free_spirit_etc

Rick, Did you get your sleep apnea SCed? My husband complained of constant fatigue from the time he got out of the service. It was on his initial claim. He reported he never felt rested after sleep. After a few years of telling the VA that, they finally tested him for sleep apnea. He only had a 39% sleep efficiency on the test. But with the CPAP, he had 80% efficiency. So they gave him one. But they didn't give him SC for the sleep apnea. They decided his fatigue was caused by depression. It just seems crazy. He complained of constant fatigue. So they scheduled him for a mental exam. He marked all the things on the depression inventory that related to his tiredness. (i.e. I am tired all the time. I have to push to get things done...etc) So they decided he was depressed. Is that circular reasoning or what? Then the C&P examiner diagnosed him with chronic fatigue secondary to depression. He even noted on the record that my husband had a sleep study scheduled the next day. Doesn't it seem like they would wait for the results of the sleep study before they decided what made you tired? But unfortunately, I do partly see the point of people not being happy with the 50% sleep apnea for CPAP use. Most of the other conditions seem to rate your level of impairment after treatment; not before.

Missouri Veteran's - Honorary High School Diploma http://www.mvc.dps.mo.gov/docs/services/honoraryhsdiploma.pdf Sorry if this is in the wrong place. I tried to put this in the Missouri thread, but it is archived.

"Well, I'm going to use the cp write up and and va dr opinion against themselves." That sounds like a plan. I have been amazed at how the RO can twist what the examiner's said in the C&P exams. Sometimes the examiners do write very supportive information. But the RO just ignores that part. At least our RO does.

I would certainly point out that the C&P doctor said it is more likely than not a secondary connection. You can also get lots of treatise information on malabsorption of Vitamin D and small bowel resection. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1773629/

I am trying to decide if: 1. My husband had any unadjudicated pending claims at the time of his death. 2. If he does - if it is worth pursuing them. I was basing the idea that he might have some unadjudicated claims on the following logic: http://search.uscourts.cavc.gov/isysquery/e790a225-57bb-4517-9599-b308f6f3e797/49/doc/ "However, notwithstanding the appellant's representation during the development of his claims before VA and at the Court, the appellant is entitled to a liberal reading of his filings. See Robinson,supra. Following the May 2007 VA auditory examiner's opinion, it appears that the facts before the Board were that (1) the appellant had a hearing condition he attributed to noise exposure in service and was "just liv[ing] with this condition," (2) the hearing condition was not bilateral hearing loss, and (3) the appellant had a diagnosis of tinnitus and complained of " static" in his ears. R. at 310, 185. This suggests the strong possibility that the appellant currently has an unadjudicated claim for tinnitus at VA that the Board could have construed as being included in the appellant's claim for hearing loss. Cf. Clemons v. Shinseki, 23 Vet.App. 1, 6 (2009) ("To deny the appellant's claim for lack of a current [] condition would have been entirely contrary to the medical evidence—it clearly shows there is a diagnosed current [] condition."). Although a claim may identify only one diagnosis, it must be considered a claim for any disability that may reasonably be encompassed by factors including(1)the claimant's description of the claim,(2)the symptoms the claimant describes, and (3) the information the claimant submits or that the Secretary obtains in support of the claim. Id. at 5 (2009). Therefore, in recognition of the strong possibility that the appellant currently has an unadjudicated claim for tinnitus at VA, the Court notes that he may seek adjudication of that claim below. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56-57 (2006). Should the appellant receive a final Board decision regarding a presently unadjudicated claim for tinnitus with which he is not satisfied, he will be free at that time to appeal the Board's decision to this Court." In looking at my husband's Statement of Case for his 2003 claim for Gulf War (undiagnosed) illnesses - the VA got on the ball and started diagnosing everything. So, of course, they denied all of the conditions because they were not undiagnosed illnesses, as they had been diagnosed. Almost all of the conditions were conditions that my husband claimed when he was discharged (i.e. joint pain, trouble sleeping, fatigue, etc.) A couple conditions were newer (i.e. headaches). But the RO denied the claims, as the illnesses had been diagnosed, without seeming to consider the possibility that the conditions might be SCed as diagnosed illnesses. On some of the conditions, they did mention that a chronic disability for X is not shown by the service medical records. For other conditions, they made no such notation. So I am not sure if the conditions that they didn't note weren't present in the SMRs could still be considered pending. Or if even the other conditions could still be considered pending because they didn't really develop the part of the claim except to note that a chronic condition wasn't shown in service. So I am considering asking that those claims still be considered to be pending unadjudicated claims for the purpose of accrued benefits. BUT -- I am also considering the fact that even if they granted SC for some of them - it wouldn't make a difference $$ for me because of the concurrent receipt issue. He was 10% SC for his left knee and 10% SC for his back. It would take quite a few 10% conditions to bump him over 50%. I think my intent is mostly an honor thing. I just want to say -- Dang it! His discharge physical is missing. But he told you he hurt - and where he hurt - at the time of his separation from active duty! He reported his symptoms to the VA WHEN he was discharged. And he has medical diagnoses for those symptoms. But I also don't want to tick the judge off when he is deciding my DIC claim. THAT claim is very important. So I don't want to put it in jeopardy by claiming too much - and appearing greedy. The accrued benefits part isn't even about money - it is about standing up for my husband's honor in his claims.

Looking through all my husband's C&P exams and decisions, it is starting to look like the VA may not have had access to his discharge physical at any point since he retired. What I find interesting is the lack of any discussion of his discharge physical. They would always say his SMRs didn't show such and such - but they rarely mentioned his discharge physical. On the C&P for fatigue (shortly after he retired) the examiner said "4/7/99 C&P exam “ This gentleman denies any symptoms associated with chronic fatigue syndrome except for the fact that he stated in his retirement physical he was tired all the time.” -- So it is kind of hard to tell if the examiner is referring to the discharge physical itself, or referring to what my husband said he reported. And the 2002 opinion for cancer the examiner stated that my husband's discharge physical didn't show any respiratory problems in service. But this guy said a lot of things that were totally inaccurate. (For instance that my husband had no residuals from his lung cancer - though he had one lobe of his lung removed, and that my husband had no shortness of breath - though the pulmonary function tests done that day noted he had dyspnea on hills and stairs and frequent wheezing.) So I have my doubts that this guy actually looked at his discharge physical. What I find odd is that they never mentioned it. It seems like someone - one of the doctors, one of the raters, one of the judges, would have noted that his discharge physical was missing while they were stating what his SMRs did or didn't show. Even the SOC and the SSOC I received after repeatedly trying to get a copy of his discharge physical remained silent on the issue. I did bring that up in my BVA appeal - that the SSOC doesn't indicate that my husband's discharge physical has disappeared from his file. But I am really starting to think that my husband's discharge physical was never in his file - or at least never in his file by the time they started making any decisions, due to the fact that no one bothers to mention it. So, if I can ever get a copy of his discharge physical, can I get some of the claims readjudicated based on a missing service medical record being associated with the claim file? Or does that right die with the veteran?

rpowell, I hope you start feeling better very soon.

I agree the Indy VARO is not the best, but it is not the worst. Chicago, Baltimore and Pittsburg come to mind.... (Nod) My RO is Chicago. They seem to be particularly good at twisting everything in circles in order to deny claims. And they lose a lot of stuff.

§4.19 Age in service-connected claims. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension.

If you say you did not get it, your VSO says they did not get it, and they can't find a copy of it - it would sure seem like they would need to issue another one (if they even issued one in the first place.) Even this does not add up "So of course I call the VA again and they say there is an ssoc it is odd because there is no cover page or letterhead on the scanned document. " "Went into the VARO yesterday, and they said that there is a statement saying it was sent, but they cannot pull up a copy (which apparently they should be able to)." So on the phone they tell you they can pull up a scanned document, and then when you go to pick up a copy they tell you that they can't find it. I would make sure I had a paper trail on this one -- making sure you have written confirmation that you are trying to get a copy, and written confirmation that they can't find it.

I really think the VA should be required to send the C&P exam results to the veteran with their decisions. It would be a different matter if the ROs could be trusted to accurately report what the C&P exams actually say. On my husband's 2003 claim for headaches, the VA examiner did xrays of his sinuses. He said one of my husband's types of headaches was actually a manifestation of chronic sinus disease. He also pointed out that an x-ray in 1982 showed ethmoid and maxillary inflammatory changes of the chronic type. My husband served from 1970 - 1998. About half of my husband's treatments in service were for sinus conditions, post nasal drip, nasal congestion, etc. The C&P examiner clearly pointed out that the condition was diagnosed as chronic in service (on the basis of the 1982 xray that showed inflammatory changes of the chronic type.) The SOC said "The VA examiner gave a diagnosis of chronic sinus disease and cervicogenic headache secondary to hypertrophic degenerative osteoarthritis of modest degree. A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability with sinusitis is not shown by the service medical records. What a crock! edit to add: Well damn... digging deeper. They also didn't bother to tell him that the hearing C&P diagnosed him with mild to moderate intermittent tinnitus. How in the world can they expect veterans to file claims within one year of an exam when they don't bother to tell them what they have been diagnosed with, or even twist it.

From what I am reading you might be able to claim that the PTSD was unadjudicated (i.e. still pending) if you had claimed (formally or informally) any symptoms that could be related to the PTSD. So if you reported the dizziness, forgetfulness, and nightmares in your communication to the VA, you could have an argument that you had an unadjudicated informal claim for PTSD that is still pending. If you reported the symptoms to the VA, and sought to obtain benefits for any diseases that might be manifested by those symptoms, then that could constitute an informal claim. Actually, from what I have been reading the VA isn't required to give you benefits for something you didn't claim, even if it is diagnosed. That seems odd to me. BUT, you are not required to diagnose yourself. So as long as you file a claim for benefits and list your symptoms, you should be considered to have filed a claim for any diagnosis that stems from that. Even if you misdiagnose yourself, they shouldn't hold that against you. (For instance, if you say your nightmares are the result of a sleep disorder, and the examiner says - No, they are the result of PTSD - the VA should not deny you because you have a different diagnosis than you indicated. You reported nightmares, the nightmares were diagnosed as a manifestation of a diagnosed illness - you have a claim for that illness. If they deny you benefits without addressing that illness, you very likely have a pending unadjudicated claim for it. http://search.uscourts.cavc.gov/isysquery/505f38d8-9504-4816-9322-dc8818c47da2/3/doc/ ***Note - this case cannot be cited as precedent - but it is interesting in the way the case explains it. "In its decision denying entitlement to PTSD, the Board acknowledged the diagnoses of depression and anxiety, but did not discuss them. It was error for the Board to limit the adjudication of the service-connection claim for PTSD solely to PTSD rather than to consider the claim more broadlyin light of the symptoms Mr. Allen was experiencing. See Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (per curiam order). An "appellant's claim [that] identifies PTSD without more [] cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors," including "the information the Secretary obtains in support of the claim." Id. Therefore, on remand, the Board must readjudicate the matter and consider the claim not solely as a claim for PTSD but rather as a claim for the "affliction [Mr. Allen's] mental condition, whatever that is, causes him." Id." <snip>.... Mr. Allen next argues that VA failed to recognize and adjudicate a separate claim for service connection for anxiety and depressed mood that was raised by the evidence of record, and that he asserts remains pending. He further argues that the Board erred byfailing to ensure that VA provide 2 a medical examination to determine nexus between the claimed anxiety and depressed mood and service. There is no indication in the record that Mr. Allen ever filed a separate claim for anxiety and depressed mood. While the Board erred by failing to broadly construe the service-connection claim for PTSD as a claim for any and all mental disorders, which is remandable error under Clemons, it does not necessarilyfollow thattheevidenceraisedanentirelyseparateand distinct claim for anxiety and depressed mood that remains unadjudicated. In Brannon v. West, 12 Vet. App. 32, 35 (1998), the Court stated that where the "record contains no evidence that the appellant had ever expressed an intent to seek[] service connection" for the unadjudicated condition, "[ t]he mere presence of the medical evidence does not establish an intent on the part of the veteran to seek [] service connection" for the unadjudicated condition. Because Mr. Allen did not express an intent to seek service connection for anxiety or depression by filing a claim for these conditions, they are not a separate claim that remains pending because of the Board's failure to adjudicate. They will instead be considered on remand as part of the claim for mental disabilities, which Mr. Allen filed as a service- connection claim for PTSD. Therefore, because there was no separate claim specificallyfor anxiety or depression that was raised solely by the evidence, it was not error for the Board to fail to order a separate medical examination.

qwiksting, It sounds like you are doing what you need to get done. I am hoping everything goes smoothly for you.

Can you get SC for the conditions, but waive the VA payments? Then stop waiving the payments at a later date (if you are over 50% SC)? Not sure. Just wondering.. http://www.nolo.com/legal-encyclopedia/choosing-between-dod-retirement-benefits-va-disability-compensation.html

Wishing you lots of luck!

Interesting to see the lawyer writing the letter seems to think that the only disabilities people should receive benefits for are missing limbs, and even then, they should really try to keep working with missing body parts and not rely on the VA for help.

That is interesting. I never did quite understand the sleep apnea issue on my husband's claim. He complained of fatigue and trouble sleeping on his initial claim (on discharge - 1998). The VA finally did a sleep study in 2003 and prescribed a CPAP machine. My husband said they did not SC the condition, but the VA provided him with the machine and supplies. I didn't know the VA provided care for non SC conditions. (My husband was retired and had Tri-Care).

https://iris.custhelp.com/ Click on the Ask a Question link. You might want to start getting some of this stuff in writing. (i.e. how they aren't able to find the SSOC)

Ahhh - here it is: http://www.va.gov/vetapp12/Files2/1213413.txt "The Board is sympathetic to the appellant's claim for accrued benefits. However, the sole purpose of finding CUE in the March 1951 rating action was so that the appellant could receive DIC benefits under § 1318; the purpose was not so that she could receive accrued benefits under § 5121. Thus, with respect to the appellant's claim for accrued benefits under § 5121, the March 1951 rating decision which existed at the time of the Veteran's death remains in its original form. Therefore, at the time of the Veteran's death, he was not entitled to benefits under an existing rating or decision. Furthermore, as discussed above, the Veteran had no claims for VA benefits, including a claim for CUE in any prior rating decision or a claim for service connection for residuals of a shell fragment wound with left ulna fracture, pending at the time of his death. The former claim was never filed during the Veteran's lifetime, and the latter was disposed of in March 1951, September 2000, and February 2002 rating decisions that were not appealed. Absent a pending claim for either benefit, there is no legal basis of entitlement to accrued benefits under 38 U.S.C.A. § 5121(a), and this appeal must be denied as a matter of law. See Sabonis, 6 Vet. App. at 426. ORDER The claim for accrued benefits is denied."

That is a great case! Thanks for sharing that! I was thinking I was reading a case the other day where the VA allowed a CUE for entitlement for DIC, but not for accrued benefits. I will have to see if I can find the case again. But it seems like since the error affected her DIC, the widow could raise the CUE issue, but they didn't grant accrued benefits on the basis of the same CUE.

Also - if you are on SSDI, you get Medicare after you have been receiving benefits for 24 months. The waiting period doesn't count here. So it is 24 months after you have actually been entitled to receive benefits. Why the Federal Government decided that disabled individuals who are no longer working should go two years without health insurance is a mystery to me. It would seem like health care would be one of the first things they would provide.

Here is an interesting post on SSDI and MS http://www.allsup.com/about-ssdi/ssdi-guidelines-by-disability/multiple-sclerosis-(ms).aspx Part of whether they will consider her "disabled" at this point is based on her level of functioning. Another part is based on her age, jobs skills, education, previous work, etc.

hamslice, This link explains it pretty well. http://www.ssa.gov/disability/determination.htm Sent to the State means they sent the claim to the state Disability Determination Services. They will look over the medical records and make a determination if your wife is disabled. Depending on her medical records, they might or might not decide to schedule her for an evaluation with one of their doctors. When my son was initially put on SSI, they didn't do an evaluation. They just made the decision based on his existing medical records. Since he was disabled as a child, he had to be re-evaluated later. It seems like when he was 18 and 23. However, the doctor they sent him to was very nice. He did some testing, and then came out and told me he was recommending they keep my son on disability.

Yes. You are correct. § 404.316. When entitlement to disability benefits begins and ends. (a) You are entitled to disability benefits beginning with the first month covered by your application in which you meet all the other requirements for entitlement. If a waiting period is required, your benefits cannot begin earlier than the first month following that period. § 404.621. What happens if I file after the first month I meet the requirements for benefits? (a) Filing for disability benefits and for old-age, survivors', or dependents' benefits. (1) If you file an application for disability benefits, widow's or widower's benefits based on disability, or wife's, husband's, or child's benefits based on the earnings record of a person entitled to disability benefits, after the first month you could have been entitled to them, you may receive benefits for up to 12 months immediately before the month in which your application is filed. Your benefits may begin with the first month in this 12-month period in which you meet all the requirements for entitlement. http://www.socialsecurity.gov/OP_Home/handbook/handbook.05/handbook-0502.html 502.1 What Is The Waiting Period? The waiting period consists of five (5) full calendar months in a row. It begins with the earliest full calendar month (but not more than 17 months before the month you filed the application) that you: Are disabled; and Meet the disability insured status requirements for benefit purposes. (See §207.) You are not entitled to benefits for any month in the waiting period.