NavyWife

You had to have had an exam already in order for them to do an ACE. An Ace happens when an onsite provider(doctor) clarifies or another physician what the examiner said on the exam you had. This is normal because the rater feels that the exam is clear on the opinion made or didn't give an opinion such as more than likely,less likely at least likely. So did you have an exam already for these issues?

Dinnard, good for You and even better for your husband. Navywife: Your probably right about different VARO's having a lot to do with speed of your claim. I choose to believe these faster VAROs are less busy than some of the Metropolitan VAROs. With that said, I think the VA brokers out claims from the overwelmed VARO to some of the VARO' that are, shall we say less busy. The problem with that, as I understand it, the brokered out Claims have to be addressed by the New VARO before they can get back to their own Vet's claims.

There is the "Quality of Medical Evidence" factor that I think plays the largest reason for delays. Most Vets, myself included, thought our Evidence was sound and should make it apparent to the VA rater that we should receive SC right from jump. Most of us, I trust, have learned the error of our ways. Certainly our lack of knowledge regarding VA Comp Rules and Regs, didn't help on our initial claims. Hopefully we live and learn from our and others mistakes in everything we do, including our VA Comp Claims.

Merry Christmas, may You All be Awarded IU!

Semper Fi

Gastone

@NavyWife - This was actually the third email I sent out that got her response. I sent one once a month for three months. It's been three years and I've sent in several inquires, multiple phone calls and IRIS requests, and even an email to Bob. The correction to my claim is fairly straightforward but after reviewing ebenefits and all the supporting documentation I could find, it became clear that my case (like so many others) was being mishandled and probably lost in the system. I tried every number I had and every vector could think of, to contact someone to correct my issue. Sometimes you have to go to the top to get things done. Still amazes me that Allison has time to write a simple email when none of her 10,000+ employees could give me a status update. It's almost shameful that the head of benefits has time for us but NONE of her workers, at any echelon, can even respond to me.

I imagine with the Christmas/New Years break no one has looked at my file, but I will probably follow up on Wednesday to get a status check from her. I'm keeping my fingers crossed and remain optimistic that my claim will be resolved shortly.

Call or email Bob robert.a.mcdonald@va.gov 513-509-8454
New administrator of the VA I guess
I called day before yesterday and someone called back yesterday morning
You wouldn't be talking about the Seattle Regional Office would you?

Do you file a claim for travel reimbursement? This would help in proving you showed up at the facility on the date of the C & P exam.

Exactly. They need to be more aware of how they are doing these new smc claims for tbi. Big time.

You say a contractor did the exam? Go to your regional office and asked to look at your C file. That's the only place you could access it.

Email Bob.

I've taken the Service Officer route too. The downside is you don't know. How good your service officer is at assisting with your claim. However, I'd stick with the service officer. I've applied and failed twice with voc rehab. I've found that the voc counselor. Can make opinions on your inability to work. Which could help your claim for IU? If you truly would like to work. The voc rehab is a good option. If you're not currently employed. I'd talk with the local Social Security Administration about SSDI. You've paid into social security. Therefore, you maybe entitled to Social Security Disability Insurance. Just remember that SSDI is a decision rendered by the SSA, and not VA. They both have their own standards for rating a person disabled. Many people choose to do all of this work themselves. If that is the route you take? Use this website for answers and/or advice. There are plenty of knowledgeable folks here ready to help.

JMO, Help yourself by staying informed and involved with your claim. The whole thing could go to s***! Because you depended to heavily on others to do the work. Good Luck!

the biggest problem that I see right now with how the VA operates is a lack of reciprocal communication between the veteran and the regional office, They claim the reason we cant call them is for effieciency reasons., they say it would slow them down, but what is really happening is the lack of communication is what slows the process down. I truly believe that the reason we cant call in directly and speak to the people handling our case was a planned mechanism to SLOW things down. A member of this forum did some research and found that the number and percentage of disabilities stays static basically if theres a war going on or not. It points to a " governing " of how many vets, and what percentage they can recieve based on metrics other than the VA regulations, and needs of veterans.
The system is set up now like a WW2 company trying to do battle , and using pigeon mail. back and forth to communicate, when they could just pick up a phone and call headquarters for guidance.

THE MOST EFFECTIVE THING THAT COULD HELP US RIGHT NOW, IS FOR THE VA SECRETARY TO MANDATE OPEN LINES OF COMMUNICATION BETWEEN THE VETERAN AND A PERSON INTIMATELY INVOLVED WITH THIER CASE..

63SIERRA,

I have stated on many ocassions the inability of the veteran being able to communicate with the RO is the cause of claim delays, claims backlog, claim errors, etc. Give the vets direct access to the VA rep handling their claim and this will prevent misunderstandings and solve most claim problems in a timely manner. The veteran would be better served and the VA employees involved in claims processing would also be able to do their jobs faster and better. We should all email this suggestion to Secretary MacDonald.

VA officials who say direct communication between claimants and rating officials will slow the system down should take a look at SSA. They have had this system for years and I am sure they handle more claims and have a higher accuracy rate. JMO

Ben Krause just wrote a preliminary article on the subject over at his site: http://www.disabledveterans.org/2014/12/30/mystery-sources-special-monthly-compensation/

Might be worth checking it out. Some of the comments down below pertain to you and are fairly interesting.

Yea, I have. The VA hornswaggles congress into believing "every claim is different", (somehow different than social security, when many disabled Vets are also ssdi, so go figure that), and a time frame cant be estimated.

They start w/the highest rating, then since you are 70% disabled, that leaves you at 30% remaining of the whole person and then they take 20% of the 30%, which equals 6%, which is added to the 70%, making 76% which is rounded up to 80%.

pr

I got P&T at age 53 I think. I got TDIU at 52 but was denied P&T. I appealed that denial because I was denied Chapter 35. When you are denied any benefit besides a complete grant of all possible benefits you can appeal. By the time my claim was reviewed I had another IME saying I was P&T and the VA also had a year of psychiatric records of their own to consider. I don't believe in waiting for the VA to act. If you don't ask for it you often won't ever get it. I got "S" just by asking. Vets here at hadit pointed out to me that I was eligible. The VA never even considered it until I asked.

John

Also, it is much preferable to get an IME-Independent Medical Exam-where you actually go see the doctor in person. Sometimes VA will try to throw out an IMO-Independent Medical Opinion, because the doctor only looked at your records and did not see you in person. Just plan for the flight or transportation costs and lodging as part of the cost of winning your claim...

It's a shame vets have to go through this just to get a fair and impartial medical exam!



To summarize, you need all these parts:

#1 doc must state he reviewed your C-file and the pertinent medical records

#2 The nexus statement must use these words EXACTLY:

"is due to" (100% sure)
"more likely than not" (greater than 50%)
"at least as likely as not" (equal to or greater than 50%)
"not at least as likely as not" (less than 50%)
"is not due to" (0%)

#3 doctor must state a full medical rationale or reasoning why one is due to the other

#4 If there is a DBQ for this issue, doctor should also fill that out

#5 doctor should include his medical qualifications or a copy of his CV-curriculum vitae. This is because if there are conflicting opinions, the VA should go with the doctor with the highest and best medical qualifications. You need a M.D. at a minimum. If you can find a specialist, that would be even better.

Anytime the VA receives new or additional evidence they are supposed to decide the claim again. The claimant usually has one(1) year to submit additional evidence, however the VA often sends a letter stating that the VA needs any additional evidence within thirty(30) days and if not received within the 30 days, they will make a decision based on the evidence of record (at that time). Their letter does not change your evidence deadline.

The VA uses this to screw the claimant. This is why it is important to review the evidence used in making any decisions. We often make the assumption that because we sent something in, it is being used in making the current decision or that VAMC records have been viewed by the adjudicator. That isn't always the case. jmo

pr

Wow, that's an eye opener!

I went through a similar issue with the VA. I spoke with the VARO manager and he explained they have to accept the date you mail it. Send it Certified mail and you will be covered.

The whole C&P system is a kangaroo court that should be eliminated anyway.

SO many broken and battered veterans don't realize that they are on trial without a lawyer in front of highly-trained 'examiners' with a built-in bias to deny at least SOME vets (or they won't be doing more C&Ps).

This is just another example of the unfairness woven throughout The System.

Technically, no, if you are 100% scheduler, the issue of TDIU is moot. The VA won't adjudicate a claim, for TDIU, if a claimant is a 100% and vice versa. I'm thinking they may be receiving HB or A&A, with an SMC "s" award. jmo

pr

Can I get some opinions on the CUE I think I found. It is based on violation of 2 statutes--

38 CFR 4.1 which requires an exam for the application of the ratings schedule and 38 CFR 3.103 in which his Due Process rights were violated because he was not given advance notice and opportunity for a hearing when his compensation was to be reduced. The Due Process violation is so common, I found it listed in the M21-1MR- Part 1, Chapter 2, Section A- in the instructions for processing CUE's.

Thoughts? opinions? anything I should take out or put in????

Also, do I need to argue that subsequent 3 decisions were made invalid by 1st decision, as they were all seeking a rating of 40%?


--------------------------------------------------BEGIN LETTER---------------------------

CUE FOR ORIGINAL RATING DECISION OF 1990

I propose to present a detailed and logical argument showing:

(1) the alleged CUE of fact or law. --CFR 38 4.1 and CFR 38 3.103 were violated--

(2) the factual or legal reasons for the alleged CUE of fact or law. --- There was no exam given which this reduction from 40% to 20% was based on. 38 CFR 4.1 requires an exam for the application of the ratings guide. --
38 CFR 3.103 was violated because he was not given advance notice and opportunity for a hearing when his compensation was to be reduced from 40% to 20%. If pre-reduction due process requirements are not followed, reduction is invalid.--

(3) why the decision would have been "manifestly different but for the alleged error." ---The veteran would have been rated at 40% plus dependency pay since September 1990 instead of 20% with no dependency pay.-

The veteran was medically discharged from the Navy in August 1990 at 40% due to 2 witnessed major seizures within a year. VA began his original rating based on his Navy evaluation of 40%. He was assigned this rating for two months beginning in September 1990 following his military discharge date of August 1990. The original rating decision then reduced him to 20% beginning November 1990, based on the sole evidence of Service Treatment Records (STRs) and no new seizure activity noted in the records since the date of discharge. Of course, any reasonable person would realize that no new seizures would be noted in the STRs after the date of discharge, because things are not added to those records once a person is discharged & leaves the military. No exam by VA was given or offered to determine if in fact there had been any new seizure activity. There was a clear violation of the laws in effect at that time, specifically 38 CFR 4.1 which requires an exam for the application of the ratings schedule and 38 CFR 3.103 in which his Due Process rights were violated because he was not given advance notice and opportunity for a hearing when his compensation was to be reduced from 40% to 20%.

I have included the pertinent passages of the law that govern these irrefutable errors that were made in the original rating decision of 1990.
1. There was no exam given which this reduction was based on. 38 CFR 4.1 requires an exam for the application of the ratings guide.

38 CFR 4.1 ( in effect since 1976) is the most important part here.
§ 4.1 Essentials of evaluative rating.

This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.
[41 FR 11292, Mar. 18, 1976]

Furthermore, for an "unprotected rating" which is a rating in effect for fewer than 5 years to be reduced, it must be:
— Based on review of entire history
— Has to be "actual change" in disability
— Must show "improvement in the veteran’s ability to function under the ordinary conditions of life and work"
— Based on thorough examination (38 CFR 4.1)

　
"Unprotected ratings" are Veteran Disability Compensation ratings that are less than 100% ratings, or that have been in effect for less than 5 years.

Special rules apply to the reduction of an unprotected rating.

The VA must provide notice of its intent to reduce the benefit to the Veteran, schedule a pre-reduction exam, pre-reduction hearing, and give the Veteran an opportunity to submit evidence and argument against the proposed reduction.
When the VA decides to reduce a benefit, any reduction that it proposes has to be based on a review of the entire history of the veteran's disability.
There has to be an actual change in the veteran's disability - not just a temporary retreat of symptoms. The improvement in the disability must be reflected in the veteran's ability to function under the ordinary conditions of life and work.
Finally, the exam on which the proposed reduction is based must be as thorough as the exam on which the initial disability rating was based.

　
2. 38 CFR 3.103 was violated because he was not given advance notice and opportunity for a hearing and opportunity for legal representation when his compensation was to be reduced from 40% to 20%. If Due Process requirements are not followed, reduction is invalid. None of the exceptions listed apply to this case.

38 CFR § 3.103 Procedural due process and appellate rights

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(b) The right to notice -- (1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

(3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:

(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in § 3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

(ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report.
(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.
(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement).
(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see § 3.654 regarding active service pay).
(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a).
(Authority: 38 U.S.C. 501(a))

　
　
　
　
And finally, I would like to explain why the decision would have been "manifestly different but for the alleged errors". Without the errors as explained above, the original rating decision would have remained at 40% as the Navy medically retired the veteran at. Without these errors, the arbitrary reduction from 40% to 20% never would have taken place

I believe you need to request an "extra-scheduler consideration or extra-scheduler rating," as the VA will continue to respond that you don't meet the 38 CFR 4.16(a) requirements for TDIU. About 12yrs ago I helped a vet, w/a skin condition, (w/a max rating of 50%, who had been denied TDIU for over 15yrs) and had been to his congressperson twice, w/no increase. We filed for TDIU, requesting an extra-scheduler rating and after about 18 months, he received TDIU retro about 42 months. At the time he was satisfied and didn't want to pursue the additional 11.5 yrs. jmo

An extra-scheduler must be requested by the claimant, or the VA won't consider it.

pr

What most people who suffer from chronic pain don’t think about or is willing to admit is that they most likely suffer from some form of depression/anxiety. You may want to check with your doctor to have him/her refer you to mental health for depression/anxiety due to your service connected migraine headaches and back spinal arthritis and if they treat you, you can also file a claim for depression/anxiety caused by or as a result of your already service connected migraines and back spinal arthritis. Get it documented in your VAMC records and go from there.

This is another way to raise your combine rating percentage.

Hope this helps.

Pete

You have some choices:
1. Ask for extraschedular IU.
2. Seek an increase for migraines or new service connection for another condition(s) first.

Most people who actually get IU get it by number 2.

Even with these, to get IU, you are likely going to need a doctor to say something very close to "the veterans service connected xxx condiitions render him (her) unable to maintian substantial gainful employement."

How much did you earn in the most recent 12 months? Was it "substantial", that is, more than about 12,000 dollars?
If you did earn more than 12k, then it makes it look like you could/should get a different job. However, if your recent job was "marginal employment", and did not produce 12,000 in a years time, then it would be more likely. An exception: You were working, but something radical happened, so now you cant work anymore. (Something like you had a car wreck, or other injury..but, remember, your inability to maintain SGE needs to be for SC conditions to get compensated by va for that)

In other words poeple who really can not work, probably did not earn more than 12,000 in the past 12 months from working. If you did, then it looks like maybe you could simply get another job.

However, this is a medical determination, that is, if your service connected conditions preclude your from working, that your doctor makes.

Oh and it was hadits podcast that got me looking into this, thanks Bob Walsh.