john999

Get an IME doctor to write you a report in which he connects all the dots to the feet, knees and back. The way to fight the VA's inadequate medical exams is to get your own medical evidence. If you depend on the VA for a fair exam they can screw you over for the next 30 years. You need to get your own evidence to fight their evidence.

What is wrong with your DD214? Do you have a LTH discharge? I would get my 100% and then do as Lotz says and file that CUE. Even if you lose you will get the education of a lifetime about the VA. Since your claim that contains the CUE is already final the only time clock is your life expectancy. I waited 30 years to file my cue because it took me that long to actually discover it. I got my C-File are read my original decision. A monkey could have seen that my doctor's report was not used in the decision. I was 21 years old when I was discharged. I don't even remember filing a claim and I don't know who represented me before the VA. I let my low ball decision become final . I was too busy living under a bridge. My mail was returned to VA "address unknown". I still lost because the VA said I had every opportunity to appeal my rating among 10 other absurdities. I had a lawyer for my CUE. He must have written ten briefs over they years we fought from the VARO to the BVA and then the CAVC. After years of briefst the VA was still saying I was trying to reweigh the evidence. The VA did not even consider my evidence and they admit it. I lose anyway because when you get to CAVC with a claim that carries 30 years of retro they are going to fight you. Nobody at the BVA or CAVA is just going to roll over and grant 30 years of 100% retro. That would probably end their career. A case similar to ours is Cushman v Peake. This is a case where the VA altered a vet's records. In our cases they just excluded evidence. What is the essential difference? Cushman still does not have his retro and he filed his CUE many years ago, and won at federal court.

Considering DIC for a vet with less than ten years of being 100%/TDIU it would be worth it to try and get the OSA service connected. I am TDIU for almost 13 years, and also am SC for heart disease. If my OSA kills me I think my wife will get her DIC direct connected. I have moved heaven and earth to make sure my spouse will get DIC. I assumed that since Babyray is 160% he has been that way for a while. This might not be true. If I thought I had a case to get my OSA connected I would do it. My cpap therapy is almost a total failure. I had a sleep study done about three weeks ago. They woke me up five times because my mask leaked. All my masks leak, and fart, and dry me out. I have had ten different masks. OSA treatment has probably only a 40% compliance rate if that much. I have never had a mask that was comfortable and worked right. What are the chances you can win an OSA claim if you have no records of this in service? I have been out of the service for 40 years, but I have five AO conditions and MH conditions that are SC. AO is going to kill me. It is a race between OSA and AO. John

The only way to fight this kind of stuff is to get your own private shrink. I won my claim for TDIU due to my IME's. I had three IME's all of which said I was unemployable. I was rated 70% and on SSD and still got denied for TDIU. If you want to get TDIU or 100% get an IME. For now I would forget about the CUE and concentrate on getting TDIU or 100% now. You can fight the CUE anytime.

It is in your C-File, or at least it should be. When you don't continue your appeal you must try and climb back into the ring via CUE. I fought my case for 7 years. My lawyers said if we lost he would never do another CUE claim because mine was such an obvious error, and denial of due process. I think he is driving a cab now.

I lost a CUE claim on exactly this issue. The difference was that my CUE happened in 1973. Before 1990 the VA was not even required to list evidence submitted by the vet, so there is no way you can prove or disprove the VA considered your evidence. Even if the VA lists your evidence they don't have to consider it because the assumption is that if they list it then they actually consider it. In my case it was clear that my evidence was never considered, and the BVA even admitted that fact. However, because the VA can fall back on the concept that the evidence omitted must be undebatable I lost at CAVC. I don't think these sorts of claims can be won under present circumstances. The burden of proof it too high and unreasonable. However, I would try and I am still trying. My doctor said I was incapable of working and that I was psychotic. This cut no ice with the VA. They had a ward clerk who wrote in my hospital records that I seemed to get on well with other patients. This was all it took to make my evidence and claim debatable. That was the kiss of death.

Did you appeal the 2008 decision?

Many are scared to really risk anything for a vet. If you have long term relationship with a doctor at the VA they are more likely to help you. I had one doctor who really went to bat for me and helped me get SC for a couple of conditions. The others just won't do it. I have DMII and HBP. I asked my doctor is she could connect the HBP as secondary to the DMII. She hemmed and Hawed and would not make a definitive statement either way. I see she won't go out on a limb for me. John

Since you have filed your NOD you can hire a lawyer to run with this claim. You don't have to do all this on your own. For the VA to rate a vet 50% rather than 70% due to some lack of anger issues is pretty crazy. They will often just reach into the denial/lowball bag and pull something out. One thing I learned is when in doubt: APPEAL and get more evidence.

If you are rated 50% or more you can get your medications free. Also, if you want you get treatment free. They bill your insurance if you have it. I think using the VA to document your disabilities is a good reason to go to the VA. Using the VA helped me get two SMC's including housebound. Now I am not going to let the VA do brain surgery on me, but I suppose if I wanted to die on clean sheets I could always go there for free one day. A lot of terminal vets go there to die. John

Does he have private medical records. He does not need to have all his medical care at the VA. Whatever the VA tells me I get a second opinion via medicare or in his case Tricare. At his age and condition I doubt they will take anything away. He is TDIU. Unless he goes back to work he is OK. I have been on TDIU for about 12 years. Just send in the employment questionnaire every year. John

If you have made the correction I think you just have to wait like you said. John

I think he does have an inferred claim for TDIU. I would bet money the VA will fight it all the way. They will find some way to get out of paying for an inferred claim. My doctor said 40 years ago that I could not work. They VA got out of paying me for it.

You know 40 years ago autism was a rare and exotic type of disorder. Now the are saying one out of ten kids have it. I think they are inventing drugs and treatments and now are looking around for a disease. This is like ADD. I never heard of ADD when I was in school. Now every kid who is awake after 9pm has ADD. Doctors and drug companies are making a fortune off this made up disease. I have seen kids who have ADD. If you see it you will know it. I worked in a group home and some of the kids had ADD. They didn't just fidget and forget their homework. John

I had an active claim on appeal for 5 years, and when I got another denial when my claims was remanded back to the VARO from the BVA I submitted new evidence in the form of two IME's. I has asked for a personal hearing. My claim was never final until 7 years after I asked for an increase. The VA just moved my effective date from 30% to 70% to the date they received my IME's. What I am pointing out is that the VA often manipulates the effective date to grant the vet as little retro as possible. You may have a claim on appeal for ten years and if you send in one shred of evidence they can grant the claim and then give you the date they got the new evidence. They do this all the time. They grant effective dates as of the date of a C&P exam. They did it to me.

They have made it easier for RVN vets to get presumption for AO exposure because the VA knows we will all be dead soon. However, spouses should be aware we will all probably die from some AO condition, so they can get DIC. IHD, lung cancer, DMII, prostate cancer, most of the blood cancers and PD. I am pretty sure one of these things is going to kill me. John

Hey, I am waiting almost 11 months for an increase for DMII. All the evidence is sitting there at the local VA hospital 20 miles from my VARO. I used the FDC system. As I read it if you need to take oral medications to control your glucose then that is 20%. This is in my records for the last two years. My feet are worse but I did not claim worsening PN. So much for faster claims. As long as my VARO gets 600 more claims received than they resolve I guess I can wait. At least they probably won't be dragging me in for C&P's on other accepted conditions. The whole VARO is sinking into the Florida sand. John

Silver bricks only. What is the $125? Is that some sort of SMC? I can just barely here you typing because of the ringing in my ears. Hey, I had a duty MOS for 11B something, but that was not my primary MOS. I did shoot a lot of rubber trees during my heroic tour of duty in Vietnam. I am almost sure I had no hearing test when I enlisted in 1969 in the Army. No hearing test on the way out either. Damn that ringing! Is someone trying to call me?

I had a claim for an increase that was active for about five years. After a trip to the BVA I submitted some new evidence. The date the VA received my new evidence became my effective date. I appealed this decision since I got 70%, but not the TDIU I claimed. Finally after I got TDIU P&T I let the claim become final. Do I have a CUE on the ED for the 70%?

VA lawyers are supposed to charge 20% of retro. If they ask for more than that get a different one. They all want you to sign a contract. Read it well. They do work on contingency. With the sort of waits facing vets it takes a lawyer with a lot of irons in the fire to make a living. Look up NOVA and they have lists of lawyers in your area who are qualified to represent vets. You don't need one from your hometown. John

At my VARO in St. Pete they are receiving about 4300 claims a month and rating about 3700. They are falling 600 claims behind every month and 7200 claims a year. In five years at this rate they will be 36,000 claims behind.

I would file now for every SC condition I have. Regarding the new evidence you have the VA often will use the date of submission of new evidence as the effective date of an award. If you are at the beginning of the appeal process that is no great loss, but if your claim has been on appeal for a while it can mean a big loss of retro. Just because you get a 100% rating does not mean you have to quit your current job to satisfy the VA. If your claim has been on appeal and never become final there can't be a CUE. CUE's are only for final decisions. What is C&T by the way?

I would just go with what you have and try to get the increase to 100%. PTSD is another type of anxiety disorder. Depression can disable people just as badly as PTSD.

I hope you learn from this to never miss a C&P exam and always appeal a denial or low ball rating. You lost many thousands of bucks by missing and exam and not appealing. Are you able to work? If not you should file for TDIU and SSDI. Hey, I failed to appeal a decision and it probably cost me a couple of hundred grand. I was a confused young man and everyone knew it except me.

I think 2-3 years is more like it. I would go out and hire me a lawyer. Are you going for 100%? If so get a lawyer is you are going to have to wait that long. It means money for the lawyer and money for you because it comes out of retro to pay the lawyer. You may end up at CAVC. You should think in those terms.