lotzaspotz

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.

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.

With all due respect, Buck, I don't look at individual posters here as being positive or negative. I look at the experiences they describe that they have actually had to work through in terms of being positive, negative, or sometimes a mixture of both. We can cherry pick the easier ones, the ones that flowed logically, and never speak of the more challenging ones, when we had done everything according to textbook and got shot down in direct defiance of a regulation or two in 38 CFR. Or, we can realistically describe what really happens out there. I've said many times that the more stubborn of us, the ones who spend years seeking justice more for the principle of the thing than the money (or simply because the VA seriously ticked us off), have learned to develop a strong stomach for tolerating the journey. The longer people stick around here and read our questions and answers, the more likely they will realize that these situations can occasionally get complicated and, in fact, may happen to them. I never found things confusing when I first got here, the good, bad, and even the apparently insurmountable odds everyone discussed. I found it enlightening, encouraging, and, most importantly, enabling. Hadit gave me the tools I needed to structure a defense. It's still doing that. So, what I chose to talk about here was not meant to discourage or confuse newly engaged disabled veterans from taking on what is more than likely going to be a long-term project. It's to say that if they get denied, they shouldn't blame themselves for missing something even if they've done everything right. Having a Plan B ready as I think you said is an excellent strategy and sometimes becomes necessary but, unfortunately, for all the wrong reasons.

That just means you're WAY older than I am, kiddo... (Although I do remember $.39 gas from Hess stations in the suburbs around NYC). None of the other stuff, honest!

Broncovet is right, which implies that you could very well file a well-documented claim that includes all three legs of the Caluza triangle (three prongs of what constitutes a "successful" claim), and the RO will still deny it in its rush to get it off its books. The can gets kicked down the road to the Board to let them deal with it (or not, if the veteran gives up and doesn't appeal). Still, a well-formatted claim may still be successful at the Board, hopefully enough so that the Board grants the claim instead of remanding it back to the RO for clarification. It seems like every two to three years that pass by, you can add six months to a year to the time it takes to process a Board appeal. I remember when it took around 18 months.

Kent, I'm not sure you asked a question about this, but it sounds like the RO is in the process of certifying your appeal to the Board. That can take (judging from personal experience) from a year and a half to two years. Hopefully, your RO can finish that task quicker than that but ours did not. Once the Board gets it, you'll be assigned a docket number. In the meantime, you can use this interim period to gather more evidence to support your appeal. You can do this right up until the day the Board makes a decision. However, if the Board denies and you then appeal to the Court of Appeals for Veterans Claims (which at that point removes it from VA jurisdiction and places it in the DOJ system), you cannot add new evidence. The Court can only review the evidence before the Board at the time it reached its decision. If you provide new evidence to the Board, make sure you waive sending it back to your RO to review first. That is, tell the Board you want the Board to weigh it, not the RO. Otherwise, you're lengthening the time it takes to process the appeal.

Although Board cases don't set a precedent, you may find it helpful to Google "Board of veterans appeals sleep apnea secondary to PTSD" and read the rationale the Board used to grant service connection. Here's one: http://www.va.gov/vetapp13/Files2/1316035.txt Also replace the word "grant" with "denying" to see why the Board denied service connection. You can do the same type of search at the Court of Appeals for Veterans Claims site, www.uscourts.cavc.gov, under decisions and opinions. Look for remanded (since the CAVC hardly ever grants anything outright).

You can challenge the exam based on her eyeballing ROM and not using the goniometer, as I believe is required.

Just a postscript that I mentioned my husband's sleep apnea grant because it was an example of a disability for which you'd never find evidence in his service medical records. He medically retired with over 20 years served in 1993. Sleep apnea was not clinically recognized as a disability back then, so it would not have been diagnosed or treated before 1993 (at least by the military). This is similar to the recent onset of GERD and ED resulting from meds for SC disabilities, that would similarly not be found in active duty medical records. Granted, although evidence in active duty records would make the claim so much easier to defend, it's not a deal killer if it's not there.

Yes, I read your previous post, Navy! Good for you, and that's exactly what I'll do. It's been our past experience that asking for a DRO review was merely postponing the inevitable Board appeal. However, all we're asking for at this point while we get more evidence together is a C&P exam. I think a DRO might grant that, at the very least.

Right, it's the decision letter we're waiting for, then we'll file the NOD and wait for the SOC. My husband (he's 67) was granted SC for sleep apnea secondary to meds taken for service connected conditions, prior to the existence of DBQ's in 2007. We provided the same type of evidence, that is, a prescription list, clinical evidence of secondary effects of those meds that included sleep apnea, with formal diagnosis as we did this time, and there was no C&P performed prior to the grant. I know times have changed and we didn't expect as smooth a process as he went through back then, but we at least expected a C&P. As I said, the conditions for which he's been prescribed all these meds are service connected (in lieu of occurring while active duty) - the first part of the Caluza triangle. We have sent doctors records that he has been diagnosed with conditions that require ongoing treatment - the second leg of the triangle. We have sent evidence of a clinical relationship between these meds and their side effects - the conditions for which he is being treated - the third leg of the triangle. Once I get the paperwork, that will tell me a lot more and in the meantime, I'll find out if his doctors are willing to sign DBQ's or render IMO's. It will be interesting to see if his age is going to be cited in the rationale for denial without ever having been personally examined. 38 CFR subsection 4.19 states age cannot be considered as a factor in evaluating service connected disability (except for purposes of pension), and 3.159 states that laypersons cannot render medical conclusions. As often as the VA reminds disabled veterans of that fact, it also applies to VA raters who have no medical background or credentials. Thanks, everybody!

Gastone, both doctors are board certified. One was a Urologist he started seeing a few months ago, the other a General Practioner who has treated my husband for several years. The records were of doctors visits, not IMO's, which I'll pursue once I get the SOC and can better target the rationale used to deny without an exam. We think we met the three pronged requirements of what is needed to file a claim, at least enough to argue that an examination should have been scheduled. The prescriptions he takes that we focused on were hydrocortisone, livalo, fosinopril, hydrochlorothiazide, metoprolol, and meloxicam.

My husband filed claims in late Jun 2016 for GERD and ED, secondary to meds he's been taking a very long time for service connected disabilities (pituitary tumor residuals, HTN included in the pituitary residual award, adrenal disorder, and IHD blood thinners). With his claims, we sent records from his treating non-VA doctors, a list of all his prescriptions, as well as where they're being filled (most from the VAMC here) and Rx number, plus documentation from the online sites for each specific drug that lists the possible side effects. We found out today via Ebenefits that both were denied and this was done without a C&P exam. We haven't received the decision yet, so once we get it, then file the NOD, I'll then see about getting IMO's from those same doctors once I can get a look at an SOC. I'm thinking they screwed up in two ways: assuming the conditions were strictly age related, and allowing a non-healthcare professional (layperson who was a rater) to evaluate on paper medical conditions. 38 CFR is supposed to prevent either from happening. This is the first time in 23 years that he's ever been denied without first undergoing a C&P examination. Have any of you had this happen with your initial claim(s)?

It took almost two years for the New Orleans RO to certify a Board appeal for my husband. No VSO involved.

Are you asking if you can give your private (non-VA) Doctor the DBQ form to complete that covers the disability you're claiming? If so, yes, you can establish a diagnosis that way as evidence. However, the VA may (and likely will) still arrange for you to undergo a compensation and pension exam of its own.

Most of the disagreements we have had with VARO denials have either been granted at the Board or remanded numerous times by the Board or the CAVC, so we live to fight another day. My point is you must appeal IF you have the evidence or can get additional evidence to back you up. The other thing is that at least in the case of SMC(s) (to my understanding), that award is supposed to be implied, in other words, you shouldn't have to prod the VA to give it to you. However, the truth is many vets do, in fact, ask the VA for it proactively. So, don't wait for the VA to figure out that your ratings line up under statutory authority for SMC(s), or you may be waiting a long time.

If you have one disability rated 100% schedular or TDIU rated at the 100% level (even though your PTSD is rated at 70%), plus you have an additional rating of at least 60% single or combined for an unrelated disability(ies), in this case your back and tinnitus, you should qualify for special monthly compensation at the "s" level for housebound status based on statutory authority. In other words, the statutes that guide the rating system state that these ratings in and of themselves qualify you for SMC(s). You are not required to be literally housebound. Alex Graham has a fantastic explanation of Special Monthly Compensation on his blog at www.asknod.org, and you can find discussion about it in the Forum here at hadit.

Your profile says you're rated overall 60%, but if you have a 70% rating for PTSD, 60% for your back, and 10% for tinnitus, you're rated overall at 90%. There's a big jump in compensation from 90% to 100% schedular (not TDIU), but to get there, it looks like you'd need additional ratings of 50%. That would bring you to 95% rounded up to 100%, if I'm not mistaken. That's a lot of ground to cover with additional claims. I know you said you have to continue working, but it's feasible that if you did not, your PTSD could be the reason for TDIU paid as if it was 100%, plus you would have the ratings for SMC(s), for an additional $300+ per month (depending on the number of dependents), plus you could apply for SSDI. You can't do any of that while you're working. You're having trouble with physical symptoms that are interfering with your sleep, your mood, and your ability to continue working. If your goal is to reach 100% and then quit work, that's going to be a difficult road to travel on a schedular basis. I'm also thinking that the fact that you're still working is possibly what is keeping you from being rated 100% schedular for PTSD (not TDIU). Others will chime in here if I'm missing something, but unless you can get additional ratings of at least 50%, TDIU and SSDI would be the way to go. Take a look at the rating criteria in 38 CFR for sciatica and insomnia, secondary to service connected back disability. Is there any chance your spouse could work outside the home and you could handle management of home and family while TDIU and SSDI applications are pending?

This is a common event, to have your claim routed to an RO that may be less backed up than the one in your state. I've seen Louisiana claims handled out of Oklahoma, for instance. As for the ebenefits question, I don't know the answer, but I would imagine it's a matter of what they choose to program in to track. As long as you're aware of where your claim is being handled, as reflected in correspondence to you, that's the most important thing.

Yes, I think we're done here. Sometimes enough is enough. I've got RU set on "ignore," which I should have just done to begin with. So easy -- hit the button and everything past, present and future just disappears as if it never happened and never will again...

He did more than question Berta's knowledge. He said that since she's not a veteran, she doesn't know what she's talking about. OK RU, how many disabled veteran spouses does a wife have to lose before she has the right to say something here? Who the hell do you think keeps things running when our vets are laid up or can't put one foot in front of the other for whatever reason? Who took care of the kids, the schooling, holidays, homework, etc. while you guys were deployed so you had something to come home to if you made it back home at all, something else that hung over our heads all the time? Don't whine here about not knowing what you go through. The fact that we spouses have had to almost become lawyers ourselves to protect our vets and our families is the reason we come here. Just maybe, like Berta, we've picked up some valuable knowledge along the way that might help others. That's what we do here. We help others, we don't tear them down and demoralize them. This BS about "you're not a veteran, you don't know what we go through...." is unacceptable. And one more thing -- for God's sake, get a dictionary or learn how to speak in complete sentences. I need an interpreter to make sense of most of your posts, and the ones I can understand, lately anyway, are void of any constructive or productive thought.

Instead of "weight gain may be due to...." it would be much better to phrase it, "weight gain is as likely as not (or more likely than not) due to...." As likely as not means a 50/50 chance, in which case the benefit of the doubt goes to you. More likely means the majority of the evidence is in your favor. My husband was awarded OSA due to weight gain from secondary effects of medication prescribed for a service connected adrenal disorder. He medically retired in 1993 with over 20 years served, and OSA back then wasn't a recognized disorder, so no one would have been testing for or diagnosing it. He filed the claim in October 2007, and it was granted with that effective date. So, as much as an in-service diagnosis would certainly improve the chances of the claim's approval, it's not absolutely necessary.

Anytime I've had to talk to the RO or BVA about a claim or appeal we've filed for my husband, he has to get on the phone first with ID information and then give them authorization to talk to me. Then, he hands me the phone. Otherwise, I'd be shut down immediately, as well I should be. I can't imagine that the VA would have the conversation with your ex that you've described. If the VA ever has any issues with you of any consequence, you'll get a letter, I'm pretty sure about that. Better maybe just to say to her thanks for the info and then change the subject, if you have to continue to talk to her at all. If she's your ex, she has no legal relationship with you and the VA would most likely recognize that fact, so to discuss anything pertaining to your status with her would be inappropriate and possibly illegal.

I would like to ask if any of you have a rating above 0% for a ventral hernia but were not prescribed a belt or truss. Thanks!

Contact the BVA and let them know about this. They can send that portion of the directives the RO did not follow back to the RO for proper handling. Cc the RO on that letter, too.