free_spirit_etc

Well dang! I called the local Dept of Vet Affairs about being my VSO while I was still within my time-frame to appoint one. The guy clearly told me they could help me to develop my claim, and give me advice, but I didn't need to appoint a VSO - that this was really something I could do myself. He said I didn't need an appointment, that all I need to do is drop by when I needed some help. I didn't drop by at that time because I knew I needed an IMO and I didn't want to go before I had that. I dropped by today and the lady that guards the gate to the people who know things said they don't see people without an appointment. I said the guy I spoke with told me I didn't need an appointment. I didn't even know they gave people appointments. She said the guy who told me that was Guy A, and that he was a volunteer, and was gone for the day. She told me his hours. I said I didn't think I spoke to him because the person I talked to clearly told me not to come by in the middle of the day because they were closed for lunch. So she decided I must have talked to Guy B. She declared if the person I talked to told me about lunch - it had to be Guy B, and Guy B never would have told me I didn't need an appointment. I said the person I talked to certainly did tell me I didn't need an appointment, and I was under the impression they didn't make appointments. Then she decided maybe it was Guy C. She wanted to know what he sounded like. Hell! I don't remember! But she decided it was Guy C, and Guy C is kind of "loosey-goosey" and he never should have told me that. Then she proceeded to tell me that I "should have" appointed a VSO, etc. etc. etc. I didn't get any help on that end. But she did give me their card and so I can call someone when I get back if something goes wrong at the hearing....

Here are the regs on postmark dates in case you need it. When I have filed something close to the deadline, I always get a letter down the road telling me the disagreement wasn't timely because they got it on such and such a day. Then I have to file an NOD on that, and send my proof of mailing and the law -- and that seems to refresh their memory. Geez - the regs clearly say they have to go by the postmark date - and if there is no legible postmark they should assume it was mailed 5 days prior. But still, on a decision that was made let's say June 5, that the accompanying letter shows they actually mailed June 8 - they will still say "You had until June 5 to respond and we did not receive your letter until June 6. They overlook the fact that you had until June 8, and your letter was postmarked June 2, and there was a weekend involved. Title 38: Pensions, Bonuses, and Veterans' Relief CHAPTER I: DEPARTMENT OF VETERANS AFFAIRS (CONTINUED) PART 20: BOARD OF VETERANS' APPEALS: RULES OF PRACTICE Subpart D: Filing 20.305 - Rule 305. Computation of time limit for filing. (a) Acceptance of postmark date. When these Rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by the Department of Veterans Affairs. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. (b) Computation of time limit. In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation.

Thank you so much Berta! I learned about getting IMOs from the best! We asked my husband's doctors and they said they "weren't allowed" to write them - that the VA would have their doctors decide. (ugh) Then I emailed lots of doctors who either wanted to charge horrid amounts or said they couldn't help me because my husband smoked. I got so tired of it all I contacted a Vet lawyer, and figured it would be worth giving them a chunk of my retro pay to not have to deal with finding a doctor. And they said I didn't have a case. :( So, I buckled down and got to work. I did contact medopinions, but they charge $2900 - and don't give any guarantees that the opinion will be supportive. Though I understand the non-guarantee part, I called to see if I could at least be referred to a smoker-friendly doctor. I did not want to pay $2900 for a doctor to refuse to support my claim for when the cancer started because my husband smoked. So I went to SEAK expert witnesses, laid the basis on my case out briefly in an email, and emailed doctors to see if they could write an opinion as to whether it was more likely than not my husband's cancer started in the service. That way, they knew the basics of the claim before they agreed to write an opinion. Of course, they didn't guarantee anything either. And they had to see the records before they could commit to an opinion. But at least I felt they would be somewhat friendly toward my claim if they had already read the basis before they responded. Actually, after the radiation oncologist read the records, he told me he couldn't believe that they are making a veteran's widow fight this battle. He said ANY doctor should know his cancer started in the service.

This is my OTHER IMO to submit: ...don't want it out there very long before I submit it.

Berta - Thanks for your advise on the other IMO. (By the way, I sent the information in your post about what to include in the IMO to the doctors) I was concerned that the other IMO wasn't quite strong enough. But it does support the strong one well. The other doctor also reported my husband had slow growing cancer, lived for a long time after diagnosis, briefly discussed growth rates and doubling times, etc. Where they differ is the stronger IMO said the cancer probably started 8 - 17 years before my husband retired and the other IMO said 5 to 10 years. They were using the same logic, but arrived at different conclusions -- but the one doctor didn't go into specific details about how he arrived at the conclusion. So they might consider it "flawed" because he spoke of a doubling time of 180 days, but said the cancer would have been in place 5 - 10 years. (With a doubling time of 180 days - it would be 17 years). But I hope the BVA doesn't get bogged down in those details, because both doctors made the major point that the cancer didn't just suddenly pop up and grow to 3.1 cm in 2 years. With two supportive IMOs - and NO medical opinion that states that my husband's cancer did not START in the service (they just said his viral illnesses were not related to his cancer) I am hoping the VA grants the claim without dragging it out and seeking other opinions. But OMG Berta, you are SO right about IMOs!! I have read cases where the VA doctor will say something like it is impossible to speculate when the cancer started, or we in the field of oncology believe cancer starts when it is diagnosed. The second statement is BS BUT, the VA denied the claim because the widow did not provide an IMO to counter those flimsy VA opinions. And with NOTHING in the file for the BVA to work with, they had to deny the claim.

I was surprised my husband didn't pursue his claims more than he did. I think part of the reason is that even if you got an SC condition, they reduced your retirement pay at that time – so you had to fight and fight to get …. Pretty much nowhere. And like many vets, he seemed to think the VA would do what it did – and there wasn’t much you could do about it. It is sad how many vets have VSOs representing them – but still don’t get the benefits they deserve. I He just had the SOCs, but didn't have copies of his C&Ps (I really think the VA should send those with the SOCs). And when we got the records and went through them - wow! He claimed for fatigue and headaches that he thought might be related to Desert Storm. But the VA said his headaches didn't count as an undiagnosed illness because they were "diagnosed as headaches." What the heck kind of reasoning is that??? But when we looked at the C&P exam -- the examiner gave two reasons for his headaches. They frontal headaches were caused from chronic ethmoid sinusitis, which the examiner pointed out had been diagnosed path proven in the service. And the headaches that started in the back he opined were from a cervical cause. He showed the x-ray (made copies to put in his report) that showed a separation and space between C 4 and C 5 (I think that was the two). Anyway, my husband had claimed for cervical strain when he retired – and they found a slight abnormality at the exact same place – but said it wasn’t disabling. A few years later, a C&P doctor finds progression of damage in the same place – but the VA denied the claim for headaches because they were not an undiagnosed illness?? For gosh sakes! The examiners connected them to two service related causes. The doctor didn’t point out the neck one was service related though. But if my husband would have gotten his C&P exam reports, I am sure it wouldn’t have taken a doctor long to put 2 and 2 together. As far as the fatigue – he claimed it when he retired. And they said he didn’t have chronic fatigue. He was just “tired all the time” but it didn’t rise to the level of chronic fatigue. He reopened the claim for fatigue a few years later. This time they decided he was depressed and the depression was causing his fatigue. Geez – the things he triggered on the Beck Depression Inventory were feeling no real satisfaction, loss of interest, difficulty making decisions, needing to push hard to accomplish things, and tiring easily. So you go to the doctor and say you are tired. They have you fill out a form and you tell them you are tired. So they decide you must be depressed because you are tired. In that case, the VA examiner opined his chronic fatigue was most likely related to his “depression.” In all the years of medical records I have reviewed, the ONLY mention of depression is in the C&P exam who decided he was depressed because he was tired all the time. That was kind of interesting. Now one thing is that even if it was depression causing his fatigue, he reported it when he retired, and reopened it a few years later, but no one went back and saw if it could be service connected. They just decided since he was depressed it was not a Desert Storm illness. But something odd is that the VA examiner opined that he was fatigued due to depression, though he noted my husband was scheduled for a sleep study the following day. My husband had a sleep study done, and the VA gave him a CPAP machine. It seems like the doctor would have waited one day to offer an opinion on the fatigue, knowing my husband was scheduled for a sleep study. My husband complained of difficulty sleeping and fatigue since retiring from the military – he reported it on his discharge physical (which is missing from his file) and claimed for it from the VA before he retired – so I think they should have seen if the sleep apnea was SC. What is odd is that the VA gave him the CPAP machine, and that is where he went to get his supplies for it. Since he had Tri-Care, I thought the VA only provided treatment for SC conditions. I think some of these could have been SCed, and I have kind of wondered if the sleep apnea could be a “pending” claim, (for accrued benefits) because they didn’t address it as a cause of his fatigue, even though they tested for it – because they were in too big of a hurry to issue an opinon before all the testing was done. I guess it wouldn’t hurt to ask…. As far as the other claims, they are pretty much dead – and I couldn’t revive them – and even if I could, it wouldn’t make much of a difference money wise, because of the retiree pay offset at that time.

I agree so much about the nicotine dependence thing. Back in the day when I was researching lots and lots of claims and the VA was able to grant claims for smoking related illnesses based on tobacco dependence the veteran had to "prove" their illness was related to their smoking. You can see lots of claims where the VA doctors said the illnesses were NOT related to smoking. As soon as they changed that law, they related all that stuff to smoking again. The pattern I see with the smoking, asbestos claims is the VA doctors say that smoking causes 90% of lung cancer, and even if the veteran was exposed to asbestos it would have contributed less than 50% to the veterans cancer, and therefore it is less likely than not. That is faulty math. There is too much research on the combined effect that I don't see how they can keep ruling it out as a contributing cause. I don't see how they can rule one part of a combined effect out just because it may have had less of an effect. The question is not did it contribute more to the cancer. The question is did it contribute. If it contributed 5%, it contributed. Now if the doctor says they can't separate out the effects of smoking from the affects of cancer - then the claim is granted because if it is not possible to separate the effects of an SC cause from a non-SC cause, the entire effect is presumed to be from the SC cause. And yes - Vets can still get secondary connection if their SC condition causes them to smoke.

Berta - That was an interesting observation you made about the ILD --about how the smoking "may cause was weaker" Mayo Clinic lists asbestos exposure as a cause and smoking as a risk.factor: http://www.mayoclinic.com/health/interstitial-lung-disease/DS00592/METHOD=print

Berta, No. He didn't get radiation from the VA. He was on Tri-Care. When we wrote our letter way back asking the VA to consider the the exam inadequate, we pointed out the examiner stated he didn't have any unique conditions that would suggest he would have been exposed to asbestos - but he failed to address his interstitial lung disease. Actually his post service records do document asbestos exposure. They are post service, but they are still in his chronological record of medical care because he got his medical care at the base.

Thanks Harley! This doctor is TOPS for sure. I actually have my Board Hearing next week. I am going to Washington to the hearing - and I was going to give the opinion to the BVA. I also got another opinion from another doctor, It is not quite as strong - but it is still written in my favor. I am so hopeful that with a strong, strong, strong opinion in support of my claim, another opinion in support of my claim, lots supportive information from journals, etc. that supports what both doctors said that the BVA would grant the claim. There isn't any doctor who has stated that the cancer did NOT start in service. The VA examiner just wrote: The veteran retired from service 9-30-1998. Therefore, his presumptive terminated 9-30-1999. I have reviewed the AMR related to treatment for respiratory problems. The symptoms and treatments suggest manifestations of viral respiratory tract illness. None of the episodes can be reasonably linked to an early manifestation of lung cancer. After review of the c-file it is my opinion the veteran’s signs and symptoms listed in his SMR are less likely than not early manifestations of the adenocarcinoma of lung first diagnosed September 2000. That is it. Handwritten on a Report of Contact Form. I am hoping that the BVA will be convinced to grant the claim, and not remand it to give the VA examiners another try at defeating the claim.

I was also wondering if it is possible to appoint a VSO if your claim is remanded. I contacted some VSOs from time to time - but for some reason I haven't found many that seemed supportive of my claim. I contacted one of the VET lawyers that also said that if my husband's cancer was not diagnosed in the service, and he wasn't in Vietnam, that I didn't have a claim. But I have read quite a few BVA cases where veteran's were able to prove more likely than not service incurrence with cancer, and widows were able to prove the same. When I got my letter certifying my claim to the Board I contacted a few VSOs again. One told me that my husband's claim died with him. I know. But I filed for accrued benefits and DIC. I am not sure all the Vet Reps even know about DIC. The one in my area said they would help me - but that I didn't need to appoint them, that I should handle my claim myself. I just find it hard to go into battle with a Vet rep that is not gung ho about representing me, or not gung ho about my claim. But one of the doctors I wrote about writing an opinion for the asbestos issue said she works as an advisor for one of the VSOs and can - but I have to appoint them as my Representative. She is very nice and really seems to want to help. But I told her that I don't think I can appoint someone now, as my 60 days to appoint a Representative ended. She had me call the organization. They gave me a number to call at the BVA to ask to appoint a Rep before my hearing. But they haven't returned my call. Can I ask the Judge at the hearing for permission to appoint a Representative if my claim is not granted? For instance, if it is remanded? I don't think they can deny the claim because they don't have an opinion that the cancer did NOT start in service. Their doctor just said the symptoms he had from respiratory illnesses were not related to his cancer. I think they know dang well his cancer started in the service, and so they side-step the issue. So if I submit a supportive IMO, it seems like they have to grant the claim or remand it. Likewise, with the asbestos issue. The VA in the last denial did seem to acknowledge that my husband was exposed to asbestos. But they still used the old medical opinion that stated my husband's cancer wasn't caused (in part) by asbestos exposure to deny the claim. So I don't think the BVA can deny the claim on that issue. If I show he was more likely than not exposed to asbestos, I think they would have to remand it for an opinion where the doctor took into consideration there was asbestos exposure. So anyway - if they remand the claim, I would probably want to see about appointing a Vet Rep, but I am not sure about the protocol for doing that.

Thanks stillhere! Yes. That is what the opinion is supposed to be for - to show that it is more likely than not my husband's cancer started in the service. I wanted to run it through here and see if anyone saw any red flags. §3.303(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. We also claimed the asbestos exposure helped contribute to his lung cancer, bu this issue seems to be an easier issue to establish. I am hoping that if they don't grant it on the in service incurrence that they will remand it on the asbestos issue. They do have a medical opinion that states asbestos didn't contribute to his cancer, but that doctor stated my husband was not exposed to asbestos. I think we have enough evidence that it was more likely than not that he was exposed to asbestos, and so I think that would make the VA examiner's opinion flawed. I did contact several doctors who promote they can do opinions on toxicology. But getting opinions on that issue would be pretty costly - and an unnecessary expense if I can show his cancer started in service. And on the asbestos issue, I have a feeling that even if I take opinions, the VA would still ask their doctors again, since their doctors had made the assumption he wasn't exposed to asbestos because he wasn't part of any medical surveillance program (that was not even in existence in the 70's)

Thanks for letting me know. I thought I had attached it. It says I don't have permission to attach that kind of file. So I just pasted it in.

Hi folks! I know it has been awhile! I am now scheduled for a Board Hearing and have the following IMO to support my claim. I am open to feedback to pass on to the doctor. Thanks. Thanks for the replies. I deleted it. I didn't want to leave it up very long.

http://38uscode.com/Courts/VetCourt/2011/Mitchell_09-2169_published_opinion_August_23_2011.pdf Interesting case on the effect of pain on repetitive range of motion - and exams being considered inadequate for rating purposes.

I just worked on polishing a bit. Notice Of Disagreement on Claim Filed XX/XX/XXXX Rating decision on XX/XX/XXXX WHAT: I, (name), am writing this letter as a notice of disagreement to the rating decision I received on this claim XX/XX/XXXX. I am providing medical evidence that shows that the C&P that was performed on XX/XX/XXXX contains errors and is inadequate for rating purposes. I am asking that the enclosed medical evidence and documentations be reviewed and used to reevaluate my rating. Additionally, my TDIU claim was filed XX/XX/XXXX and has currently been deferred. I am asking that the enclosed medical evidence be used in evaluating my TDIU claim. I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR. WHAT: I disagree with the decision in lowering my L4-L5 disc herniation status post microdiscectomy with residuals, lowering it from 40% to 20% for the following reasons: WHY: The range of motion reported in the C&P exam is in error: § The C&P range of motion exam did not use repetitive-use testing (in accordance with XXX?) and did not use a goniometer (in accordance with 38 C.F.R. § 4.46 Accurate Measurements). This was not stated in the exam or the notification letter. MEDICAL EVIDENCE: A range of motion was performed at XXXXXX Spine Center on XX/XX/XXXX. The report states that my lumbar forward flexion was 10 degrees. (attached & on file) A range of motion test was performed by a physical therapist at the VAMC in XXXXXXX on XX/XX/XXXX For this test each movement was measured 3 times using a goniometer and the average for each was: lumbar flexion was 11 degrees: lumbar extension 7 degrees: L lateral flexion 9 degrees: R lateral flexion 10 degrees. (attached). When my range of motion is measured accurately, the results warrant a rating of 40%, according to 38 C.F.R. § 4.71a. WHAT: I disagree with the decision in lowering my cervical strain with degenerative changes from 20% to 10% for the following reasons: WHY: The range of motion reported in the C&P exam is in error: § The C&P range of motion exam did not use repetitive-use testing (in accordance with XXX?) and did not use a goniometer (in accordance with 38 C.F.R. § 4.46 Accurate Measurements). This was not stated in the exam or the notification letter. MEDICAL EVIDENCE A range of motion test was performed by a physical therapist at the VAMC in XXXXXXX on XX/XX/XXXX For this test each movement was measured 3 times using a goniometer and the average for each was: cervical flexion was 29 degrees: cervical extension 29 degrees: L lateral flexion 15 degrees: R lateral flexion 19 degrees: Right rotation 24 degrees: Left rotation 22 degrees: When my range of motion is measured accurately, the results warrant a rating of 20%, according to 38 C.F.R. § 4.71a. WHAT: I disagree with the decision giving me a10% rating for migraines, also claimed as chronic headaches: WHY: As stated in my C&P exam on XX/XX/XXXX, I continue to have daily headaches. Despite the fact I am currently on medication for migraines and headaches (as prescribed by the VA) I continue to have at least 2 migraine episodes per month that incapacitate me for several hours. This warrants a rating of 30%, according to 38 C.F.R. § 4.124. WHAT: I disagree with the decision in lowering my residuals, surgical scar, microdiscectomy from 10% to 0%. WHY: My scar is very sensitive and painful to touch. My MRI's show that scar tissue is attached to my sciatic nerve. (attached and on file). This warrants a rating of 10%, according to 38 C.F.R. § 4.118. I have enclosed all documents mentioned above with this letter. I have also enclosed a form my VA physician completed on XX/XX/XXXX for my student loan discharge. The doctor certified that I am unable to engage in substantial gainful activity and that my residual functionality is less than sedentary. I would like to use this as evidence in deciding my TDIU claim, along with the above information and medical documentation. If you are unable to make any of the changes above and/or move forward with my TDIU deferred claim with the evidence provided, I would like the C&P exam on XX/XX/XXXX to be considered inadequate for rating purposes (in accordance with 38 C.F.R. § 4.2) and a new exam to be performed. Thank You, Name Contact Info

woo hoo!

There is an interesting thread about C&P exams. Wing's post #3 also shows part of a BVA decision where the Board found : "Given the fatal deficiency in the March 2008 examination report, as well as the inadequacy of the January 2008 examination report, there was no evidentiary basis to conclude that the Veteran's hearing loss had improved. 38 C.F.R. § 3.344©. There was no other evidence on file at the time of the reduction that suggested any improvement in the disorder. Consequently, there was no basis for the reduction, and the 20 percent rating is restored, effective from the date of the reduction."

New and Material (evidence) Reasons and Bases (for the decision)

Yellowrose, I wish you much luck!

I was just reading a case the other day where the Court said something that might apply to this. The case was about whether a widow would reopen a claim for accrued benefits - since reopening a claim requires new and material evidence; yet a claim for accrued benefits must be made on the record as it existed at the time of the veteran's death. http://www.veteranslawlibrary.com/files/CAVC_cases/2012/Quattlebaum_09-3557.pdf UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-3557 PEGGY L. QUATTLEBAUM, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued September 28, 2011 Decided January 5, 2012) The Court said: "Further, the Secretary's contention – that attempting to reopen an accrued benefits claim is an exercise in futility because an accrued benefits claim is based only on evidence "in the file at date of death," 38 U.S.C. § 5121(a), and therefore any new evidence submitted after death could not be considered and therefore would not be material to the claim – fails upon examination. This is because the Secretary has defined by regulation the phrase "evidence in the file at date of death," 38 U.S.C. § 5121(a), to include "evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death." 38 C.F.R. § 3.1000(d)(4) (2011). Thus, pursuant to this regulation, there may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's possession at the date of the veteran's death (and therefore are considered to be in the file at the date of death), yet have never been presented to the Agency decisionmakers. Any such document submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualify as "new" evidence pursuant to 38 C.F.R. § 3.156(a) ("New evidence means existing evidence not previously submitted to agency decisionmakers."), and might also be material if it (along with evidence previously in the record) "relates to an unestablished fact necessary to substantiate the claim. Id. ("Material 6 evidence . . . relates to an unestablished fact necessary to substantiate the claim.").

Thank you for your respectful arguments. Actually, I somewhat understood what Hoppy was saying - but by the third round of the argument I really "got it." The most important thing I got out of it was that sometimes we might get and idea that we think what won a claim, but that mind-set might make us overlook what really won the claim. I am going to go back and re-read some of the things I have been reading to help my claim and see if I notice some things in a new light. Without the interchange between you and Hoppy, I would not have developed a better understanding of some important points I needed to understand. Thank you both!

This is a very interesting point. I had usually thought of it in the opposite direction and go back to see exactly what the regulation says. Of course, I don't have near the knowledge or experience that you do with such issues. What complicates this somewhat for me is that even if the regs were applied a certain way in a certain case doesn't mean they will apply the same way in a very similar case. You see a lot of that in the cases too - where the lawyer will argue that something that was decided in one case applies in their specific case. Sometimes the court agrees and sometimes it doesn't. This is where knowledge and experience come in - the wisdom to know the difference. ETA: Oh yes... also count me as a member of the Hoppy Fan Club!

I am so sorry this happened to you. I know it is an awful blow.... Don't give up!

Your question sounds like you aren't asking if you can start working if you are 100% PTSD - but that you want to know if you can get 100% PTSD while you are still working. Based on the answers already posted, I imagine you can tell that the answer is no - You won't be granted 100% while you are still working. As far as your questions about what issues you need to document to obtain 100% while you are still working - no one can probably help you much with that one. But I am sure you can get lots of tips on this forum concerning what you need to document for a PTSD claim - and what kinds of things you can do now to protect your entitlement to increased benefits in the event you can no longer work.