free_spirit_etc

You should be refunded the amount you paid since August 2000.

"This is my first claim but I have 10 issues attached to it, expecting a long road."

Yes. You might as well start drafting your letters to request increases... ;)
But hopefully you will get all your conditions SCed - and not get low-balled too much.
In reviewing my husband's claims, I see they really take advantage of veterans who trust them to play fair. They tell you the doctor said things he didn't say, and that your records don't say things that they do say - and count on you to never bother to check to see if what they said is true.

But you are already on top of that! And you are on top of the game and looking out for yourself. So you should do just fine!

Being concise has never been on of my strengths. Is this a bit better?


I would like to request your assistance in receiving the benefits that were awarded by the BVA on 10/08/2014 granting me increased ratings for my GERD (effective ___ 2007) and left ankle disability (effective March 2009).

The BVA also directed the Regional Office to consider an earlier effective date of my TDIU claim, due to the retroactive increased ratings.


The Regional Office granted an effective date of ____ 2010 for the TDIU claim. However, the Regional Office has not paid me for the increased ratings the BVA granted, with effective dates of 2007 and 2009.

I would like to receive the retroactive payments for the increased ratings that were granted by the BVA five months ago.

Helping Vets, or doing something else you might enjoy doing, might be something you want to work toward.

As for now, I would encourage you to take your time and let everything settle in. I know it is tough - but hang in there if you can - and give yourself some time to make sure you are making the right decision for you and your family.

I remembered when I was newly widowed - a good piece of advice I read was to try to make any major life-changing decisions that you do not have to make for at least one year. That helps keep people from making decisions that they later regret they have made.

By all means, think about it, gather information, etc. - but your best decision at the moment might be to delay making any irrevocable decisions regarding stopping working until you know for certain that the decision is right (or until it becomes the only decision you can make).

Diver,

I am sorry to hear you had to leave your job. Though you are considered "young" by SSA standards, and thus they will see if you can be retrained for a different kind of job, the percentages on the back disability and depression are very relevant for your claim. The back injury would most likely rule out many non-sedentary jobs, and the depression might rule out many sedentary jobs.

You might want to contact a few SSA attorneys and see what they tell you. You might want to contact NOSSCAR http://www.nosscr.org/for referrals. You may call NOSSCR at 1-800-431-2804 during regular Eastern Standard Time business hours.

Some attorneys like to handle claims from the beginning to make sure everything is filed correctly before an initial decision is made. Other attorneys don't want to take claims until the person has already been denied. So keep that in mind when you talk to them.

Some people prefer to go it alone when filing, and other people prefer to get an attorney involved from the start. If you get an attorney involved, they will generally get a percentage of your retro pay regardless of what step in the process they enter representation. So some people prefer to get an attorney from the start, rather than do a lot of their own legwork, and then end up having to get an attorney later.

Some people also use Allsup http://www.allsup.com/Some people have liked them; others haven't.

But a good first step is to contact some representatives and see how interested they are in taking your case. The more interested they are, the less you probably need an attorney.

Good luck!

Have you also considered filing for any increased ratings and TDIU with the VA?

Diver,

I am sorry to hear you had to leave your job. Though you are considered "young" by SSA standards, and thus they will see if you can be retrained for a different kind of job, the percentages on the back disability and depression are very relevant for your claim. The back injury would most likely rule out many non-sedentary jobs, and the depression might rule out many sedentary jobs.

You might want to contact a few SSA attorneys and see what they tell you. You might want to contact NOSSCAR http://www.nosscr.org/for referrals. You may call NOSSCR at 1-800-431-2804 during regular Eastern Standard Time business hours.

Some attorneys like to handle claims from the beginning to make sure everything is filed correctly before an initial decision is made. Other attorneys don't want to take claims until the person has already been denied. So keep that in mind when you talk to them.

Some people prefer to go it alone when filing, and other people prefer to get an attorney involved from the start. If you get an attorney involved, they will generally get a percentage of your retro pay regardless of what step in the process they enter representation. So some people prefer to get an attorney from the start, rather than do a lot of their own legwork, and then end up having to get an attorney later.

Some people also use Allsup http://www.allsup.com/Some people have liked them; others haven't.

But a good first step is to contact some representatives and see how interested they are in taking your case. The more interested they are, the less you probably need an attorney.

Good luck!

Have you also considered filing for any increased ratings and TDIU with the VA?

I like this part:
"In contrast, the statutorily-mandated benefit-of-the-doubt rule assists the VA in deciding a veteran’s claim on the merits after the claim has been fully developed: “When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b). Thus, the Board’s consideration of the benefit-of-the-doubt doctrine does not replace VA’s duty under Moody, Szemraj, and Roberson to generously construe the evidence in this case and resolve any ambiguities in Mr. Harris’ favor."

There is a January 4, 2013 decision on effective dates posted here: http://veteranclaims.wordpress.com/2013/01/04/harris-v-shinseki-no-2012-7111decided-january-4-2013-fedcir-38-u-s-c-%C2%A7-5107b-duty-is-separate-from-duty-articulated-in-moody-szemraj-and-roberson-resolve-ambiguities-in-veterans/
Harris v. Shinseki, No. 2012-7111

diver,

Chris Attig has some interesting info here about Inadequate Exams http://www.attiglawfirm.com/communicate/inadequate-c-and-p-exams/

Here are a couple cases that might also help.

See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board erred in relying on a medical examiner who “ultimately relies not on the objective medical evidence, but rather the absence of such in reaching her opinion”)

See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

I agree. That is where I got the "A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)." - from a BVA decision.

And diver -- once you find something you might want to cite -- you can do an additional search for that case. For instance, in the above, do a search for Bethea v. Derwinski, and it will pull up BVA cases that cited that case, and you can find the reasoning worded in a variety of ways, and look for one that best supports your claim.

But with that being said, there are still times when citing the BVA cases might be the best thing you can come up with.

My husband's doctor told him that his cancer started a long time before he got out of the service. He explained that was based on his type of cancer's doubling time / growth rate. When I did a BVA search on cancer doubling time and growth rate, I found that most of the claims I pulled up were granted. Most of the claims were similar to my husband's -- where the cancer was diagnosed within a few years of getting out of service, but the nature of that type of cancer was that it would take many years to reach the size it was at diagnosis. It wasn't a case where I was able to find a case or two that were granted. I started clicking on the cases I pulled up under the doubling time search term, and found most of them were granted. The ones that were not granted were usually ones in which the claimant did not get an IMO, and just gave their own opinion and a couple articles to support the claim.

Despite the fact I found many of those cases, most people continued to tell me that my husband's cancer couldn't be service connected unless it was diagnosed in service, or he had boots on the ground in Vietnam. Even the couple of lawyers I contacted turned down representing me, and the VSOs told me I wouldn't be granted benefits because his cancer wasn't in his SMRs and he didn't have boots on the ground.

Despite the fact, §3.303(d) specifically addresses Post-Service diagnosis of disease, most people will tell you it has to be diagnosed in service, or exhibit noticeable symptoms in service. But the BVA cases told me different.

Of course, I had my IMOs, but I couldn't find precedential cases that specifically addressed cancer onset based on growth rate. So I used the BVA cases in my argument. I submitted the following:

"Entitlement to service connection based on doubling time and / or growth rates of cancer is not uncommon. Service connection has been granted on this basis in various claims. (See BVA Citation Nr: 0932955, BVA Citation Nr: 1132635, BVA Citation Nr: 0202424, BVA Citation Nr: 0905201, BVA Citation Nr: 0022373, BVA Citation Nr: 0521737, BVA Citation Nr: 1308760). A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)."

Ironically, one of the cited cases was decided by the judge who was deciding my case.

I also attached a copy of the excerpts of the portions of the decisions that addressed the issue.

The way I used the BVA decisions was similar to the way you are using them. In your case, the C&P doctor didn’t just state that YOUR sciatica isn’t caused by lumbar strain. He stated lumbar strain CANNOT cause sciatica. All the BVA cases you found certainly point out that the doctor did not use sound medical reasoning in his decision.
However, though you can point out that the opinion was inadequate because of that statement (and other issues in his report) you will still need to have a doctor state that YOUR sciatica is more likely than not caused by your SC condition. They can’t just base that on the other BVA cases.

Keep it factual. spell out the evidence in support of the claim, connect the dots, quote relevant laws.

Then look for any weaknesses in your argument, or places that give them some wiggle room, and try to plug those holes.

Stay focused on your purpose -- to be granted benefits. Don't let them pull you into side arguments.

Also - pay very close attention to what they ignore -- The keys to winning are often in those issues / evidence. They will often fail to mention things things that will grant the claim. If they can't outright combat the issue / evidence, or twist it enough, they will often fail to mention it. So keep the focus on YOUR argument, and keep bringing up the things they fail to mention.

"Specifically, you probably want to "Attack" the VA doc who opined against you. Just look on your C and P exam for the C and P examiner who opined against you and check his qualifciations. Make sure the C and P examiner ACTUALLY did opine what the VA said, as Berta pointed out they often can not read."

This is an excellent point. When we finally got my husband's medical records, and C&P reports, I found several cases on some of his older claims where the RO twisted what the C&P examiner had said in order to deny the claims. In one claim the C&P examiner cited specific evidence in the STRs that showed the condition not only started in service, but was diagnosed as chronic in service. The RO said the condition was NOT shown to be chronic in service. So no, you cannot go by what the RO says the doctor said. They twist their own doctors' words as well.


CHris Attig, the attorney, has special wording he recommends for attacking a bad C and P exam, and that has been posted. If you can not find it, I will help you try. The wording you need is here on hadit and on Chris Attig's website. Your nod needs to include wording disputing the Doc's qualifications to examine you due to lack of expertise in that field. If you do NOT dispute the adequacy of the exam, YOU wont be able to do it later, at the CAVC level, if necessary. The doc is given a presumptive, if you dont dispute his expertise/qualifications they are assumed good.

This is also an excellent point! In my husband's case, we wrote a letter to the RO that we considered the exam to be inadequate, and gave the reasons why. They ignored our letter. We continued to state our position that the exam was inadequate (and the reasons) on all of the appeals. However, when I finally figured out I would need to go to the BVA to be granted, I backed off that a bit. At that point, because the decisions were so crappy, and couldn't be considered very probative, I didn't really want to keep opening the door for them to get another opinion, and find someone who would write another crappy opinion, but support it better (and make it more probative). So I just figured they had laid their cards on the table and played their hand. Now, all I had to do was trump their hand. I didn't want them to start drawing more cards to try to beat my hand. So, though I argued that the RO was in error to rely on those opinions, I didn't push for the opinions to be considered inadequate, and give them one more chance to obtain another opinion. I pointed out the weaknesses in their opinions, and pointed out the strengths in my opinions.

The BVA decision stated
"In consideration of the opinions of the two private oncologists, both of whom opined that the Veteran's fatal lung cancer "certainly" began in service, the Board has determined that the Veteran's lung cancer likely began on active duty and that service connection for the cause of his death is thus warranted. In so finding, the Board accepts the private oncologists' opinions as being the most probative medical evidence on the subject, as such were based on a review of all historical records, and contain detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination reports, and the fact that the opinions were based on a review of the applicable record, the Board finds such opinions are probative and material to the Appellant's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). The March 2002 VA negative etiological opinion is entitled to less probative weight, as it does not specifically address whether lung cancer had its onset in service. Similarly, the October 2007 VA opinion is entitled to less probative weight, as it concentrated on whether the Veteran's in-service respiratory complaints were an early manifestation of his lung cancer and not the growth rate of the disease and whether the asymptomatic tumor was present in service. To the contrary, both private oncologists reviewed the record and cited extensively to their own expertise in the field as well as the current state of medical knowledge in reasoning that the Veteran's lung cancer likely began while he was in active duty. Thus, in light of the opinions of the private oncologists, which both cite to applicable studies and contain supporting rationale, the Board finds that the Veteran's lung cancer likely began while he was on active duty, and entitlement to service connection for the cause of the Veteran's death is established."

In many cases, if the RO wants to deny the claim, they will deny the claim, regardless of what the evidence says. If it is a simple misinterpretation of information, that might be resolved at the RO level. If they are twisting and distorting information in order to deny a valid claim, they will most likely continue to do so.

In my case, I saw enough evidence of twisting and distorting information that I pretty much decided my claim would never be granted at the RO level. I went through the motions with them that I had to, but focused mostly on getting my claim ready for the BVA. Unfortunately, this takes time. But I didn't want to waste any more time at the RO than necessary, because I figured I needed to get to the BVA to have a better chance of having a decision made based on the actual facts and evidence.

Some larger law firms might have several cases in the same area. If you have a strong case, they also might be able to get a "on the record" decision. In fact, most lawyers would probably file for an on the record decision -- which basically says there is enough information in the file to grant the claim without talking to you. They really shouldn't have to personally speak to you if there is enough medical evidence in your file. If the judge doesn't grant an on the record decision, that means he / she wants to talk to you, or your witnesses before making a decision.

The lower level employees have to follow POMS in issuing decisions. ( OR they are supposed to). But the judge follows the law; not POMS. So the judge has a lot more leeway, and can take many more things into consideration (in your favor).

Keep in mind there are probably quite a few attorneys that will take your case -- so if you don't feel comfortable with one after talking to them, keep looking.

Good luck with your claim!

The VA deposited my accrued benefits and my DIC retro in my bank account yesterday. Today was our wedding anniversary. That was a VERY nice present. And the timing lets me know my husband is still looking out for me.

Now this is downright interesting:

http://www.attiglawfirm.com/shoot/veteran-survivor-accrued-benefits-va/

"The SOC or SSOC could parse or manipulate critical statements in the actual C & P exam."

Yep....

That's great Vern2!

I emailed her March 6 about getting my BVA decision processed. I already received notification today from the Assistant Director at the RO. "The award action on your full grant of benefits should be authorized today. Typically, you should expect to receive the benefit award notification letter in the mail in 7-10 business days, maybe less. "

Buck52,

I think her biggest hurdle will be their questioning her going from making the amount of money she did a couple weeks ago to being totally disabled. However, they should realize some people keep dragging their bodies around to work when they are totally physically disabled. But another word you might want to keep in mind is "accommodation." She had been employed with the family for a long time and so they made accommodations for her as long as they could, but as she got worse they were no longer willing to make accommodations.

Also -- as to whether she could do the same type of work they are NOT supposed to take accommodations into consideration. Though the ADA says employers must make accommodations, SSA isn't supposed to consider them -- i.e. they can't say "Well, if she can find some other employers who will make accommodations for her she would be able to work. To consider her employable, they have to consider it as - Can she do this type of job without any accommodations being given to her for her disability.

Hamslice,

Yes, 49 seems to be a rough age for SSA claimants. They are ALMOST in the next category age-wise, but still considered with younger claimants. I had a friend in that situation. She was denied and I had to keep encouraging her to apply again the following year when she turned 50. She was so afraid of being denied again, but she was close to running out of her insured status time. She was approved, but still had to take it to a hearing. The lower level employees have to follow the GRIDS and POMS. ALJ's have more latitude, and are guided by the laws more than POMS.

ALLSUP has a very good record, though I hear they only take claims they know stand a good chance of winning. I live pretty close to them. I was actually recommended to work for them once. I hung out in an SSA forum for a couple of years while I was dealing our claims for survivor benefits. Most of the people in the forum were Social Security representatives and lawyers. One of them referred me to work for ALLSUP as a claims rep, but I wasn't interested in it at that time. Most of my experience was with our survivor claims - but I had to read through so much law and policies, I picked up some other stuff along the way. He seemed to think I would make a good claims rep, but I wasn't so sure that I would. The whole disability law can get pretty complex.

I am happy your wife hung in there and got her benefits! And good luck to Buck52's wife too!

free,

I too had heard that they only take claims they can win. If thats the case, then use them as a guide, its upfront free. If they take your case, go with them. If they don't, well then you know you have some work to do.

Hamslice

Buck52,

I think her biggest hurdle will be their questioning her going from making the amount of money she did a couple weeks ago to being totally disabled. However, they should realize some people keep dragging their bodies around to work when they are totally physically disabled. But another word you might want to keep in mind is "accommodation." She had been employed with the family for a long time and so they made accommodations for her as long as they could, but as she got worse they were no longer willing to make accommodations.

Also -- as to whether she could do the same type of work they are NOT supposed to take accommodations into consideration. Though the ADA says employers must make accommodations, SSA isn't supposed to consider them -- i.e. they can't say "Well, if she can find some other employers who will make accommodations for her she would be able to work. To consider her employable, they have to consider it as - Can she do this type of job without any accommodations being given to her for her disability.

Hamslice,

Yes, 49 seems to be a rough age for SSA claimants. They are ALMOST in the next category age-wise, but still considered with younger claimants. I had a friend in that situation. She was denied and I had to keep encouraging her to apply again the following year when she turned 50. She was so afraid of being denied again, but she was close to running out of her insured status time. She was approved, but still had to take it to a hearing. The lower level employees have to follow the GRIDS and POMS. ALJ's have more latitude, and are guided by the laws more than POMS.

ALLSUP has a very good record, though I hear they only take claims they know stand a good chance of winning. I live pretty close to them. I was actually recommended to work for them once. I hung out in an SSA forum for a couple of years while I was dealing our claims for survivor benefits. Most of the people in the forum were Social Security representatives and lawyers. One of them referred me to work for ALLSUP as a claims rep, but I wasn't interested in it at that time. Most of my experience was with our survivor claims - but I had to read through so much law and policies, I picked up some other stuff along the way. He seemed to think I would make a good claims rep, but I wasn't so sure that I would. The whole disability law can get pretty complex.

I am happy your wife hung in there and got her benefits! And good luck to Buck52's wife too!

Try to be as polite and easy to talk to as possible! The SSA clerks can easily make things simple or complicated, and cause approval or denial. You may find a clerk that is happy to help, or one that is not!
I had this experience some years back, and had only minor problems getting approval of a better payment start date. I was fortunate that the clerk originally handling my case was compassionate, one of the senior clerks,
and knew all the rules. Later, a junior clerk tried to throw a monkey wrench into things by initially refusing to accept certain paperwork I was specifically told by the senior clerk to generate.
I solved this by marking the envelope and the paperwork for the attention of the senior clerk, and getting a date/time stamp on both my and the submitted copy. The additional paperwork resulted in an informal administrative
appeal, (and award of an earlier start date and retro) forestalling the need to use the formal appeal process. (Which was still open of I disagreed)

Interesting information on how Social Security uses the GRID rules if your impairment does not meet the established standards. If your impairment meets the standards, you are considered disabled. If not, they apply the GRID rules:

http://www.nolo.com/legal-encyclopedia/how-social-security-uses-grid-medical-vocational-rules-decide-disability.html

Here is the Social Security Blue Book listing of Impairments

http://www.ssa.gov/disability/professionals/bluebook/AdultListings.htm

Buck,

I don't think they will want that many medical records. The most current ones, that show her current condition, are probably the most important. You could take them all, in chronological order, and they can make copies of the ones they need. Your wife can actually apply online at: https://secure.ssa.gov/iClaim/dib.

On that page is a link to click about documents you will need. I would hand carry any records they need to the office.

You might also consider filling out an application form and taking it with you to the appointment. I would much rather fill it out myself than have someone write down part of what I said, especially if I didn't know what the questions would be. So if you would rather have them fill out the form for you, it would still be best to read the forms and know in advance what questions you will be asked.

Here are the forms she will need to complete:

Form SSA-16-BK, Application for Disability Insurance Benefits - PDF file - www.socialsecurity.gov/forms/ssa-16-bk.pdf Tips for filling the report out: http://www.disabilitysecrets.com/resources/disability/how-fill-out-application-social-security-disab Form SSA-3368-BK, Adult Disability Report, PDF file - www.socialsecurity.gov/forms/ssa-3368.pdf Tips for filling the report out: http://social-security-disability.org/completing-the-disability-report-form-ssa-3368/ Form SSA-3369-BK, Work History Report, - PDF file - www.socialsecurity.gov/forms/ssa-3369.pdf Tips for filling the report out: http://www.disabilitybenefitscenter.org/how-to/fill-out-form-ssa-3369 Form SSA-827-BK, Authorization to Disclose Information to the Social Security Administration. - www.socialsecurity.gov/forms/ssa-827.pdf Fill out and sign several forms. Some sources also list Form SSA-3373-BK, Function Report - Adult - PDF File: www.socialsecurity.gov/forms/ssa-3373-bk.pdf

That should keep you busy for awhile.