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Everything posted by lotzaspotz

  1. If this involved records that were in the service medical records and thus should have been in the VA’s subsequent custody, File a supplemental review request, citing 38 CFR 3.156 (c)(4), which speaks to this in particular, I think. https://www.law.cornell.edu/cfr/text/38/3.156 In reviewing the claim based on that regulation, if the Rater sees your evidence supports the claim and the earlier effective date, that regulation speaks to a grant with the earlier effective date. If not, you will have options available to you through the appeal process. I don’t think this is a CUE. Obtaining your service medical records falls under the VA’s obligation to assist you in gathering evidence, aka “Duty to Assist.” However, you cannot base a CUE on the VA’s failure to meet this Duty to Assist. See 38 C.F.R. sections 20.1403(d) and (e).https://www.law.cornell.edu/cfr/text/38/20.1403. So, it’s not a “CUE,” in the formal sense, although it is a “cue,” as clearly there was an error perhaps in transmission between the military and the VA, or a scanning error at the Evidence Intake Center, for instance.
  2. On what basis did the VA find your independent medical opinion inadequate to link your GERD to the treatment you take for service connected asthma? If your private doctor can address that point, you can submit a supplementary review request if you want to try to keep it local at the Regional Office. If you can’t or don’t want to get new and relevant evidence, you can file a higher level review request with the Regional Office. If you no longer want the RO to handle it,, you can file a Notice of Disagreement, with or without new evidence, to the Board of Veterans Appeals in Washington, DC. Personally, we have had more success with the Board correcting the RO’s lack of thoroughness and accuracy with many of my husband’s appeals. My husband had two DBQ’s by treating physicians completed and submitted for secondary service connection for GERD linked to pain meds taken for service connected conditions. The RO denied with no C&P exam. We were under the old system pre-AMA, so we submitted a DRO review request. This resulted in a Rubber stamp denial, again with no C&P exam. We then appealed to the Board. The Board granted the claim for GERD without a C&P exam.
  3. Someone asked me this and I hadn’t come across this before. The veteran’s VSO evidently used the wrong form to file the claim. The veteran did not know which form was used, but six months afterwards, the mistake came to light somehow and the VSO corrected it. If the claim is granted, has the veteran lost six months of compensation?
  4. Perfect example of "don't give up and don't die!" We're at 24 years and pending in our house. So glad you finally received your rating! Now, can we draw on your experience to help others just starting out?
  5. Is there a deadline post separation that limits a veteran from filing for service connection for a hysterectomy?
  6. I don't know, but I figured if that was information the VA needed to make a rating decision, they would have included it on the DBQ for GERD. If it's not there for the non-VA doctor to answer, it wouldn't be there for the C&P examiner to answer, either. Only, there was no C&P exam offered, despite the DBQ's by treating MD's and evidence of prescriptions taken to treat SC conditions over the course of several years.
  7. I'll look for those, too. Thanks Buck. The DBQ said GERD on it. Can't figure that out. And no rating exam, either. Looks like another learning experience for me.
  8. They did opine on what caused GERD. They addressed the specific medications he takes for service connected disabilities and the length of time he's taken them. I just wanted to know where on that form does it ask for a "baseline" level of GERD because I can't find it. Evidently, neither could the MD's. I think they would have addressed that specific question if they could see where it had been asked.
  9. Good morning, all. Can someone tell me where the DBQ for GERD asks about a baseline level of GERD? My husband's treating private physicians, one a GP and the other a gastrointestinal Board certified specialist, both completed DBQ's. The claim was denied solely because they both did not describe a baseline level of GERD, but I don't see that question on the form. That appears to be the only reason it was denied. The VA had release of information letters for the doctors, but we provided copies of all the records ourselves. I don't know why, if that one isolated piece of information was missing, the VA didn't let the doctors or my husband know (we could have addressed that prior to a denial). Plus, there was no C& P exam provided. We thought this might have been an oversight, but it wasn't, the denial without a rating exam was repeated by the DRO. The claim regarded certain medications taken for service connected conditions for many years that have a clinical connection to causing GERD, as the doctors reported.
  10. Trust your gut instinct, not what you're necessarily hearing from your previously MIA VSO. This matter won't be resolved in the short term, so do you trust him enough to not continue to worry about your status in the interim? Past performance is a good indicator of what to expect in the future. Anyway, if you are still open to the attorney option, I highly recommend Doug Rosinski. He's argued in person before the Court of Appeals for Veterans Claims, speaks nationally before veterans law attorney groups, and you can google him for more background. If you want to hear him argue, he's on the audio at the CAVC on the Larry Robinson case heard on July 15, 2016. He's also a veteran. http://www.djrosinski.com/
  11. Bronco, I have a question on the life insurance. My husband has held this insurance about eight years or so. We were never told about it prior to that (even though he would have qualified for it) and when he won an appeal on an earlier effective date, we applied for it. He has now been 100% schedular for 20 years, but that wasn't awarded in real time. We clawed back through Appeals of either ratings or effective dates a little bit at a time, so each time, we gained a little more retro for him. So, does the 20 year period that must pass before you can cash out the face value of the policy start from the date the veteran is rated 100%, or does it start when the policy is actually issued? The veteran doesn't pay premiums, so the VA isn't losing any money in the deal either way, I would think. Thanks!
  12. I have a question, if anyone here can assist. Have any of you been awarded a compensable rating (at least 20%) for a ventral (abdominal) hernia, even though you were never formally prescribed a belt/truss? The reason I'm asking is the VA is interpreting DC 7339 (ventral hernia) at the 20% disability level as requiring a prescription for a belt. However, the rating criteria doesn't state that a prescribed belt is required - what it does say is that the need for a belt is "indicated." What is the legal definition of "indicated?" Usually, when the VA requires something of this nature, it clearly says so. Also, I found a Board appeal where the veteran was awarded 20%, but clearly stated during a Board hearing that he didn't wear a belt. His appeal for an increase to 40% was denied, but the Board let him keep his 20%. This rating hadn't reached the 20 year mark, either. Thanks for any additional information you may be able to give.
  13. If the goal is to reach a 100% schedular rating from a current 90% rating, you'd actually need another 50% to get you to 95% (not 10%), which would then be rounded up to 100% schedular (not TDIU). Yes, a $10,000 invoice payable up front is a very steep hurdle to clear.
  14. Yes, that was my initial reaction. Sometimes, the veteran needs to ask for it instead of waiting for the VA to make the first move. I don't know if the original poster actually asked for it or not. If not, try it.
  15. Yes, I did so, too. Worked like a charm. The writ was denied as moot, after the writ dislodged the appeal out of the AMC, which was the whole point of filing it.
  16. Newnan has been closed down. http://www.gardberglawfirm.com/2016/06/va-closes-newnan-georgia-evidence-intake-center.shtml
  17. Yeah, the original determination was a denial. I'm not a big believer in DRO reviews, so my experience with them is limited. The denial letter was useless as far as trying to figure out reasons and bases, it just made declarative statements without explaining any reasoning behind them.
  18. Just checking on what the VA stated to me, that being, there will be no SOC issued in response to an NOD already filed until after the requested DRO review has taken place. Is this correct?
  19. Here is a link to veterans compensation rates: http://www.benefits.va.gov/compensation/resources_comp01.asp Dependant compensation information: http://www.military.com/benefits/survivor-benefits/dependency-and-indemnity-compensation.html#2
  20. Yes, the same thing just happened to my husband. We filed a claim based on secondary disabilities caused by medications for primary service connected disabilities. I swear the VA didn't read that it was secondary, since the initial denial just pointed to the fact that there were no symptoms or treatment reflected in his service medical records. Well, of course there isn't, he hadn't been taking those meds yet. No C& P exam was scheduled, so we sent in an NOD and are waiting for the Statement of the Case for details.
  21. We have claims from 1993 that are still pending after having traveled up and down the RO/BVA/CAVC remand ladder several times -- more than twice-- probably more like four. So twice is not unusual. The problem we run into is when the RO and/or the C&P examiner are unable or unwilling to follow the directives in the remand decision. The RO goes along with an inadequate exam (even after we've challenged it as inadequate), the BVA goes along with it, we appeal again to the CAVC, and they again remand everything back down the ladder. Sometimes, even IMO's won't blast things loose. The more time that passes from the original date of claim, in our case 23 years, the harder it is for examiners to evaluate the condition as it existed at the original date of claim. They use the excuse that they can't adequately opine on the condition as it existed in the past without resorting to mere speculation, while reporting on the condition as it exists at present. That, on top of the fact that their real area of medical expertise may have nothing even remotely having to do with the condition being evaluated, invites a remand.
  22. Just my opinion, but I would suggest that your doctor also explain exactly how the Xanax that you take to treat PTSD causes YOUR sleep apnea, specifically. What is it about that medication that leads to sleep apnea? Add what clinical evidence exists to back him up, like in a journal or something like that, then have him attach his curriculum vital (aka resume). VA raters who review these forms are not healthcare professionals and need things spelled out in plain English.
  23. There have been a number of veterans who have contacted me locally to talk about this process, newly engaged disabled veterans. I find that their motivation levels vary, depending on how serious they are about seeing this process through. I give them a homework list of what they need to gather for me to review. There's a little legwork involved in that, as we all know. I try to tell them where I think we can stress the strengths of a claim and shore up the weaknesses right from the start. The people who are truly invested in their success stick with me through long periods of time and all had claims granted in the end, including a few CUE's (if one wants to talk about the negative aspects of the claims process,that's a great example). I've also had people never contact me again after our initial visit, or go part of the way down the road, but decide later on that even with someone helping them carry the load, they are no longer willing to continue. Believe me, Buck, that if we had someone like you helping us way back when, we would have done exactly what you told us to do immediately. Jump? Sure, no problem. How high and how often? To one of your points, Buck, today, I received the rating denial from the Evidence Intake Center in Wisconsin re. claim we filed for which there was no C&P scheduled (waiting for the details in the SOC). I sent a formal diagnosis of ED from a board certified urologist. It said "erectile dysfunction." The EIC states there is no diagnosis of erectile dysfunction. All the Caluza triangles in the world wouldn't have addressed that issue. Boy, will my husband's urologist be surprised at that, lol. I sent the prescription list plus their side effects, which was left off the Evidence list altogether. We were told my husband completed a form to give POA to a VSO, which never happened. Plus, we were told a December 2015 rating decision was considered, Great, except for one thing -- we didn't receive a rating decision in December 2015. Not too long ago, we received a VCAA notice for a knee claim. News to us because we never filed one. My point is that these things happen, despite being well prepared. We have the tools here to deal with them. The Board and the Court exist for good reason, if a DRO review doesn't work out well for the veteran. We do the best we can at the onset, hope for the best and prepare for the worst. I don't think we disagree on that point, and admittedly, I don't have anything more to add, so thank you to everyone for allowing me to give you my point of view.
  24. I would like to add to that list Alex Graham, aka "asknod" and his blog at www.asknod.org, who often (like today) joins hadit's podcast. Today, it's at 1600 Pacific Time, 1800 Central and 1900 Eastern (Mountain Time and what Arizona does with time zones has always confused me, not meaning to ignore anyone there on purposes, lol). If you're new here and have never tuned in, please do so sometime, it gives hadit another dimension to assist you. You can call in with questions, too. Broadcasts are archived if you can't listen live. Hadit offers many research tools in its library besides this Forum to help us.
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