free_spirit_etc

Reserved would be that section is reserved for future use. There is nothing there yet, but they left room for more sections.

kaosama05, Are you a Gulf War vet? If so, you might be able to claim the condition as an undiagnosed illness. I am not certain on your answer if you need an actual diagnosis otherwise. It may be possible that your doctor could diagnose some non-specific condition - one of those "he has this, but we are not sure what is causing it" type diagnosis. Can I ask how long you have been out of the military? And have you been seeing a doctor for it the whole time?

Some people like to use http://www.openoffice.us.com/openoffice/free-open-office-download-yahoo.php?pk=845397 It is free and lets you open Microsoft documents. Personally, I don't like it as much as Microsoft, probably because it is different. But many people who use it regularly seem to really like it.

But...... http://www.va.gov/vetapp12/Files4/1223040.txt "The Board remanded this claim in February 2012 for the RO/AMC to refer the TDIU claim for a medical opinion by a specialist to determine the effects of his service-connected acquired psychiatric disorder including a mood disorder and PTSD, bilateral hearing loss, and tinnitus on his ability to obtain and maintain employment. Upon further research, the Board has determined that it erred in requesting a medical opinion in this case. As such the evidence developed by this remand will not be considered by the Board in its determination. While there are some exceptions to the rules regarding additional evidence subsequent to a Veteran's death in accrued benefits claims, VA opinions, if obtained after the death of the payee, are not among the exceptions, since this evidence is not "in the file" at the time of death. It is possible, that a VA opinion had been sought in order to clarify evidence. In such a case, while the opinion may have been requested to obtain clarification of the medical evidence of record, in retrospect the opinion request should not have been made because newly obtained evidence cannot be used in adjudicating a claim for accrued benefits under 38 U.S.C.A. § 5121(a) and 38 C.F.R. § 3.1000(a); simply put, the opinion cannot legally be used in deciding the claim for accrued benefits. In Ralston v. West, 13 Vet. App. 108, 113 (1999) it was stated that "n his motion for clarification, the Secretary correctly states that entitlement to accrued benefits must be determined based on evidence that was either physically or constructively in the veteran's file at the time of his death. See 38 U.S.C. § 5121(a); Hayes v. Brown, 4 Vet.App. 353 (1993) (certain records deemed to be in file at time of death). The Secretary then argues that this statute prohibits the Board from securing additional evidence as the Court had ordered in its memorandum decision. The Secretary essentially requests that, notwithstanding the inadequacy of the record, the Court reconsider its decision and remand the matter to the Board without ordering it to secure a medical opinion. After reviewing the evidence, the Court will accept the Secretary's concession that a remand is appropriate for the Board to provide adequate reasons and bases for its decision without securing a medical opinion. See Hayes, supra."

But this case -- the veteran died in 2006 and the VA sought an opinion in 2012 for accrued benefits. http://www.va.gov/vetapp12/Files5/1231007.txt

m.rush, Who told you that your IU would stop immediately? You are correct, you should be able to use 38 1163. You couldn't make substantially gainful earnings for a 12 month period. However, you do want to carefully weigh the risks and benefits of working. With some conditions, even working some could show that your condition isn't as bad as they rated it at. This doesn't seem to be the case with your conditions. But they shouldn't stop your IU the moment you start working. But you do want to carefully consider the risks and benefits of doing marginal employment, or trying to do substantial work.

Thanks for clarifying that. But an outright h*jack is easier to notice than a gradual shift. And I think the drifts happen a lot; where there is some content about the original post, but additional content also, and the thread starts following the direction of the additional content, until it changes directions again. It is sometimes harder to know what to do in those situations . I think because sometimes issues overlay each other and what started out being one issue becomes another issue. It is sometimes hard to get issues to fit into well drawn lines. And I am not talking about just outright h*jacking. But it is kind of like even in normal conversation, the topic seems to flow from where it started. So it is kind of human tendency to follow the flow rather than stay very restricted and limited to one topic. But I do understand that you would like us to stay on point as much as possible, and certainly not just h*jack a thread. But this topic (including starting new threads) raises another question. What is the appropriate way to do that? If you want to respond to someone in the drifted thread, it is kind of hard to start a new thread, because you are responding; not asking a question. Do you just start a new thread and post a link and hope they follow you over to the new thread? Also -- Is it okay for the OP to move the thread in a different direction? Sometimes with one issue answered, there are more, and very different questions. So the thread can shift then. But if they start a new thread, with the new issue, they have to move relevant info over from the other thread, or people have to go over and check. Or people are responding with limited information, because they weren't following the other thread. Sometimes that aggravates people and they admonish the poster for starting a different thread. Or sometimes a poster has several issues and post several different threads and they are told to put it all in one thread. I am really not trying to be difficult. But I am not always sure of the protocol - even on the threads I have started -- wondering if the topic has changed from the original topic enough that I should start a different thread as a starting point, or if I should just keep moving in a different direction in the ongoing thread. Sometimes it seems like either way you go, someone might get aggravated. Again, I am not trying to be difficult.... It just isn't always clear cut what is the best choice.

Congrats!

I second that motion on Chicago! I am also trying to decide whether to keep my VSO or go back to pro se at the moment. I don't feel comfortable with the VSO at all. And I am still somewhat aggravated at him rolling his eyes at me during the hearing. Can I ask - if you have a VSO, do they consider the VSOs arguments to be THE arguments that need to be addressed? (not that my VSO has actually argued anything yet). Or do they (as in the BVA) also have to address the claimant's written argument? I don't really want my arguments to be swept to the side, especially as I don't really trust the VSO to present them well... if at all.

windy city, You should be okay. This would be considered a trial work period. http://www.ssa.gov/oact/cola/twp.html

Sierra, Thanks. I actually did get the opinions in writing in regard to whether the cancer started in service. I attached them in post #9. The part I put in the initial post was just a portion of the opinion, where he noted fatigue. But both IMO doctors clearly stated it is more likely than not his cancer started in service. I am sorry to hear about your father.

I already had my hearing. But I have additional time to submit evidence. I have looked up quite a few of my judge's decisions. He has granted similar types of claims. But I have read that the attorneys are the ones who write the decisions. So it could make a difference on which attorney is assigned to my claim too.

Thanks 71M10, I have attached the VA examiner's opinion -- and my 2 IMOs. The examiner that made that statement is IMO 2, but IMO 1 is much stronger as far as reasoning goes. I was mostly revisiting the "manifest" portion in the presumptive regs. For some reason, the VA seems to like to jump to that (though the regs say direct service connection can be granted even if the disease wasn't considered manifest within the presumptive period). I am sorry they lost your discharge physical too. My husband's case was the same.The SMRs note that a discharge physical was completed. What gets me is no one ever told him it was missing. But all the decisions don't mention a thing about his discharge physical. It is always just "Your SMRs didn't show..." I think it has most likely been missing since he retired. But they have never mentioned it. VA examiner opinion_ onset.pdf IMO_onset_1_redact.pdf IMO_onset_ 2_redact.pdf

Good luck!

Thanks. I stand corrected on the inferred vs. informal claims. I actually realized there was some difference right after I posted, and didn't get back to it. So I am back to that the are counting on: 1. A percentage of vets won't return the forms. 2. Whatever other sneaky or devious things they can slip by. Personally, I don't think they will get by with failing to liberally construe the claim, etc. The sad part is that it will be totally disabled vets who are not able to work that will be caught in the crossfire while the issue is fought out. I do find it ironic that a veteran is not capable of knowing whether he is able to work or not (i.e. he can't be trusted to know that), BUT he is supposed to opine on which of his given medical conditions make him unemployable.

This whole issue can actually be pretty complex. But I found this case: http://veteranclaims.wordpress.com/2011/12/page/2/ and it is making differing distinctions at differing times. At one point they allowed submission of evidence that identified, verified, or corroborated evidence in the file. From another precedent on a somewhat different issue (O.G.C. Precedent 6-93)- evidence submitted after death could not be used in support of a claim, but could be used to guide "logical reasoning" about the evidence in the file on the date of death. But that changed to the submission of evidence that supports, verifies, or corroborates the death certificate. I haven't fully read the decision, but many of the changes seemed to take place in 2000, 2002. There is also a big difference between VA evidence authorized by the Secretary and other evidence. For example, if the VA authorized a report to be written by a VA provider, that could be considered to be constructively in the file as of the date of death, though it had not been reduced to writing. VA autopsies can also be accepted (or at least they were at one point). However, there is no mention of private autopsies being permitted, as far as accrued benefits claims. It gets pretty deep....on many levels.

Thanks for clarifying that Berta. But then that takes me back to my original question of evidence in the file as of the date of death for accrued benefits claims. From what I am finding so far, it is looking like even medical opinions solicited / submitted after the death cannot be used in support of a claim for accrued benefits. I will keep looking. But that is where my searching is leading right now...

Unfortunately, they probably are covered by law to require the form. It would be the same as other informal or inferred claims, where when an informal claim is made - the VA is supposed to send you a form, and you have X amount of time to return the form, or your claim is considered "abandoned." And I don't think they will be relieved from the duty of considering all possibilities of entitlement, or developing a veteran's claim to the fullest potential. And again - the claimant is a lay person. So if the claimant says X keeps me from working, and X wouldn't keep him from working, but X and Y would, I don't think the VA is off the hook that easy. Or if the veteran says all his conditions keep him from working, and they just grant TDIU, without also considering whether one condition alone would have made him unemployable -- I think the veteran could appeal that the case was developed to consider the possibility of entitlement for SMC. I do understand the VA might see how far the can push it. But I imagine the courts will be busy.

71M10, I think you already answered one of my questions. Thanks!

jdman, I hope you don't mind, but I also asked about this in another forum Hoping you can get the answer. :) Plus... you might want to look at that thread about the new TDIU rules. Because the rules have changed a bit, the answers might be a bit different. I am not sure.

Question... for those who know about such things... Can this picking the conditions part of this work in this veteran's favor? Say he states his 70% MDD is what keeps him from being able to work... If they granted TDIU on the basis of that condition -- then would he qualify for SMC, as the other conditions are over 60%? Or... would he already be qualified for it anyway?

jdman, Wonderful news! Wow! 70 + 60 + 30 + 10 is only 90 under VA math? I would think the CFS and MDD ratings will also help with SSDI. Actually a 30% rating for GERD means you have it pretty bad, I think. With two high ratings in conditions that can very much affect your ability to work, I would certainly hope TDIU would be granted. But if the VA gave you any trouble, I am sure an attorney would love to jump right on this one. So great news on the benefits so far. Bad news at having all those conditions so severally. Hopefully, getting some steady income coming in will take a bit of stress off though.

This is a 2007 death I know the rules changed since then.

Okay.. I looked at the link you provided http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files2/1316146.txt and it says: "Generally, the Board would remand this case to obtain an adequate VA examiner's opinion; however, because this claim is solely for the purpose of accrued benefits, the Board is not permitted to undertake development subsequent to the Veteran's death. Therefore, based on the evidence of record at the time of the Veteran's death, the Board finds that the preponderance of the evidence weighs against a finding of service connection for a psychiatric disorder, to include PTSD, for accrued benefits purposes." So I am still not sure that the VA will seek or use an medical opinions obtained after his death for accrued benefits -- even an opinion they seek (i.e. for DIC). I am really trying to figure this out to see if I need to build an argument for the case that the evidence in the record at the time of his death also supports the claim.

Berta, It looks like in your accrued benefits claim for an earlier effective date you presented VA records. So that would mean that even though those were not actually IN his record at the time of his death, they were in the "constructive possession" of the VA at the time of his death.