free_spirit_etc

Infantry10 -- I apologize if I have misunderstood your situation. I am going from bits and pieces of things I remember from your posts. But yes -- if they stopped your benefits because THEY failed to enter a document in your record - and have even admitted that is what happened -- I think they just need to fix it. You should not have to wait in line. A veteran shouldn't have to file appeals and CUES and wait and wait, when the VA already knows they made the mistake.

Good post about lawyers John999. I don't think lawyers take all claims -- and most vets don't even want to be in the position where their claims would result in a big retro (unless they can go back on a CUE claim or something). And a lot of times you have to go through a screener who will see if it is a claim the lawyer wants to take. I was not happy when I looked for a lawyer. The screener basically told me that if my husband's disease was not diagnosed in service or he didn't have boots on the ground in Vietnam, I wasn't entitled to benefits. That was wrong in so many ways. For one, it isn't true. Diagnosed in service or boots on the ground makes it MUCH easier -- BUT if my husband's cancer was diagnosed in service or he had boots on the ground in Vietnam, I probably wouldn't even NEED a lawyer. For another thing, I DO have a claim. It is not an easy claim, but it is a "well-grounded" claim. Widows can certainly be told that the lawyer is not interested in their case, but they should NOT be told they do not HAVE a case. It makes me nervous when people talk to you on the phone for a few minutes, obtain a small bit of info about your claim, and immediately tell you that you are not entitled. Though in service diagnosis and presumptions are wonderful things -- they are not the only way to get SC. I think a lot of lawyers and VSOs stop there - and don't get into the fact that service connection can, should be, and is granted in many other situations.

"Yes thats exactly what happened. I had thought of contacting a congressman but I had read that doing so may hurt you instead of help you so I didnt bother with it." You need to be clear that you aren't asking for assistance in regard to a decision made on your case. They can't help with that. But you are asking for assistance in getting them to correct THEIR error in a timely way. From what I understand, it is basically they entered the decision wrong because they said they didn't have a paper they did have. To me, this shouldn't be a wait in the back of the line kind of thing. This should be a "they have known for months that they committed an error and took away benefits that you have already been awarded IN ERROR. They know it was a mistake. They know it was THEIR mistake. You have waited for months for them to fix THEIR mistake.... etc. It might even be good to write a letter for him to send - again - you write to the Congressman, and they forward the letter you wrote to them. But make sure everything is spelled out and so they can't wiggle out of it. I played around with them forever on my burial benefits, They lost the claim multiple times. They paid me $300 for my husband's funeral but denied the $300 for his burial because they said there was no evidence I buried him. ??? The last time I submitted evidence AGAIN, I contacted my Congressman. They usually have assistant's that work directly with veteran's. I can't say I cared for the guy very much. (It was the same old stuff that lots of vets and widows go through being treated like THEY must not understand what is going on....) BUT - I wrote to him and spelled out how long it had taken to get that claim resolved (I think it was about five years) and pointed out I wanted their assistance because I didn't want the VA to lose my evidence again, etc. and that claim was granted FAST!!!! And I had them take money from my bank account -- a long story and a lot of run around -- but I was entitled to the month of death payment - and they recouped the money but didn't send me a check to cover it. When I got the C-file, I found a message that they were supposed to STOP the reclaimation process - because I was entitled to the money. I played around with the VA forever -- always being assured it was forwarded to whomever was supposed to take care of it. I finally wrote my Congressman and attached the message from the C-file. I informed the Congressman that I was entitled to the month of death payment, the VA had placed a statement in my file confirming I was entitled to it. The VA reclaimed the money from my bank AFTER they had already determined I was entitled to it. And despite my continuous efforts to be repaid the money the VA took from my bank in error, I was not having any success in getting the issue resolved. Again - they fixed it FAST! I think it only took a week or two to get the check. So as long as it is something that you can show is an error on the part of the VA, that really shouldn't be any part of the claim process, and you have waited a reasonable time, the Congressional Inquiry can sometimes kick it up to someone who can look at the file, realize it is their error, and FIX it. Your case shouldn't have to go through the appeal process. They have admitted they had the document you were supposed to send, and it was THEIR error in stopping your payments. Uhm... Fix it!

Yes. That.

Thanks! I so much hope I don't get stuck in the AMC! And then,I can't access my stuff online anyway...:(

GREAT info free spirit!!!!!! You do very good work here finding this stuff!!!!!! Today I have been doing a lot of searching... I have read questions where I think -Dang! I just read something about that - and what was I searching for when I found it. I agree this is a great citation.! And I think it can apply in a lot of claims. I actually first ran across it when I was researching asbestos decisions. When the doctors stated that it was impossible to separate what role smoking played and what role asbestos played -- or to separate the effects of in service exposure from the effects of post-service exposure, the claims were granted. But this citation can be used in almost any claim -- and is especially used in mental health conditions - as long as someone points out it should be used (or the VA decides to use it on their own). I think this citation could also be useful when the VA examiners use their famous line that the disability is more attributable to a non-service connected condition. Unless they provide reasoning as to how they arrived at that conclusion -- they really shouldn't be able to use that to deny claims. Okay... he said it was caused more by X... how did he separate out how much was caused by x and how much was caused by y? And you know why they don't separate them out? Because once they do -- you have poof that y DID cause some of it. So I think the VA gets by with just lumping everything together and attributing it all to the non-SC condition A LOT of times on the basis it attributed MORE - but if they really did it like they should - the should decide how much EACH contributed, and even if the SC contributed less, it did contribute. And if they can't state (with medical reasoning) how much was caused by what -- it should all be attributed to the SC condition. And that is my soapbox for the day.

You can find the DBQ forms the doctor will use here: http://benefits.va.gov/COMPENSATION/dbq_ListByDBQFormName.asp You can also search the site where people have posted their C&P exam results and get some idea of how the doctor fills them out. Hope this helps.

I would think the letter would help a lot... especially since it says you were unable to maintain gainful employment DUE TO... and especially since they don't just state "veteran reported that..." If the letter stated "veteran reported that..." they aren't really offering an opinion - they are just stating what you reported. Since they didn't say that -- it is more that they are offering an opinion that you are unable to maintain employment due to the condition. JMHO

I wrote a Congressman twice so far on my claims. Each time the VA responded very quickly and was able to quickly straighten out a mess I had not been able to resolve with them for a couple of years. Once they even admitted they were in error.

Infantry10, In your case, I was thinking you were told that they said the reason your income was reduced was a "computer error." (i.e. that they had the form but didn't log it in or something.) I still wonder in that case if you couldn't write a letter to a Congresman and ask for assistance. Make it clear that you are not so much asking him to intervene in a decision made in your claim, but that you have been told the decision was an error on the VA's part because they didn't enter the information correctly - and that you wonder why it is taking them so long to fix their error, as you cannot work and are dependent on that income. If you write to a Congressman, you are really writing to the VA. When a Congressman "inquires" on your behalf, they generally just forward your letter and ask the VA to address it. A Congressional inquiry might get someone at the VA to take a look at it and just fix it. Otherwise, they will have to write the Congressman back and explain why it is taking them so long to fix their error.

That wouldn't be pyramiding. That would be a secondary condition. It would be a different ratable condition that was caused by your service connected condition (or its treatment). You might need an IMO on that one though. If your doctor agrees with you on that now - it might not even hurt to have him document in the record that you are borderline diabetic and at increased risk because of the meds. That might come in useful down the road.

Ah.. Here is what I was looking for: http://www.va.gov/vetapp12/files2/1209085.txt "Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).)"

There is some interesting information in some training material that might help here: http://www.purpleheart.org/ServiceProgram/Training2011/T-4%20%20VA%20Errors%20in%20Claims%20for%20Increase%203.2011.pdf It has a lot of good information. I was going to copy and paste a bunch of it -- but then noticed it has a copyright. So it is okay to discuss it - but I am not going tocopy and paste all the stuff. :( But I think it has a lot of good info for your claim --

The C&P examiner might or might not give you a diagnosis - and they might or might not give you a diagnosis of PTSD. If they did give you that diagnosis, that should be enough. The fact that you were treated for anxiety in service and you have received follow up care and are getting therapy and attending a support group should help your claim a lot. Even if you don't get a diagnosis of PTSD -- you might get a diagnosis for another mental health condition that could be SCed. So don't limit yourself to just one diagnosis. Keep focused on: 1. Your symptoms started (and were treated) in service. 2. You have had symptoms since then. 3. Your symptoms are getting worse. 4. You are getting treatment. So even if they decide to call it something else -- as long as they SC it - that will work for the moment. Your diagnosis can always be changed later if necessary. The VA generally lumps all mental health conditions into one rating anyway. So it will come down to do you have one or more mental health conditions that can be service connected, and how much do they affect you? I think sometimes Vets get shortchanged when they get stuck on one diagnosis because the VA will sometimes deny claims because you don't have THAT diagnosis (according to them). And if the Vet's mind is stuck on THAT specific diagnosis - sometimes they miss the fact that whatever the VA diagnosed them with might ALSO be a service connectable condition. I see that in some of my husband's claims. He was convinced that some of his symptoms were Gulf War Illness. The VA diagnosed the conditions without really developing the claim to see if any of the conditions they could diagnose him with could be service connected. And he didn't quite catch that. So keep in mind even if they diagnose you with a different condition -- the symptoms were the same -- and make sure you see if THAT condition can be SCed. I wish you luck!

Navy04, I think as attorneys get more involved vets will know less and less about their claims because the attorneys will handle lots of that stuff. However, VA is very different than SSA - in that SSA only deals with "are you totally disabled?" and VA has layer upon layer of SC issues, secondary issues, presumptions, etc. etc. etc. So vets will still need to know quite a bit just to know if they need an attorney. I feel bad sometimes here helping people because though I try to help as much as I can, I am certainly not an expert. And I often just try to help until someone comes along who knows more. Sometimes they come along and sometimes they don't. The days of 12 or 15 people all helping build a claim seem to be over. And though lots of people still help -- most have a limited amount of time to dedicate to doing so. But I think you make an important distinction -- Not so much between those who have already gotten their 100% and those who haven't -- but that some people are really struggling, they are up against the wall, they are seeing life as they knew it slip away, they aren't able to do much about their financial situation BECAUSE of their disabilities from service --- and it is VERY VERY tough. So there is a difference between someone who is doing okay financially and their veteran benefits will help - but they can wait it out -- and someone who desperate to get the rating they very well deserve to keep them out of the street. And we need to be sensitive to that and help as much as we can - and understand that to those vets being told to just be patient is not well received. It is easier to be patient when you aren't totally dependent on the outcome. But when you, and your family, depend on the outcome for your survival -- you don't want to be patient - you want to do every single thing you can to make it work out. And that is something to be admired. And waiting it out could be easier IF you could trust the system to be fair. But.....

You certainly should address that. I am not sure whether filing an appeal, or asking them to CUE their decision might be the best way to go. What did your denial letter state the examiner said? They might have completed that before she updated the report. You might just be able to ask them to review it based on her amended report.

This is actually something I was reading the other day where they were questioning whether a widow was eligible for DIC because her spouse had several consecutive enlistments and a DD214 for each one. So it is a bit different topic, but it does have some interesting information on re-enlistments. www.va.gov/ogc/docs/2000/prc08-2000.doc VAOPGCPREC 8-2000 July 25, 2000 Subj: Status of Surviving Spouse to Receive Death Benefits "1. These conclusions have for many years been reflected in VA regulations, now codified at 38 C.F.R. § 3.13, and titled "'Discharge to change status." In general, under section 3.13(a), a discharge to reenlist, issued prior to the date an individual is eligible for unconditional discharge based on length of service, is considered a conditional discharge. Section 3.13(b) provides that, under such circumstances, the service member's entire period of service will be considered one period of service and entitlement to veterans' benefits will be determined based on the character of the final termination of that service period. We conclude that service members who received conditional discharges to reenlist and who were subsequently discharged under conditions other than dishonorable may, under 38 C.F.R. § 3.13(a) and (b), be considered to have had one period of service for the period of their consecutive enlistments. This would hold true for purposes of determining eligibility for DIC pursuant to 38 U.S.C. § 1304(l) and 38 C.F.R. § 3.54©(1), or for other compensation or pension benefits. 2. We do not believe that this analysis is affected by 38 C.F.R. 5 3.13©. Under 38 C.F.R. § 3.13, as in effect prior to the enactment of Pub. L. No. 95-126, § 3, 91 Stat. 1106, 1108 (1977), if a service member was discharged to reenlist, prior to completing the original obligated period of service, and the service member's ultimate discharge was under dishonorable conditions, that discharge would be con- trolling for purposes of determining entitlement to VA benefits even though the service member had served honorably throughout the original obligated period of service. In order to correct this perceived inequity and restore such service members who were ultimately discharged under dishonorable conditions to the position they would have been in had they not agreed to extend their active duty service prior to completion of their original service commitment, Congress amended the law to treat the honorable completion of the original obligated period of service as though it had resulted in an unconditional discharge or release. H.R. Rep. No. 580, 95th Cong., 1st Sess. 18 (1977), reprinted in 1977 U.S.C.C.A.N. 2844, 2861. In order to accomplish this, Congress, in Pub. L. No. 95-126, expanded the definition of the term “discharge or release" under 38 U.S.C. § 101(18) to include "the satisfactory completion of the period of active . . . service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable." In order to implement section 3 of Pub. L. No. 95-126, VA added a new subsection © to 38 C.F.R. § 3.13, providing that a service member will be considered to have been unconditionally discharged, even though no unconditional discharge may have been issued, if the member: (1) served the full period the member was obligated to serve at the time of service entry; (2) was not dis- charged at the time of completing that period due to an intervening reenlistment; and (3) would have been eligible for a discharge under conditions other than dishonorable at that time except for the intervening reenlistment. Section 3.13© suggests that, under these circumstances, the initial obligated period of service and the reenlistment period be- yond the initial obligated period may be considered distinct periods of service. Its regulatory history, however, indi- cates that that section should be construed to be applicable only when the last period of service is terminated under dishonorable conditions.[1] Thus, we do not believe that Section 3 of 38 C.F.R. § 3.13©, which has the effect of establishing a constructive unconditional discharge, is applicable because that regulation should only be construed to apply in cases in which a service member was ultimately discharged under dishonorable conditions. The regulatory history of 38 C.F.R. § 3.13© indicates that VA intended to depart from the then-existing provisions of section 3.13 only to the extent necessary to fulfill the objective of Pub. L. No. 95-126 to provide relief to persons who reenlisted under conditional discharges and were ultimately discharged under dishonorable conditions. First, in amending section 3.13 to reflect section 3 of Pub. L. No. 95-126, VA retained subsections (a) and (b) of the then-existing regulation, making subsection (b) applicable "[e]xcept as provided in paragraph © of this section." Second, the transmittal sheet signed by the Deputy Administrator, which accompanied the amendment of section 3.13 indicates that subsection © was intended to apply '[o]nly when it is determined that the whole period of service was terminated under dishonorable conditions.' Veterans Administration Compensation and Pension Transmittal Sheet 641, pp. v and vi (Apr. 5, 1978) (emphasis added). While this transmittal sheet is not regulatory in nature, it does give a clear indication of the contemporaneous construction of section 3 of Pub. L. No. 95-126 by the agency charged with its implementation. Pub. L. No. 95-126 and 38 C.F.R. § 3.13© were intended as liberalizing amendments to avoid a harsh result when a vet- eran who had extended his or her service and had honorably completed an initial obligated period of service received a dishonorable discharge from a subsequent period of service. They were not intended to change the law as it applied to veterans who served honorably throughout their service. The regulatory history of 38 C.F.R. § 3.13© indicates that VA intended to depart from the then-existing provisions of section 3.13 only to the extent necessary to fulfill the objective of Pub. L. No. 95-126 to provide relief to persons who reenlisted under conditional discharges and were ultimately discharged under dishonorable conditions. First, in amending section 3.13 to reflect section 3 of Pub. L. No. 95-126, VA retained subsections (a) and (b) of the then-existing regulation, making subsection (b) applicable "[e]xcept as provided in paragraph © of this section." Second, the transmittal sheet signed by the Deputy Administrator, which accompanied the amendment of section 3.13 indicates that subsection © was intended to apply '[o]nly when it is determined that the whole period of service was terminated under dishonorable conditions.' Veterans Administration Compensation and Pension Transmittal Sheet 641, pp. v and vi (Apr. 5, 1978) (emphasis added). While this transmittal sheet is not regulatory in nature, it does give a clear indication of the contemporaneous construction of section 3 of Pub. L. No. 95-126 by the agency charged with its implementation. Pub. L. No. 95-126 and 38 C.F.R. § 3.13© were intended as liberalizing amendments to avoid a harsh result when a vet- eran who had extended his or her service and had honorably completed an initial obligated period of service received a dishonorable discharge from a subsequent period of service. They were not intended to change the law as it applied to veterans who served honorably throughout their service."

You might also be able to get them under the Freedom of Information Act. I am not sure where you would request them though. I know we got some older documents from the Air Force that way. Sorry I am not more help.

d1ray, There is a thread at this forum http://forums.military.com/eve/forums/a/tpc/f/7010097960001/m/9440045361001/p/2 where someone says they have the book with all the Z grams and he would be glad to share them. He gives an email address to contact him. It is a 2008 post -- but might be a lead.

Navy04, I used to be pretty active on hadit - and then I dropped out for a long time. I tried to give back then. And I try to give back now. But I notice how much has changed since then. Ebenefits, fully developed claims, and all those things are new to me. But there has also been a shift in the veteran helping veteran part. Veterans still help veterans, but the landscape is changing. Back when I was real active before was the pre-attorney era - and there were lots of vets digging in down to the nitty-gritty working their claims themselves. Now, more vets are using attorneys. And many vets are advising vets to get attorneys. There is still some nitty-gritty working of claims, but not near as much - and not with near the number of people involved in it. When I was fighting my Social Security claim, I was pretty much on my own. I had difficulty getting an attorney because most attorneys either didn't handle survivor claims, or they said there was nothing they could do that I wasn't already doing. But it was hard because few people work their own Social Security claims anymore - and so there was nowhere to go for advice, support, assistance, etc. when fighting my SSA claim -- like I had grown used to at hadit. It was just me, my computer, and the SSA law and regulations. Maybe that is happenening with veterans' claims too. I don't know.

You might be able to see the results of some of the more recent exams (for lack of a better word) here: https://www.myhealth.va.gov/index.html

"The state of California is the last state where I would want my claim. They are taking up to 2-3 years for C/P exam and up to 4 years for a veteran to receive a rating decision. it's a mad house out there!" That is downright horrible!

jdman, If they can't separate out the effects of a SC condition from a nonSC one - then it is all supposed to be attributed to the SC condition. Have you applied for SSDI?

Navy04, You might want to call some SSA attorneys, or Allsup They will screen you on the phone. If they (especially Allsup) are very interested in your claim - it means it looks pretty good for getting granted - which means it might be granted fairly quickly. If they aren't very interested, that doesn't mean it won't be granted, but it may mean that it could take awhile. Some attorneys don't take claimants until they have been denied. (They get a chunk of the back pay - and so they won't get much if you get approved fairly quickly) Others will take your claim from the start - and this can be good because they make sure everything is submitted correctly. Calling them doesn't mean you have to hire them. But it will give you some sense about what they think your chances are with a claim.

I think that is a wise move. I would work on getting the conditions SCed first – and then appeal for an earlier effective date. No use having them dig in any harder than you have to right now. And you already should have some decent retro just on the latest claim. Maybe the backlog of claims is actually from all the retirees who just tolerated the BS because they reduced retirement pay dollar for dollar until 2004, who are now going back and reading their claims. As for the Cushing's (it is the syndrome) I am aiming for as my SC records mention Cushing's Syndrome because of the very high dose prednisone for 2.5 years(100mg) while still on Active Duty, and again in '92-'95 (60mg). Among other things, the extreme weight gain from 206 to 330 with severe muscle loss, depression, etc was ALMSOT too much to bear. I don’t know much about Cushings, but I know prednisone can really do a job on you. Never lost the Cushing's "look alike" except no hump and no moon face now. Meaning still morbidly obese but good looking. Sometime maybe I will upload the before and after photos. Got SNCO of the Quarter 6 months before prenisone so I have an official dated picture with date right on the award. The before and after pictures might actually be good for your claim. This and the sarcoidosis caused me to be forcibly retired at 20yrs, with loiss of World Wide Duty status, forced out of my 17yrs profession, had to change careers for the balance of my AF career. Became really almost impossible to find a job that I could do "physically" and who wants to hire the "fat" guy with lots of apparent medical conditions. Not to mention the fact that I could have made "big bucks" in my career field. Which is what I will throw at the VA later. Okay. Now I am interested. What was your career field? The mention of big bucks lets me know it isn’t teaching. ;) Have DM II SC since 2004 presumptive to AO and believe I can get closer to 100% for that one than 60%. Even my doctor agrees and records will show. Again – I know you mentioned they said you did not need injections – and you actually need them multiple times a day. So I agree. There are also lots of conditions secondary to DMII. So some things increase your rating for DMII, and some things are secondary conditions (caused by DMII) that are ratable on their own. There are lots of people on this board with lots of knowledge about DMII and secondary conditions. Just want what is due to me. I agree. Actually, it is what you EARNED. Do I just get the records from them and page by page show them the errors, or "that is someone else", etc. You will want to fill out a request for you ENTIRE C-file. Anymore, they also have electronic records too. I think you can also request those. They should send you a copy of everything they have. It will include your medical records (in service and post service), letters, decisions, etc. You will probably find a lot of surprising things when you look through them. And you can use those to make your arguments – and point out what evidence supports your claim. PLUS – back in the day, if you filed for VA benefits when you retired they sent your SMRs directly to the VA. That means they have the ORIGINALS. That means if you do not have a copy and something gets lost, misplaced, or shredded – there goes your evidence. (My husband’s discharge physical disappeared). If you live close enough to the RO, you can also make an appointment to go view your C-file. You can get copies of some of the documents when you view it – but not the whole thing. Someone will stay with you while you view it – but if your C-file is semi-organized, and you know what you are looking for (some specific documents) you should be able to find them fairly easily. There are some people who say to go ahead and ask for your C-file and it doesn’t hold up your claim. Other people will say it will hold up your claim because they have to pull it to make a copy, etc. Personally, So it is a call you will need to make. I really want to go back to '87 records and show them the "Stage 4" records(that they repeatedly ignore), along with '92-'95. I see vets getting 30% for less in citations for sarcoidosis. Also have PFTs from '90 thru 2013 that are much worse than the VA claims. It sounds like they are ignoring a lot of your evidence. To clarify "exams never had" i.e. in March of '10, sent them 2 MRIs, one of the cervical stenosis and one of the DDD of the lumbar, plus VRE official evals from a psychologist and physical therapist, radiologist report stating "mild scoliosis". The Va sent to a rating doctor for ROM and I sat there while he recorded his "findings" into a recorder on the phone. Ignored my obvious pain, lack of flexion, radiating pain through arms, told him about my twice weekly pain and cortizone shots plus 3 times per week traction, and the neurosurgeon's report, my claims of being dizzy when neck hits a nerve, etc. all of which never showed up in this rating. As far as the cervical rating from 10% to 20% and the reasons for it. They do not come close to the PT/ROM before and after July 2010. Mild pain my butt! You might have a valid complaint about this. If he just turned it in as an exam, but didn’t really examine you – plus, if he was just going off the reports, he should have included ALL the information. Do you have copies of the actual C&P exams? It could be he didn’t include the stuff in the report and it could be that he did and the RO ignored it. For instance, my husband’s decision said “The VA examiner gave a diagnosis of chronic sinus disease…A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability associated with sinusitis is not shown by service medical records.” Later, when we got the record, we found out the examiner actually said my husband underwent an x-ray of his sinuses on September 3, 1982 and the x-ray was shown ethmoid and maxillary inflammatory changes of the chronic type. They sometimes twist things. All of your comments and suggestions mean a lot to me, so keep them coming! I actually cut and paste them into my notes on "what to do". Again, I never ramble! and I never extrapolate. LOL – I hope I can help some.