VetlawUS

Mark, One thing I noticed in that private opinion is that the doctor didn't review your C-File. That's one of the reasons that the BVA will "discount" a private medical opinion. Get him a copy of your C-File and have him include the statement: "I reviewed the Veteran's C-File in making this opinion". It's one of the "Magic Words" that needs to be in a Private Medical Nexus Opinion. As to your other question, this gets a little trickier. When a C&P doc identifies a "new" condition that could be related to your military service, but the VA does not address it in a Ratings Decision, you might have what is known as an "Inferred Claim". Generally, an "inferred claim" is one that is not SPECIFICALLY raised by the Veteran, but is "reasonably raised" by the facts in the record. The VA routinely ignores "inferred claims". The process allows you to do 2 things, and I do BOTH when representing my clients: #1: Include the Inferred Claim as part of your current appeal. If you still have time on the 1year clock, even though you have filed a NOD, file what I call a "Supplemental NOD". #2: File a "new" claim for secondary service connection (or service connection based on aggravation) on the additional condition. That way, if they deny it in the NOD "track", you have a second "track" to continue your claim. You can always argue for the earlier effective date later, too. Hope this helps. I wanted to give helpful information about the process, without leading you to believe it is legal advice (which is not).

In talking to doctors and reading medical journal articles while I prepared to publish my Sleep Apnea book, "Put it to Rest!", I learned that the connection between Diabetes and Sleep Apnea is still being developed. However, there is a lot of evidence that is showing 2 things: 1) there may in fact be a causative relationship between Diabetes and Sleep Apnea. From what 2 docs and a couple studies taught me, the body's sleep function helps to regulate the levels of sugar (glucose) in the blood. Decreased sleep can increase blood glucose. 2) In some Veterans with certain types of sleep apnea, the sleep apnea itself can render the insulin largely useless. This is a bad situation to be in, for obvious reasons. If you have diabetes AND sleep apnea, ask your treating physician if they can test to see if they are related in any way. Of course, ask a C&P doc - tell them in writing before your exam - but don't expect them to be up to speed on the more nuanced medical research. These docs mostly still believe that leeching is the way to cure medical ailments. Here are a couple posts from the Veterans Law Blog about Sleep Apnea claims: 3 Powerful Ways to Improve your Sleep Apnea Claim and Maximize Your Rating A Tale of Two Cases: Why 1 Veteran Won a Sleep Apnea Claim and the Other did Not. Chris

As of right now - August 4, 2014 - the VA Form 21-0958 is not mandatory.....it is, however, "strongly encouraged". Why? Because this form allows the BureaucRATs at the VA to more easily type your disagreement basis into the VBMS system (through which all claims are eventually going to be processed - its just a big insurance claims case manager). There are 2 things you want to keep in mind when filing a NOD on VA Form 21-0958: 1) I have found that NODs and DROs are processed more quickly using this form. 2) There is not enough room on the form to properly argue your case....which I believe is essential to prevailing at the DRO level. If you can't make your case to the DRO in writing, then the DRO may not even hold a formal or informal conference. What we do at my firm is, anywhere they try to restrict our ability to communicate in the 21-0958, include the phrase "Please see continuation pages # through #, incorporated by reference as if appearing herein in their entirety". Then, I typically add a 3-8 (or more) page brief labelled "Continuation Pages to Notice of Disagreement, incorporated by reference therein". Here are a few more quick tips and blog posts from the Veterans Law Blog on filing a NOD, as well as dealing with a DRO hearing: VAs New Notice of Disagreement form: A Band-Aid for a Broken System. Quick tips on Filing a Notice of Disagreement. "To DRO or Not to DRO...." What to do when your DRO acts like a child. "If I see another VA Form 21-4138, I'm going to....." Chris

I would be very interested in knowing if Dr. Anaise's reports are helpful. He has been calling my firm a lot lately. We are usually very careful about what experts we use - so the VA doesn't "burn" them. Please share more feedback on Dr. Anaise on or off list. You can always reach me through a "Mail Call" submission on my site. As for the cost, our overage fee is usually in the $150-$1500 range, although the cost varies widely depending on a few factors: 1) level of expertise required (a forensic pathologist for an accrued benefits claim can easily reach the 5 figure range, whereas most audiology reports/exams are going to be around $150). 2) How much time needs to be spend educating the doctor on how to write an opinion for a VA claim - this is MUCH different than the other types of reports that are written for other types of cases because our "Burden of Proof" is so low. If you get an independent medical expert, don't forget these "Magic Words" Chris

From your story, I am seeing some indicators for the cluster symptoms for GWI. (I'm not a doctor, of course, but your case sounds similar to other PGW cases I've handled). You probably know this, but GWI is covered in the regs at 38 CFR 3.317. Here's a general methodology that my Firm uses in GWI Cluster Symptom cases.... (Quick Caveat: keep in mind, this is not legal advice, and no post by me in this forum can substitute for legal advice from an accredited attorney. This is just meant to educate you about the procedural steps involved in claims like this) Here are the procedural steps my firm follows in GWI Cluster Symptom cases: 1) Document every symptom and limitation you are facing. I say "screw the 21-4138"....my attorneys and staff use the Sworn Declaration form (linked below). Here's why I say "screw the 21-4138". 2) Have anyone that you know - spouse, friends, co-workers - document the symptoms and limitations that they are witnessing. Consider using the Sworn Declaration my Firm uses. 3) Get a copy of all of your military service medical records - and all of your post service treatment records (VA and private) 4) Get a copy of your VA Claims File. Here's what that is and 3 ways to get it: 5) Take those to your primary care provider - or better, a medical expert - and request that the a medical opinion as to whether these symptoms are a diagnosed condition, or whether they are cluster symptoms which evade diagnosis. Ask that he/she specifically opine whether the "cluster symptoms" are related to your military service. And don't forget to ask that they use THESE "Magic Words" in their opinion. Hope that helps. Sorry you are going through all that. Chris

That's a really broad question, but let me see if I can help steer you on the right path. The VA is supposed to consider ALL evidence when deciding a claim. This includes both Lay and Medical Evidence. Lay Evidence has a PURE RAW POWER that no other evidence has in a VA Claim (click the link to read more) The analogy I make is this: Lay Evidence is the Bullet (click to read more) Medical Evidence is the Rifle. Using one without the other has the effect of making your evidence less valuable or in some cases useless. On the Veterans Law Blog, I talk about using "5-Star Evidence" - evidence that is probative, material, relevant, competent and credible - to prove up a claim. If the VA, or the BVA, fails to consider all of the lay or medical evidence favorable to the Veteran, this should be included in your Appeal. Filing a CUE claim is a "hard row to hoe", particularly if you have an easier path of filing an appeal within the one-year appeal period. The key, in my mind and experience, has been to load your claim with Lay Evidence of symptoms and limitations, and "fire it downrange" with Medical Evidence that considers and talks about that Lay Evidence. And hold the VAs feet to the fire by filing a NOD any time a decision fails to consider ALL the favorable medical and lay evidence in the C-File. Hope that helps. Chris

Thanks...let me know how I can make it BETTER!

We request DROs in every single case, with the exception of one case. Here's my thoughts pro/con on the DRO process. Like another poster said, if you have your ducks in a row, you can usually resolve the case right there with the DRO. Here's how I (generally) approach a DRO hearing. Even though the waiting list for DRO is 6 months to 2 years (smaller ROs have shorter wait times), if you skipped it and went for a BVA hearing, you would still have to wait 1-2 years on remand while they develop the evidence. The official statistic is that between 2-5% of cases get resolved at the DRO conference. My experience is that it is much higher. Keep in mind, if you have a medical or financial hardship, request an expedited DRO hearing. Most ROs will bump you up on "the list". Chris

There are 2 types of TDIU - schedular and extra-schedular. I explain the difference between the 2 types of TDIU here. One of the key things to prove in a TDIU claim is the concept of "substantially gainful activity" - learn what that term means here. Make sure you get a TDIU application on file WHENEVER you think that your SC disabilities render you unemployable, regardless of the percentage you are currently rated at. A recent non-precedential decision by the Veterans Court reopened the possibility of extra-schedular TDIU for Vets with any rating - read about the Bennett Case here. And learn how Lay Evidence can help corroborate your TDIU claim here. Hope this information helps! Chris

That does not look right to me. I see this all the time: the examiner marks symptomatology for PTS and other mental health conditions, but assigns a rating that is not consistent with those observed symptoms and limitations. We just started working with a client who had something VERY similar happen - symptoms documented by the Examiner support a 50% rating, but the rater only gave a 30% rating. Why do they do this? Raters aren't medically trained, and I believe take a gamble that most Vets don't know that they can appeal the determination of an Impairment Rating through a Notice of Disagreement (NOD). The solution: file a NOD asap and challenge the low ball impairment rating. Here are a few blog posts to help get you started: 1) Read more here about the "Mystery of Impairment Ratings" 2) Here are 6 ways to challenge the C&P Examiner's evaluation. (These are NOT the only ways - just some common challenges we make in our cases). 3) Here are 8 Tips for making sure that the VA didn't "low-ball" your PTS rating (the theory is the same for all mental health conditions, as they use the same ratings table regardless of the actual mental health condition service-connected). 4) Read about the Mauerhan case: it is one of the 10 Cases Every Veteran should know - and it is an admonishment that in mental health rating, the VA MUST consider factors outside the Rating Table that impact a Veteran's occupational and social limitations. Hope those help! Chris

There is no published standard on how long remands should take. The Veterans Court tells us that there should be "expeditious treatment" of remands, but as many have mentioned, that rarely happens. Here's what my Firm does: On Remand cases, if no movement in 6 months, we start papering the file to gear up for a Writ of Mandamus. The process generally involves 6 months of documented contacts, so it means waiting almost a year. I'm not the biggest fan of the Writ, only because the Veterans Court has granted only a small handful in the last 30 years...they seem to be "okay" with a process that takes years and years and years. (I'm hoping to change that, over time). If you decide to file a Writ, here is some important information to consider.. Another Tool: The Writ of Mandamus in VA Claims and Appeals

I've been at this for 7 years (representing Vets), and I've never met many of my clients. This can be a good thing - it typically means we got the case resolved through a telephonic DRO Conference (or without need for a hearing in the first place). This saves my clients money (the only costs our clients pay AFTER they win are travel costs and expert fees). However, if my client has a DRO Conference or BVA hearing, I will be there in person and will meet my client. I also have told my attorneys that they are to contact every client we have at least 2 times a month - the first time to see how they are doing, and the second time to tell them what we have done in the claim. Also, I wrote a FREE ebook that has the "8 Things Every Veteran Should Know Before Hiring An Attorney"....including 8 things you may not know about attorneys that represent Veterans, and a 25+ question checklist to make sure your attorney knows what the heck he/she is talking about. Here's where to get a FREE Copy of "8 Things Every Veteran Should Know Before Hiring an Attorney."

For TDIU purposes, the TYPE of occupation is largely irrelevant (though there are situations where the type of employment might be an issue, these are pretty rare, and mostly have to do with high-wage professions). The key issue, in a TDIU claim, is how much you earn from an occupation. The key phrase, at least for Schedular TDIU, is that the service-connected conditions must preclude participation in a "Substantially Gainful Occupation". Read more about what this phrase means on the Veterans Law Blog: Vague Rules make for Unfair Treatment: Substantially Gainful Activity in a Veterans IU claim. Chris

I've been representing Veterans at VA Regional Offices around the country for 7 years, and NEVER have heard of a Reconsideration of a Ratings Decision. This concept has been popping up a lot the last year, and so I wrote about it on the Veterans Law Blog: http://www.attiglawfirm.com/move/reconsideration-va-rating-decision-appeal/ I have asked every VSO that says there "IS" a Reconsideration process to point me to the CFR cite that allows it, or to the VA Procedures Manual (M21-1MR) that lays out that process, and nobody has ever been able to show it to me. I suspect that what VSOs are calling a "reconsideration decision with new evidence" really a "reopened claim with new and material evidence", and that VSOs are talking Vets into doing this to boost the VSOs numbers (on paper) showing how many claims that they handle, but I'm just speculating from what some VSOs are telling me. If you have New and Material Evidence, and it is DURING the one-year appeal period, file a NOD. NEVER try to reopen a claim that is still appealable - it's the surest way to LOSE your earlier effective date. The ONLY way to protect your original filing date for past-due benefits purposes is to file a Notice of Disagreement within 1 year of the Notice of Action Letter delivering the rating decision. Chris

After reading your post, you have an issue you need to deal with first before you spend the money on an audiologist or medical opinion. If they are denying your claim on the grounds that your hearing loss pre-existed service, then you need to clear that up. The VA frequently denies claims on these grounds - and they FREQUENTLY screw up the presumption of soundness. Unless your MEPS doctors conducted a hearing exam that showed a LOSS prior to service, then you are entitled to the Presumption of Soundness, and the VA can only rebut that by showing: 1) That your hearing loss was NOTED on a MEPS physical exam, and 2) That your military service did NOT aggravate the hearing loss. What they are doing is what the Courts laid into them for in the Horn v Shinseki case. Read about it here: http://www.attiglawfirm.com/8steps/step3/va-presumption-of-soundness/ and here: http://www.attiglawfirm.com/shoot/veterans-disability-benefits-in-horn-v-shinseki-the-court-of-appeals-for-veterans-claims-cavc-calls-out-va-on-failure-to-follow-the-law/ Make the argument that you are entitled to the presumption of soundness in line with the Horn decision, then attack their Compensation and Pension Exam opinion using these tips and tools. http://www.attiglawfirm.com/move/va-c-p-exam-results/ Most important - whatever expert you get, make sure that they review the entire C-File, and the C&P Examiner Opinion, and discredit the C&P Examiner's opinion. The VARO may ignore all that, but the BVA likely will not. Hope that helps a bit....from what you are saying, you have to kick out that "pre-existing condition" argument before any expert opinion really matters. Chris