free_spirit_etc

http://www.va.gov/vetapp13/Files1/1309884.txt "The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Menegassi v. Shinseki, 638 F.3d 1379 (Fed.Cir. 2011), in which it held that medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated. Id. at 1382. The Board notes that the discussion in the final rule notice issued in the Federal Register states that "a doctor's recitation of a veteran-patient's statements is no more probative than the veteran-patient's statements made to VA. Therefore, VA is not required to accept a doctor's diagnosis of PTSD due to a personal assault as proof that the stressor occurred or that the PTSD is service connected. If, however, VA finds that a doctor's diagnosis of PTSD due to a personal assault is ... "competent and credible" and there is no evidence to the contrary in the record, in all likelihood, such an opinion would constitute competent medical evidence." 67 Fed. Reg. 10330 -01 (Mar. 7, 2002). The Federal Circuit found that the regulation specifically designates - and VA's interpretation contemplates - that medical opinion evidence may be submitted to corroborate the in-service personal assault as the regulation lists records from mental health counseling centers, hospitals, or physicians. Menegassi, 638 F.3d at 1382."

I am wondering if you should have your private doctors fill out DBQs for you -- and connect the dots for them. You can make sure that everything is correct on the DBQ - including the doctor noting conditions that were already treated in service. http://benefits.va.gov/COMPENSATION/dbq_ListBySymptom.asp

Sarcoidosis. My rating should be at least 30% as my medical records from Cigna and Associated Internists show pulmonary involvement with persistent symptoms, plus I have been on low dose corticosteriods since my retirement in 1985. Does the VA have a record that you take prednisone for the sarcoidosis? And have you applied for secondary connection for the Cushings?

Good luck!

I see Carlie had a great post on this issue as far as increased rating claims are concerned here: And it also points out that the BVA often misinterprets the date: "According to paragraphs 6, 7, and 10 of your opinion request, when a veteran submits a claim for increased rating and a subsequent VA examination substantiates the increased disability, the Veterans Benefits Administration (VBA) awards increased compensation effective the date of the claim; however, paragraph 10 of your opinion request states that some members of the Board of Veterans’ Appeals (BVA) believe, based upon Harper, that the appropriate effective date in such a case is the date of receipt of the VA examination. The Supreme Court has instructed that, “[t]he starting point in interpreting a statute is its language.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). "

The VA only has CUE as a remedy. They don't have devious and evil intentional denial of benefits for veterans who are actually entitled to them as a legal remedy.

So the fact that the Vet caught them at it made them up their game...

What level of appeal are you at with this? Your first thing is to show you are entitled to the SC and the ratings. From your notes it looks like you clearly are. The next thing is to point out their errors. So you might want to draft an I am entitled to X and here is the evidence to show that statement - And then go back and start pointing out their errors. I think if you start from the point of their errors, it is a tangled mess. And you don't want to give them the chance to tangle it more. So make sure what you are entitled to and why you are entitled to it (per evidence) is VERY clear from the start. And then start dealing with all the errors they made at reaching to wrong conclusion. But with the VA treatment records and the reports of exams and previous diagnosis they said you have (that you said you didn't have) it leads me to wonder how many veteran's records might be in your file.

It is also odd how the put decision kind of stuff in the evidence list. Usually they just list the evidence in that section -- but they are including things such as "did not show a diagnosis of __" "did not show service in Vietnam" etc. right in the evidence list. That seems odd to me.

I am stumped by the VA treatment records discussed for treatment you stated you did not receive. These are not one time exams. They are records of treatment spanning several months. If they actually had other veteran's records in your file that affect the decision they made on your claim - they should readjudicate it as the file was tainted.

Do you have a copy of your C-file? I am sorry if you have already answered that... But if you don't have a copy of all the records - you will need to get them.

My husband had other vets records in his C-file. In fact, the other day I was looking over his knee exams and noticed one discussing a meniscus tear. And I thought, "Wait... don't those require surgery to repair? My husband never had surgery on his knee..." Then I noticed it was another veteran's medical exam; not my husband's. I did read over the claim you posted - and a lot of it didn't make sense - as you so accurately pointed out. I used to think the RO didn't read things and made lots of errors. The more I research, the more I think they do read things, but just distort it all and twist things around. I am sure that once you untangle the mess that they have made of your claims, you will be able to get the ratings you deserve. With all the errors, I hope you get the ratings retroactive.

infantry10, I hope this helps. It is a lot of information - but it explains a lot of things. Also - if your mother-in-law is not comfortable with the info you posted, I made sure not to directly quote you - so you can go back and edit any posts she wasn't comfortable with.

MartyL - I wonder if there are other veteran's records in your C-file (re: the reports of exams and treatments you said you never received.)

Thanks asknod. I realize that coming up with a medical record within a year of discharge clearly showing a finding of lung cancer would help a lot. But I am hoping that is not my only saving grace. As cancer is on the list of presumptive illnesses under 3.309, I am not sure I would even need an IMO in that case. If a medical record clearly showed a finding of lung cancer; it should be presumptive. I am trying to rely on: (d) Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. And I do have two strong IMOs that state his cancer started in service. And I have seen quite a few claims granted on a similar theory. My concern is that even though 3.303 (d) states that presumptive periods are not intended to limit service connection to diseases so diagnosed when evidence warrants direct service connection. And 1. M21-1MR, Part IV, Subpart ii, Chapter 2, Section B, 3 c. states “Consider whether direct service connection may be established under 38 CFR 3.303(d), even if service connection is claimed for a disease diagnosed after service has ended. Service connection may be granted for a disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. Do not attempt to establish presumptive service connection for chronic or tropical diseases until the possibility of establishing direct service connection has been ruled out.” My concern is that although the law and M21 clearly state that direct service connection CAN be given to disease diagnosed post service, and that the VA should actually consider the possibility of granting under direct SC (even for disease diagnosed post-service) BEFORE even attempting to to establish presumptive service connection - that some VLJs seem to jump right to presumptive and require that the disease be MANIFEST to a degree of 10% within the presumptive period. If the VA decides to go that direction - 3.307 states: “This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.” So, at this point, I was wondering if I should try to develop the fatigue portion - in case the VA jumps to presumptive SC instead of direct SC. If the doctor is saying that fatigue is a prominent symptom of lung cancer -- then it might possibly be considered a "manifestation" of the disease. Some of the studies I have read says that fatigue is many time the FIRST symptom that many people with lung cancer have -- before their cancer produces any other symptoms. If the fatigue was at least as likely than not related to his lung cancer -- than that would help my case as far as manifestation. And this isn't so much my lay testimony of fatigue. My husband reported fatigue to the VA at discharge and had a C&P for it 6 months post service. The C&P examiner said he didn't have CFS, but he didn't give any opinion as to what was causing his fatigue. ANY manifestation of cancer would be at least 10% because cancer is rated at 100%. If you have it - it is 100%. My husband didn't seem to go to the doctor much except when he was treated for cancer. So he doesn't have a lot of medical records before that. BUT -- I would bet that if his cancer was detected within a year or two of when he entered the service, the VA would note than based on its size, and based on the slow growth of that type of cancer, that his cancer pre-existed the service.

I agree - they know they messed up - so they aren't sending you to the back of the line. But they are making you jump through another hoop so they can pretend like they didn't mess up.

I am not finding a specific reg that covers the dependent allowance. I am sure one exists. This is the government. But I am finding quite a few posts by married couples who are getting disability in their own right and also a dependent of their spouse.

So it looks like as long as you have not used 48 months of COMBINED benefits between the DEA program and a GI Bill program prior to Oct. 1, 2013 -- you can get additional benefits through DEA - up to 81 months COMBINED.

Now this is interesting: https://gibill.custhelp.com/app/answers/detail/a_id/523/related/1 Yes, you may be eligible for more than one VA education benefit program. However, you may only receive payments from one program at a time. You can receive a maximum of 48 months of benefits under any combination of VA education programs you qualify for. For Example: If you qualify for both MGIB-AD (Chapter 30) and MGIB-SR (Chapter 1606), you can receive 36 months of entitlement at your MGIB-AD payment rate, and then an additional 12 months of entitlement at your MGIB-SR payment rate, up to the maximum total of 48 months entitlement. If you are eligible for more than one benefit program you must notify us which program you intend to use before enrolling in training. Effective October 1, 2013, there is an exception to this rule for recipients of Survivors' & Dependents' Educational Assistance (DEA). Click here for more information. https://gibill.custhelp.com/app/answers/detail/a_id/1479 Normally you can get up to 45 months of full time benefits as a beneficiary of the DEA program. If you are training at less than the full time rate of pursuit, the number of months would be adjusted accordingly. For example: If you were enrolled as a 1/2 time student you could be entitled to up to 90 months of 1/2 time benefits, and so on. But in this case, your monthly payment would be a smaller amount. Effective October 1, 2013 you may be entitled to a total of 81 months of full-time benefits if you are eligible for the DEA program and another GI Bill program such as the Montgomery GI Bill, the Post-9/11 GI Bill or others (this does not include those enrolled in the Vocational Rehabilitation Program). People who have already used 48 months of combined benefits between the DEA program and a GI Bill program prior to October 1, 2013 are not eligible for this extended benefit. This rule does not apply to any combination of GI Bill programs that do not include the DEA program.

http://www.va.gov/hac/forbeneficiaries/champva/champva.asp Eligibility To be eligible for CHAMPVA, you cannot be eligible for TRICARE, and you must be in one of these categories: The spouse or child of a Veteran who has been rated permanently and totally disabled for a service-connected disability by a VA regional office. The surviving spouse or child of a Veteran who died from a VA-rated service-connected disability. The surviving spouse or child of a veteran who was at the time death rated permanently and totally disabled from a service-connected disability. The surviving spouse or child of a military member who died in the line of duty, not due to misconduct (in most of these cases, these family members are eligible for TRICARE, not CHAMPVA). "An eligible CHAMPVA sponsor may be entitled to receive medical care through the VA health care system based on his or her own Veteran status. If the eligible CHAMPVA sponsor is the spouse of another eligible CHAMPVA sponsor, both may now be eligible for CHAMPVA benefits. In each instance where the eligible spouse requires medical attention, he or she may choose the VA health care system or coverage under CHAMPVA for his/her health care needs. "

So far, what I am finding is it looks like dependents allowance - yes -- ChampVa - yes Educational benefits -- maybe not if they have already drawn educational benefits on their own record. It would SEEM like as these are benefits to which each is entitled that ALL benefits SHOULD be available. But....

That's great news! The nice thing about the BVA is you do stand some chance with them. I think once any game playing starts at the RO level it is rough to get anywhere there - because they aren't really 'adjudicating' your claim at that point - they are just playing keep away.

Wishing you luck Bevo! And thanks for the great info asknod!

This is the question they apparently need answered on the DBQ MPLANTED AUTOMATIC IMPLANTABLE CARDIOVERTER DEFIBRILLATOR (AICD) (If "Yes," is it as likely as not that the veteran's AICD is due to IHD?) But you already turned in the DBQ... "My DBQ was done in 2011 so they have requested a new DBQ before they approve 100 %" If you 2011 DBQ says yes to the question above -- it does not seem like they would need a new DBQ. That doesn't seem to be something that would have changed between 2011 and now.

So it sounds like they are basically saying they want you to show that the AICD is needed because of the IHD, and not from another condition? I guess they are considering the IHD presumptive, but needing someone to connect the dots between the IHD and the AICD?