free_spirit_etc

Thanks.. we have re-filed / reopened / something We went ahead angd got it started. I see the BVA has a procedure for advancement on the docket for terminal illiness. (That you have to write and request). I don't see any such thing for before that level. Does anyone know of anything. We don't need to go first -- but my husband may not have years to wait either. Believe it or not , his SSD claim took less than a month. But GREAT point about going ahead and filing! We never even THOUGHT about SSD -- and I ran across it - and if he would have waited much longer he wouldn't have qualified because he wouldn't have had enough work credits in the last 10 years. Free

My husband is dealing with the same issue. From what I can see the regs cover dental work as service connected for DENTAL CARE for dental problems that occured after 180 days of service. Then they have service connection FOR COMPENSATION - which requires trauma, injury, unique conditions. They seem to get these two tangled up. My husband claimed for dental care when he retired. They denied it - but the BVA remanded it back to the RO as he was just seeking DENTAL CARE. The SOC reads that he is denied for COMPENSATION but that he had been refered to the Outpatient Clinic reguarding treatment. But then the BVA decided he Might be able to get compensation too - so they remanded it again. Then both the RO and BVA denied dental for COMPENSATION - so he thought they denied the dental CARE. I THINK the note that he has been referred for outpaitent treatment indicates he can get treatment..but we have to check that out - and no one we talk to seems to know. He didn't realize he has been recommended for treatment since 1999 - but that is what the claim says. I would think if they continued to do treatment after you retired - that would indicate that tooth would still be covered. From the regs it looks like they cover the particular tooth that has been affected. But I don't know anything for sure...lol If the VA made sense it would sure make life easier. We will keep checking... Tri-Care has horrid dental programs. Costs lots and pays little. Free

Thanks John. He has never asked for a personal hearing. I have read that the odds in your favor increase when you get one. I will need to start researching when and how to ask for a hearing. I started researching from scratch a couple months ago. It seems to just go deeper and deeper. Just when I think I got it figured out - I find something else that affects something you thought you understood. I will have to say on some of his claims, the RO kind of pasted some stuff together - but the VA doctors and the BVA did a pretty good job. But on this claim - the RO, DRO, and VA doctor just blew the whole thing off. Free

Thanks Berta. I know he got a VCAA notification letter prior to the initial denial. It listed some things he could use to prove asbestos exposure. But they were mostly medical things. As they didn't acknowledge that he was exposed to asbetos as an electrician from 1970 - 1983, because he doesn't have any medical survillience or industrial survey reports. As far as I can see industrial surveys are for situations, rather than specific people. And from what we can find, the Air Force didn't even start medical survillience for asbestos until the late 1980's. The intital Air Force asbestos management guideline was published in 1988. As far as the benefit of the doubt goes, you would think when you sent information on the specific job duties you did, perfomance reports to back those statements, the Base oncologist and pumonologist had indicated asbestos exposure in your post-service medical records, you had a pathology proven interstitial lung disease, pulmonary function tests that showed combined obstructive and retrictive patterns, a DLCO of 51% predicted -- THAT would weigh heavier than the fact that you don't have records of medical survellience when those programs weren't even in existence at the time. I am having trouble understanding how they apply the balance of the evidence thing. If you have evidence - and the only so called "evidence" they have is the LACK of something which wouldn't even exist -- it seems like the benefit of the doubt will swing your way. They did say he should sent any tests he had that showed asbestos in tissue, urine, etc. But he didn't have any. Yet when they scheduled him for a C&P exam - they didn't try to obtain them either. The only thing they did for his C&P exam was PFTs and a "record review" by the VA doc. The VA examiner didn't even SEE him. He just pretended to view the records. He looked close enough to see the "emphysematic changes" on a lab report - and said his cancer was caused by smoking. Didn't bother to mention the Interstital Lung Disease. The VA examiner also said he had no shortness of breath and no residuals from the long cancer - even though he had his whole left lower lobe removed, and 11 inch scar from his shoulder to under his arm, and the PFT done AT THE VA that day indicated he had dypsnea on hills and stairs, frequent wheezing, and FVC of 73% and an FEV1 of 69%. But his VCAA letter did not indicate anything they needed to show in service incurrence, for direct connection, which was the major focus of his claim. (28 years in the AF - a 3.1 cm tumor of slow graowing cancer removed 2 years post-retirement). I will have to check again, but I don't recall the letter prior to the DRO review stating that they needed anything to prove his claim. It said they would check the claim file and see if anything was needed. But from what I can see the Duty to Assist cannot be used for a CUE. I have looked at some of his other claims, and they were pretty extensive..even the ones that were denied. This claim is totally different - they didn't even go through the motions of addressing most the issues. It ws just "You don't have medical survellience records which show you were exposed to asbestos. You retired in 1998 and your cancer wasn't diagnosed until mid-2000, stuff.) Free

Based on the link Berta posted about the DRO job description: "Based on a review of the evidence of record, is there enough evidence to make a new decision? · If yes, the DRO makes a new decision. · If no, the DRO - pursues additional evidence considered necessary to resolve the claim, and/or - conducts an informal conference to obtain additional evidence from the appellant and his/her representative." That makes it difficult to understand how they can fail to seek new evidence, fail to tell you that you lack certain evidence needed, and then make a decision based on lack of evidence. To me it just looks like they LIST more evidence than in the original denial (all the stuff that was there in the first place) and repeat back what the initial denial told you. I also wonder why they OFFER a devo review - if they are going to do it anyway. My husband did not request a denovo review. And according to the letter from the VA, if you don't request one - they will check your file for completeness, obtain additional evidence from you if needed, and send your file on under the traditional review process. They didn't ask him for anything, did not tell him any additional evidence was needed to support his claim - and then gave him a "denovo review" saying he lacked probative evidence. Free

http://www.haditveteransforum.com/30701.htm Having found a claim for TDIU, we consider Roberson’s entitlement to TDIU under 38 C.F.R. § 3.340(a)(1), dating back to the 1984 rating decision. Roberson alleges that, in determining his eligibility for TDIU, the Court of Appeals for Veterans Claims misinterpreted section 3.340(a)(1). This section stated, at the time the RO evaluated Roberson’s claim, "[t]otal disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a)(1) (1983) (emphasis added). Roberson asserts that the Court of Appeals for Veterans Claims misconstrued "substantially gainful occupation" to mean "100% unemployable." Roberson bases his allegation on the court’s statement that "there was sufficient evidence of record at the time of the RO’s January 1984 decision to reasonably conclude that the veteran was not 100% unemployable." Roberson v. West, No. 97-1971, slip op. at 6. Roberson asserts that the plain language of the regulation does not require the veteran to show 100 percent unemployability in order to prove that he cannot "follow substantially gainful occupation." We agree. Requiring a veteran to prove that he is 100 percent unemployable is different than requiring the veteran to prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests an intent to impart flexibility into a determination of the veterans overall employability, whereas a requirement that the veteran prove 100 percent unemployability leaves no flexibility. While the term "substantially gainful occupation" may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent. Having concluded that proving inability to maintain "substantially gainful occupation" does not require proving 100 percent unemployability, we remand to the Court of Appeals for Veterans Claims for a determination of Roberson’s eligibility for TDIU in accordance with this opinion. CONCLUSION We conclude that the Court of Appeals for Veterans claims erred in holding that Roberson failed to make a claim for TDIU, and erred in applying an incorrect standard for TDIU. REVERSED and REMANDED