sixthscents

Hello All! I know it has been a hot minute since I have been on but I am still alive and kicking (Hooray for me!). I do have a question however. I am looking over a friends claim and I was wondering about the VA's method for rating TBI. Specifically I understand that the TBI is rated under 10 (?) categories sort of? I would appreciate a really good reference and perhaps a couple good example VBA filings for reference. I have been out of the scrum for so long that I don't want my lack of recent experience to hinder his claim ya know? Also, maybe a reference for how the rater is supposed to specifically approach the claim and what they are supposed to show to the claimant as a statement of case. I can and have found much of this stuff on my own but I am hesitant because I want to be certain I am using the correct and current method etc. I appreciate any input you all might have. So many thanks. Happy Thoughts, Sixthscents.

Oh and as to CUE claims. Look a CUE claim is supposed to be a rare beast. To be clear it has to be such an error that any reasonable person looking in would say a mistake had been made. I have filed 2 CUE claims in ... I think 18 years now. I won them both but they were both very very obvious. I do not mean to discourage someone filing a CUE claim, but you have to be 100% certain an error has occured. (Unless something has changed). Bob Smith

WOW... Hey guys good to see you all again. As to the post GBArmy, you need to order your C-File. It is easy just go to your local VAMC and locate the "Release of Information" office. They will print out the C-File and will also put it on a disk if you request it. I think there was a small charge for that... don't really remember. Also you can call and request it (though I have had precious little luck in getting any this way). Bob Smith

Hey Tbird, hit me up anyway. I'll post my phone in a PM. Look forward to talking if you want. Bob Smith

Hey T-Bird hit me up I'd like to talk to you about this if you have not had the C&P yet. Bob

Paul, I have been out of the VA claims scene for a hot minute but here's what I know from my own loss of use claim (bilateral) which I won. The actual functional loss is somewhat important. The ability to plater or dorsi flex, etc. What I reccomend, if you want to continue pursuing this claim (I would) is to ask your Primary care provider to refer you for an EMG of both your left and right feet. This will tell you what nerves are functioning and what level of injury might exist. If you have loss of sensation in both feet this would seem to me to be an injury to L5-S1 or around there. I have seldom seen sensory loss like yours without function loss as well. The thing which makes me say this is the bilateral factor. Since BOTH feet are numb, then you have an injury that is outside of just the one sciatic nerve for that leg. Hence L5-S1... the nerve conduction test will show the extent of the injury and what nerves are functioning and how well they are. The EMG is important to proving this claim. You do not have to have a complete non-functional foot. I wear AFOs on both legs and feet for example and also like you have no feeling in my feet. Why is this claim important to you? Well there is a possibility for additional compensation but also you seem to be entitled to adaptive vehicle equipment and it could entitle you to an adaptive vehicle grant. There is also a possibility to an adaptive housing grant. These are all kind of high-ticket items for the VA an getting entitlement to them is not easy. Yet it can be done if sufficient evidence exists to prove loss of use. SO... it boils down to the same question you had to answer when you received your first rating. Is this correct and do you believe you are or should be entitled to other or more benefits. Only you can answe that but, once you do you simply have to assemble the evidence and apply. If you decide to pursue this hit me up and we can discuss it further. Sixthscents - Bob

Hello Crystal_707.... My personal experience with the DAV and AmVets were incredibly negative but that is not the norm so I am going to cut them some slack for being buried with cases etc. and just say they have told you something which is both factually incorrect and personally I have never seen. The idea that the VA would reduce you to 0% since you are NOT only rated for PTSD but probably the anxiety disorder as well is slim to none. Just won't happen. Certainly not in any short time frame from your increase to 90%. They couldn't justify giving it to you and taking it away only a short time later. You would have to improve incredibly. Now, the issue is tying the fybromyalgia as secondary to the PTSD, the anxiety or mood disorder or whatever else you have in your C-file. As many have stated you need to order it soonish. Then when you have an idea of what was said you can move forward. Unless there is something in your service medical files, or your discharge physical etc. though you best chance of success will be to tie it to an already existing and rated condition. As to PTSD, I am unsure if it can be secondary to PTSD etc. but then I am not a doctor. What I would suggest is filing a NOD for the denial but how to word it etc. is something only you can decide. I would look up instances and studies linking it and PTSD and provide those with your NOD. PTSD has been linked to many secondary effects so I would hammer home that you are claiming it secondary to the already established PTSD. Further I would get the records showing the Fibro diagnosis (was it the VA that diagnosed it?) and provide that. Why specifically did the VA deny the rating? I am guessing that they stated that no clear link had been established, which in your NOD I would request a C&P exam to establish or disprove that. I would probably base your NOD off the fact that the VA denied the claim without a C&P exam to either establish or disprove your claim. If you could get a civilian physician to state that it was "at least as likely as not" that the Fibro was secondary and caused by the PTSD it will help your case quite a bit and is something you might consider getting and submitting with your NOD. I do... heck we ALL do really understand your frustration here. It is a process but if you quit... they win. Since you are here, I am fairly certain you don't want that and are willing to work to make sure it won't happen (look what you have done already!). You are very close.... Also.... have you filed for individual unemployability? I didn't see that and since you are rated at 90%... well it's something I would consider. Six

Hello, YaelleG... If you were retired (which I think was not since you are asking about benefits etc.) your rating with the branch you were in would have been 30% or greater. However, if you were medically discharged and severanced then you were rated at 10-20%. Now if you were severanced then no you can expect no benefits from DoD beyond the severance pay. However, the VA and the DoD rating are often wildly out of alignment and you can file for a review of your discharge and the rating you received. To do so you go to.... For the Army: The Army Discharge Review Boards Agency... the others are named the same except for branch. Link for Army here: https://sslapp.hqda.pentagon.mil/acts_online/gui/Login.aspx?ReturnUrl=%2fACTS_Online%2fgui%2flanding.aspx You can file a complete appeal online by yourself and scan in and submit evidence online and through the mail. There process takes... well it normally takes 12-24 months and then your appeal can be either upheld, denied or no action taken. If you have any other questions about this feel free to contact me. Six

As to the CUE. I often run into situations where CUE's are discussed by many veterans. However, in many if not most of the cases mentioned there was not actually a valid CUE claim. This is NOT saying that a reason for a formal NOD did not exist, just that a CUE claim is a VERY specific claim. CUE stands for a "Clear and Unmistakable Error" as I am sure you know. This mean that an error has been made such that a non-expert can look at the claim and easily see it. For example: A rater made a decision and failed to take into consideration or even note that the veteran had lost all control of bowl and bladder, although it was clearly stated in both the initial claim and the evidence provided. (This actually happened in a case I know of). Personally I think (I do not KNOW but think) that a CUE claim must in some way make a rater look bad if it is validated. Raters get performance evaluations, and I would think (again I do not know) that this would be something they track because it is such a huge error. Again, please understand that I am NOT saying that your CUE claim is invalid. Just that many such claims should have been filed as regular NOD's because in my experience CUE claims seem to take longer and have been denied even when the underlying claim is actually valid (though that too was very rare). I have helped to file hundreds of claims over 15 years and I have seen two CUE claims actually validated and recognized as valid by the VA. In both cases the VA rater personally called the veterans involved and basically said "we are awarding you everything we possibly can". There's a really good article here talking about CUE claims and their complexity. Link: http://www.lawyers4veterans.com/veterans-disability-blog/2014/05/14/clear-and-unmistakable-error-cue-in-a-va-decision/ I wish you the best of luck with your appeal and if I can be of help please feel free to give me a yell. Six Post Script - angryemu, after reading you reply as to why you filed your claim the way you did... without looking at the evidence etc. I think you did the right thing. Understand that a CUE is NOT time sensitive. You can file it 50 years from the date of decision that you are alleging an error was made on. If you are found to be correct, the VA has to back pay you to that initial date of claim. Now you might have gotten a faster decision with a CUE claim, but honestly I don't know. There are several factors that determine that like specific VARO backlog, specific rater backlog etc. So honestly I just don't know... but it is something that you can still do if the NOD rating is not found in your favor. Six

Bergie, Essentially what they said but also you can find the whole VA appeals process metric states, under m21-1, Part 1 Chapter 5: 1.5.A.2.a The appellant may elect to have a formal hearing at any time during the appeals process. Link: http://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#!portal/554400000001018/article/554400000014081/M21-1-Part-I-Chapter-5-Section-A-General-Information-on-Appeals Also under VA 21-0958 (which is what they require now I think) there still is a section for a DRO review or "traditional" process. I think the last update to this form was September of 2015, or that is the latest I can find anyhow. Link: https://www.vba.va.gov/pubs/forms/VBA-21-0958-ARE.pdf Hope this is of some use. Best of luck, Six

Yup, I have never advised filing for reconsideration. I have never seen a rater change a decision absent filing a formal NOD. Great Advise VetlawUS. Again I honestly would never file for reconsideration, and you should always make it clear that you are filing a formal NOD. I have heard it argued that it is quicker to get a decision with a reconsideration, and that may be true but personally I have never seen one that resulted in a positive benefit to the veteran. Not once in.... 15 years now. Wow the time sure flies. Best of Luck, Six

az arr, Buck52 is correct in that it would not hurt to state that you are seeking the maximum allowable by CFR 38. I would not personally state a specific percentage, but if you have done so it is not something to worry about. The rater/reviewer will follow the guidelines established and the metric the VA uses. You can see exactly how they do this by reading M21-1. You can find it here: https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#!portal/554400000001018/topic/554400000004210/M21-1-Adjudication-Procedures-Manual In the future, if you think the VA should schedule a C&P exam or are requesting one, actually put that into your claim. Never assume anything with the VA. You can find more information about the appeals process here: https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ss/#!portal/554400000001018/article/554400000014081/M21-1-Part-I-Chapter-5-Section-A-General-Information-on-Appeals If I may ask, how firm were you when asking for a C&P exam? Did you say something like, "Please consider this a formal request for a VA C&P exam to confirm the findings of Dr... etc" or was it softer or unclear in any way? I mean the VA can deny a C&P exam, however it is not something I have seen often. I have been away from this stuff for quite some time, but I haven't heard anything about that changing. In any case I really really recommend that you review CFR 38 (personally I read it almost in it's entirety many times) and M21-1 and M27-1. Knowledge is power in a very literal sense here. Best of Luck, Six

I honestly don't ever remember a single vet I worked with being denied a Tinnitus claim. Hearing loss yes, Tinnitus no. Further I seem to remember seeing something last week saying they were considering making it presumptive for certain MOS's. It is NOT presumptive at this time however. The legislation I saw at Thomas was here: http://thomas.loc.gov/cgi-bin/bdquery/D?d113:1:./temp/~bdQnCZ::|/home/LegislativeData.php| As you can see this has not passed the House etc., but Sanders was the Co-sponsor of the new VA reform law that passed and I'm thinking this has a good chance when it comes out of committee.

They are denying the hip because of the ankle I'd guess. Ankle, knee, hip, lower back... if you have a pre-rated injury to the ankle, then proving a subsequent injury up the chain to the lower back becomes easier... still not easy but easier. Further I would look at loss of use for the arm/hand § 4.63 Loss of use of hand or foot. Go there and read that. Now unemployability is helped by what 71M stated, if the Voc Rehab section denies you because you are in fact unemployable due to injuries etc.that will enhance your claim. Also letters from your past supervisors, or employers as well as people you worked with attesting to the fact that you physically could not do your previous job (and why) can be of real help. It helps to nail that coffin shut before you go on to proving unemployability ok? I would certainly revisit claims for the ankle and hand as well if they have worsened over time. Plus remember, foot, ankle, knee, hip then lower back. It's a chain and if you now have subsequent knee problems they might be linked to the previous ankle, it would be worth examining. Aslo look at: § 4.59 Painful motion (though this can be a bear, if you can include it with another claim for increase on sholder for you hand etc. or the unemployability. You might think of filing for an increase in hand based upon this as well as other factors. Personally I think you will have to include the hand, and other factors to get this thru (IMHO as Carlie says)

MMM. gotta agree, I have never seen a rating decrease because the rater said it was not service connected, unless it went to 0. It either is, and rated or isn't. There is no objective way of determining how much would be prior to service etc. Somethign sounds wrong. Bob Smith

I've seen this, and honestly it's normally a good thing in MY experience. The Vet normally gets a much faster answer, and in comparison I have seen some "sway" in the rating but not much. It's a common practice to "farm out" work to underutilized or less untilized VARO's. It makes sense, look at it this way. Your claim can either sit at the local VARO and wait, or be sent to another VARO for some sort of decision. Doesn't mean the process is going to be "fast" just faster.... Bob Smith

This is curious... contact me when you get your doctors notes. Of course your going to NOD this but I think you need to do it a certain way because I think there was more than the obvious reason the rater lowered the DJD, or DDD. Just email me. Bob Smith

OK I can state that all along as my condition has worsened and I fell under the qualifing requirements for A&A, I filed and sometimes got it right away, and sometimes had to NOD but did in the end get it. I went from K to L1/2 to R-1 eventually.. so it does work you just have to show how you fix into the different catagories. Also... A&A can be really significant - I think I get something like $3700 in A&A now, along with my 100% comp. Also, the VA will and does provide in home assistance, I have a CNA that comes for 5 hours a day, and they pay for it. You can contact a social worker with that and get some help if you need it. They also pay my caregiver (can be spouse or family or anyone qualified)... uh 2 hours a day I think, she gets around $900 a month. So the programs are out there, someone justs needs to get you into contact with them... I would guess a VA social worker - they have them (I actually have 2 assigned I think). Mine were assigned through the spinal cord injury clinic, but I owuld guess that ortho, and others could also assign one to your case.

Oh, and I have Medicare A & B, and full VA benefits, and to be honest I am really satisfied with the VA at this point. I have seen literally hundereds of doctors, both civilian and VA and GENERALLY the VA does a really good job with my care. I am often impressed with the care they take. It depends upon the doctor you get, but thats the same in the civilian world as well as the VA. Personally I owuld HATE for the VA health care system to go away and be replaced by medicare - this for me would actually reduce my options. Bob

Also, while the Health Care bill will impact us... again I must echo others here. Know what you are talking about, and lets not generalize here ok? If it gets out of hand, the thread WILL get closed. Bob

I used Medicare to pay for my 1st cataract surgery, but the VA is willing to do the other. I am undecided, it really will depend upon the type of lens they are willing to pay for. Also, just a guess, but I got the feeling that the VA's decision to do a cataract surgery pretty much depended upon the eye exam guy. Some seem to be more willing? if that makes sense, than others. Bob

If you are NOT eligable for CHAMPVA or Chapter 35 benefits for spouse and children... your TDIU is not permanent and total. A TDIU determination is treated almost exactly the same as a 100% schedular rating except that it must be considered permanent and total (P&T). If the give a re-exam date etc. it is NOT considered P&T and thus you are not eligable for the same benefits that a 100% schedular (who was also P&T - they can set a re-exam even for schedular ratings) would have. Essentially they are willing to pay you at 100%, but only until the re-eval, and then they will make a new determination. Personally I fight re-evals, and would file a NOD stating that I thought the issue should be P&T (if in fact it should be). I am unfamiliar with the case, but thats what I would do. Bob

Pete - Dude... from what I have seen you are fine, and have reacted reasonably in all the situations here - even the really crazy ones. Anyway man, relax, whatever was said could not have been that bad. You are my hero man. Bob

Its a decision, but... PVA is one of the few VSO's I really trust. The others have good people too, but it is hard to sort the wheat from the chaff and a bad rep can kill a claim. I would do the laywer if the claim was really going to be complicated - with VCAA briefs and precis etc.