FormerMember

Always remember the holding in Jones v. Shinseki. VA cannot rate you on the new, improved version of yourself after the beneficial effects of the medications have had their desired effect. I had this happen recently when a Vet said "Gee. I went in for my heart test and they gave me three METS. Before I started taking the meds, I was around five. I think I got lowballed for taking the pills. Is that right?" No, it isn't. While it may be dangerous NOT to take the pills, if you want to be rated correctly via this test, then your only recourse, according to VA, would be to tell them. Unfortunately, they conveniently disremember to write that part down and bingo- 3 METS and no mention of medications to control it. And most certainly no reasoned dissertation on why you really should get a higher rating in spite of the medications. VA did it to me when they lowballed my Porphyria rating saying "What the hey, Alex. You get a phlebotomy every month and your skin symptoms are hunky dory and in remission- ergo 10%". I bitched and said I wanted 40% for phlebotomies (in addition to the 10%. VA complied but took back the 10% (CUE) and substituted the 40% for DC 7704 but I missed the mark. I should have received 100% because of the anemia. Jones v. Shinseki had not been decided at that point. A phlebotomy is a "medication" much like dialysis in that it rids the body of heme. Thus, in order to get a higher rating, VA was implying I should start going to a tanning salon 5 days a week and forego the bloodletting. That would get me 30%-still far short of what I suffer. VA just upped it to 60% after I filed my Writ, but they refuse to go the extra mile and give me the 100%. I'm already at 180% so it's not like a bunch more money. In fact, there would be no change in $ until I hit the wheelchair races. That is the mentality of whom you are dealing with. Keep it in mind when you think they are being reasonable.

Remember that VA is subcontracting the VBMS conversion to .pdf. If you have a claim in and your file is still paper, it will remain so until the claim is complete, If it has to go to the BVA on appeal, they pull it and do the VBMS conversion to .pdf locally rather than Janesville Wisc/ Newnan, Georgia. Mine is still in paper because they (Seattle) haven't had time to convert 11 folders. I was told it was scheduled for conversion "when it is ripe for the appeal." Considering it's at 810 Yellow Brick Road NW currently, I can only hope I see it before the Second Coming.

I sure don't want to sound like a troll or a VA "plant", Berta, but it irks me to listen to one of our elite club turn into Caspar Milquetoast and ruminate on how he/she was impacted by their tour. I get it. If you feel you were forever harmed, go for it. If you feel it was something that was so horrendous, fly at it and file. I just worry that too many will cry "Wolf!" and eventually queer the deal for all the others who follow behind in their footsteps. A classic example, if you wish to mark my words, will be the eventual haircut we are going to see on sleep apnea. It's way over-diagnosed and Vets are getting 50% for it. VA is not going to let that stand for long. Expect to see them start offering the surgery to correct it and see how many fall out to the wayside.

Never rule out a medical reason for night sweats. I confused them for years with a MH issue and discovered they were directly related to my Hepatitis C. Never diagnose yourself or have your friends do so. By the same token, never allow VA ''experts'' to do it. They discover what they want to...or don't. I see folks regularly hereabouts in my neck of the woods who were Vietnam combat Vets. One, Butch, had a 60mm gook mortar hit his bunker. He's still picking SFWs out of his arms and legs. He almost lost an eye over it. He lost 3 or 4 buddies that night. If ever there was a poster boy for night sweats, it would be Butch. He has PTSD, of that there is no doubt, but he has no night sweats. He's just about beaten his wife silly innumerable times waking up in the throes of nightmares only he can imagine. He held a job about a year at a time and usually got fired. This went on until 2008 and he finally threw in the towel. Bent brain has many facets. For me, assuming I have it, it's the sound of a chopper flying over. I target shoot regularly to desensitize myself to the sound of gunfire. I moved to the country to reduce the number of people around me because crowds don't work for me. Vets do not realize they can be proactive to improve their mental lot. Medicating yourself silly is a band aid that covers up a major wound that will have to be treated eventually. Pills are not a catch-all repair order. VA did a wonderful job of getting me addicted to Dilaudid after screwing up 4 surgeries. It took me three years to find my way out of that jungle. These days I celebrate pain drug-free. Butch has never taken any meds to alter his conscience and he rightfully should according to the brain doctors. Same for a Huey door gunner friend who conservatively sent 200-300 souls to Valhalla with his M-60 yet he is as solid as any man who never pulled a trigger in anger. I want all of you to think about that. Many are the Vets who come to me and say "Alex, I drove an 18 wheeler from Baghdad to Mosul every week and I always worried about getting blown up by an IED. I have PTSD bad." My rejoinder is usually quite blunt- "How many times did you hit one? How many of your fellow troops did you see get blown up and killed?" If they say none and complain that the threat was omnipresent but was never actually realized, then I'd say they need counseling but I would never be willing to advance a diagnosis of bent brain. The mere threat of violence is everywhere these days in society but I do not see a large portion of the American populace huddling in fear. 20% of those who served in SWA are coming home with bent brain. Oddly, only about 8-11% of troops deployed actually see real Cowboys and Indians combat and its attendant bloodshed. By today's standards, I would qualify. We had a 40% casualty rate and usually never recovered our pilots. I sat on body bags and ate lunch because they were in the shade. Death and destruction around you is almost always the proximate cause of PTSD. Do not confuse major sexual trauma with PTSD. It sets up an equal ricochet in the brain but should be classified under a different metric-male or female. I watched an F-4 C auger in with no survivors. After it cooled off, we canvased the wreckage for security concerns. Imagine picking up a flight helmet still occupied. That ought to queer you for life but it didn't. Everyone has a different level where the rubber band breaks but my take is that it is usually something far more traumatic than 'almost' or ten miles away. When we enter the service, we are adjudged defect-free. Certain events can obviously provoke mental issues for life but I do not believe a drill sergeant yelling in your ear is one of them. I also believe the mere ''threat'' of harm cannot be a valid stressor based on the theory that no one would sign up in an all-volunteer force with reservations about what they are getting into. Quite simply put, we go into the Service with eyes wide open. The military is all about war, violence and the possibility of injury. Can any of you say you joined but were ignorant of that possibility? I can't. I've been so afraid of getting wounded I almost shit my pants. Fear. Major shaking butt pucker fear. Cut and run fear. Getting shot was almost anti-climatic when it finally happened. Everyone has a breaking point-that's a given. Worrying about something that might happen can never qualify or none would ever join except for us idiots who tended to run towards gunfire rather than away from it. And that's all I'm gonna say about that.

In the brave new world of VBMS and the incipient electronic frontier, we have a new conundrum. Being an electronic file rather than a paper one, assuming your file has been converted to a word-searchable .PDF, it can now appear in two (or more) places simultaneously. We used to see this occasionally when a Congressional Inquiry (CI) became too blunt. VA would promptly make a copy of your file (concerning the pertinent parts) and ship it back from the BVA to your RO for dual action on two fronts. This was politely called a ''temporary'' folder, in spite of the fact that they have adhered to the inviolate procedure of one Vet-one c file for over a century. With VBMS, the ability of the file to be in numerous places simultaneously is now a given. VA still tries to contend otherwise. That dog won't hunt anymore. I ran into this dichotomy last October when I called Bob. The Seattle RO, in response, claimed my c-file (all eleven folders) had not been converted to an electronic format yet- thus creating what you speak of. Always remember, if the claims have ever been to the BVA and above, they have been converted. Seattle had a complete copy of mine complete from July 1989 to April 2011 to work from and couldn't be bothered. They insisted on sloggin through the paper file. VA used to use Virtual VA, an electronic folder that was the earlier precursor to the VBMS. However, in the Fully Developed Claims (FDC) era we now enjoy, any new claims are automatically created in VBMS and there is no paper c-file-ever. Keep that in mind when they try to pop red smoke and give you the wave off on a hot LZ.

I stand corrected. I'll check Westlaw for cites. I believe it is, or can be, the predicate, especially if cancer develops down the road. Better to be safe than sorry. AO claims are payable to the day you filed regardless of outcome (win or loss) at the time. I'm fond of the 12 ga. technique on AO. You stand a good chance of hitting something. Remember all the Vets who filed for DM2 (and those who didn't). When VA changed the rules in 2001, any who had filed previously were awarded a date commensurate with it and paid retro comp. Don't be afraid to climb out of the CFR box and blaze a new trail.

An important difference between informal versus formal hearings is thus. An informal hearing doesn't go on the record (i.e. transcription and inclusion into the c-file) whereas a formal one does. If the DRO is way off base, or, as Bronco pointed out, is unaware of certain evidence/facts, this info will never be acknowledged in an informal review hearing. Your c-file is a compendium of all the evidence for or against your claim. As such, if you are denied at this level, you want it all in the record for consideration on appeal. This applies to hearings only. There is no such thing as an "informal DRO review" under 38 CFR 3.2600. I cannot point out in detail how important this is in a single sentence. Your appeal to the CAVC, if you are unavailing at the BVA, will consist of that c-file- by then known as the Record Before the Agency (RBA). It will make your case or break it. Nothing more can be added to the c-file when you appeal to the Court. The CAVC can only review it based on case or controversy (law or facts). If you choose an informal review hearing and lose, all that potential evidence and argument is lost on the cutting room floor. There is nothing confrontational about either one (formal vs. informal) regardless of what your VSO tells you. A good DRO Hearing should be confrontational because up to now, you've been losing. If your case has merit, you need to enunciate why very clearly in no uncertain terms. And most importantly, you need to get it into the RBA on the off chance you lose. Otherwise, this whole exercise was a complete waste of your time. Many of you want the "in by ten out by two" decision as rapidly as possible without thinking it through. VA will tell you an informal review will result in a decision sooner. What good is it to invest that time in a potential rapid denial that endangers the future appeal? In construction, we call that 10 cents holding up a dollar. You are in this for a compensation check for life- ostensibly. Right? Rushing to get a decision-any decision- sooner is narrow minded and short sighted. Do it right. A DRO is obligated to consider everything, but we know from experience and the abysmal 85% denial rate, that they are notorious for overlooking evidence or simply misinterpreting it. From a vast pool of experience, I can tell you that a VSR, RVSR or DRO cannot grant a jetgun claim at the AOJ for HCV- no matter how compelling the evidence for. Every one of them is booted up to the BVA. It's simply above their pay grade. I suspect, but cannot prove, that there are other "contentious claims" that fall into this crevasse. In those cases, a DRO review hearing, formal or informal, is a waste of everyone's time as well. You, as Veterans, should be apprised of this information honestly. Sadly, you will not get that honesty from other than venues such as this or asknod.org. This is, perhaps, where some get the impression that I have a negative perception of DRO actions. Every claim is different. Being unique requires a viable game plan carefully fitted to the circumstances.

Bradley v. Peake, John 2009

The rater did the standard reduction of the 100% rating for post-operative surgery and never performed a new rating analysis. It's CUE as the decision is now final. File it. Also remember, SMC in any form is always retrievable because it is due and owing at the time you qualify. This is an example of failure to properly accomplish a rating more so than CUE but the financial error is still the metric to weigh. You will get your money-about 55 K or so. I got mine back to 1994 in April after I did something similar to this. The joy in finding these errors makes Hadit.com and other Veteran-centric sites a Godsend. VA would love for us all to live in ignorance. It would make their lives much easier. The internet is like a bad habit to them.

Prostate problems for AO are presumptive. There is no need to show direct causation or evidence of it in the STRs. The earlier you put down your marker, the sooner you get a rating-even if it's just a 0% for the moment. That's often half the battle. 7527Prostate gland injuries, infections, hypertrophy, postoperative residuals: Rate as voiding dysfunction or urinary tract infection, whichever is predominant.

Roger that. You have the constitutionally guaranteed right to remain angry. Please remember, you cannot whistle and call a bullet back when your anger finally bests you.

The recipe for success is, and always has been: Disease/injury in service///Same or extremely similar disease/injury now/// doctor's nexus linking the two together with a cogent reason for why he/she is convinced of it. Works every time but some require an appeal to get a fair hearing. VA is allowed to have a proctologist opine about your flat feet. You must hire a podiatrist to make that determination. I had a VA ARNP (VA examiner) try to eviscerate a 30 year gastroenterologist's reasoned treatise on why a Vet had Hepatitis C from a jetgun. We won on appeal to the BVA. Certain claims will never be won locally like that because it's above their pay grade to do so.

I don't propose to argue with you about whether I do or do not own guns. I do. In fact, many. It has no bearing on your problems as I do not have a diagnosed mental aberration. I try to help Vets. I do not try to analyze them. The problem is one you asked for enlightenment on- from all of us. I offered some that apparently conflicts with your sensibilities. I spent two years off and on in combat-mostly in Laos. There were no rules of engagement. Our casualty rate was over 40%. When I say I have used firearms in anger, it was from the standpoint of war, not post-military. Killing didn't agree with me then and doesn't now. When I came home, the AF decided I wasn't 'be all you can be' material and they gave me a general discharge for being antisocial with passive aggressive tendencies. VA didn't have PTSD until 1980 as a diagnosis. I suspect I might have fallen into that category then. I do not now. My attraction to guns is not all-consuming. It's a hobby. I live in a state that doesn't permit the private ownership of machineguns (i.e. guns that go rat a tat tat). I am not consumed by the subject 24 hours a day. I trap shoot in my back yard. I have an indoor pistol range because it rains a lot in Washington state. One thing I do not have is anger issues or I would seriously review my decision to own guns. I tried to convey to you that I am not judgmental of you or your choices vis a vis the 2nd Amendment. Your anger has overcome your ability to hear what I say. For that, I am sorry. I truly hope you find peace within and a successful VA claims path.

All legal filings must now go through the Janesville, Wisconsin or the Newnan, Georgia intake portals. As of March 25th, 2015 you do not mail them to your local RO-or the one you filed at. VA's policy is strict. Once you begin a claim at, say Oakland, they will adjudicate it to completion. No switching canoes in mid-stream. If you move, you have to give them your new address. Again, send the address change through the Wisconsin intake (for states in the north) or the Georgia one for the more middle or southern states. Consult the VA for the right one. I suggest their 800 Prize Redemption Line. Perhaps Peggy (or Paul) can enlighten you as to the proper one to send it to. Please be sure to use the 21-0958 official NOD form rather than a 21-4138. They will reject it or fail to consider it a NOD if you do not use the correct form now.

<<<Severe anger outbursts, i was fired from my last two jobs for assaulting people. The last one had a brain aneurysm and was in a coma for a couple of days. That's not the person I want to be, fortunately, I was able to remove myself from the public with the help of 100% disability. My wife deals with my road rage and memory issues.>>> Seriously? You have guns in the house? Not to put too fine a point on it, but if you enjoy regular excursions from the home and experience road rage, it doesn't sound as though you " have removed yourself from the public". Uncontrolled anger is a bomb waiting to go off. With that sure knowledge, owning firearms is a guaranteed recipe for disaster in your circumstances. I sure do not mean to preach but numerous news stories recently show the fallacy that some adjudicated with a MDD may still be fit to keep and bear arms. Each Vet is a case study in itself. There is no 'one size fits all'. Saying you have never used a firearm in anger is akin to saying you have a fire extinguisher in your kitchen but have never had a fire...yet. I used firearms in anger many times during the war. Each time it became easier and after the first or second time I quit vomiting afterwards. Pretty soon I was able to joke about it with my buddies. That's not the person I wanted to be either and it led to my being kicked out of the military. I suggest you re-evaluate your circumstances and decide whether ownership of guns is in your best interest. If you insist because you live in a high-crime environment, perhaps moving to a less-threatening locale would be advisable. I feel I would be remiss if I didn't speak up. I'm actually surprised I am the first. Pounding on someone so hard that it leads to aneurysm or coma is only a very short step away from accidentally killing them. When that happens, I assure you your guns will be removed from the home---along with you. We're here to help you. That 'help' cannot, nor should it, condone your anger issues or advice on how to retain ownership of your firearms. I do wish you the best on this in spite of what it may sound like, sir.

Willful misconduct is cited in 3.301 as doing something that you know is wrong like drug addiction leading to HCV via intravenous drug abuse. § 3.301 Line of duty and misconduct. (a) Line of duty. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. (Authority: 38 U.S.C. 105) (b) Willful misconduct. Disability pension is not payable for any condition due to the veteran's own willful misconduct. (Authority: 38 U.S.C. 1521) © Specific applications; willful misconduct. For the purpose of determining entitlement to service-connected and nonservice-connected benefits the definitions in §§ 3.1 (m) and (n) of this part apply except as modified within paragraphs ©(1) through ©(3) of this section. The provisions of paragraphs ©(2) and ©(3) of this section are subject to the provisions of § 3.302 of this part where applicable. (Authority: 38 U.S.C. 501) (1) Venereal disease. The residuals of venereal disease are not to be considered the result of willful misconduct. Consideration of service connection for residuals of venereal disease as having been incurred in service requires that the initial infection must have occurred during active service. Increase in service of manifestations of venereal disease will usually be held due to natural progress unless the facts of record indicate the increase in manifestations was precipitated by trauma or by the conditions of the veteran's service, in which event service connection may be established by aggravation. Medical principles pertaining to the incubation period and its relation to the course of the disease; i.e., initial or acute manifestation, or period and course of secondary and late residuals manifested, will be considered when time of incurrence of venereal disease prior to or after entry into service is at issue. In the issue of service connection, whether the veteran complied with service regulations and directives for reporting the disease and undergoing treatment is immaterial after November 14, 1972, and the service department characterization of acquisition of the disease as willful misconduct or as not in line of duty will not govern. (2) The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. (See §§ 21.1043, 21.5041, and 21.7051 of this title regarding the disabling effects of chronic alcoholism for the purpose of extending delimiting periods under education or rehabilitation programs.) (Authority: 38 U.S.C. 501) (3) Drug usage. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. (Authority: 38 U.S.C. 105, 1110, 1121, 1131, 1301, and 1521(a)) (d) Line of duty; abuse of alcohol or drugs. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. (Authority: 38 U.S.C. 105(a))

I had my hearing April 29th, 2015. I received the transcript several days ago on Saturday. My case was advanced on the docket by the judge at the end of the hearing. We requested a copy of the transcript post haste to approve it prior to the decision as one only has 30 days to object to the content. If you did not specifically ask for the transcript while there, you may want to ask for one now if you feel it is material to your case to do so. Here's what mine looked like: https://asknod.wordpress.com/2015/08/10/bva-latest-board-hearing-transcript/

I hate to say it but in the present atmosphere, it may be you are right. The good news is you can fight legitimately to have your wife as your fiduciary. Competency to administer one's own financial affairs doesn't always hinge on the PTSD alone. The request for A&A 1 may mean you need a wheelchariot but is not an indicator of your mental acuity. Perhaps a more nuanced discussion of your disabilities that require A&A would help us to understand. Brevity of supplied info is counterproductive when we're trying to help. Perhaps more info...?

Incoming. Read and heed before you file.

VA's logic is impeccable. They are right. An informal claim must be consummated like a marriage. Once you filed the 21- 4138, you had a year to follow up. It's a two-way street in the claims business. You cannot just push send and wait for a return email. If you do not hear back, you have to act. Assuming you kept the same address, VA says they mailed you a 21-526 to file with. If you blew them off, you lost your chance to complain after a year. You could also have refiled at any time after you did not hear back. Informal claims are a valuable tool to excavating an old claim but to insinuate CUE, you need the ammo. Sad to say, it looks like you do not. I've had one case like this. The Vet moved but did send them an address change. VA still mailed it to the old address. Since he never got it and VA had the correct one, it put the claim in cold storage. He won it six years later in 2012 after going to the BVA. The CUE occurred in 88. CUE is a hard nut to crack under the best of circumstances. I have found some VSOs who don't even know what it is. The rules are adversarial in the extreme. A motion to revise is an extreme judicial action not taken lightly. I suspect more investigation on your part would have revealed how futile this claim was going to be.

LOD (line of Duty) is a determination military in nature as is a willful misconduct violation (or lack thereof). VA cannot make LOD determinations. These occur before separation. Same for willful misconduct. VA cites to 3.102 for its authority but again. they cannot reach back into the UCMJ past to make these decisions. Either they are, or they are not, in the military records. If not, you cannot be rejudged post-service by the VA.

Unless P&T is determined to be CUE or the claim was granted on a false premise, it is protected once it is P&T. In claims rated less than P&T, the five year mark with no substantive changes for the better is protected. The ten year mark is a benchmark for your spouse to receive DIC benefits and has no bearing on a rating. The 20 year mark makes it bulletproof and immune to the Big Bad Wolf. We can readily understand why everyone wants you to get the SMC. It's a sweet pot. I just got it in May back to 1994 and it was almost $71 K. Push print and send it in. You were substantially protected by 2007 and will be 20 year immune by 2021. Unless you committed fraud, you are good to go.

If it is time-consuming and takes years, then maybe the Vet will give up and go home. As you say, Vync, if it's stupid but it works, then how stupid is it? Conversely, how stupid is VA? 1.4 million file. 85% lose. 69,000 choose to appeal to the BVA. 4,000 who lose take it to the CAVC and 65% of those win or get a do over. My take is either 1,190,000 Vets file bogus claims...or... 4.1% of us are intelligent enough to even appeal an unjust denial to the BVA. Either way, the statistics are abominable if only .036% of Vets appeal to the Federal level with a 65% chance of winning. In the absence of anything better to do with about two months (off and on) a year to devote to an appeal, it seems like an extremely profitable enterprise. VA hopes you never see it that way which is why I advocate for Win or Die (trying).

I guess I'd have to ask if you served before or after 9/11/2001? VA is giving you the 3.350(f)(3) bump for having 50% or more above and beyond a 100% rating. If you need A&A (SMC L), then you are eligible for a 1/2 step bump. If you had two independently rateable 100% disabilities, then you'd get the full bump to M. To get the T you have to be a post-2001 Vet. To get T, you also have to qualify for it. It appears they are trying to short-sheet you and blame your bent brain symptoms on the PTSD/MDD/ etc. Fairly typical VA. SMC T costs them another $2 K a month. I'd appeal for the T but get a good atty to do it. It will probably get down to what the meaning of "is" is before you're done. There is no SMC T precedence at the Court or the Dead Circus yet. Maybe you ought to. By the way, it isn't CUE until you fail to appeal it and it becomes final. J1VO.

Never reapply. That kills the original request. You would have to start all over. Always go for an Administrative Review. This is done in DC by the VA Central Office. They take a completely different tack and usually grant. If not, it goes to appeal via a Form 9. My ILP request is at the BVA now.