Philip Rogers

Gastone - back before '96 they had a reg, 38 CFR 4.16© that allowed a claimant a 100% rating, who was 70% and solely disabled for a mental disorder. They changed this, in Oct or Nov of '96, because (in my mind) they were awarding too many 100% for PTSD. Your claimant should request an increase in his PTSD rating and request an ES TDIU rating. If his original rating, of 50%, is within the one yr appeal period he should go that route rather than requesting an increase. They started me at 30%, in '89 and after 10 yrs and 5 month of appealing, awarded me 100% retro to my original claim date. jmo pr (under § 4.16©, a mandatory 100% rating was given when “the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation.”)

Gastone - thinking about it, it's probably in M-21, the rules that tell the VA how to process the claim. I do know that the VA denies TDIU claims quoting 4.16(a) but never mentioning 4.16(b). They did to me back in 1991, and continue to do it, thru today. pr

Gastone - sorry, I don't remember where I saw it. It basically relieved the RO from having to refer it to the VACO and placed the burden on the claimant. The RO can continue to deny, the TDIU claim, using the 38 CFR 4.16(a) criteria, thereby making the claimant think s/he's not eligible, while not quoting 38 CFR 4.16(b), which states the claimant may/could be eligible. The VA's whole thing is to avoid awarding TDIU and keep the claimant confused, by not playing fair. And, sorry, but you cannot tell me it is not intentional, on the VA's part!! Most of the rules/decisions made by the OGC are used to allow the VA to deny the claim. I did a claim for a vet about 12-14 yrs ago, where we requested ES-TDIU. It went to the VACO, was awarded and never had to go thru the BVA. His claim involved a skin condition, w/a max rating of 50% and had been thru his Congressperson, twice, w/o winning. They upped his 50% to 60%, by awarding 10% for scarring, and gave him 3.5 yrs retro of the 15+yrs retro they owed him. He chose not to appeal it, feeling it was best not to rock the boat. His choice, not mine. The claim took about 18 months to process, at that time. They had been paying him the pension rate for the 15+yrs. It is imperative that any claim for TDIU should include the phrase that "the claimant is seeking the maximum award, allowed by law, and that an extra-scheduler rating should be considered and is requested." jmo pr

One thing to remember is to do everything in writing. "If it can't be read, it wasn't said!" We are all guilty of this, cuz it's easier to "call" than to take the time to write and send whatever our correspondence is. If you do call, always send a follow-up letter(and email) stating what was said and how you interpreted/understood what was stated. It's an added layer of protection! jmo pr

I'm not sure where I saw it, it may have been a FAST letter but the rule is that the "claimant" must request the extra-schedular consideration request. The RO won't do it. pr

It is almost impossible to get to 100% scheduler, using multiple disabilities, unless you have a few at 50-60%. You can apply for TDIU if you can't work or you can request increases in current ratings. It's still hard to get to 100%. jmo pr

Another note on the DAV, they wrote the training manual used to train SO's for all the Veteran Service Org's. I reviewed it some yrs ago and it is a joke but serves the VA well. pr

That's why we always recommend sending all evidence certified w/return receipt requested. jmo pr

When and where did you serve?? The reason I ask is whether you are an in-country VN vet. They could rate you 30% based on your after by-pass disability level but since you can't work, they could pay you at the NSC rate, since it would pay more than the 30% SC rate. pr

Anytime the VA receives new or additional evidence they are supposed to decide the claim again. The claimant usually has one(1) year to submit additional evidence, however the VA often sends a letter stating that the VA needs any additional evidence within thirty(30) days and if not received within the 30 days, they will make a decision based on the evidence of record (at that time). Their letter does not change your evidence deadline. The VA uses this to screw the claimant. This is why it is important to review the evidence used in making any decisions. We often make the assumption that because we sent something in, it is being used in making the current decision or that VAMC records have been viewed by the adjudicator. That isn't always the case. jmo pr

I would request that it be waived. However, it is possible they may ask her to pay the recoverable amount. Also, you don't receive a pension(NSC), you receive "compensation(SC)." Pension is based on non-service connected disabilities and the amount is based on other income received from other sources. You confuse people(me and maybe others) when you mix them up. Chapter 35 is only awarded to dependents of 100% or TDIU or deceased veterans who died due to SC conditions. Just trying to clarify things, not offend you. pr

It could be any day . . . or longer. Check your account daily. jmo pr

notapb1 - your SO is a freaking idiot!!!!!!!!!!!!!!!! I would absolutely rescind your POA with him/her and "I" would spread the word at your VA as to what a idiot he/she is. You should file a claim, prior to 12/31/2014, so when you get awarded it, you don't lose any comp increase you may receive. Bear in mind that tinnitus pays a flat 10%, which depending on how your current 80% totals, may mean no additional comp payment (VA math). I, personally don't understand why hearing aids make your tinnitus worse, as to my knowledge, the noise is actually in your head??? pr

I believe the VA ceased requiring an income verification form, being filed yearly, for TDIU vets, about two(2) yrs ago. pr

I believe you need to request an "extra-scheduler consideration or extra-scheduler rating," as the VA will continue to respond that you don't meet the 38 CFR 4.16(a) requirements for TDIU. About 12yrs ago I helped a vet, w/a skin condition, (w/a max rating of 50%, who had been denied TDIU for over 15yrs) and had been to his congressperson twice, w/no increase. We filed for TDIU, requesting an extra-scheduler rating and after about 18 months, he received TDIU retro about 42 months. At the time he was satisfied and didn't want to pursue the additional 11.5 yrs. jmo An extra-scheduler must be requested by the claimant, or the VA won't consider it. pr

Not to hi-jack this post but most "really great companies" do honor this type of service. Recently there was an error at Bobby Flay Steak restaurant, where they charged customers $3750 for a bottle of wine, when what the customers heard the waitperson state, when asked about the price, was thirty-seven fifty ($37.50). They probably cost his brand more damage than honoring the price, would have cost. Shame on Bobby Flay!!!! I once had a watch gifted to me that was purchased at Sears (not an honorable company) - it had a one yr warrantee. It died within 6 months and they replaced the watch and that one died within 7 months. They said the warranty of one yr had ended, even tho it was a different watch. Looks like that manager had that "security officer/short person syndrome" and needed to show his power, which was not his call to make. It would be so great if the VA would honor what most believe they are there to provide but alas that won't happen. Maybe under the new leadership of "Bob" McDonald and his new crew, they'll up their game. jmo OEF 21B - Congrats!!!!!!!! pr

That's a nice little pay raise, for the holidays!!! I'm happy for you, especially since you served in my favorite branch, of the service, the US Army. pr

They may have a wrong address. I'd check w/them. pr

You need to be 100% or TDIU to request P&T, but yes the claimant needs to request that they be considered P&T. It does allow them another look at your claim but they can do that anytime, anyway. pr

NavyWife - I sent a second email about 10 days ago. Time will tell. Thanks for asking, tho! pr

NavyWife - no word yet - it's only been 3.5 wks - maybe he's waiting to give me a Christmas present?? lol pr

If you require a CPAP, then I would file a claim. You may have difficulty proving service-connection(SC), tho, depending on when you were discharged. jmo pr

Anywhere from 30 - 180 days, depending on how busy the VSC/VSR is. Christmas is a time when vacations are often scheduled, also. jmo pr

It looks like they failed to make the diagnosis, by stating "PTSD suggested." Another example of the VA screwing the vet. jmo pr

I read recently where the VA is trying to cut opiates for veterans. I believe the DEA has something to do w/it, however I could be wrong. Go gettum John!!! This is such BS! They don't want us to get addicted during the final few yrs of our lives. jmo pr