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K9MAL
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Posts posted by K9MAL
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Thanks justrluk! I'd thought of something similar but was told to dumb it down for the VA. I like your approach better, thanks for the advice.
I'm going to file a reconsideration straight away and if nothing develops I'll be moving forward with a NOD in February.
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The rater is trying to use misdirection --kind of like a magician would --by mentioning that you are a full-time student now. Students don't make any money last time I checked!
Raters do this all the time in their denials. They talk about some reason why they denied you that has absolutely nothing to do with the rating schedule.
What about something like this for the NOD?
"Contrary to the RO decision I have not been employed since May, 2012 due to the severity and frequency of my migraine headaches. My neurologist at the VA, Dr. John M. Kirk, has noted on multiple occasions that I have severe prostrating attacks up to 8 times a month in his reports these are located in my VA medical records. Please find attached.
The RO decision states that my denial is also in part due to being a full-time student. Looking at the rating guide for 8100, it states “severe economic inadaptability”, and does not mention anything in regards to school activity. Being a student is not mentioned in the rating, requires far less time outside of the home than a job, I am not collecting a paycheck, and has nothing to do with economic inadaptability. Also, at this time, I am not a full-time student; and this is in conflict with the RO’s decision as well"
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New and material evidence
I've written about this several times but allow me to reiterate it again. Look closely at 38 CFR § 3.156(b). At any time during the course of your claim at the Agency of Jurisdiction ( AOJ aka your Regional Office), a Veteran submits new and material evidence (NM&E) to the claim (such as a new IME/IMO), it requires a de novo (brand new) adjudication in conjunction with all the previously submitted evidence of record (EOR) in your c-file. The submitted information may also be EOR in that it is pertinent (material) to the claim and clarifies or enlightens/alerts the rater to a possible brain fart on his part. This graciously allows everyone to pat themselves on the back and right the wrong without anyone’s ego being bruised. I'm also sure it's why they invented yellow hi-lighter pens...
When you submit NM&E should a letter accompany it spelling out their errors or omissions? I had a DBQ and VA medical records that were blatantly ignored in my decision. I'd like to send them the highlighted records so that they can't be ignored and hopefully increase the percentage to the proper level. Would a letter similar to a NOD be appropriate where it spells out their errors?
My 1 year NOD date is in February so I thought I'd attempt this route prior to having to resort to the NOD. Thanks for all the great info!
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also lotta good vids on u tube on what to say and what not to say, the SS has a way of twisting things around to use against you. When u go see a lawyer be prepared for this question... what makes you unable to work. they will lots of times ask you this, to see how you will react. if you are asked that by a judge. you will react the same way. Have a good answer ready, look them right in the eyes, and tell them why you cant work. Be prepared.
Do you have a link to those videos you mentioned? My wife has her hearing in November, for SSDI due to ulcerative colitis, and she is very nervous.
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K9MAL,
Using your percentage figures, I came up with a 95 rounded to 100% combined rating.
Thank you. I wasn't quite sure how to work it by hand with that crazy number chart.
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Using Hutsky's calculator I come up with a 95 and that bumps to 100. But, using Hadit's calculator I get a 94.28 which drops to a 90.
I'm a bit confused and would appreciate some help. These are the percentages to be figured:
60
50
30
30
20
10
10
10
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How does one find a VSO Hearing Specialist?
It's confusing... Some say go for the DRO hearing and others say it's a waste of time. I wish there was a solid answer.
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if it is applicable to you, sleep apnea can be claimed as secondary to PTSD.
I went through the drill, applied and denied to service connection records. reapplied as secondary to PTSD and approved
I don't have PTSD. But, I am service-connected for tension headaches with features of migraines which is something that I think may be related.
Couple that with the Mallampati 4 rating and the single sleeping complaint... I don't know if it's too much of a stretch or not. I am 100% positive that I had the OSA in service, now I just have to prove it to the VA.
I also had shoulder and knee problems that are service connected. Not sure if that has anything to do with it and sleeping positions?
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So if you disagree with the denial you file a NOD, got that part. Do you file for a DRO review or hearing at that same time? Do you ask for both a review and a hearing?
Do you send additional evidence at that time or do you present it at the DRO hearing?
All this stuff is pretty confusing...
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Thanks for the good advice GP. I think I may consult with an attorney on my case. My current VSO, DAV, hasn't done squat other than mailing my stuff for me.
If I can get this locked in with another rating I'm trying to have upped from 10% to 60% I'll be at 100% schedular. I think the attorney fees would be worth the cost if this can happen.
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I'll try to make this as succinct as possible. I've been out of the military for 10 years and have been diagnosed with sleep apnea (OSA) and use a CPAP daily now. While in service I had the typical monster snoring issues along with stopping breathing in my sleep that many have. However, the only thing in my medical records in regards to sleeping issues is my exit physical where I checked "frequent trouble sleeping" on the form and the person wrote "difficulty sleeping on ship" in regards to that.
1. Recently submitted claim for sleep apnea and was denied 6 months ago. VA says nothing in my medical records to indicate sleep apnea.
2. Saw VA ENT doctor (ear, nose & throat) for possible sleep apnea surgery. Doctor stated I have a Mallampati score of 4.
3. Would the combination of a single complaint and the Mallampati score be indicative of sleep apnea in service?
Would this be an avenue to pursue in combination with an IMO? The structure and height of the mouth, in combination with the distance from the tongue to the roof of the mouth, would not have changed due to being a fully developed adult. The Mallampati score of 3 or 4 is highly indicative of sleep apnea and there's plenty of studies that validate this.
Roommates and girlfriends constantly complained of my snoring, stopping breathing and I exhibited many of the signs that are related to sleep apnea. However, I was a young guy, didn't know anything about sleep apnea and didn't worry about it at the time. I would be able to get several buddy statements to support the sleep issues during service as well.
This seems like a similar case and references the Mallampati score as well: http://www.va.gov/vetapp11/files1/1101174.txt
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USA government does not approve of medical MJ and neither does the VA. If MJ shows up in your urine or bloodwork at the VA you have a problem.
The VA would need a valid reason to test for it in your blood work or urine, and they don't. They're not going to waste the time, money and resources to look for marijuana in the typical blood work that most people get. The VA has no authority to regulate veterans smoking marijuana to the best of my knowledge.
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The VA ignored my private gastro doc's DBQ he filled out and went solely off of the fabrications of the C&P doctor (general medicine). How is it possible they ignore a specialists opinion, who I've seen on multiple occasions, and go with the opinion of someone whom I've only had a very brief interview? The DBQ was filled out using VA verbiage and the way it was stated I should've received 60% but through the miracles of the VA C&P I received 10% instead.
It's a sad fact that the average, everyday veteran can't just put forth a straight forward claim and receive a straight forward answer. The archaic verbiage they hide behind is infuriating, to the say the least.
NavyWife - Good thread and thank you again for all the helpful advice.
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If you break that down word by word, Economic only refers to making money. The phrase means it's hard to have or keep a job due to the migraines.
It doesn't say anything about going to school. If you are having two or more of these migraines per month I think you should most definitely fight for the 50%. It also sounds like your circumstances changed from the time you applied to the time when your rating actually happened. Correct me if I'm wrong but it sounds like you were working when you first applied and then by the time you got your rating you were no longer working.
I would send in a statement detailing these things I have mentioned and spell it out for them so they can understand. Tell them specifically that you are no longer working because of your headaches. Tell them being a student is not listed in the rating schedule and has nothing to do with economic inadaptability
And tell them the number of migraines you are having each month.
What evidence did they use to make this decision?
Did you have a C&P? and if so how many migraines did the doctor state you were averaging per month? If it was two or more, then you need to fight this.
The rater is trying to use misdirection --kind of like a magician would --by mentioning that you are a full-time student now. Students don't make any money last time I checked!
Raters do this all the time in their denials. They talk about some reason why they denied you that has absolutely nothing to do with the rating schedule.
You, are brilliant! My VA neuro guy has put in my records that I get multiple, roughly 5 to 6, migraines a month.
The school angle and not making money is so very true and something I hadn't thought about in the "magician" way you'd described.
Maybe there is some hope after all. I can't thank you enough!
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My concern for you is whether or not a VA doc will give you such a statement. If you have outside health insurance, this is the time to use it.
Another factor which could help you is to show how often you cannot complete assignments or attend classes due to migraines. Can you get a statement from a teacher/professor or two? Someone within the school's administration? It always seems best to get proof in writing from someone else.
I wouldn't give up on this.
Currently I only have insurance through the VA. I'll definitely look into it further and see if I can't pursue this to the maximum extent. Thanks for your advice and suggestions.
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The Indoc process for Voc Rehab is a full day affair. Lots of testing, watching videos, listening to lectures, etc. Then you have to be accepted to the program and move forward from there.
It's not an easy process but it is worth it, in my opinion.
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And I was also shot down for sleep disorder to include sleep apnea stating that:
"The evidence does not show an event, disease or injury in service. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition."
However, at my separation physical I did complain of sleep problems, it is documented as such, yet they claim it's not there. I know the sleep apnea is hard to qualify for so long after service. Every girlfriend I had in the military and after, including my wife, had complained about my snoring, stopping breathing, etc.
I know this would be a lottery shot if I were to contest their decision.
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K9MAL--
You're halfway there by getting the diagnosis. Now you just need the nexus like John said. He gave some great advice there. I would do exactly what John said to do.
If you could get 50% or 70% for depression, would that be enough to get you to 100% combined rating? If you want to share your other percentages
I forgot to say thank you for thinking of me and bumping my thread, so thank you! :)
A *indicates ratings that haven't changed this go around. My ratings are as follows:
*Tension headaches with features of migraines 30%
*Right shoulder degenerative joint disease and bursitis 30%
*Right knee internal derangement 10%
*Right ankle injury, limitation of motion, pain and unstable 20% (bumped up from 10%)
Irritable bowel syndrome 30%
Impairment of rectal sphincter control 10%
Left knee patellofemoral pain syndrome 10%
Tinnitus 10%
Status post left distal phalanx fracture 0%
I don't know if it deserves a different thread since this is about depression but I definitely plan on appealing the impairment of control. My private gastro completed a DBQ indicating the 60% rating, using proper VA verbiage, and they only gave me 10%.
My right knee has had PFS, like the left, but they've never rated me for it and it is well documented in my service records. The C&P measurements weren't correct on my right knee. I'm not sure if the "internal derangement" takes care of the PFS or if they're are 2 different ratings that would apply.
The measurements at my C&P were off for my shoulder and it should now be 40% but I don't think I'll get it. There is documented arthritis in the shoulder as well but no mention of it by the raters.
I also think I can get the left foot bumped up from 0% after I get my MRI in a couple of months, maybe.
Sorry for the long winded post… I sincerely appreciate everyone's advice and recommendations. Hadit is an amazing resource for vets and their families!
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You should tie your depression to your pain and medical condition every chance you get. If you file a claim for depression secondary to your medical conditions you need a psychiatrist to write a letter in IME style and say that your depression is secondary to your SC conditions. The VA won't put it together for you. You must present them with the whole predigested rational and DX and nexus. If it were me I would see the VA shrink for maybe 6 months to a year and keep pounding the connection between your pain and disability and your depression.
Great suggestions! Thank you. :)
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The key, I believe, is severe economic inadaptability and proving that. I'm in a similar situation as you but I'm a "full time student" which means I have class a couple times a week.
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Did you get a diagnosis of depression yet? You mentioned above that the pain from your service connected conditions causes you to be bummed out and depressed. Maybe it's time to file a claim for depression secondary to migraines or secondary to shoulder. I can only imagine that type of pain & dealing with it everyday, would cause anyone to become depressed. It seems like since you're not able to work right now, you should be pursuing 100% combined rating.
I met with a guy for less than 10 minutes, he diagnosed me as depressed, prescribed me Mirtazapine and that was that. He didn't tie anything to any service-connected injury as far as I could tell from reading his very brief notes. Basically, you're depressed, eat these.
The therapist appointment they gave me is on May 23rd. So, in order to actually see someone, talk about my issues in depth, and actually possibly get something accomplished is a 4 month wait.
I have problems with depression, I can admit it, it sucks. I honestly feel it's tied to my SC injuries I've sustained. The people I feel really bad for are the severely troubled vets who end up not being able to receive help in a timely manner.
Currently, we're having 22 suicides, by service members, a day! The system is severely broken.
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I don't think you have a good fight. The VA takes into account the fact that you are working and in school. My 30% Migraines is going to go up to 50% soon, but I have 31 injections every three months, have to get them next Tuesday, I take strong Meds for Migraines, and I go once a week to have Electrical Pulses placed on my head, and none of it has worked. I stopped working last Oct, withdrew from my PHD program, and just got SSDI in less than 3 months. You can always fight it, but I don't think that it will go in your favor. God Bless and good luck
Thanks, that's kinda what I was thinking. I may pursue it further at a later date but right now I think I'll let sleeping dogs lie.
My neuro said the next step for me is to do the cranial Botox injections as well. I sincerely hope that you get some relief, migraines are horrible. Take care and God Bless you as well.
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I was originally awarded 30% in 2002 for tension headaches with features of migraines. I've been seeing a VA neurologist for the past year and a half and my headaches have gotten progressively worse, this is documented in my VA medical records.
I had to quit my job due to absences and the inability to travel as frequently as the job necessitated. I decided to apply for Ch. 31 educational benefits and was approved due to service connected disabilities requiring me to quit my job. I'm currently a "full-time student" but my schedule is quite minimal. Tuesday I have 3 classes throughout the day and I have 1 morning class on Wednesday and Thursday, that's it.
I know that the frequency and the severity of my headaches meets the standard for 50% under the rating code. However, the response from the VA was as follows:
We reviewed the evidence received and determined your service-connected condition hasn't increased in severity sufficiently to warrant a higher evaluation. Records show you have maintained employment and are now a full time student. The records and your statements do not support a finding of severe economic in adaptability due to headaches.
Is this worth filing a NOD? Is the fact that I'm attending classes going to result in me being denied again or is it worth pursuing? If I provide my limited school schedule and the records from my neuro would this suffice? Not sure if this is worth pursuing or not and would appreciate advice from the experts here at hadit.
Thank you!
Senseless Denial And Forced To Use An Attorney ! Unbelievable. !
in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC
Posted
What would constitute FUBAR? At the 1st denial stage or are you talking about a NOD and past that?
Hope you're doing well NavyWife. I had to take a brief hiatus from this VA stuff but I'm back in the swing of things now :)