rated 10%, you should request the increase. The VA shouldn't require an exam, unless they have reason to believe your condition has improved. You should also request an effective date of one year prior based on “a liberalizing VA issue approved by the Secretary or by the Secretary’s direction.” Specifically, according to M21-1, III.iv.4.A.1.g. Selecting a DC and Minimum Compensable Evaluation for 38 CFR 4.59 Per Sowers v. McDonald: “- This policy particularly affects painful motion of the shoulder evaluated under 38 CFR 4.71a, DC 5201. Under this DC, painful motion of the shoulder warrants assignment of a 20-percent evaluation. - This decision represents a change in longstanding VA policy in which the minimum compensable evaluation was interpreted as a 10-percent evaluation irrespective of the DC involved. . . . . Effective May 23, 2016, the minimum compensable evaluation refers to the lowest evaluation specified under the DC most applicable to the disability.” Per 38 CFR §3.114 Change of law or Department of Veterans Affairs issue: “(a)(3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.” I was originally rated 10% for both shoulders in 2008 and didn't find out about the increase until last year. I could have been getting the increase for 4 years; not only that, but the bilateral increase to 20% would have raised my overall rating from 80% to 90%. It pisses me off that the VA doesn't notify veterans about changes that might benefit them. I actually think the VA should automatically increase the benefits of every affected veteran effective the date of the change. I've written my senators, congressman, and numerous veterans' organizations about this and urge others to do the same, in addition to requesting any increase that is due to them.
  4. It's not a link; it's an attachment to the forum post. When I click on it, Firefox asks me if I want to open it in Firefox or download it. Both options still work for me. Your popup or ad blocker may be preventing it from opening or downloading. As the site admin, you should be able to figure out what the issue is.
  5. @broncovet Thanks for the advice, makes perfect sense. I'm looking at a retro of only about $3600 (the difference between 80% and 90% for one year). Winning a six-figure retro must have been sweet (and taken forever)!
  6. @broncovet The decision was effective 31 March 2020, so it's under a year. So how do I file a NOD under the AMA? The decision letter says I have two choices, Supplemental or HLR. I read somewhere that HLR can't be used to request an earlier effective date, so I guess it has to be Supplemental? But what's the new and relevant evidence? Thanks for your help! My VSO is useless.
  7. The VA changed the minimum rating for painful motion of the shoulder from 10 to 20% on 23 May 2016. I only just found about it this year. I requested that they change my rating via a claim for an increase in benefits, which the VA granted, but they made the effective date the same as my file date (31 March 2020). According to 38 CFR §3.114(a)(3): "If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.” Therefore, my effective date should be March 31, 2019. How do I request this earlier effective date? I searched these forums but can't find anything that's applicable.
  8. @Buck52 Yes, I was at home and the "exam" was conducted by video. The doctor asked me some questions about history, functional impact, etc., and based the rest of his DBQ and opinion partly on an independent medical exam that I obtained (I already have a copy of his C&P exam report). I say partly because he cherry-picked the parts he could use to justify denial of service connection and ignored the rest of the IME's opinion. He even made up a few things for good measure that he neither asked me about nor took out of my medical records.
  9. As of May 28, 2020, "VA resumed in-person C&P exams in locations where it was safe to do so," which is almost the entire country (https://benefits.va.gov/compensation/claimexam.asp). This seems to apply only to contractors, though, as I had a telehealth C&P exam done by one of my local VA clinics on July 16th. I was concerned about this because it was for a muscle condition - how could they evaluate strength or ROM by video? I was right to be concerned, that but's a different story. What I'd like to share here is what I found in researching telehealth C&P exams. In addition to C&P telemental health examinations, there are 29 conditions "potentially suitable for being completed using clinic-based telehealth technology for disability examination purposes" (See DMA Fact Sheet 20-002, attached). Notice that none of the conditions are for joints or muscles that require ROM measurements using a goniometer. These exams are supposed to conform to all the other requirements of C&P exams, as well as the VA's telehealth guidelines, which includes the requirement for the examiner to notify the veteran they have the right to opt out of the telehealth exam and receive an in-person exam. References: Telehealth for Compensation and Pension C&P Exams DMA Fact Sheet 20-002 dated March 25, 2020. (attached) Telemental Health Disability Examinations Memorandum of Agreement (MoA), dated May 5, 2011, posted on DMA website: http://vaww.demo.va.gov, in the Policy and Procedures tab, under the Disability Program Announcements and Information link. (attached) Telehealth Memorandum of Agreement (MoA) dated September 16, 2013, posted on DMA website: http://vaww.demo.va.gov, in the Policy and Procedures tab, under the Disability Program Announcements and Information link. (attached) DMA C&P Disability Examinations Procedure Guide [I think this is the 2018 Clinician's Guide, which I uploaded in a separate post] VHA Connect Care/Telehealth Manual, Telemental Health, Primary Care and other Specialty Supplement and resources available on VHA’s Telehealth Services website: http://vaww.telehealth.va.gov; click on Resources, then click Document Library under Tools. VBA M21-1, Part III.iv.3.D.2.c. Telehealth and Telmental Health Examinations I obtained copes of 1-3 through FOIA; #3 is missing the attachment, but it was superseded by #1 anyway. #5 would be good to look at - does anyone have it? Compensation and Pension (C&P) Telehealth Disability Examinations VHA-VBA Memo 20130822.pdf Telehealth for Compensation and Pension C&P Exams DMA Fact Sheet 20-002 20200325.pdf Telemental Health Disability Exams Memo DMA-VBA 20110512.pdf
  10. Lemuel, I'm not an expert on C&P exams, but I've been slogging through the M21-1, which addresses the exams in Part III, Subpart iv, Chapter 3. Section A of this chapter mentions several tools for inputting examination requests. I'm sure they are internal tools that are only accessible by the RO and the examiner. You can find this section here: https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015809/M21-1,-Part-III,-Subpart-iv,-Chapter-3,-Section-A---Examination-Requests-Overview. As I said, I got this version of the Clinician's Guide from my claims agent; all I know is she got it from the VA, I don't know anything about VBAW. If you can't get the VA-appointed examiner to examine you properly and report it properly, then your only recourse is to get an independent medical examination and opinion. Unfortunately, they are not cheap, and it can be hard to find someone willing to do them. Beware of the ones who say they can do them by video; the VA does not accept these from private providers (even though they accept so-called telehealth exams from VA providers and contractors).
  11. This is the latest Compensation & Pension (C&P) Clinicians Guide dated 20180719. The only other one I've seen is dated 2002, including the one on this website and the VA website. I got this from my claims agent, who got it from the VA. VA Compensation & Pension (C&P) Clinicians Guide 2 Final Corrected 20180719.pdf
  12. I actually wrote the Chairman and ranking Democratic member of the House Committee on Veterans Affairs about how difficult it was to find the VA chain of command or who to complain to. I will send them another email about the quality of service received from my RO. I've made a little progress since my last post. I found another VSO rep, and he gave me some good advice. Since I live overseas, all correspondence regarding C&P exams is supposed to go through the US Embassy. I moved from one country to another and notified the VA, but they failed to notify my new embassy. They assure me that they have done so, so I will check with the embassy next week. Thanks again for all your advice!
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