VetlawUS

Vern - sorry we couldn't help you. There are so many Vets needing help that we have to make some tough decisions. Every quarter, I'm able to take more cases, but getting attorneys trained to do this work - the RIGHT way - is hard and takes time. We just hired an attorney whose brother was killed at Fallujah, and she is on a mission to get Vets better representation...and I'm scouting law schools and the ranks of small and solo attorneys for the talent to hire in quarter 3. That doesn't soothe you, I'm sure - I'm sorry we couldn't help in your appeal. Everyone else.....what VA Form should I screencast next?

You can always check your C-File to find out whether the military put the sleep study in the records it gave the VA. It is my experience that the branches don't always give everything to the VA in terms of Service Medical Records, and even when they do, the VA is selective about what SMRs it puts into the C-File. So, if you ARE denied, my thinking would be: 1) Get your C_File and verify that the the Sleep Study was included. 2) Look at the C&P Exam to see if the examiner had the credentials to make the decision 3) Look at the evidence list in the VA Ratings Decision (the newer VARDs don't seem to have this sometimes) to see whether the VA even considered the Sleep Study from active duty 4) Make sure your in-service diagnosis and post-service Sleep Apnea are the same...there is a type of Sleep Apnea called "Treatment Emergent CSA". It presents as OSA, and when the Vet starts using a CPAP, the symptoms don't get better or worsen, indicating that you have CSA not OSA. The VA doesn't get this, and will frequently deny on the grounds that they are different conditions. If you get denied for Sleep Apnea, here are a few ways to start figuring it out, from posts on the Veterans Law Blog: Winning Sleep Apnea: A Lawyer's Case Study What DRIVES Your Sleep Apnea Claim? The Holy Grail: Is There an Easy Path to Winning a Sleep Apnea Claim? Good luck and keep us posted!

A Veteran gave me permission to "Screencast" his Statement of the Case (SOC), so I could explain to y'all how to read and understand this form. Take a look at this Screencast video, and tell me if it is helpful - if so, I will make a ton more of them for y'all. Screencast Video: How to Read a VA Statement of the Case (SOC) Chris Attig Veterans Law Blog

One of the many myths about Sleep Apnea is that you need to be obese to have the condition. This is HORSE-S**T .... that's industry jargon. There are 3 different types of Sleep Apnea, and over 39 conditions that cause or are caused by Sleep Apnea. If your Primary won't refer you for a sleep study, go get one on your own. I have spent years researching the Sleep Apnea problem in the Veteran's population, and have written a book explaining to Veterans how to prove their Sleep Apnea Claims. Here are some posts to start you off: Sleep Apnea Archives on the Veterans Law Blog. Good luck....click here to visit the Veterans Law Blog on Facebook - and ask me any questions you have. I am happy to teach Veterans anything I know about Service Connecting Sleep Apnea. It is causing HUGE problems in the Veterans Community, especially as Veterans age and don't get treatment.

Hey all, would love your feedback... ....I wrote 3 posts giving 10 Tips on getting ready for a C&P Exam. Here's Post #1: 10 Tips to Help You Keep the C&P Exam in Perspective. Here's Post #2: Dealing with the C&P Exmainer. Here's Post #3: Paint a Picture when Talking to the Doctor. Would love to hear from ya'll....tell me what I missed, where I can do better or give more info.... .....I'm writing another Field Manual for the Veterans Law Blog called the "C&P Exam Field Manual", and I'd like to address as many of your concerns, fears, needs, etc., as possible, to make it the best resource available. Read the posts, and comment here or directly on the post page on the Veterans Law Blog. Thanks, Chris (Veterans Law Blog)

For those asking about the Evidence Intake Center....the EIC...I had a chance to tour the Newnan Georgia facility 6 weeks ago. Here is my first installment in a 3 part series about the EIC, their role in the nationalizing of the VA Benefits system, and (in post #3) tips and pointers to effectively communicate with the VA through the EIC. Get your DBQ to the EIC ASAP to get a VARD that you can NOD.

NEVER change the claim ... just add the additional theory of service connection to the existing claim. When you start using words like "change", the VA starts to hear "withdraw", and then your claim goes into the deep dark hole in the bottom of the Winston Salem Regional Office. The best approach is to assert ALL bases for service connection in your original claim - there are 5 Paths to Service Connection. Read about the 5 Paths to Service Connection on the Veterans Law Blog: Service Connection is like a Bridge....

The VA's Regional Counsel has been telling VA Doctors for years not to fill out the DBQs, because they are a conflict of interest between the VA's interests and the Veterans' legal claim....this is BS, in my opinion, as the system is supposed be "non-adversarial" to the Veteran, so there is no "conflict" That said, there are quite a few VAMC docs that have the backbone to support their patients. Ask your VAMC PCP or Specialist, and if they say no, don't push. If they say yes, ask for the copy so you can submit it, that way they don't put something harmful into the DBQ and send it directly to the VARO. As to private docs, the VA will honor DBQs prepared by private doctors - in many cases they carry as much weight as a written IMO - but typically only on the impairment rating question. It is difficult - in my experience - to get the VA to accept a DBQ as proof of "nexus", but much easier to use a DBQ to establish an impairment rating. Here's some more pros and cons on the DBQ in a post on the Veterans Law Blog. And....a little off topic....but DON'T FORGET to challenge the credentials of VA C&P Examiners that give you a bad opinion:

Y'all....I know there is a lot of doubt about the current leadership, but here's a story I shared on the Veterans Law Blog about how the leadership helped me to get a Veteran taken care of.... The Blessing and Responsibility to Take Care of Others - A Vision that Could Shape a New VA I have not doubt that the top of the chain is trying to help....and we are getting more and more calls and emails from the bottom of the chain - the Raters and DROs and Appeals Coaches. It's the middle management - the career bureaucrats - that are not helping. If McDonald and Hickey can clear out the dregs from the Career Bureaucracy ranks, then we may have a chance at a better VA. Just my 2 cents.

SMC is an inferred issue in EVERY 100% rating - there is a section in the M21-1MR that discusses this requirement. So, if you have a 100% rating, and the VA fails to consider SMC , this can be a valid basis for CUE (if you have no more time to appeal the Ratings Decision that failed to consider the SMC. Just make sure that you can PROVE you are entitled to the specific SMC you seek - in a CUE claim, if you can't show that the "outcome would have been different" (even if the VA did make a clear and unmistakeable error) than you will not win.

Please don't fall for this Reconsideration "advice" - I have seen more Vets lose more money by listening to VSOs give this "advice". Please read these posts on the Veterans Law Blog that explain why: There's no such thing as Reconsideration at the VA Regional Office Following VSO advice on "Reconsideration" is Flushing Money down the toilet.

You said he was RECENTLY given 50%. You have 1 year from the date of Notice of Action Letter to file a Notice of Disagreement (NOD) to appeal that grant of 50% and argue it should have been 70%. NEVER reopen a claim when you still have time to appeal. Why? 1) If you reopen, 2 things happen. First, the VA gets confused as s**t....you can't reopen something that is still "open" for appeal. So the claim will sit for at least a year until they are sure it is not an appeal. THEN...they will treat it as a Claim to Reopen - which, for a change in rating will be claim for increase....you lose the original effective date if you win. Check this hypothetical timeline out: 6/1/2013: Original Claim 12/1/2014: VA Decision Granting 50% 2/1/2015: "Claim to Reopen" because you think the rating should have been 70%....the EARLIEST effective date you will get, if you win, is 70% back to 2/1/2014 (one year before the claim for increase).....that means you lost about $2,200 in past due (difference between 50 and 70% from 6/1/2013 to 2/1/2014. If you file the NOD in 2/1/2015, and win the argument that it should have been 70%, you get the 70% all the way back to the original claim date: 6-1-2013. Here are some Quick Tips on filing the Notice of Disagreement from the Veterans Law Blog....there is a TON more info about the NOD and DRO process on the Veterans Law Blog.

Here's the thing about "BVA Appeals" - the game is in the process. To get a BVA Hearing, you need to be on the BVA Docket. To get on the BVA Docket, the VA Regional Office needs to "Certify" your appeal to the BVA Who "Certifies" your appeal to the BVA? The VA Regional Office. They cannot by law certify your case without a NOD, a SOC, and a Substantive Appeal (can/should be on VA Form 9, but doesn't have to be). The BIGGEST delays in certifying appeals are caused by 2 things: 1) The VARO sits on the case after receiving the substantive appeal. 2) The Vet keeps filing "reconsideration requests" or new NODs, splitting the claim into multiple tracks. The VAROs almost always take an "all-or-nothing" approach to certifying appeals to the BVA. How do you fix these problems? To Fix #1: USE the DRO....if they aren't going to grant your claim/appeal....ask them to quickly issue a SOC, tell them you'll immediately return the VA9 (Substantive Appeal), and ask if they will IMMEDIATELY certify your appeal to the BVA. Most DROs LOVE this...it gives them a s**t-ton of work credits for taking up to 3 actions on a case in less than a week. Read more here on the Veterans Law Blog: 3 Ways to Win at the DRO Hearing. To Fix #2: Think through the "big picture" of your appeal....sometimes it is worth it to let the DRO deny one claim if it means that it - and the bigger claims - will get certified to the BVA quicker. I see a TON of Veterans that will spend years bickering with the VA about C&P exams for a tinnitus claim that will get them 10%...meanwhile, the Sleep Apnea claim that will get them 50% sits...waiting for the tinnitus bickering to stop so it can get certified to the BVA. Do whatever you can to avoid having a single claim for SC of multiple conditions split into multiple appeal tracks. This is a hard concept to explain....I'm going to try to tackle it on the Veterans Law Blog soon. Chris

Once you file an Appeal (Notice of Disagreement) the "Fully Developed Claim" process is no longer available. In fact, my experience has been that the FDC process is only useful to those Veterans that know this process and what to submit to develop their own claim. As for getting a VSO, that is just one of the types of representatives you can choose - VSO, attorney, accredited agent, your Uncle Bob, etc. Spend some time on choosing a representative - I have resources on the Veterans Law Blog to help you learn how to choose the best advocate - VSO, attorney, agent or other - for your VA Claim. Here's a few posts on the Veterans Law Blog to help - in addition to the awesome support of the Hadit.com members: Representation in a Veterans Claim - the Choice that is Often No Choice at All. Choosing an Attorney in your VA Claim Means Knowing Which Questions to Ask. Fairy Tales About VA Claims Lead to Bad Advice. What if your VSO did THIS to you? (Know your VSO).

A few points: 1) Service Records SHOULD be in your C-File, but the VA does not always include your entire Service Record file - they sometimes selectively remove portions that they deem irrelevant. Most of the time, they are wrong. 2) Also, ALWAYS request your service records from the Archives every year or so. Why? Military units are constantly archiving old records and so your files can get updated with additional information from time to time. 3) If you are filing a claim to Reopen a previously denied service connection claim, getting your service records can make the difference between your original effective date (the date of the original claim) or a later effective date (the date of the reopened claim). Read here to find out more about how newly discovered Military Service Records can affect the effective date in a Reopened Claim. We make a point to request updates for our clients every year or so, depending on the issues in the claim (once service connection is granted for all the medical conditions you seek, the service records become largely meaningless).

Congrats on your Win!! Reading stories like this are EXACTLY why I started the Veterans Law Blog: I wanted to see more Veterans win their own claims and appeals without having to dump thousands into attorney fees (unless they wanted to, or unless they have one of those hard to win cases that demands a lawyer). Too many Veterans are being forced to make the choice between 3 options: 1) A VSO that doesn't know a C-File from a C-Clamp 2) An attorney that is charging 20-30% contingency for one letter at the tail end of your claim 3) Wading - unrepresented - through a complex claims system. A little bit of information is a LOT of power in your VA Claim. Way to go...if you think to, let me know what posts helped you the most so I can get MORE published like that. Seriously - the Veterans Law Blog is for Veterans - tell me what you need to know. Email: Support@veteranslawblog.org

Y'all put this in EVERY NOD, and I can make some serious arguments at the Veterans Court if you get denied. The problem is that so many Vets fail to challenge these crappy C&Ps, but the law requires that you "articulate specific concerns" with the quality of the exam or the examiner. That's like telling blind man that he can have a million dollars if he just tells you how many fingers he's holding up. The language should be in every NOD and VA Form 9, and when you hire an attorney at the Veterans Court, make 'em fight to get the Docs credentials in the RBA...this "Junk Science" has got to go! Here's the whole post: Like Ants to a Picnic, Junk Science Invades Most C&P Exams.

If the VA is telling you that requesting your C-File under FOIA is delaying your claim they are lying. ALL VA Regional Offices are working in the Veterans Benefits Management System (the VBMS)....their computerized database of records. VAROs are not working in the paper anymore. The only reason that Vets don't get their C-File under FOIA is that they don't follow through on the appeal and the lawsuit. My firm routinely files FOIA lawsuits when the VA fails to deliver C-Files in the appropriate time limits...the result is a decrease in the time it takes to get a C-File. You want your C-File? File the FOIA Request. If they don't deliver, file the FOIA Appeal to OGC. Then, file suit in Federal Court. You'll get your C-File...and future FOIA requests (we update for our clients every year)...responded to timely. How to Get your VA C-File

NVLSP refers court work to accredited VA attorneys who work the case at the Veterans Court. Some of the attorneys are top notch, others are brand new. Some have years of experience, some have minutes of training. NVLSP will give them a summary of your appeal, and in my experience, they are pretty good. However I have seen a couple pro bono attorneys lose cases that I think should have been won because they were too scared to vary from the script. NO ATTORNEY that works at the Veterans Court should charge you. If we substantially prevail (which 76% of the time means a remand, and less than 10% of the time means an outright win), we are paid by the VA from the Equal Access to Justice Fund. My advice? Talk to at least 3 different Veterans Court attorneys before you consider hiring one. There are a LOT of good - and free - options. Nothing wrong with NVLSP...just saying that they aren't actually your attorney, they just typically farm it out to attorneys in their network. You have choices. Here's some links from the Veterans Law Blog..... 8 Things Veterans Should Know about the Veterans Court. Choosing the Right VA Disability Attorney Means Knowing What Questions to Ask.

Would like to hear more about Vets experiencing REM Sleep Behavior Disorders. My Firm is looking into reports - from outside and from our own clients - that this is a huge problem for all Vets, but primarily post-9/11 Vets. Read my post about the serious implications of an REM Sleep Behavior Disorder on the Veterans Law Blog. I'd like to hear what other conditions Vets with RBD have that are already service connected, the symptoms they are experiencing, and how the VA is treating them in claims for service connection of RBD. Post here, or on my blog, or come visit my new Facebook page for Veterans with Sleep problems. Chris

The simple formula that I use in my client's sleep apnea claims (and that I teach in my book) is this: A: Understand the full scope of the Diagnosis B: Select multiple paths to service connection C: Load the file with lay evidence of symptoms and limitations from service to diagnosis. D: Tie it all together with the right kind of medical evidence - for both nexus and rating. It's not easy, but it's a pretty simple approach that works almost every time. Why? Because I believe that Sleep Apnea is the big medical issue that Veterans will face for the next 30 years. For those of you that don't know, I am the author of the one and only Comprehensive Guide to VA Sleep Apnea Claims...it's only available as an eBook right now...but it's a monster. 165 pages....spent 9 months researching and writing it...talked to hundreds of Vets, read thousands of cases/denials, spoke to a dozen or more doctors, and put it all together into one comprehensive guide. I'm not here to pitch my book, but if you're interested, read a little more about it here. 1) The thing that DRIVES your Sleep Apnea claim is the diagnosis. Why? There are 3 (arguably 4) different types of Sleep Apnea, and each of them have VERY different causes. If you have Central Sleep Apnea, and try to argue that it was caused by a deviated septum or nasal injury in-service, you will likely not win. Why? This is like arguing that the power in your house is off because you didn't pay the water bill. 2) Once you know the specific type of Sleep Apnea that you are diagnosed with, you have multiple points of attack in a Sleep Apnea claim - there are 39 medical conditions (that are frequent among Veterans) which are known to cause, be caused by, or aggravate, sleep apnea. That's 3 different paths to service-connection right there. 3) You do NOT need a sleep study in service, or a diagnosis in service, to service-connect sleep apnea. What you need is lay and medical evidence tying together the past and present symptoms, limitations and diagnosis. Hope that helps. Chris Attig www.VeteransLawBlog.org

When you say you want it uploaded online, to which database? BVA Decisions database, Veteran's eBenefits, Lexis?

There was no claim to "reopen"....a claim is only final and "reopenable" when the 1 year appeal period has passed. When you added new evidence to your file in October 2013, because it was within the one year period to file a NOD, you "technically" tolled the time to appeal under 38 CFR 3.156(b). However, that is a dangerous route to rely on...the VA routinely misses that regulation. Protect yourself: file the Notice of Disagreement before the 1 year deadline to absolutely preserve your earlier effective date. Ask for a DRO Conference BEFORE the issuance of a SOC - the DRO that will review your case is on the same team as the Rater. In my experience, the rating activity does not stop in this scenario because frankly, they were not rating it. They denied it. In their mind, even with the new evidence, there is nothing to rate. Even if it did, calculate how much past due you will lose out on by NOT appealing: multiply the $ amount for the rating you are trying to get by the number of months you already have in the claim. If you miss filing the NOD by "reopening" a claim instead of appealing it, that is how much $ you are leaving on the table. Weigh that against the extra 6-9 months for a DRO conference, and a good chance of winning at the DRO if you play your cards right, and most Veterans financially LOSE by listening to VSOs that say "don't appeal, it will delay your claim". It's the biggest con in the VA, if you ask me. Plus, going the NOD + DRO route is more likely to get you a favorable decision. DROs are the senior raters; I'd rather have a senior rater look at my appeals than have some wet-behind-the-ears "noob" rater deny my claim because they don't know the difference between PTSD and PE. Read more about NODs and DROs here from the Veterans Law Blog: Quick Tips on Filing the Notice of Disagreement Don't Fall for the "Reconsideration" Trap - file a NOD! To DRO or Not to DRO - That is the Question.... 3 Ways to Win at the DRO Conference. What to do When your DRO Acts Like a Child.

The VA is required to consider SMC if they grant a "total and permanent" 100% rating. If they do not consider it - DO NOT FILE A CUE CLAIM (unless you have no other legal recourse ... i.e., your appeals are final, and you have no ability to reopen). A CUE Claim should be a claim of last resort when there are no options left. Instead, if you are within the time to file an appeal (1 year from the Ratings Decision) file a Notice of Disagreement appealing the denial of SMC in the Ratings Decision that granted a 100% P&T rating. If you are not within that time, file a claim to Reopen to consider SMC...wait til you get the SMC, then file a NOD challenging the effective date using the argument that the VA should have inferred SMC from a grant of 100% permanent and total disability. Only after losing all those appeals do I think it wise to file a CUE claim. Here are a few posts from the Veterans Law Blog to help out: Read about CUE Claims - and what makes them difficult and dangerous - here. Here is some basic information about what goes into a Notice of Disagreement. Failure to decide "inferred claims" like SMC is one of the Top 5 Most common errors that the BVA makes. Hope the answer, and the links, help. Chris

The key thing that the VA needs to see in a DIC application is that the service-connected condition was a contributing factor in the Veteran's cause of death. It is important to note that the service-connected condition does NOT need to be the SOLE or the PRIMARY cause of death...it only needs to be a contributing factor. The cleanest way to do this is to make sure that the death certificate identifies the service-connected condition as a primary or contributing factor in the cause of death. In some cases, we have had a Death Certificate amended to add a service-connected condition as a contributory cause of death - but be aware, the VA will challenge the credibility of an amended death certificate - seek the advice of an accredited VA attorney if you plan to have the death certificate amended. If the death certificate does not clearly show that a primary or contributing cause of death was the service-connected condition, then you will likely need a medical opinion that shows that the service-connected condition contributed to the cause of death. Here is some other helpful information about DIC Claims: What Survivors need to Know about DIC claims. The VA has a Duty to Assist Survivors in a DIC Claim. Don't forget to include an Accrued Benefits claim when filing for DIC. Don't forget these "Magic Words" in a medical "nexus" opinion. Hope the posts help. Chris