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Chuck75

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Everything posted by Chuck75

  1. You can always ask to reopen (reconsider) a claim based upon new and material evidence. If you can show that the VA failed to properly consider and/or ignored material evidence, and that evidence would likely have resulted in an outcome different than denial, you may have a basis of a "CUE" claim, which would take the claim back to the original date. CUE claims are difficult to win, and I'd suggest that a lawyer's help be seriously considered.
  2. One of the problems you may encounter is SSA's views on small business owners. They often take the view that as long as you continue to run the business, and can hire help to do what you cannot, you are not disabled for SSA purposes. A friend of the family in the Chicago area lost in the appeals process, even with "competent" legal representation.
  3. There is no set time or answer, other than "as long as it takes". If all the "ducks are in a row", the time should be shorter than it might otherwise be. The common time frame might be a year or less, with a couple of months as the shortest, and more than a year for the longest.
  4. You ask some questions that have some maybe answers. "Will the VA pay for equipment without me going to school?" It's possible. There are grants and loans for such things. Not having any experience with this area, I'd not know where to begin, other than the usual initial benefits searches via the web, etc. " - - -repair and set-up guitars as I do it as a hobby, but my counselor doesn't think it is a viable career." It might be, if you live in a metropolitan area. Perhaps you would need to establish connections with retail music stores, etc. as a customer source. (And, bands that like to smash guitars as part of the performances.) (Heh!) Getting a small business off the ground is not easy, but it can be done. Think SBA and VA loans for disabled veterans, etc. You would have to generate a "business plan" that is acceptable to the involved agency in order to even have a chance at a grant or loan.
  5. Dealing with any entity that is as fickle as the VA C&P and adjudication scheme is difficult, to say the lest. There has been a total lack of consistency, equity, and fairness. The only thing that seems consistent is a very high error rate, and the errors frequently result in the denial of valid claims. In my own claims, I have seen. Loss or deliberate removal of older documents favoring a denied claim. Failure of the VA to maintain administrative records of decisions that arguably are required by the various administrative practice standards that are to be followed by any administrative government entity. (In the dark ages, before computerization these records were kept in daily logs and ledgers, some of which went back as far as the civil war.) Because of cost, many of the paper records were never "digitized", just stored somewhere, and evidently "lost" in order to recover storage space and reduce the storage costs. Documents that were in the original copies of my records when the copies were provided by St. Louis were no longer in copies sent later by the VARO to myself and my lawyer. Part of the records involved a claim and denial that originally established my "C" file reference number. When I applied for A/O related benefits and compensation, the VARO tried to tell me that "we don't use those old numbers anymore", yet the old "C" file number is exactly the same as my current file number. In my opinion, the full record of the denial would be enough to establish a "CUE" claim going back over thirty years. Wonder why the records vanished while the file was at the VARO. (And, the VARO wasn't even the one that made the original denial.) One of these days, I'll be able to find and reconstruct some if the key records and information, then it's back to the appeal process again. (Thirty or so years of retro at even ten percent is not to be sneezed at!) One non VA instance I remember occurred in the 1990's, and involved a DOD/USAF directive to throw out historical records involving the B-52 beyond a certain number of years. It was less than a week later that another "directive" came down, requiring the support for a historical research project involving the B-52. We had to hand our copy of the first directive to the researchers instead of the records that we were told to throw out the previous week. Fed EX showed up in the middle of editing, sorry for the delay, etc.
  6. Basically, SSA thinks that an "educated" person with disabilities is still capable of working "sedentary" jobs. The problem is that many of these jobs are actually not really sedentary, or are the last thing a disabled person needs. Several of the positions I held prior to retirement were generally classified as sedentary by SSA. The key is to identify aspects or duties that are not sedentary. For instance, technical supervision that requires going up ladders and crawling around in the innards of large aircraft. I also carried a "flight medical certificate". SSA ignored the fact that I could no longer pass the medical exam, simply because it was not listed as a mandatory requirement for the position. It was one of those things that they put in your records, track, and complain if it's not up to date. In my experience, a job that is truly sedentary (sitting at a desk for hours at a time) can cause serious harm. The whys and wherefores can be both physical and mental. In one case, we had a written directive, based upon past experience with the numbers of serious medical emergencies, such as heart attacks, that encouraged workers in the administrative (desk bound) positions to get up and walk around periodically for both exercise and stress relief. Just working inside a windowless building with severely restricted access seems to add an additional stress factor to already stressful positions. Naturally, there were other contributing problems, usually involving lack of law directed workplace features and ergo metric furniture designed to reduce stress and physical problems related to sedentary positions. A senior director took great exception to the directive, and started chastising those who were following it. The number of ambulance runs drastically increased, and there was an increase in heart attack related deaths, both at the workplace and at the receiving hospital. (Veterans with IHD, and or PAD take note!)
  7. Fair warning - - The VA is fighting (appealing) the Freeman decision. There is another case that is also in the works that is going to be very telling. Jim Strickland's web site is usually a good place to keep current. It's beginning to look like the VA is thinking mental problems, retro, incompetence are all in the same pot.
  8. Chuck75

    Nehmir Claim

    More or less standard. Assuming that you have adequate medical records in your file proving the existence of IHD, and are a Nehmer class action member, (you obviously are), The award will go back with retro to the original claim date, or even an A/O related claim for another A/O presumptive, such as DMII, if your records showed that IHD existed at that time. (Under the "implied claim" rule, any claim that was submitted, and the records showed the existence of IHD at the time, may be used as a Nehmer date when all the other details are satisfied.) While the VA caller was not allowed to tell you the details, with a little gentle prompting, additional useful information can be given. "You should be pleased" is one response that seems to be permitted. A check or a direct deposit amount may be your first indication of the results, not the determination letter. For instance, my VARO seems to let the letters accumulate and mail them up to five days after the date on the letter, (end of week?) based upon the postmark vs letter dates. In my case, about a hundred miles from the VARO, a letter mailed on Friday would usually arrive Tuesday or Wednesday of the following week. If you can access "E-Benefits" the information may be updated before the mail arrives. (Or Not, depending on the VARO) If E-benefits is current, you can access the letters section, and print out a copy of an award, etc.
  9. I'd write a letter, disagreeing with any reduction, for any reason, and send it to the VARO certified mail. Remember that government agencies can attach part of your payment. The VA financial section may be able to tell you what is happening. They have a number different from the usual VA 1000 number. If you have direct deposit, something strange may be going on.
  10. "There is no retro money for the first five months of the claim time." Sort of generally but not always true. Turns out that SSA can (usually requires some prompting) go back to the time the disability started, if it's within a certain time. The application date is generally after the disability started, due to the usual efforts to make sure that the medical information is in place or available to substantiate the claim. The five months can under certain conditions, run from the date that the disability started. This whole issue was one I fought about with SSA, and got an earlier effective date that amounted to six months after my last day of work. Part of the medical record issue was to make sure that SSA ruled that I was disabled by a combination of conditions that were known to occur (at least on a presumptive basis) due to A/O exposure, and that one was known to aggravate the other. The SSA determination read IHD & DMII when all was said and done. A concurrent fight with the VA continued past the SSA determination. An initial denial totally ignored the SSA determination, even though it was in my "C" file. I also found out that the chances of an SSA disability approval generally increase when you are able to concurrently file for early retirement. (Age 62) It seems that SSA has to pay, and the only bone of contention is how much.
  11. Actually, many civil service employees feel the same way about dealing with the general public. Even the various agencies under DOD have shown uncertainty concerning veterans employment. (Many veterans that had to deal with the supply system while in service don't have much patience when it comes to bureaucratic processes that basically just slow things to a crawl.)
  12. Nothing is "always true" when it relates to the VA! This includes the timeliness of information updates on E-benefits. About all you can do is hope for the best, and expect the worst.
  13. I'd print out the VA schedular rating scheme, and the C&P exam (That the C&P examiners usually don't use), then show them to the doctor.
  14. The VA has a paper based system. If it's not on paper (or the electronic records, it doesn't exist!) It looks like your immediate problem is to get things properly documented, be it by VA doctors, outside doctors, or some combination, and then file for P&T. If you don't have an accurate or complete copy of your "C" file you need to request one under FOIA. If PTSD is also involved, you may have to get that part or all of the file sent to a doctor you trust. You also have the right to a C&P exam or exams in order to determine the severity of your conditions. The C&P route is the VA's preferred method, although it has some serious drawbacks, mainly for the veteran. It seems the the C&P examiners are more often interested in minimizing the problems/condition, rather than rating them fairly and honestly. It's worthy of note that unless fraud is involved, the VA's desire to lower a rating is challengeable . You have to be careful to make sure that you do the right things in a timely fashion. On receipt of such a VA proposal, just to start, you immediately file a notice of disagreement, and so forth. This make the VA start going through all the required steps, and decreases the VA's chances of actually getting a reduction to occur. It also makes getting legal representation "legal" if you need to do so. Remember that the VA likes veterans to just give up, instead of fighting back.
  15. "In 1995, he chose to have what was at that time, still an experimental surgery rather than go on medications. The experimental surgery worked. " "He has not had any hearts issues since '95" If this is the case, I don't see any on the surface basis for a current claim. (Unfortunately) Even if the VA was to say that the condition was service connected (Very, very unlikely) the schedular rating would likely be 0% To get the claim awarded, with a preservice condition, you would have to get medical opinions based upon the medical records that connected the "racing heart" mentioned to the pre-service condition, and that service somehow caused the condition to increase in severity. It's certainly possible that the medical records and other evidence might be sufficient to form the basis for a claim. My comment is based only on the above quoted statement. A VA RO will likely say that no current heart problems exist, and have not since 1995, and deny. Naturally, this is my opinion, for whatever it's worth, not legal advice. It's given solely to show some of the "pitfalls" you will most likely encounter in pursuing such a claim.
  16. A possible problem is that the VA may still be able to try and hide hide behind a "deemed denied" "gotcha" that can occur when a denial or award omits parts of a claim.
  17. A&A, SMC aside - - for the moment "and was determined to be incompetent" Is of MAJOR, MAJOR concern, and very serious. You should really go to the link below for detailed information, etc. as a start. http://www.vawatchdo...pointments.html The VA will probably sooner than later, start the VA fiduciary game. You will likely get a letter from the VA on the subject, possibly phone calls, and may see compensation payments suspended. You will need to get the ducks in order ASAP, and make sure that any VA direct deposit account contains only the minimum needed to keep the account open. It's usually best to have funds from the DD account taken out and placed in an account at another bank, broker, etc. Sometimes banks go overboard in actions related to the VA fiduciary process, and improperly transfer funds that have nothing to do with the VA. Joint accounts and so forth can easily get zeroed out by an improper bank transfer to a VA appointed fiduciary. You should consider utilizing state law and a lawyer to have a court appoint you as a fiduciary, etc. to help forestall the VA's fiduciary shenanigans. A ray of hope is that recent court rulings make the VA's fiduciary decisions, etc subject to appeal, and due process now applies.
  18. The VA does not recognize anchoring in Da Nang harbor as "feet on ground" etc. Some ships can use a "gangplank" to get on or off a boat. Those that I rode used a "ladder". In the VA's eyes the words #14 anchorage, etc. killed any assumption of feet on ground. HAd the "buddy letter" said that you served as boat crew, or some other language, that might have helped. All of that aside, the blue water web site contains information that the VA cannot refute, and just tries to ignore. How to get such information to be admissible in court falls into a lawyers domain. Before the amphibious ships I rode were put on the "list", I had to prove "feet on ground". Although I had actually set foot on the ground of Vietnam at various locations, including Da Nang, Vung Tau, Dong Tam, Cau Viet, Cam Rahn, etc., "proving" it by the VA's rules was difficult. Had I saved the receipt for a tape recorder bought at the Dong Tam exchange, that might have been enough if it was still readable. Finally, treatment records from a USAF hospital (of all things) in Vietnam got the job done. The problem that the VA capitalizes on is that permanent Navy records, such as the ships deck logs show such things as the captain coming and going, departure or arrival of those with assignment "orders" to or from the ship, etc. The records do not show such things as individual members of the ships crew routinely coming and going, or temporary assignment to such things as boat crews, etc. I used to get tapped periodically to act as crew for the captains gig, even though I was not assigned to the deck division that was responsible for the boats. There is no record of this in my files. Just as there is no record of qualification to stand any bridge watch position, which I routinely did on an LST for some months. At anchor or at a pier, I also often stood watch as the "OOD" (officer of the deck) generally on the quarterdeck, and occasionally on the bridge. This is a real oddity, because, although the routine duties are largely ceremonial and traditional, the OOD has the immediate command responsibility and authority for the entire ship. This responsibility existed unless and until relieved by any senior "line officer" (all officers being senior to enlisted, but may not be line officers). Again, no record.
  19. The reason for denial is a very common one used by SSA, especially when the applicant is under some nebulous age. Besides the appeals process, you can submit additional evidence, and ask for reconsideration. You can (at least in theory) also get the VA "treating doctor", as others mentioned, to fill out SSA forms. Besides that, (this has some risk) you may be able to get the VA's retraining program to say that you are not suited for retraining, due to your disability. You have a short time frame to ask for reconsideration. If they ignored "evidence of record" that is of itself a reason.
  20. To Papa You can always write a letter to the VA, stating that you want them to decide the claim with the evidence they have. (The usual certified receipt required mail, etc., or deliver it in person, and get a date stamped copy.)
  21. I'd first try to get something in writing showing that they would not/did not pay whatever it is that they didn't and why, then go from there.
  22. You should file with SSA for both an early (62) pension, and SSDI. As others have said, and I experienced, getting SSDI approved may take some time. The SS early pension had a delay as well, but it was fairly short as things go. As to an earlier effective date, It can only be backed up to the last time you worked, since that is or will be fairly recent. If your cardiologist chooses to do so, pulmonary hypertension, etc. may be connectible to IHD and it's related conditions, such as coronary arterial disease and blockages. For SSA purposes, as well as VA claims, It's obviously better to have SSA say that you are totally disabled by conditions that are either service connected already, or have a good chance of being service connected, based upon the cardiologist's opinion and medical records. My SSDI EDD was backed up because I filed when I was 62, but the actual disability based upon last day of work and medical records, fell within a period that the VA can, according to their rules, back up to. They did not do it automatically. If I hadn't gotten exact advice on how to do things from the senior SSA clerk, the junior clerks would have screwed things up, and likely caused serious problems with obtaining an earlier date for SSDI. There are two ways of doing what I was able to do. One uses an SSA appeal form, the other a simple letter. The junior clerks only understood the form, which basically asks for a lot of information that is already contained in the original application, and is kind of like filing an NOD with the VA. The letter basically states that you are asking for an earlier effective date, based upon (appropriate information) which in my case was dated medical records showing disabling conditions existed. When preparing such a letter, it's best to have a copy of your SSA file, and the determination records in the file to refer to, and then reference in the letter. As I see it, this invokes a review process, rather than immediately starting the formal SSA adjudication process. My medical records (copies in the SSA determination file, yet!) showed that the SSA doctor's review setting an EDD date was much later than that justified/shown by the medical records. The doctor chose to use the latest records, rather than earlier records, which the latest records totally agreed with. A key piece of the records had to do with such things as "IHD" "LVEF", and the LVEF %, which can be used directly to determine the VA "schedular" %, as well as the SSA's "totally disabled, unable to work" requirement for SSDI. What was also interesting was that a Nehmer review board earlier this year used the SSA disability date when it reversed earlier IHD related denials. This was, I suppose, because the SSDI award records were in the VA's possession when they originally got around to denying the IHD claim. VA treatment records went back even further, and had I been "smart enough" would have been the basis for a much earlier (several years) VA claim date if I had just filed one.
  23. The VA has often ignored buddy letters, and if pressed as to why, come up with a plethora of reasons, among them "Not Notarized". Anyway, the VA is still fighting about Da Nang. The Blue Water website has some documents that should be of great interest, among them - - http://www.bluewaternavy.org/directexposure.htm The old Da Nang USAFB was and is is contaminated with A/O, The river running through Da Nang also had runoff from A/O spraying. I was on ships that tied up to the De Longhe? pier, beached at the LST ramp next to the bridge, and actually personally in the river near the bridge. The ships I served on did not keep permanent records concerning who came and went in the normal course of events. There was a daily sheet, but it was not kept or placed in the formal records. The Deck log was a separate document. Even the Quarterdeck log was not preserved. Even with statements from the ship's captains, stating that all the crewmen went ashore as the opportunity presented, the VA still denied presumptive A/O cases for the most part, at least until the recent "Brown Water" list was published. If you really want to start something, look at the Treasure Island Navy Base Firefighting School. It is/was a "Superfund Site" and contaminated with Dioxin. Since thousands of sailors sent to the far east were "outfitted" and retrained at TI NB, and most went through fire fighting "refresher" training, it looks like many were exposed to dioxin before they even left the US.
  24. If you are a Vietnam Veteran, this likely refers to the Review required by the Nehmer court order. Extended review times are easily possible when large amounts of retro may be due. Quite a few Navy ships have been added to presumptive list in the past few months, many with "Brown Water" service.
  25. Sen. Tom Coburn's amendment is a true "poison pill" in thin disguise. Remember that the Army recently pitched a large number of war zone medical records, with the excuse that they were too expensive to ship back to the US. Those effected will have a difficult time "proving a claim" under the existing VA practices and law, and would likely find it impossible if Coburn's amendment were to pass. As to A/O, and other HAZMAT related situations, the government is still vigorously fighting cases that have arisen as a result of base contamination stateside. In addition, veteran's exposed to dioxin, the most harmful part of A/O, at stateside bases have had an almost impossible task to obtain benefits. The closed Treasure Island Navy Base HAZMAT site at the Fire Fighting School is an example of "more likely than not" exposure for those who were sent to the school during and after the Vietnam war. Historically, a significant number of politician's have opposed veteran's compensation, simply because it reduces the amount of funds available for other things - - "pork barrel projects" among the most sacred. The VA willingly spends a large amount of administrative time and money in efforts to evade and avoid laws intent when the proper application of the law results in compensation. Just look at the error rates on initial claims decisions and the reversals on appeal. The VA still comes out ahead, since not all denied claims are appealed, and even when successful, an appeal usually takes years to go through the process. Assuming a 3-1/2 percent inflation rate, the government stands to have use of the award money for up to years, and eventually pays in inflated dollars, with no interest accrued or paid.
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