Ricky

Manitou - How was the 7 determined? Was it based upon a new C/P? If so once again I ask how did they determine the mets was 7+? I would first point out that the official VA stress tess was rated at 6.2 vs paying for a private stress test. And during the time you NOD is pending based upon this argument I would push hard to have your treating VA Doc to redo the stress test. Maybe just the argument that the official stress test rated it at 6.2 may be enough to make the DRO to order a new C/P including a new stress test. I think this would be a good start unless you just have some dollars lying around that you want to spend.

Jay - VA health care in a sense is socialized care. Now you see how it works. I kinda like to be able to pay for my private insurance which allows me to see any doc that I want to. Under your concept you would be assigned a primary doc who is responsible for an untold amount of patients. No matter how sick you are on a Thursday you will be forbidden to seek care else where so you could stay sick for weeks without care. jmho. and this should be moved to the social chat area since we have moved completely away from the original post.

All veterans should have and maintain a copy of their C File. If you have a copy and file for a new claim then you can request a copy of the new documents produced by the new claim. That way your copy will always (at least it should) match the official C File maintained by the VA.

Jay in the big picture of the VA you only have ONE claim. That is the original claim that you file. Everything within that claim is a seperate ISSUE. Lets say you file your original claim in 1995 and you request SC for Hypertension, Sleep Apnea and lower back pain. You have the one claim open with three seperate issues. Now move forward to 2007. You have some new issues you want to claim. Lets say DMII and PN. You now have a re-opened claim with two issues. Does this make sense? In quick summary everything you claim is consolidate within your ONE claim. so yes what they have done is correct. Loss of use is described in 38 CFR 4.63 as: Loss of use of a hand or a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. To me this means that if the foot or hand is no better than an artifical one the loss of use exists. I do not think bone fusion would qualify - it would be the function left in the limb after the fusion was completed. JMHO

Pete - as I said in other posts - you are filing a claim AGAINST the United States. Their were there to help you is only for the sector of the American public that has not served. They do not have to deal with the VA so they will never find out what it is like. All they know is that the government has established a department to take care of vets when in reality that department is a self protection agency developed to protect the government AGAINST claims. Now with that said the VA does have its good points. Sometimes you will run into a very helpful employee who does support the vet community (never in management). The provide vets with every bennie under the sun once a claim is approved. For the most part health care is excellent. etc....

jmlo - if things are not resolved at the RO for you make sure you attack every bad point in the SOC with your form 9. Your statement - he didn't base his opinion on a review of the medical records. WHAT?!?!- should be attacked with vigor. You surely have the right mindset and direction with this issue and I feel that you will be successful in the end - it is just a question when the end will occur. Keep us updated with the processing of your claim.

Good point Jimmy.

Josephine - I have sat a many of a night reading and watching as your claim has unfolded. I must say that most of those nights were speechless ones. It is a terrible thing that the VA does to someone. All any of us want or need is to simply be heard and have our claim given just review as required by law. I truly hope this is what happens in your case for you have been drug through the dirt to hell and back. No matter what happens stand tall and be strong. However, if you need to lean, lean as far as you have to for Hadit has a very large and strong shoulder, the vets and spouses of this great community. I pray that this all ends for you soon and you reap your just rewards. Hang in there lady.

What stretch said makes sense. If they have authority to provide instant approvals then I assume that the case, on the AMC computer would indicate closed. However, it should also provide some type of notes to go along with that such as returned to RO for processing etc......

Thanks - my intent with the nexus thing here is based upon my experience with my local RO. If it is there claims were simply flying through the rating process. IT AIN'T RIGHT NOR WILL IT EVER BE. However, after beating my head against the wall trying to help local GW vets it was just easier to give into to the VA wants. I am sorry I did this. However, begining in the May time frame a couple of these GW claims were denied by the RO even with a "nexus" (civilain) IMO. This really pissed me off and made me see that if you give an inch they will want a mile. At that point I decided NOPE, NO MORE THE LAW HAS SAID PRESUMPTION APPLIES IN THESE CLAIMS. So since that time I have earsed the thought of nexus IMO from my brain and body. THE PRESUMPTION IS THE NEXUS! Since then I have stood on my head, shouted and kicked and spit to get GW vets to force the confused RO's to properly apply the law. Sorry I slip and began giving in to their ways, but I have seen the light now and become a reformed man! hahahahahaha That is why I was so strong in the other post about no nexus letter. I have begun recommending that GW vets put into the form 9 under the section of their appeal where you tell the board what you feel is wrong with the decision, that laws and 38 CFR have not been properly applied in this claim by the RO which provides an avenue for a claim of CUE which will be used to correct this problem. Most Ro's, I know ours does, at least reviews, very quickly, the form 9 before certifying it to the board. This tends to catch their attention and usually results in the issuance of a new positive decision based upon "a different opinion of the facts of the claim". Things that make you go Hmmmmmmmmmmm.

Cow Girl - all I can say is WOW! hahahahahaha

You will get back pay. In most cases this will come from VA as they withhold the entire amount when they should not have. HOWEVER, it could take some time as they will not act until DFAS tells them to do so. At this point DFAS still has several thousand files to review for back pay. Don't worry about it as a matter of fact try to forget it. One day you will get a letter in the mail from DFAS or VA letting you know about the correction of the problem and that they are providing you will a back pay amount of ???????. That way it will be a surprise to you. hahhahahaha Now to say good things about DFAS and VA - with new claims mid 06 to current they seem to be getting pretty fast at correcting the problem. they are trying to insure that another large backlog does not occur so it appears they are working newer claims on a different team. Welcome aboard, enjoy retirement (which means the wife wants you back out of the house hahaha). Forgot to add: It is wasted time to discuss CRDP with the VA employees. The only thing they know is that CRDP is a DoD program. The VA systems requires them to withhold dollar for dollar so they do. It will all work out in the wash

That's a strange reply. They can not simply close a claim they must make some kind of decision if it is an active claim. Keep us updated on the call from the supervisor, if such a call happens.

rdawg and all - I did not intend to say that Berta or any other of the old guys were wrong so please do not take my post that way. All of them know more about the VA and VA law than I will ever know. Maybe they saw something in the decision that I skipped. With my meds and usual anger level that is, as VA would say, MORE LIKELY THAN NOT hahahahahaha. I just called it like I saw it late last night. When I get time I will sit down and really study the decision to see where they were coming from. It looks like he filed a claim for direct service connection due to his symptoms in service when he should have simply filed a claim for undiagnosed illness due to service in GW. It appears that the VA assumed at some point and time that he was or would in the future do just that so they attempted to cover direct service connection and presumptive service connection - which is what they should have done so the only thing I see correct about the decision based upon the current laws is they looked at both angles. Berta, Pete, John, Bob, Vike etc...... If I offended any of you guys, I am sorry. Next time I will think before putting my ole fingers into action. ;) Ricky

Please do not let this one drop. I understand the pain and worry that comes with the appeals process but hang in there with it for yourself and all GW veterans (don't forget the new guys and gals). Under normal circumstances a reconsideration requires the submission of new and material evidence so becareful with that word cause it will just result in a denial of your intentions. I would say something in the first paragraph like : I request a POST DECISIONAL HEARING with YOU and YOUR APPEALS TEAM SUPERVISOR prior to the submission of this claim to the BVA. Such a hearing is guarnteed to by 38 CFR _______ (don't have time to look up the para now but it is in part 3 adjudication). The purpose of the HEARING is to discuss the blanet failure of your staff to correctly apply the laws and regulations that they and you have been employed and charged to comply with. Then list the whys as you have done in your draft. In such a situation one needs to stay away from words such as disagreement, reconsideration, and meeting. Disagreement - you already had your chance for disagreement (your NOD) and due process only allows one DRO review/disagreement; Reconsideration will require submission of new evidence; Meeting - no where in the due process rights are you guarnteed a meeting. All of this is just my honest opinion and the way that I would proceed if it were my claim. Please read and remember presumptive rules for GW by heart; this goes for Part 3 adjudication also. Then SCREAM like a wild animal to insure you get your due process. My last word of advice is to WATCH THE TIME LINES. NO MATTER WHAT OTHER ACTIONS YOU ARE CONDUCTING ON THE CLAIM, DO NOT LET THE TIME LINE FOR PERFECTING YOUR APPEAL EXPIRE!!!!!!!!!!! 60 DAYS FROM THE DATE OF THE STATEMENT OF THE CASE. Ricky

Don't know about the "three steps" within the predetermination team. Normally it is a three step process: predetermination, rating board and post determination. Don't know about it moving along fast either. Once it is mailed it is received by the mail room. Then it is given to the predetermination team. This is a normal process and does occur fairly quickly (normally within 2 weeks). I wish you the best but it could still take months to be resolved. Do not forget the timeline for filing a NOD. If you have not heard anything on the reconsideration in about 11 months I would submitt the NOD. The 12 month time line begins with the issuance of the rating decision!

Looks like 24 months is the concensus.

Mine just showed up in the mail today. I did not request it but I guess that they want to insure that those who help vets stay updated.

rdawg forgot to address your statement in your post. Whats makes this BVA decision a good one. The Vet clearly has IBS. They provided every excuse in the world not to provide direct service connection so by their own addmitance they can not contribute the IBS to a medically definable etiology. He served in GW1. He has IBS which as the board stated did not occur until years after his discharge. He is within the presumptive period. The regulation states that DIAGNOSED IBS is presumptive for GW1 veterans. Makes no difference how he got it. Even if C/P exam said at least as likely as not he got it from his grandma's chicken soup its presumptive. Just as DMII is in AO cases. Does not make any difference if every individual in your family from 1600 - 2007 has died from DMII, if you served in VN, boots on ground, then it is service connected. This is a CUE in its truest definition. Regulations says served in GW1, symptoms occur at the 10 percent level, happens before 2011, have diagnosis of IBS, Fibro or CFS then it is service connected. BVA denial letter provides veteran the bases for presumptive service connection to include service requirements then states veteran service in SWA, has IBS therefore, it ain't service connected!!!! cue cue cue cue See, just as in my post below, sometimes two of them one brain cell raters get together during work hours and reproduce. Result is a one brain cell attorney who can not work anywhere else in this country so he gets hired at the BVA. Most of them are probably unable to pass a state bar exam. I can not for the life of me see how this could be seen as a correct decision - not if you follow the regulation jmho.

VA is famous for this type of decision with GW1 vets and service connection. At this point I would not waste any money or time on IMO's (Sorry guys dont mean to go against you). IF he is a GW1 veteran; had active service in SWA; HAS DIAGNOSIS OF FIBRO; symptoms meet the requirements for a 10 percent rating then this is a presumption of service connection claim. IF THEY OFFERED A LOCAL HEARING TAKE IT!!!! Write the letter tonight requesting such a hearing and when you get one pound, YES literally POUND this into their ignort heads: § 3.317 Compensation for certain disabilities due to undiagnosed illnesses. top (a)(1) Except as provided in paragraph © of this section, VA will pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability: (i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011; and (ii) By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. (2)(i) For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (;) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: ( 1 ) Chronic fatigue syndrome; ( 2 ) Fibromyalgia; ( 3 ) Irritable bowel syndrome In the past these idiots were incapable of understanding the meaning of a medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology. Congress got tired of all the complaints so they went back and said look idiots, when we wrote this law we thought you were capable of interperting it. However, it appears that we were wrong so here is what the hell we meant and they added the words Fibro, CFS and IBS. VA then followed and did the same. HOWEVER, this did not resolve the problem. For as we all know, the VA only hires one brain celled green monkeys from Wheretopia as raters. In the conduct of their, what they consider, welfare duties to the veteran community all they could recall was the term Undiagnosed Illness. Now speed forward - here's one of them one brain cell, high speed, un-educated GS7 raters who is much better than the vet because my God he is a rater, with a claim in front of him/her in which the medical records provide a diagnosis of IBS or Fibro or CFS. He/she jumps and moves at the speed of light to protect the American taxpayer from a criminal minded veteran attempting to claim a few bucks so he can continue to buy weed and beer at the local 7-11 store while all other Americans are at work. WHAM DENIED then as he turns to his co-worker, one brain cell Susie, he declares - Boy did you see that? this idiot was trying to screw the taxpayers. I showed him what happens when he tries to screw over the taxpayers. Look at this what on earth was he thinking when he tried to claim service connection for an undiagnosed illness and then provided me with the medical evidence saying he had a diagnosed illness. What an idiot. I bet he will read the regulations better the next time before he fools with this protector of the American taxpayers, ole one brain cell John! Then as the supervisor walks by, sir, sir, look at what this idiot veteran tried to do. And as he quickly looks over the claim he does not have the heart to tell ole one brain cell John how fu(*& up he is. The only thing on his mind is the next step increase and the yearly bonus.............and the story repeats itself.............. Sorry for the rant but its late, I hurt, and the meds are twisting the ole mind plus did I mention that VA raters are idiots!!!!!!. Bottom line is this is a bad decision. No its not bad it is criminal. Demand a post determination hearing with a DRO. You have the right to demand a personal hearing with a VA employee at anytime during the rating process. It is part of your due rights process. Now one requirement for a presumptive rating is that it must meet the 10 percent level. This can be proven with medical documentation and LAY STATEMENTS. From the little bit you posted it appears that the denial was not based upon this fact. If it had been there is about three pages the idiots have to prepare which is outlined in the M21 bible for va raters. Once again sorry to all for the rant and the story telling. However, I am pissed to the max - I see/help GW1 vets over and over again who have received the same denial. I was scolded on another board for beating up the va on another board in which the always pro va guys simply say just file a NOD that will solve the problem. No it won't. The problem is not the appeals process its the damn raters who can not get their heads out of their butts. Its the raters who can not read. Its the raters who do not know the regs. Its the raters who simply fail to follow the regulations due to incompentence or laziness or criminal intent. The problem is that now we have another deserving veteran who suffers the loss of his/her sanity for the next two years because he has to wonder if one of the ole one brain cell raters mated with another one and produced a one brain cell attorney who is now king at the BVA as evidenced by the BVA case posted by rdawg! Forgive me my fellow Hadit family for taking up so much of your time with this post. I love all of yall!

"Unfortunately the claimant has died and it is no longer in our jurisdiction" This actually a good statement as it indicates they know they are going to hell for their mis-deeds hahahahahaha. You know I agree about the angry part. I have read many decision. You will see many that you have to just shake your head and say "what the heck was the vet and the SO thinking" for they are way out there. But the majority will make you angry and sometimes cry for the way a veteran or his spouse has been treated. I think this legal action is great and I hope they succeed, but I wish they had not used the suffering and mistreatment of veterans for the past 40 years to attempt to justify their movement for such a small group. A group that in my opinion has the VA treating them like special children with the out reach program that has been developed for them, the set up of a special section to work their claims and the placing their claims in front of all other pending claims. Like I said this is just my opinion. Maybe the law firm is really working for the government and attempting to simply further the distance between this group and previous veteran hahahahhahahahahaa Just kidding.

As pointed out the claim does provide statements such as "did not know how to do this and that". Seems to me that could be dangerous waters since this group of vets have been hand walked into and through the system. The politics of this war have demanded this type of assistance for these guys and gals so if I were the government I would use the fact that an outreach program to beat all outreach program has been established and implemented for them yada yada. If you just used the numbers from VN Viets who filed while the war was going on and then after the war within a specific time period vs those from this war who have filed claims etc...... based upon this data alone you can tell the outreach program since VN has been upgraded 500 percent which may lead the judge to determine that it looks like the gov has above and above its duty - using the ole saying you can lead a horse to the water but you can't make him drink theory.

Nope, as a matter of fact my VAMC is demanding that I provide a copy of the original "prescription" for my braces. I gave them the medical papers which provided that the doc sent me for the brace but they want "prescriptions". Guess I gotta go back to the doc and have him write our a "prescription" and back date it to August 2005. almost not worth it. Also gotta bring a pair of pants that have been damaged by the braces. Although I have to split the legs of my dockers that I wear to work that ain't good enough they want a pair which shows wear and tear damage. My problems is that when the braces do rub holes into the back of the leg I throw them away or cut them off into shorts. Guess I will have to wait until next year and insure that I keep a pair of damaged one.

Mmm,O.K. went to DFAS Mypay, saw that VA wavier amount go from 225 to 391 however way at the bottom of the statement shows teh CRDP amount 509 so thats confusing to me this is the way it should read and it will not show up in your pay. This is the way it works. based upon the amounts you posted I assume you are drawing a check from VA for 900.00. Prior to CRDP your waiver would have been shown as 900.00 for there was a dollar for dollar give away. Now you will notice that you are still drawing 900.00 from VA, however, DFAS is only taking dollar for dollar from your retirement pay for 391.00. That means that in todays time your are drawing 509.00 more of your retirement pay all the while you are getting 900.00 from VA. Does this make sense? Another way to look at (EXAMPLE ONLY) it is prior to CRDP if you were awarded your current leve of VA you would have only drawn 900.00 (VA) plus, as an example based upon a 900.00 retirement check, 0 dollars for retirement cause of the dollar for dollar offset so your monthly income would have been 900.00 (VA) + 0.00 (Retirement) = 900.00 Then CRDP came along so now you would still draw your 900.00 VA check Plus a retirement check of 509.00 so you monthly income (retirement + VA)has increased by 509.00 monthly 900.00+509.00 = 1409.00 If you stay at the same level of VA payment this amount will increase every Jan 1 until 2014. At that time you will be drawing 900.00 VA + 900.00 retirement for a monthly total of 1800.00. Hope this cleared it up for you.

Thanks Berta for the update. From looking at their web site it looks like they are targeting PTSD and OIF/AF guys and gals. Sure wish they had expanded it by making it a bit more general. If so I could send then three pages from my current appeal which shows without fail - VA failure to apply regs by SC'ing my stroke but they still, three years later have not paid my 100 percent for six months as required by 38 CFR; Although the residuals of the stroke have left me with a strange residual on the left side, Dejerine-Roussy Syndrome, which affects my leg/foot, arm/hand and face they have still got me rated at 10 percent with no mention of a rating for each of the above (left upper and lower meet the criteria for loss of use per my medical documentation and statements from my neurologist. None of the medical documentation has been discussed in ANY VA documents - no mention as to wheter the VA thinks my doc is a looney or why his medical docs or statements are not probative - no mention ever.) No explanation as to why they issued an SOC without allowing me a DRO hearing. No explanation why it took me a year after the issue of the SOC to get my DRO hearing. No ideal or answer from the VA as to why a decision has not been made or a SSOC issued since it has been 9 months since the hearing. No answer as to why the RO still has my perfected appeal at the RO without an Docket number - been there since Jan 06. So if they wanted examples of plain stupidity by the VA, violation of laws and a around the bushes with claim processing I could give it to them.