free_spirit_etc

Amazing that they would say that YOU didn't cooperate in processing your claim. I am sure that you can show them that is not the case. This is some serious stuff though - because the Vets count on them to represent them. And in this case it seems like more than just laziness or neglect, but outright interference with your claim - and working against your claim. Even if the Vet Rep decided he didn't like you, etc... the moment he recognized it was interfering with his ability to DO HIS JOB - he should have either: 1. Grown up and acted professional. or 2. Asked that your case be assigned to someone else. I think in most civil cases you don't have to have HUGE financial damages. As long as you have SOME TYPE of loss or damage - then punative awards can kick in. Free

Wouldn't that be great if your claim got approved right AFTER the POA withdrew from your case? I have been fighting Bureaucrats and Buzzards on different issues - and amazingly if you can find someone who knows what they are doing actually read your stuff - it is a walk-in. Otherwise you spend months and years fighting their excuses. And it seems in your case that your Vet Rep, instead of doing what he could to help you fight your case - had some type of an ego problem and just kept working against you. Free

Hi Josephine - I have been super busy with school and probate and fighting the buzzards. I agree with Berta - that this COULD be a "good thing." They could certainly be looking for more medical evidence that you are currently disabled from something that is connected by the dots all the way back. And yeah..it is nothing that they don't already know. I actually don't think they could be looking for evidence that your disability is CAUSED by something else. You are already approved for a Pension --i.e. already considered disabled. I don't think they could be looking for evidence that the other conditions (if not connected) are the "cause" of your disability - because anxiety has been the name of the game until the quack C&P came along... And even THEY didn't declare that your disability was caused by the other conditions you have. They just chose to call your anxiety "personality disorder." But they also don't have the rationale to back such a diagnosis - nor did they attempt to provide the rationale when given the opportunity. So even THEY provided evidence that the psychiatric diagnosis IS your disabling condition. So the VA would have an extremely hard time trying to justify that anxiety accounts for a smaller percent that your total disability. Also - the BVA remand kind of seemed to turn the tide in your favor. They wanted more info from YOUR doctors / preacher --thought that info would be IMPORTANT -- and wanted the quack docs to justify THEIR rationale after reviewing the further evidence provided from your other sources. The odd thing to me is also - it would seem like the trauma you experienced when they did their "pool trick" would point more toward a diagnosis of PTSD than it would personality disorder. Free

I think dependents are covered by the one year rule -like lots of VA stuff. Had you added your new wife within a year of the marriage - they could go back to the day she became your dependent. If you add a dependent more than a year after they become your dependent - they only cover them from the day you filed the claim for them. They will NOT balance the dependents out (i.e. they will not allow you to keep the money you were paid for the first wife for the period you had the second wife). You could argue the point that since you had a wife - you were entitled to pay for the apouse -- but that argument wouldn't get you very far. Also it would create problems. So your best bet is to let them recoup all you were overpaid for the first wife. Expect to be paid for the second wife from the date you add her. And I wouldn't try to argue the point that you WOULD have been entitled to benefits for your NEW dependents if you would have informed them of the changes - because you did not inform them of the changes - and any argument in that direction will probably just raise their interest in what else you might not have told them.

Josephine's question in another thread got me doing a little digging -- Anyway - THe VA - as a federal agency - should be covered under this law. Could you even imagine if every vet who had a problem with this actually filed a civil suit against the VA over the RECORDS??? Wow! But Hey! Vets! Maybe there should be a move in THAT direction. The decision they make on the claims is in their dynasty - and they get to interpret the rules. But DIFFERENT laws pertain to the actual RECORDS they keep. So there could be a whole new ball park to play in -- vets filing civil suits against the VA for not keeping their records timely, accurate, and complete enough to assure fairness - and decisions consequently being made that are adverse to the individual BASED ON THOSE RECORDS! Free http://www4.law.cornell.edu/uscode/html/us...52---a000-.html TITLE 5 > PART I > CHAPTER 5 > SUBCHAPTER II > § 552a § 552a. Records maintained on individuals(g) (1) Civil Remedies.— Whenever any agency (A) makes a determination under subsection (d)(3) of this section not to amend an individual’s record in accordance with his request, or fails to make such review in conformity with that subsection; ( refuses to comply with an individual request under subsection (d)(1) of this section; © fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or (D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.

Yep it applies to all Federal Agencies. B)

Josephine - Hi. I was looking to see if you had a success story yet :D This is A SOCIAL SECURITY Employee Standard of Conduct - Under the Privacy Act -- NOT A VA One -- but you might want to see if the VA has one that is similar --which it MIGHT because it is also a Federal Agency -- So you might want to research the PRIVACY ACT concerning the VA Anyway -- Concerning Social Security and the Privacy Act - I found: "Employee Standards of Conduct stated in: Appendix A to Part 401—Employee Standards of Conduct (2) SSA may be subjected to civil liability for the following actions undertaken by its employees: (a) Making a determination under the Privacy Act and §§401.65 and 401.70 not to amend an individual's record in accordance with his or her request, or failing to make such review in conformity with those provisions; ( Refusing to comply with an individual's request for notification of or access to a record pertaining to him or her; © Failing to maintain any record pertaining to any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such a record, and consequently makes a determination which is adverse to the individual; or (d) Failing to comply with any other provision of the Act or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.

Berta, Not sure if you got my response - but I THINK I got it to go through (at first it said I had to many block text quotes). Anyway - I have got bucnhes of books lately - and haven't had time to open the boxes. But I looked and I do have one from Lexus - so that must be the one. I will call them tomorrow and get it straightened out (I hope). Did they give you any reason for why they sent me the book in the first place? Thanks so much, Free

Interesting story blessed. Yet the cure still has a long way to go - and doesn't take into effect all the contributing factors in each individual condition. But it does look like this study might hold promise that something might be developed that might be able to cure diabetes for some people (especially in the early stages) and help lessen the effects for others. I think one of the things researchers frequently miss is the synergetic effects of things. For instance my husband took taxol for awhile for cancer. Apparently they found that the substance from the bark of Yew trees was effective in killing cancer cells. What was the FIRST thing the researchers tried to do - once they found out it was effective? Make a synthetic version. This natural substance is effective - so lets try to find out the ONE part that makes it eefective - separate that out - and create it synthethetically. Well - it is NOT the same. The ONE part is NOT the same as the full natural combination - and the synthetic version is not the same as that which was created by nature. Then they wonder why it doesn't work. In the case of taxol - I was reading that they were NOT able to create an effective synthetic product. But they couldn't make enough taxol from the available bark of trees - so they started using the needles. Again - NOT the same. So even if this lettuce is shown to work - they would most likely try to find out the PART of the lettuce that made it work - and then manufacture that synthetically. It just loses a lot of effectiveness by the time they finally get done with researching it. Still - they might find out enough to hold some promise for some people. I didn't take your question to be trying to get over on us. I considered the question to be valid. Hmmmm. If I depend on my 100% from this disability - and a cure is discovered - what happens to my income? That is a valid concern - especially when you consider how many people have been booted off the roles of different disability programs because they wouldn't "cooperate" with their treatment. They didn't want to risk the surgery or treatments that had no guarantees - yet their very unwillingness to accept the treatment was held against them - and decisions made as if there actually WERE guarantees that the treatment WOULD have worked. So - yes - I considered your question to be valid - and express a valid concern. And I think most vets would take the cure over the VA payment any day if they had the choice. Unfortunately those are not choices the vet gets to make. I don't know of any vet on this forum who would, if given the choice, not gladly give ALL the money they recieved back to not hurt, to not be depressed, to not have PTSD, or whatever they have. As every widow would return every dime of DIC to have her husband back. But those aren't choices we get. Interesting article - but the news like to jump in a bit to enthustiatically with promises of cures. And any promise of a cure is news worthy - for sure. With my husband's cancer - we just kept hoping that whatever he was taking would keep him going long enough for something else to be discovered that would keep him going long enough until they discovered something else. We hoped we could buy enough time to buy us more time. However, I DO think there is SOME promise in much of the research. We investigated LOTS of things they were using in cancer research - and my husband tried a lot. For instance - we found that Mayo clinic was trying the mineral selenium to see if it could help prevent lung cancer recurrance. If it DID work - it would be years down the road before that was incorporated into standard practice. But my husband took selenium. We figured - If it MIGHT help - and if it WON'T hurt - and if it is one of the best shots Mayo Clinic is trying right now - we might as well try it. The same with Gingko. Now that more people are surviving cancer for longer periods of time - they are beginning to research the effects that chemo has on the brain. Now - if your choice is between living or not - of course you will take the chemo, regardless of whether it might make you forgetful. BUT if there is a way to reduce the effects of chemo on the brain - why not try it? We read that they are doing clinical studies trying using gingko to try to prevent "chemo brain." It hasn't been proven. But then again, if it MIGHT help, WON'T harm - and is the best shot the researchers are trying -why not try it. SO my husband took gingko. A warning though is that you DO want to look up any adverse effects - and let your doctor know what you are trying. There were some things my husband didn't try - as they might have lessened the effect of his chemo treatments. Also - like with gingko - the research didn't accept people with poor platelet counts. So we knew it could have an effect on his platelets. So we knew to watch his bloodwork - and if the platelet count started being effected - that he would have to stop taking the gingko. Free

I know the feeling of not wanting to ask right now. It is hard enough to take on all the red-tape - but then when you add in many people filing claims are depressed, very ill, recently widowed - it complicates the whole thing. The letters might make your claim stronger. But your doctor statements already make it strong. It is sad that the system is such that you feel like you have to prove 105 out of 100 things - because if you only prove 99 out of 100, the VA might focus on the one not proved. And I am sure they don't always do that. Actually, I would think the case is much stronger having the doctor statements and no buddy statements than if you had the buddy statements and no doctor statements. Doctor statements are needed. Buddy statements can be extra. I would say 22 jobs in 20 years is already a sign that you had a bit of trouble maintaining "employment." And you were very resourceful to have started your own business and make that work for you for as long as you did. So even that would seem to work in your favor. You tried working and tried working and tried working - and finally started a business that worked for you - and did that as long as you could. And now - you can't even do that. I wish you much luck - and I think you have an excellent claim for increase and proving unemployability. Free

Thanks Billy - I agree with mountain tyme - It does not so much matter that the doctor said you had OTHER conditions - He was pretty clear that your depression is what keeps you from being able to work. It is more like he was mentioning other conditions as a side issue. It is hard enough for someone with major depression to hold a job. But if they also have other things that cause pain - it is even harder. It helps that your SC is FOR depression. I had initially thought you were trying to make the link to another SC illness. But if the Depression IS your SC - then it doesn't matter WHAT contributes to that depression - if the dperession has increased in severity. So yeah - besides the initial depression - If you are ALREADY depressed - then having your back hurt, your neck hurt, etc. would make you MORE dperessed. Once you have the depression service connected - ANYTHING that makes it get worse is fair game -- you don't have to be depressed about SC conditions in order for them to count. You can even be depressed ABOUT not being able to work. I agree that the buddy statements will help. They will help solidify that it is your depression that is keeping you from working. (To make SURE the VA GETS IT better). It isn't that you can't work because your back hurts as much as being depressed because your back hurts... etc. etc. I think statements from people RELATING to work could also help. Work is not just employment. So if someone writes a statement about working with you on ANYTHING - and how the depression effects it - that would help. Again - like mountain tyme says - you want the statements to show an INCREASE in severity. So even a statement from your friend who said - Billy used to help me work on my cars. I knew he was depressed - but he used to help me quite a bit. Lately I have seen a big change in him - and then discuss the change.... (Now - I call him for help and he doesn't answer the phone. Or he comes over to help - but only helps for about 15 minutes and then doesn't feel like helping anymore... Or he tries to help, but honestly I am kind fo afraid to ask him anymore because he gets distracted and doesn't pay attention to what he is doing - and it is getting kind of dangerous to let him - the last time he helped he started the car while my hand was in the belt.... What kind of work did you do before? If you always did the same line of work - statements related to impairments that would affect your abilities there could help. And again, I would even see about getting statements from people who could say "I WOULD ask Billy to help, BUT..... and why they don't / can't) or Billy tried to help, BUT (and whatever happened / didn't happen that should have) Hope this helps Free

I like the email idea. There are programs you can get that shows if someone has opened your email (and all sorts of other things) My husband used readnotify for that. I have been using emails with my attorney lately to handle all the probate stuff. The thing I like about emails is they tell you more than their formal letters - but you also have a record of what was said (unlike a phone conversation). Free

You would probably have to be "cured" for a certain amount of time before they can determine you are "cured." With cancer - the VA rates you 100% until a certain amount of time has passed AFTER whatever was supposed to have cured you. Then they rate on residuals. So if someone took something for diabetes that was really supposed to actually cure them - the VA should wait a certain amount of time AFTER that - to make sure the cure at least appears to be effective - and then would rate the person on residuals -- all the side issues that came from the diabetes. (i.e. even if the diabetes itself was actually cured - you would still be rated for the toll it had taken on your body - at the level of disability for THAT.) And when you get right down to it - with MANY diseases - the biggest part of the disability stems from the other havoc the disease causes in your body. Free

Carlie, Here is a link the to BVA decision connected to the court case I posted. It doesn't look very promising. It seems they don't take information in the C&P exams to be informal claims - unless it is for an increase or a reopening of a claim. It says the standard procedure in 1978 was to note all disabilities on the rating form - whether they were claimed or not. However, it doesn't say they had to be rated - or that the vet had to be informed of them if they were not rated. It looks like the vets medical record DID say that he had major problems since his prostate surgery - but the VA says he didn't claim it. http://www.va.gov/vetapp04/files/0401520.txt I am not sure of all the specifics of your case - but this looks like it is similar in many ways. Not sure if it helps or not. Free

Billy, Can I ask what disabilities you already have an established Service Connection for? Free

And you will have to work on Easter's ;) Free And the serious answer is that if your condition was "cured" and / or reduced in severity - it could be re-rated. It would STILL have to be service connected though - at 0% - right? Free

You can find §4.97 Schedule of ratings—respiratory system. - at this link http://www.warms.vba.va.gov/regs/38CFR/BOOKC/PART4/S4_97.DOC That will show more what these numbers mean in relation to percent of disability within the VA rating system. Free

I had a pulmonary test and I don't know what it means using the machine it said my FVC 74.4, FEV1 75.0, FEF25 - 75 = 73.5, FEV1/FVC % = 79 Your pulmonary function tests are showing impairmnent in your lung function. After Bronchodilator FVC 72.7, FEV1 75.5, FEF25 - 75 = 83.7,FEV1/FVC % = 82 Interpretation: No obstructive lung defect indicated by the FEV1/FVC. It isn't showing an OBSTRUCTIVE PATTERN There is a moderate restrictive lung defect. It IS showing a MODERATE RESTRICTIVE PATTERN There is a decrease in diffusing capacity. FEF 25-75 changed by 14%. This is interpreted as an insignificant response to bronchodilator. The problem isn't helped by using bronchodialtor medicine. What is this telling me ? http://en.wikipedia.org/wiki/Respiratory_disease Obstructive lung disease Emphysema Bronchitis Asthma Chronic obstructive pulmonary disease (COPD) Bronchiectasis Byssinosis Bronchiolitis Asbestosis Obstructive disease is characterized by an increase in airway resistance that is measured as a decrease in peak expiratory flow rates. In some cases, there is a miss-match between the FEV1/FVC ratio. The normal person exhales most of the inspired air in the 1st second; this ratio on normal subjects is around 0.8, this means that 80% of the expired air is expelled the 1st second. [edit] Restrictive lung diseases Fibrosis Sarcoidosis Alveolar Damage Pleural effusion Hypersensitivity pneumonitis Asbestosis Pleurisy Lung Cancer This pattern is characterized by an increase of the force trying to collapse the lung (recoil) and a decrease in lung compliance, measured as a decrease in all lung volumes. This is opposed to Obstructive in which you only have an increment of the values that take in to notice Residual Volumes (RV) such as TLC (Total Lung Capacity) and FRC (Functional Residual Capacity). In this case TLC is smaller than normal since the recoil force in the lung is greater than what it should be, the FEV1/FVC ratio will also be altered but instead of being lower than normal it will be higher than normal. As previously stated FEV1/FVC should be around 0.8, in Obstructive Disease is lower, in Restrictive Disease since the amount of air going in is a lot less than in a normal or an obstructive pattern, the ratio appears to be higher (more than 80%) this is because a the smaller volume is expired quickly and more completely than in a normal pattern http://www.nlm.nih.gov/medlineplus/ency/article/003854.htm Diffusing capacity; DLCO test Definition Lung diffusion testing is used to determine how well oxygen passes from the air sacs of the lungs into the blood. The test measures the "diffusing capacity of the lung for carbon monoxide" or DLCO. How the test is performed You breath in (inhale) some gas containing a very small quantity of carbon monoxide, hold your breath for 10 seconds, then rapidly blow it out (exhale). The single exhaled gas is analyzed to determine how much carbon monoxide was absorbed during the breath. Why the test is performed The test is used to diagnose the presence and extent of certain lung diseases. It may also be used to see how gases move the lungs into the bloodstream. What abnormal results mean Abnormal results generally mean that gases do not move normally across the lung tissues. This may mean that lung diseases, such as interstitial fibrosis, sarcoidosis, asbestosis, and emphysema, are present.

The C&P examiner never even SAW my husband for his lung cancer claim. He merely looked at the medical records and decided that my husband cancer was not caused by asbestos exposure because he wasn't in any "occupational survillience programs" that weren't even BEING DONE by the Air Force at the time my husband was an electrician. Also - though my husband's PFT's - even the one done THAT day at the VA - SHOWED reduced PFT values and dypsnea on hills and stairs, and though my husband had an 11 inch scar and an ENTIRE LOBE of his lung removed - the C&P examiner WITHOUT SEEING him determined that he had "NO shortness of breath or other apparent residuals" from his lung cancer. ???? Shouldn't THEIR OWN tests that showed shortness of breath - and huge scars and missing sections of organs be considered a "residual" of lung cancer? Free

Carlie, This case is somewhat similar to your case. It is claiming that info in the doctor report should have been construed as an informal claim - and it is a case dating back to 1978. The court says that the medical report isn't an informal claim because it was not submitted by the vet, friend, member of Congress, etc. communicating an intent to file a claim. And it also says that the statement on the doctors report couldn't be an informal claim because at that time his claim with the VA was pending - and had not been granted. The promising part of this for you is where it says "The Board also noted that it was VA's procedure in 1978 to include on a rating decision other conditions that VA was aware of even though no claim for a benefit was made in relation to those conditions." So they did NOT follow that procedure with you. Your case differs from this case. In this case - it states that though the doctor had stated the vet was sterile - the VA had no reason to know that the vet was alleging he was sterile from a surgery performed by the VA UNTIL he stated the fact in 1994. So just because the doctor noted he was sterile - the VA had no reasonable reason to realize that was a claim for benefits because no one had informed them the sterility was the result of a VA surgery until 1994. In your case - even if the VA would say the doctor's record of tinnitus would not be an informal claim because: 1. You case was still pending with the VA. 2. It was not submitted by you, a friend, member of Congress, etc. It looks like you could have a STRONG argument that the Claim was not adjudicated properly under VA 1978 procedures because the "VA's procedure in 1978 to include on a rating decision other conditions that VA was aware of even though no claim for a benefit was made in relation to those conditions." This isn't a case where they would have no reason to know the tinnitus was not reasonably raised. The SMR's reveal symptoms of tinnitus. So - if their procedure was to include other conditions they were aware of - regardless of whether the vet raised them - they should have considered the tinnitus - and should not have required that you specifically filed for tinnitus either formally or informally. So you might also want to consider building an argument in THAT direction. If you just try to establish the doctor report was an informal claim - then they might spout a bunch of stuff to argue that it wasn't. But if you can build a strong argument that the VA should have adjudicate the issue - as it was reasonably raised by the evidence - they can go on all the want about how you didn't file a formal or informal claim for tinnitus - but that shouldn't matter, if the 1978 VA procedures were that you didn't HAVE to file such a claim if the record reasonably raised the issue. Free http://search.vetapp.gov/isysquery/61d35d9...f294d217/5/doc/ Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 04-0355 Tony R. Haskins, Appellant, v. R. James Nicholson, Secretary of Veterans Affairs, Appellee. Before LANCE, Judge. O R D E R Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. The pro se appellant appeals a January 15, 2004, Board of Veterans' Appeals (Board) decision that denied entitlement to an effective date earlier than November 16, 1994, for the grant of compensation benefits under 38 U.S.C. 1151. Record (R.) at 1-17. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. 7252(a) and 7266(a ). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will affirm the January 15, 2004, decision. The appellant served on active duty in the U.S. Army from January 1970 to July 1970, and from June 1975 to May 1976. R. at 21, 22. The record reflects that in July 1974 the appellant underwent an open revision of bladder neck contraction and panendoscopy. R. at 30-31. In February 2000, the Board awarded VA compensation benefits under 38 U.S.C. 1151 for sterility related to the 1974 surgery. This appeal stems from the appellant's disagreement with his effective date. Under 38 U.S.C. 5110 , "nless specifically provided otherwise . . . , the effective date of an award based on an original claim . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." See 38 C.F.R. 3.400 (2005). A Board determination of the proper effective date is a finding of fact that the Court reviews under the "clearly erroneous" standard set forth in 38 U.S.C . 7261(a)(4). See Evans v. West, 12 Vet.App. 396, 401 (1999); Hanson v. Brown, 9 Vet.App. 29, 32 (1996). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364 (1948 )). The appellant asserts that he is entitled to an effective date back to 1978 because he made a claim for benefits related to his sterility in 1978 and VA failed to adjudicate that claim. See generally Ingram v. Nicholson, __ Vet.App. __, No. 03-2196 (July 12, 2006). The Secretary argues that the Court should affirm the Board's decision because there is a plausible basis in the record for the Board's determination that the first evidence of record that could be construed as an informal claim for section 1151 benefits for sterility is the appellant's November 1994 statement. VA is required, with respect to all pro se pleadings, to sympathetically read the claimant's filings to determine if a claim has been raised. See Ingram, __ Vet. App. at __, slip op. at 5 (citing Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004)). "[T]he question of whether a sympathetic reading of prior filings raises an informal claim for benefits is essentially a factual inquiry." Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005) (citing Moody v. Principi, 360 F.3d 1306, 1310 ( Fed. Cir. 2004)). In the decision on appeal, the Board extensively discussed and reviewed what the appellant had submitted since 1978. Initially, the Board correctly noted that the appellant did not file a claim for section 1151 benefits within one year of having undergone the surgery in 1974, and, therefore, he was not entitled to an effective date back to 1974 on this basis. See 38 U.S.C. 5110©. The Board then considered the appellant's contention that an August 1978 VA examination report constituted an informal claim for compensation benefits because the VA doctor recorded the appellant's history of sterility since the 1974 surgery. The Board determined that the examination report did not meet the criteria for an informal claim because it was not a communication from the veteran, his representative, a Member of Congress, or an agent communicating an intent to file a claim for compensation benefits. See 38 C.F.R. 3.1(p), 3.155(a), (:) (2005). The Board also found that the August 1978 VA medical examination could not constitute an informal claim for benefits under the provisions of 38 C.F.R. 3.157 (2005) because at that time the appellant's claim for compensation had not yet been granted. See Lalonde v. West, 12 Vet.App. 377, 382 (1999); Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993). The Board correctly observed that "[t]he mere presence of the medical evidence does not establish an intent on the part of the veteran to seek . . . service connection." Brannon v. West, 12 Vet. App. 32, 35 (1998). For these same reasons, the Board also concluded that an April 1986 VA examination report could not constitute an informal claim for section 1151 benefits. The Board also looked at two written statements submitted by the appellant in support of his 1978 claim for an increased disability rating for his service-connected conditions. R. at 39, 41. The Board found that there was no intent expressed in either statement to claim section 1151 benefits for his sterility because neither statement mentioned his sterility. Both statements were expressly limited to his service- connected disabilities (hearing loss, otitis media, and lumbar strain) for which he was seeking a higher rating. Hence, the Board also rejected the appellant's alternative suggestion that the October 1978 rating decision on his increased rating claims also adjudicated a claim for compensation benefits for his sterility and failed to notify him of the denial. In this regard, the appellant pointed to the following entry on the rating decision: "8. NSC - 7527 [postoperative] suprapubic prostate resection with epididymitis obstruction and sterility." R. at 53. The Board rejected the appellant's suggestion that a claim was adjudicated on the basis that nothing in the rating decision indicated an intent to adjudicate such a claim. The Board noted that the issue before the 1978 rating board was an increased evaluation for service-connected disabilities and nothing in the body of the rating decision addressed a claim for sterility. The Board also noted that it was VA's procedure in 1978 to include on a rating decision other conditions that VA was aware of even though no claim for a benefit was made in relation to those conditions. Hence, the Board concluded that the record and the law supported a finding that no claim was filed or adjudicated in 1978. Finally, the Board considered whether the appellant's February 1986 application for pension benefits could have been construed as a claim for compensation under 38 C.F.R. 3.151 (1986) (claim by a veteran for pension may be considered to be a claim for compensation). Although the Secretary's regulation permits him to consider a claim for pension as a claim for compensation, the Court has held that the Secretary is not required to treat every pension claim as also being a claim for compensation, but must "exercise his discretion under the regulation in accordance with the contents of the application and the evidence in support of it." See Stewart v. Brown, 10 Vet. App. 15, 18 (1997). In the instant case, the Board found that the February 1986 statement, and VA Form 21-527 submitted along with it, failed to imply any intent to seek compensation benefits under section 1151 because neither document contained any allegation pertaining to the appellant's sterility or the surgery he previously underwent in 1974. Given the absence of any reference to the appellant's disability or the surgery alleged to have caused that disability, the Court concludes that the Board did not err in its determination that the record in 1986 failed to support a claim for section 1151 benefits based on the appellant's sterility. Although the Secretary has a duty to sympathetically read a pro se claimant's submissions, see Ingram and Szemraj, both supra, he is not obligated " to read the mind of the[] veteran." See Cintron v. West, 13 Vet.App. 251, 259 (1999). Without any reference to the claimed disability or the alleged cause, nothing suggested to the Secretary that the appellant was seeking any such benefit. In the instant case, the Board reviewed what the appellant had submitted since 1978 and determined that the appellant had not filed a formal or informal claim for section 1151 benefits prior to November 1994. Upon review of the record and the parties' briefs, the Court finds that the Board's determination in this matter is plausible, supported by an adequate statement of reasons or bases, and, therefore, cannot be said to be clearly erroneous. See 38 U.S.C. 7261(a)(4), 7104(d)(1). The Board correctly determined that the appellant's November 1994 statement met all of the requirements of an informal claim because it was a statement submitted by the veteran, and it communicated an intent to apply for section 1151 benefits because "the veteran was very detailed in complaining about the residuals from the prostate surgery . . . [and h]e further stated that he had been fertile prior to undergoing the surgery and then was infertile coming out of the surgery." R. at 16, 97-100; see 38 C.F.R. 3.155(a). Accordingly, because the appellant's November 1994 statement is the first communication that can be construed as an informal claim for benefits, the Board's conclusion that the criteria for an earlier effective date had not been met cannot be said to be clearly erroneous. See 38 U.S.C. 7261(a)(4), 5110; see also Evans and Hanson, both supra; 38 C.F.R. 3.400. Upon consideration of the foregoing, it is ORDERED that the January 15, 2004, Board decision is AFFIRMED. DATED: July 25, 2006 BY THE COURT:

Yeah, the use of the word alleged - connected to tinnitus - is not strong - I wonder why the doctor didn't use the word possible. Alleged has a negative connotation - almost like saying "ther person alleges it - but it is not true." So the use of the word alleged could probably been used as a reason to deny the claim in 1978. However, I still think the combination of the doctor reporting SYMPTOMS of tinnitus, and the fact that the symptoms are also in the SMR's - an argument could be made that the evidence raised a reasonable claim for tinnitus - that should have been adjudicated. As the VA did not adjudicate it - it could still be considered pending. I would think Carlie could be in a stronger position in that case. Had it been denied - it would be hard to argue a CUE - as the word alleged would have given them a "reason" to deny the claim. But since they didn't deny it - it should be still pending. Then they would also have to consider any new evidence as well as the evidence of record at the time of the claim. This is an interesting case - though it can't be used as a precendent - it refers to cases that state that medical records submitted CAN be considered an informal claim if an underlying claim has been previously denied and the evidence shows new an material evidence to repopen the claim. That is a little different that they usually state about the medical records only being an informal claim if the condition is already SC and the medical records show a claim for INCREASE in ratings. I take this case to say - if you have claimed a condition - and it was denied - then a medical record that shows medical evidence for that issue can be an informal claim. However, even with informal claims - don't you have to follow up with a formal claim within a year? Or is the VA supposed to acknowlege the informal claim - and inform you of what you need to do in order to formalize the claim? http://search.vetapp.gov/isysquery/61d35d9...f294d217/3/doc/ Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 05-1271 Bradley J. Steinberg, Appellant, v. R. James Nicholson, Secretary of Veterans Affairs, Appellee. Before GREENE, Chief Judge. MEMORANDUM DECISION MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. claim for service connection for schizophrenia. In his May 1994 statement, Mr. Steinberg reported that he had fallen and experienced multiple seizures while stationed overseas, but that his service medical records failed to document any head injury. R. at 416. He also reported that he had received treatment for a nervous disorder at the Tahoma, Wisconsin, VA Medical Center. R. at 417. He then stated: "I don't know if you can help me with this but I know that I will be d[y]ing a lot younger because of all of this." Id. This document does not mention schizophrenia or indicate an intent to reopen his previously denied service-connection claim . Nor did Mr. Steinberg submit evidence along with the May 1994 statement that could indicate an intent to reopen his schizophrenia claim . See Criswell, 20 Vet.App. at 502 (submission of medical records may be construed as informal claim "when an underlying claim has been denied and the medical records evidence new and material evidence to reopen the claim "); cf. Voracek v. Nicholson, 421 F.3d 1299, 1304-05 (Fed. Cir. 2005) (deciding as a matter of law that appellant's statement was not material because a "single statement that his condition 'worsened' does not, on its face, relate in any way to his condition during the pendency of his original claim "). Without the submission of medical evidence or any mention of schizophrenia, a claim to reopen Mr. Steinberg's previously denied service-connection claim cannot be reasonably construed from the May 1994 document. See Criswell, supra. Further, the Court notes that Mr. Steinberg raises the question of whether the May 1994 statement can be construed as an informal claim to reopen for the first time on this appeal to the Court, despite the fact that he has received continual representation throughout the pendency of his appeal and that this matter has twice been remanded by the Court specifically for the Board to consider whether certain evidence constituted informal claims to reopen.

Thanks Josephine. I kind of came in at the tail end of your claim though -so most of my ideas will only apply IF they don't grant your claim. I keep looking for your post under Success Stories! :) Actually, I often run across the best stuff by accident. I am looking for something else and run across exactly what I need. Free

A Woman's Rights Attorney might even be interested in this one. Free

Carlie, I am not sure on this one. I would think it would be more of an unadjudicated claim. I am assuming if you had a C&P exam - that you already had a formal claim going. So I would think that if the C&P exam showed something else, besides what you claimed, existed - and the SMRs showed the same thing - that it would be a claim reasonably raised by the record, more than an informal claim. If you had a claim for all benefits to which you are entitled, then something that came up in the C&P should be adjudicated - but that is just my opinion. After getting my husband's C&P exams I was appalled to see how many service related issues came up in the C&P's - even with the examiner STATING that the problem with x was diagnosed in the service -- (like when my husband claimed for headache and the VA doc said it was his chronic sinutitis - diagnosed in service - that was the problem- the VA - in my mind should have granted SC for chronic sinutitis at that point). In your case - I would think the same thing. You claimed for those symptoms - you just didn't call it whatever it was. But I don't know for sure. One reason is - wouldn't they go back to the 1978 standards in deciding that? According to the standards that were in effect in 1978 - how was the case handled? I was thinking for a retro claim - the standards applied would be those in effect in 1978. Can you get ahold of the 1978 regs? I have read a few BVA cases where the person was denied - but then the BVA decided because of the rules way back - the vet qualified. free

Social Security has the limit for substantial gainful employment. You can earn a certain amount - but I sure wouldn't get close to the amount. I think if you earn over $500 a month - that is counted as a trial work month. A 10 hour a week appointment for a school would be free tuition and maybe about $300 a month. I'm sure that could be offset for Social Security with impairment related work expenses. Again, they might have programs for free tuition only - with no work requirements. Free