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Ricky
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Posts posted by Ricky
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Adding in a spill about the accident, what happened to you (physically and mentally) along with where the pain is NOW coming from and why he feels the pain you now have is associated with the accident would be a bit helpful.
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Berta, if the BVA directs the AMC to conduct further development, ie... C/P exam, info from vet etc..... then AMC will do so and send the file back to the BVA for action.
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Cannon - for 500 bucks you need to be telling her exactly what you are looking for. It appears that you have already given her quite a bit of evidence. However, you now need to give her the SMR's to which you are trying to tie you current condition to and tell her that you need a medical opinion from her stating that your current condition is related to the inservice incident and her strong rationale for making such an opinion.
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Carlie, you have all of the points. I would just simply present it in this manner as it is a bit more logical in that it provides the legal deficiency first, the background outlining the evidence of the claim, how the cue came about, how it hurt you and what you want done. This is what a cue has to have in it. If you have not filed it yet then I would send it in this form. If you are going to present it at a hearing I would read it slowly into the record as is and provide a written copy to be entered into your file.
Hope this helps you a bit. Maybe others will chime in on my recommendation. Good Luck.
ISSUE:
You have to state up front the legal deficiency that caused the cue (note delete my ital notes)
Clear and Unmistakable Error on Rating Decision dated 10/31/1978 in which the statutory and regulatory provisions extant at the time of the decision were incorrectly applied resulting in the denial of my request for service connection of headaches due to a head trauma (concussion) resulting from my active duty service from _______ to _________.
You need to add basic back ground here such as:
As evidenced in my SMR’s dated_________ and present in my VA Claims File at the time of the 10/31/1978 rating I suffered a concussion due to ________________. Also available to the rater were SMR’s dated_________, ___________, and ___________ add as many dates as needed providing that I sought medical attention for my headaches and dizziness which provide that I received treatment for headaches and dizziness which were attributed to my concussion.
31 July 1978, less than two months after my release from active duty, My VA form 21-526 was submitted to the VA. On this 21-526 I listed and requested service connection for my headaches due to an in service concussion.
13 October 1978, a VA medical Examination for Disability Evaluation was conducted as evidenced by VA Form 21-2545, Dated 13 October 1978 and signed by Rafael Santayna, M.D. The VA Form 21-2545 provided the following:
Box 17 – PRESENT COMPLAINT S
1) Pain in back of the neck
2) Low back pain
3) Hearing loss
4) Headache and dizziness
Box 46 – DIAGNOSIS
1) Otitis media and hearing loss.
2) Concussion – headaches and dizziness.
3) Lumps on neck, nor present at time of examination.
4) Neck condition, mild spasms in muscles of neck and some limitation of motion,
5) Pending X-ray.
6) Low back condition, pending X-ray.
On 31 October 1978 a rating decision was made on my claim for headaches and dizziness. Although the rater provided in the decision in Block 5 an incorrect last date of examination (listed as 5 October 1978), he did state in the findings that treatment for both headaches and post concussion syndrome were shown in my service medical records on __________, ___________ and ___________. Once again add as many dates as you need
However, he continued in the rating decision and denied my claim. He made no mention of the 13 October 1978 VA Medical Examination which provided a diagnosis of “ Concussion – headaches and dizziness”. He simply used as his reasons for denial the words “Not found on last examination” which is completely unfounded as the evidence shows.
Based upon the above evidence the rater failed to apply and/or incorrectly applied the provisions of CFR 38, Sec. 4.124a Schedule of ratings--Neurological Conditions and Convulsive Disorders, Rating Disability Code 8045, Brain disease due to trauma which provides that purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304.
If it had not been for this Clear and Unmistakable Error committed by the rater of failing to comply with the provisions of CFR 38, Sec. 4.124a, Disability rating code 8045 I would have been awarded a 10 percent disability rating for my headaches and dizziness due to Concussion (Brain Trauma) effective the date of my release from active duty.
Therefore, I request that the board correct this Clear and Unmistakable Error and favorably adjudicate my claim by awarding me a 10 percent rating under Disability Rating Code 9304 effective ____________.
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I came in kinda late but good luck and knock them dead. And to this: I'm real shy talking to more than
a person or two at a time. I say just close them eyes and pertend you are a typing away at the computer on Hadit, cause shy here at Hadit you are not!!!!!!!! hahahahaha
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My dear sir, before you go away being mad at some really outstanding veterans on this site I just wanted to point out a couple of things to you in an effort to assist you in seeing clearly.
First your original topic sited TITLE 45. I am sure this is in reference to Title 45, CFR as Title 45 of the US Code covers Railroads. Title 45 my friend pertains to Public welfare. In paragraph (a) it discusses programs or activities which receives FEDERAL FINANCIAL ASSISTANCE. The VA does not receive federal financial assistance it is a federally funded program. Title 45 was truly written so that state programs such as those under HUD, Health and Human services, Food Stamp, Educational programs etc..... who receive FEDERAL FINANCIAL ASSISTANCE to help the states offset the costs of such programs would not and could not legally discriminate against one based upon race, religion, age, sex.
Then if you will take a look at the last paragraph in your post, still referencing Title 45, in simplistic terms it provides that if there is a regulation or law which withholds a federal benefit of the same kind then Title 45 would not pertain to a state which withheld the same benefit.
Meaning that since )under the umbrella of Title 38 USC), 38 CFR specifically 38 CFR 17.160 -17.164 only authorizes dental care to persons with a 100 percent disability or POW status then a state who received federal assistance with a dental program for the poor or disabled would not be bound by Title 45 when it came to providing treatment to disabled veterans under that paticular state program.
So I hope this helps to clairfy your situation and remove your feelings of discrimination. Title 45 only applies to State run programs which receive federal dollars in support of them support them. Title 45 does not pertain to any federal program such as VA for that is covered under Title 38 USC and CFR 38.
If you have a problem with how the VA dental program is run then please attack congress with the issue and not the great people of Hadit. If we can be of any assistance to you please let us know.
This can be closed if needed, I just wanted to clarify the difference a program covered by Title 45 and a program full funded by federal law as I felt there was just a bit of confusion.
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Note: If the DRO participated in the original decision, another DRO or acting DRO must hold the hearing.
This applies if you are still appealing a DRO denial and some how luck up and keep the claim at the RO and have a hearing. Then they must assign a new DRO. But if you asked for a reconsideration of a DRO denial because you have evidence that was not considered then it will go back to the original DRO.
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Ok
The VA ROI section will not include anything into your medical records. If you have outside records from a fee basis etc... then you can go to the ROI and fill out the ROI form which will be sent to the doc you went to who will send the records to the VA.
A C&P doc will not include any outside records into your VA medical records. He will include it in the Cfile before returning it to the VARO.
If you are in the VA health care system and have a PCP assigned then that is a different story. He can have anything he wishes to put in your records. He is a bit different than a C&P doc or a vet trying to get something put into the records.
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If you are speaking of the preference awarded to disabled vets by the federal govt all they want to know if the percentage. If it is a private employer and they send you to a physical I would be truthful with the doc.
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6. Failure of DRO, ***** ******, to perform per the requirements of M21-1MR, Part 1, Chapter 5, Section C, 11(; Mr. *******, DRO at stated hearing of May 5, 2009, stated on the record that he was the person that had made the decision we were asking for the reconsideration of. The transcript provides that this statement has been removed from the record.
This caught my eye - if you received a denial from a DRO and asked for a reconsideration in which they gave you a hearing - they really did not do anything wrong as it is normal procedure when a vet asks for a reconsideration it will go back to the person that made the original decision. Now if it was an initial denial and you asked for a DRO review with a hearing and the original rater acted as the DRO at the hearing then they have violated the rules and regulations.
So please clarify for my ole mind was this a request for a reconsideration of a dro denial?
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Thanks I tried that and I'm left with calling my ISP provider.
If you have your security settings on the ROUTER on (look for instructions on WEP for your router) then you will have to enter the MAC address for your wireless card into the router.
One other cause could be that when you hook up the DSL or cable to the router which will have a different address than your DSL or cable modem your ISP's system detects/will not reconize it because it has a different address than your DSL or cable modem. 99 percent of the the time this is the problem which causes you to pull you hair out cause no where in the dang instructions for your new router does it tell you that changing from your already in place modem (which is actually a router) will require a call to your ISP to let them know you have hooked up a wireless router. During the phone call once they have verified all of the security stuff on your account they will say, yep we see it and then authorize it - an low and behold you can now connect!
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Just my opinion and of course I may be wrong but if you have the time to go to the VAMC you can take the records to the release of information office and tell them you have a C & P exam on Thursday and ask could they scan the records into the computer system or could they place the records in your VA medical files. If they say yes, make sure they give you a stamped copy. You can always try to give a copy to the C & P doctor but there would be no proof that they (your evidence) would make it back to the VARO or you can mail them to the VARO. What ever you do make sure you keep a copy of them.
I think the convalescence claim would be separate
pete - the records department will not accept any outside medical records from the vet for inclusion into the VA medical records system.
If the C&P doc does accept them he MAY SLIP them into the CFile before it is returned to the VARO but he will not file them in the VA medical records system.
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Rock - I am sorry that they put this hardship on you my friend. However, if it was a valid debt to the government and they recouped it there is nothing you can do.
The only time you would be able to appeal to them and receive any help is if for example you owed them lets say 2000.00 dollars and had a payment plan to pay 25.00 per month. Then all of a sudden they retained all of your disability pay one month and planned to do the same in the following months until the debt was paid. Then if you could show that you did not default on the agreed upon monthly payment you could have the stop the future withholding of your entire disability payment. However, they would not give you back any money they had already withheld. All they would do is say sorry about that. That's the ole govt way when you owe them money.
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Not much to be said on this post as James is an expert and has provided you the 100 percent solution to your question. The only thing that can be added is do as he has provided.
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Doc if she was eligible they would have awarded the basic Ch35 approval in your award letter.
Also don't worry about the application. I assure you that if she is not eligible they will deny it. At any rate, the award is hers and if they did pay anything which she was later found to be ineligible for they will deal with her and not you so it will not affect your disability payment in any way.
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BlackBird - Please note that as carlie stated the doc does not determine your rating as it is done by the VARO who is processing your claim.
You can give the doc the report if he/she wants it. They might include it in your exam write up or they may not. However, it does not hurt to offer it to he/she.
NOW PLEASE REMEMBER THIS - ALL EVIDENCE TO SUPPORT YOUR CLAIM MUST BE SUBMITTED DIRECTLY TO THE VARO BY YOU OR YOUR SERVICE OFFICER IF YOU HAVE ONE. THE DOC IS NOT RESPONSIBLE FOR THIS ACTION EVEN IF HE/SHE TAKES A COPY OF THE REPORT.
GET THE THING IN THE MAIL TO THE VARO ASAP.
Sorry to appear to be screaming at you but this is a very, very, important fact about an action of which the responsibility lies directly on your shoulders my friend.
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Make sure you get the proper rating for the stroke. You should get 100 percent for six months THEN they rate the residuals with a minimum rating of 10 percent. Just make sure when you file the claim you ask for the 100 percent for six months ---- if not they might just forget that portion of it. If you do not mind could I ask what type of stroke you had and what area of the brain did it affect?
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The problem that you will face in the reduction of the 100 percent is that it was a temp rating based upon the results of the mandatory exam.
In a legal sense the vet has actually gotten one over on the VA as they failed to conduct the exam therefore, he continued to receive the 100 percent as he should have. However, they have now conducted the exam and based upon the write up you provided it clearly warrants a 30 percent rating.
Tell him to be thankful they gave him the extra years of 100 percent pay. If he has residuals that can be connected to the transplant and warrant a rating higher than 30 percent then that should be presented at the hearing.
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There is no CUE. Although the SO appears to be a little lacking she is following the correct path.
Sharon is 100 percent correct in that you should obtain the record yourself and ask for the reconsideration. Simply attach the records, explain that your SO has already submitted a NOD, however, since there was a mix up with the medical records during the original review you are attaching them and asking that they reconsider the orginal rating as the records are now available and attached.
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Once in the system you will find that nothing the VA does makes sense. As you are current active duty you will have the opportunity to do the BDD program prior to leaving active duty. This means that you condition is current so I do not believe they will require another sleep study. However, as I said the VA could and do sometimes amazes even the almighty!!!!
Don't worry about it. The only reason the apnea will change is if you were way over weight at the time of the study and now you have lost a bunch of weight which could affect you apnea. If this were the case then they probably would request another study.
Outside of the above I think you will be fine even if they do request another one. I know it is a pain in the neck but you gotta do what you gotta do.
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Berta, I just posted tonight and it said it could take several weeks. However, on previous comments that I have made it seem like it only took 7-8 days.
Ricky
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The c&p hireadoc used lots of words said, 'provisional diagnosis of dysthymia' and 'probably has PD with features'. The exam words and decision was so awful, negative and insutling, I felt no claim hope and beat myself up inside for years from that.
CG what year was this? the reason that I ask is that in the old language PD with features referred to panic disorder with features which would fit with your background (i only know your general background).
It would appear that you may be able to go back to the date of this claim as you were given a provisional diagnosis of dysthymia and probable PD with features - both of which should have given you a rating for mental health problems. Even at a 10 percent level (if they went with the dysthymia) it would have been a start for the climb up the latter. If you do not want to talk about this that is ok. I just wanted to give you something to think about since you were speaking of an EED.
Ricky
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Carlie what it is saying - for example (example only) lets say you are to be rated under 5200. Under 5200 the lowest rating is Favorable Abduction to 60 degrees which will get you a 30 percent rating. Now lets say you had favorable abduction of 70 degrees. IAW the rating schedule you would not even be rated but the rule as it is says they must give you a 10 percent rating because you did display some limited range of motion.
However, in your case, the C&P states that you have normal range of motion. So without any loss of range of motion the rule does not apply to you. However, they still gave you a 0 percent rating.
hope this helps you to understand.
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John and Larry are both right. If you have a 100 percent rating (combined or single) for physical disabilities then you can still work - it is all up to your employer as to whether he/she feels you are up to the job.
However, TBI ratings are complex. You could receive a total 100 percent rating under a mental rating or a physical rating. However, if you read the TBI rating requirements in part 4 in order to receive a total 100 percent rating it just about takes total incapaction which would perclude you from work.
If they decided to rate you under the mental ratings work would definitely be precluded under a 100 percent rating. However, if they stayed with a 100 percent rating for physical reasons then one could argue that work is still an option - depending on the type of work you do.
In my opinion the VA would win on this issue by stating that any ability to work with a TBI would preclude you from working. You need to read the requirements for the rating under 8045 Residuals of traumatic brain injury and match the limitations to the requirements of your work - maybe that would give you a better understanding.
As an example Cognitive impairment which is one of the major areas for a rating they will look at problems such as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity etc etc.......
Now I would say that if you have a 100 percent rating in this area you would not be able to perform duties such as driving, mail handling, assembly line work, any position in which you have to be a self starter with miminum supervison due to decreased ability to plan, organize, prioritize etc....... or any position in which judgement comes into play such as a police officer or security guard, civil service employee who needs a security clearance etc....etc....etc.....
So by reviewing the requirements for the rating and then bouncing them off of your required duties will give you a pretty good idea of what type of employment you may hold and still receive a 100 percent TBI rating.
I am sorry to say but in my opinion the field would be very, very narrow!
Killing Or Dying
in PTSD Post Traumatic Stress Disorder Claims
Posted
My3 my friend. A lot of us have the same feelings. They are very dangerous and sometimes the only help comes from an in-house stay for a couple of weeks. Don't worry about the exam as all will come out well. Your number one priority at this point is to get medical attantion.
If possible sit back and review your feelings. Ask yourself would hurting someone else really help? Would doing harm to yourself really help? When I ask myself these questions and really put some thought into the answers I realize that the answer is no. Hurting someone else or myself will only bring sadness to our loved ones and deep down we do not want to cause this. Hang on my friend and please go to the ER NOW.