sixthscents

The VA recognizes that damage to a LOWER member can cause later damage to a higher one... from the foot, knee, hip and lower back - no higher than lumbar spine. So yes, a claim can be made that a prior injury in a lower major joint like the knee or foot caused damage to a higher on thru an antalgic gait etc. I have won several claims of exactly that type. However, the VA WILL NOT go higher then the lumbar spine. So t spine and cervical is a lost cause.

I have to agree with Pete...

Plus theres a bilateral factor for both legs huh? I think you stated 10% for both legs, and yeah if they are saying that brings you to 90% they are ignoring all of this and just using straight VA math (which is bad enough huh?)....

Ryan is Exactly right on the basic math for a typical formula... but here where a lot of people miss things... §4.16 Total disability ratings for compensation based on unemployability of the individual. (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a)) (;) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. NOW what does this mean... well as stated injuries incurred in combat will be seen as a SINGLE injury... same for injuries of the same eriology, and injuries affecting the same system... So how does that help me...well if I read your claim right MOST of your stuff is from combat... so it all has to be grouped together as ONE rating... not seperate. I just dont see how they can get you below the TDIU requirements even if they do lower your PTSD... since it too is combat incurred (i suspect) Many people say I dont have a SINGLE 40% rating when in fact they do. Further the math gets funny when you are dealing with SINGLE ratings, they have to add them FIRST then do the reat. I havent done yours, but I dont see how it could go below 100% unless they really chop your PTSD.... even then youd be covered by TDIU... so what the point in it?

I have fought for this before in several claims, and have yet to be successful in getting a rating. The diagnosis is called into question.. the lack of consistent evidence... you name it but it seems to me that they really hate paying out for this one,

I remember the case, and yes it was reported here on Hadit... I still have the downloaded pictures etc. The guy really backed up his claim, but even so it took years to get a single approval. I DONT forsee the VA admitting that Guam was like Vietnam and granting presumptive service connection for the whole populace. We still have a base at Guam, and the money is way way too much for them to be willing to simply admit it. Each vet is going to have to fight them for service connection.... which is a - well I cant use those words here. Its not even the VA per sea, but congress.

Umm.. as a claim progresses it is not abnormal for a veteran to be 100% TDIU, before becomeing 100% scedular. In fact I was tdiu for about 6 months before becoming 100% schedular (actually more than that, something like 170%.. now heck I dont even know, but anyway) It does seem (based upon my own experience)that the VA has to really worj harder to take away TDIU, as opposed to reducing a rating, but when I had to decide to keep filing or stop - I kept filing. There are benefits ABOVE 100%. Referece 3.350 Additional 50 or 100% exaluations... They are HARD to get, but if you get them they are worth the trouble. And yes just to reiterate - you can be TDIU and be P&T, or not. If you are not P%T you may not be entitled to the other benefits enjoyed by P&T veterans - like ChampVa, or Chap 35 etc. Personally I would file an appeal asap if they do reduce your claim, and I would also immediatly file for TDIU. Yes I have seen 90% vets DENIED TDIU... personally I think their claims for it were mishandled by the veterans advocate in most cases and NOT by the VA. CFR 38, 4.19 outlines the different TDIU requirements, and most veterans who are rated 70% and better will fit one of them, but a lot of reps only look at the 40%/70% total qualifier and never read on to discover that injuries sustained in combat - add together, injuries dealing with the same system - add together, same etiology add together etc. So for exaple you had a foot injury which over time caused a knee and back injury - these all add TOGETHER into one rating. Not a bunch of seperate ones, and their adding together would often make the vet meet the criteria for 40/70... ok? A lot of vets have 30% rastings and a 70% total, but think they are not eligable for TDIU when thats just not the case. Even if it isnt, you can appeal for an "extra-schedular" rating which if you properly document you can win.

Yeah I looked at it and it seems decent. DOD has the gall to say it will hurt their retention... So dont give the soldiers this great benefit because they may use it... does that make sense?

Yeah if you havent filed for social security you might want to consider it. Your letter looks good, but I cant understand why they denied IU the first time. Are you currently working? or were you then?

Did you have a diagnosis of PTSD from your service branch prior to discharge? If not do you have a V device on any awards? Did you get a bronze star? If so, does the citation mention for valor etc.? Personally I generally file for TDIU at the same time as PTSD and other stuff that I think will qualify the individual... but there are differing opinions on that. You are already rated at 80% with a single 50%... so Idont see how you wouldn't qualify unless you are still working. Ref CFR 38 para 4.16 §4.16 Total disability ratings for compensation based on unemployability of the individual. (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))

donews.... you have given probably the most clear and understandable description of activities I have ever seen... Sinced they SC'd the heart condition - even at 0% doesnt that now make the depression SC'd since they denied it because it was due to your non-SC'd heart conditon (at the time)... did you NOD this decision (specifically THIS item)? If so, file for an increase, and claim the original file date as date-of-claim. NOD the peripheral vascular disease.... make them issue an SSOC. Did they apply the bi-lateral factor to your neuropathy? I'm not certain that it applies in this instance you may want to check, or if not I will for you. Also you said: They denied my DMII increase caliming my Regulation of Activited was due to my non service connected heart disease not my DMII Well if the heart disease is NOW SC'd, I'd file again with a date of claim to the original claim... and emphasize that. Really excellent information. Let me think on this a bit and I'll hit you with a couple more questions.

I'm actually doing so right now. You have to reapply to voc-rehab and get reassigned a councilor etc. If you have moved, or you medical situstion changes you can reopen a new claim.

Yeah further M21-1 stems from CFR 38 and thats another source of info for your claims and what the law states.

Well, to be honest, the idea that congress would activly change a law against one vet is a bit odd. I personally think it was more likely a just bad luck.

Use the online forum at www.va.gov. They normally answer your questions correctly it seems. Go here: https://iris.va.gov/scripts/iris.cfg/php.ex...r/cci/ask_1.php further I would contact my local congressional representative. Tell them this is causing a great deal of financial hardship... etc.

Gotta agree with Ricky. I have seen them use it in favor of the vet, but much much more often against, or they just ignore the whole thing.

I have installed and tested Skype... I was pleased with it. If any of you are looking for a voice to go with advice I can sometimes be reached on it directly at sixthscents@hotmail.com user name sixthscents or do a search for robert smith. I will not be online and available all the time, but I am working on setting up this all up and have found it is easier to talk people thru a claim sometimes than to type (considering my limited typing skills)..... Now, a request... if you have a claim or claim question fine, but I am not going to debate the VA... my feeling about them are clear and it would simply be a waste of both our times. So feel free to contact me, but please only about claims, or VA law (NOT my specialty)... claims are, especisally back injury. Bob Smith http://www.skype.com

Unfortunatly (to me anyway) it seems we are in an ever increasing antagonistic relationship with the VA. Not this site per se, but veterans as a whole. To a certain extent I am sure that VA employees DO look at this site and others, but to be honest to pick one claim out of the hundreds of thousands would be an even more daunting task than actually just doing a rating. Honestly? Who cares if they look? Seriously, we are NOT advocating any kind of abuse of the system - we are simply advocating HOW the system works in relation to specific claims and situations. Any veteran can get the exact same information by going to CFR 38, and M21-1MR as well as Vaca case law and studying. Personally I found HADIT after the majority of my primary claim was done, and proved my case by doing exactly that. I think that the increasingly adversarial positions are really to blame here. While an individual rater or DRO may be great, the system is obviously flawed. Increasingly I have come to believe that it is INTENTIONALLY flawed... again not at the DRO level but at the policy level in Washington. There is some hope on the horizon though, and as things change they SEEM to be for the better. So, I think the answer is, has been, and will be for us veterans to be a voice among the policy setters. To be willing to spend the time writing our representatives, contacting our congressmen and women.... thats the long term answer. But - and this stinks but its true- it is truely LONG term. Also while the VA is flawed, the services themselves are just as bad or worse. Incorrect DD214s are a good example. These are not filled out by the VA but by the service members branch... and getting one fixed takes forever. Further their past record to severance veterans rather than retire them is CLEARLY nothing more than a money saving dishonest effort. So, while the VA is bad it is a SERIES of flawed and intentionally minimized decisions that hamper veterans from getting the proper compensation. All we do here... all we CAN do is to try and help veterans thru this maze of legalality that has been intentionally put into place. Not by our local DRO's, but by our POLICY makers. Personally, as I work on this stuff and watch it over the years - in instance after instance - all I want to do is vomit. I have seen so MANY of you being put over by the system, and it started the day you raised your hands... and I raised mine. Our country, our nation, our NEIGHBORS - are failing us every day that THEY are not screaming on CNN about it. BUT... slowly it is getting "better" at least at the VA level, and I have seen some real legislation passed that will make a difference. However, be careful what you demand of our government.... I like to point out the "Bonus Army". Do an internet search and see what happened to them, after camping on the mall. Done to them by other soldiers of our great nation... It is ever "soldiers and dog keep off the grass", until they NEED us. Kipling, a soldiers poet if their ever was one says it much better in "Tommy" than I can. IN any case... dont worry about the DRO looking here. Yet, I do believe that the internet has put a MAJOR crank in the VA's, and the military's cogs... and it isn't going away. It's getting bigger, just look at how Hadit has grown over the last 3 or 4 years. (sorry for the rant - I think I have got it out of my system for now)....

Mine has provided my glasses free since 2001, and done a cataract surgery... not service connected, but I'm rated at 100% and dont get charged anything except for the extra stuff I order. I always order a pair of yellow lense shooting/driving glasses. This is thru Murfreesboro TN VA, and I always get in within a couple of weeks, and get the glasses in a weeek or so. The spares I do have to pay for only cost $38 a pair, and if I break a pair they replace them for free, or have so far. They have a decent selection of frames as well... not the birth control frames at all, but really nice modern or sleek frames. Anyway I like them.

Too Cool.. OK I called my local office and was told that yes it is free, and they will do my spouses as well as mine, but since she is not disabled or anything its still free unless we choose to e-file, then its $99. I never efile anyway... so I have an appointment for next week. Thanks Bound4Heaven... ya just saved me about $200 dollars thru H&R Block. I'm going to donate the savings probably, so it will do even more good down the line.

It just grabbed me that they guy said "after we were made aware of the problem..." or something to that effect. Why would anyone NEED an outside agency to INFORM them they were not operating as they should have been. I mean its all outlined in regulations on how they are supposed to do things... so why should an outside agency have to make them aware of ANY problems? They'll clean up their act and then it'll all start again.... BUT.. in all fairness I gotta point out civilian nursing homes have all kinds of problems too. My sister is a director of nursing, and she is a "fixer" for homes that have failed inspections and are about to be closed down. They bring her in to fix everything and get their operations up to law and code and she is NEVER out of work. She has told me about stuff that is just criminal, and this in civilian care... so it happens all over, not just with the veteran homes. I am glad that they are watching them though. As far as Terry's stuff went I thought most of his stuff was refusal to care for him, etc. I dont think they gave him the wrong meds, I think they simply said get out, etc. That's bad enough, but this is stuff that they say could have killed patients - I would expect lawsuits to follow - hopefully. I gotta add a story. We have a VERY nice nearby nursing home. It is clean, well maintained and is very very nice, but... they were not allowed to accept new patient for almost a year because they had a patient leave, and failed to report it. The patient died three days later, still not found... and it came to light that this was the THIRD time this had happened just that year with other patients. This is a very very nice nursing home... its the one you WANT your loved ones in compared to the others.... and even they cover up stuff and do stuff that is despicable. Its all about money. And the only way you can get them to change it to scare them with the fear of lawsuits. Or at least thats the way it seems to me.

SMG, Once you file your appeal with the BVA (which you obviously did) they can take several actions... they can directly adjust your rating, they can remand your claim back to the original rating authority or.. as in your case send it to AMC. Now AMC assists the BVA in handleing claims which for some reason the BVA DOESNT desire to go back to the original rating authority... there can be many reasons for this, but the AMC can do all the things the original rating authority did such as schedule new C&P's etc. Oddly enough the AMC can and does also further remand stuff down to the original rating authority (heres where it just seems like its another time out box). Normally though the AMC carries the case themselves and handles it from there. From my experience it seems that a claim goes to AMC based on one of 2 things... the caseload of the original rating authority... or a magic 8 ball (you remember those...yes.no.ask again later?). Howerver it has also been my experience the the AMC does not really change the amount of time it takes a claim to finish processing in any real sense. So, I wouldn't take it as a bad sign that it's there.

I've bumped into this during advocacy before... be SURE the VA does the character of discharge determination.... I have seen them skip that again and again.

I "guess"... I would deal with it like a SEP and report an "average" income... just like people on comission do for taxes etc. Average it out over the twelve month period.... I mean you know the hard numbers like what you actually earned, so just keep it simple and go from there. I havent really looked into this but my best GUESS is that the VA is just like SSA in average income for self-employed. Now if you were UNABLE to work for certain months those months would have to be removed from the devisor... so you get income/number months worked thats how you would report it to IRS, and that how I'd report it to VA.... BUT - this is just my guess based upon experience... I wouldnt worry too much if the income is above $800 on average unless you factor in 12 months instead of months worked and it still is. So income/12 if its over $800 per month it could get a bit sticky....